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Chad Ruback, Appellate Lawyer
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My Review of a Mexican Traffic Stop

As with all vacations, I had mixed feelings that this one was ending.  I had a wonderful time, alternating between relaxing at the Cancun hotel with my extended family (including five young children) and taking day trips with my wife in our rental car.  But I can never fully squelch my type-A personality, and I was looking forward to getting back to my office to conquer the paper which I had left in neat piles on my desk.
My wife and I left the hotel at precisely 6:00 AM, consistent with the plan we’d made the night before.  We always allow extra time to get to the airport “just in case,” and we always comment to each other upon arrival at the airport that this “just in case” time has never really been needed.  There would be no such jokes today.
A few blocks from our hotel, we saw a police car with its flashing lights lit.  I didn’t think anything of this because, unlike in the U.S., police cars in Mexico regularly drive around with their light bars illuminated.  But, when this police car pulled up beside us, its P.A. instructed me to pull over.  (At least I think that’s what I was being instructed, as I don’t remember my high school Spanish teacher ever having taught the word for “pull over.”)
After I pulled over, the officer approached the driver’s-side window, exactly as would be expected in a U.S. traffic stop.  He said “buenos dias,” and I responded in kind.  My Spanish not being nearly good enough for much more conversation with the officer, I asked him if he spoke English.  He did and, in fact, his English was every bit as good as that of the concierge at the Ritz-Carlton.
The officer showed me his radar gun, which indicated that I was traveling 14 kilometers per hour over the posted limit.  I had a hard time believing that I was truly exceeding the speed limit by that much, as shuttle vans carrying tourists to the airport (presumably being driven by locals) were going much faster than I was.
The officer then asked for my drivers license and proof of insurance, again exactly as would be expected in a U.S. traffic stop.  Then he asked me to get out of the car.  I have very little experience with traffic stops in the U.S., my last speeding ticket having been in the 1990s.  But I knew that being asked to get out of the car is generally not a good thing.  While the “please step out of the car” made me a little nervous, I’m sure that was not the officer’s intent.
He told me that he would need to take my drivers license to the police station and that I could get my license back by going to the station and paying my fine.  I asked him if there was any other alternative, in light of me being on my way to the airport.  He responded that he could give me my license and instead take the rental car’s license plate back to the station so as to ensure that the rental car company paid my fine.  I could only imagine the delay – and the cost – if I’d brought the car back to Budget with a license plate missing.
I then asked him if it would be possible for me to pay my fine directly to him and have him deliver the payment to the police station.  He paused for a long while, as if he had never considered this.  After taking plenty time to ponder my suggestion, he responded that he would be agreeable to delivering my fine.
He advised me of the amount of my fine in pesos (the amount of which I don’t recall) and in dollars.  The dollar amount, $120, sounded a bit steep to me, as I’d always heard that the standard fine for American tourists was $100.  Although I was quite proud of some highly-successful negotiations I’d had over the past few days (including getting my group of nine people into the zoo completely free-of-charge), I decided that this was not the time for negotiating.  Because he had advised that he was going to deliver my fine directly to the station, I didn’t want to offer a smaller payment and have him perceive that I was suggesting that he was doing anything outside of official procedure.  I gave him the 100 dollar bill from my money belt and four 5 dollar bills from my wallet.
As my wife and I resumed our drive to the airport, we discussed how the officer had forgotten to ever actually write me a ticket or even to write down my name.  He must have a very good memory, allowing him to write the tickets up after sending the tourists on their way.  I was very impressed by his efficiency, as the entire traffic stop took less than five minutes.  The experience was not at all bad.

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21 Things That Court of Appeals Justices and Staff Attorneys Want You to Know

I recently attended a continuing legal education seminar co-sponsored by the Dallas Bar Association’s appellate section and the Tarrant County Bar Association’s appellate section.  At the CLE, justices and staff attorneys from the Dallas Court of Appeals and the Fort Worth Court of Appeals shared insights as to their preferences.  Here are 21 things that the justices and staff attorneys want you to know:

1. Always confirm that your citations to the record and to legal authority are not misleading.  The court knows that misleading citations are likely accidental, but such accidents hurt an attorney’s credibility with the court nonetheless.

2. If there is something in the record which might hurt your argument, be sure to address it and explain why it is not as problematic as it might appear.  Appellate judges are not impressed with a lack of candor.

3. Be sure to include the volume number in your record references.  Even if the volumes are consecutively paginated (so that no two volumes contain a page with the same page number), it is still quite helpful to include the volume number.  Otherwise, the court may have to open several volumes of the record to find the page that you are citing.

4. There is nothing wrong with citing to a document in your brief’s appendix.  But, when doing so, your citation should also indicate where that document can be found in the appellate record.   If you include a citation which specifies where in the appendix the document is located but your citation does not specify where in the record the document is located, the court may suspect that the document is not contained in the record. And the court cannot consider documents which are in the appendix but are not in the record.

5. If citing to an exhibit in the reporter’s record and that exhibit is lengthy, your citation to that exhibit should include more than the exhibit number.  Specifically, it is quite helpful to provide some guidance to the court about what portion of that exhibit supports the point that you are trying to make.

6. The rules of appellate procedure require items in the appendix to be bookmarked but do not require bookmarking for the rest of the brief.  However, bookmarking the body of the brief can be very helpful to the reader.  For example, if someone wants to re-read your argument about appellate issue number two, a bookmark will allow her to jump directly to that argument without having to flip back to your table of contents, locate the appropriate page number, and then flip to that page number.

7. If you are going to include an explanation of why oral argument would be helpful to the court, do not simply use boilerplate language.  Boilerplate language, by definition, is language that could be cut-and-pasted into another appellate brief.  As such, boilerplate language does not constitute an explanation of why oral argument would be helpful in your case.  So, if you are going to include an explanation of why oral argument would be helpful to the court, make that explanation specific to your case.

8. If you are planning to file a motion requesting emergency relief from the court, it is helpful to call the court clerk and advise her of this in advance so that she can ask the justices to plan their schedules accordingly.  Be prepared to give her an approximate time that you will be filing your motion.  If your plans change and you will be filing your motion much later than the time you expected (or not filing it all), you should call the clerk and advise her of the change.  Otherwise, justices may be staying at the courthouse needlessly (e.g., skipping lunch or staying after hours) waiting for a motion that does not arrive.  And that will probably not make them happy.

9. Under the old rules, briefs were governed by page limitations, and certain pages (e.g., the table of contents) did not count toward those limitations.  So, it was customary to use little Roman numerals on those pages and then begin using Arabic numbers on the first page that counted toward the page limits.  However, the new rules limit the number of words rather than the number of pages.  So, using little Roman numerals on certain pages and Arabic numbers on other pages no longer serves any purpose.  And using this old numbering convention makes it tougher for the court to navigate your brief in Adobe Reader.  Specifically, when you use this old numbering convention, a reader who wants to jump to a specific Arabic page number in your brief cannot do so by typing that page number into the page number box in Abobe Reader.  To eliminate this problem, you should consecutively number all of your pages (including your cover page) with Arabic numbers.  If you’d like, you may suppress the number “1” from showing on your cover page.  Doing so would still have number “2” show on your second page and would not impact the court’s ability to easily navigate your brief.

10. If you intend at oral argument to refer to legal authority which was not cited in your brief, you should send a letter to the court and to opposing counsel advising of the legal authority prior to the oral argument.  When you do so, the court and opposing counsel can review the legal authority in advance and be prepared to address it.

11. When filing a motion for rehearing, be especially careful about your tone.  If you are trying to get the court to reverse itself, it is not helpful to be disrespectful in your analysis of the court’s own opinion.  Also, a motion for rehearing should not be used to merely re-argue what you’ve already argued.  If the justices did not agree with your argument, repeating the same argument to them is not likely to change their minds.

12. When drafting an appellant’s brief, do not be so focused on emphasizing the trial court’s error that you ignore equally important matters such how the standard of review is satisfied, how error was preserved, how your client was harmed by the error, and the relief you are requesting from the court of appeals.

13. When drafting an appellee’s brief, if you choose not to address the appellant’s arguments in the same order as the appellant did in her brief, it is helpful to explain how your arguments match up to the appellant’s arguments.  If you do not do so, it might be difficult for the court to locate your response to a particular argument made in the appellant’s brief.  It is possible that the court might even mistakenly believe that you failed to respond to the argument at all.

14. If you are asked a hypothetical question at oral argument, answer that hypothetical question.  After doing so, if you’d like, you may distinguish the hypothetical scenario from the facts of your case.  But don’t simply skirt the judge’s question.  If the judge is asking you a question, she would like her question to be answered rather than hear your commentary as to why it was a bad question.

15. At oral argument, spend little (if any) time reciting the facts.  When an attorney begins her oral argument with a detailed recitation of the facts, judges may consider this a waste of their time.  The judges may even consider it to be a suggestion that you don’t believe that they spent the time necessary to prepare for oral argument.

16. When drafting a petition for writ of mandamus, remember that mandamus is an extraordinary remedy.  For a mandamus petition to be granted, the petition must explain why the situation at hand is truly extraordinary.  A trial court judge committing an error (even a harmful, reversible error) is simply not extraordinary.  

17. In your mandamus petition, you should explain why there is no adequate remedy otherwise available.  This is a critical component of securing mandamus relief, but it is often omitted or inadequately addressed.  Many mandamus petitions apparently include this component as an afterthought, and those petitions are rarely if ever granted.

18. If you are filing a mandamus petition and there is an upcoming date that is important to your petition (e.g., a fast-approaching trial setting), be sure to point this out at the beginning of your petition.  The court is often juggling many urgent matters.  If you’d like your case to jump to the front of the line, you should make it obvious at a glance why it is critical that your case be decided before a certain date.

19. When you are filing a mandamus petition, and your filing is not being made shortly after the trial court first made the ruling that you are seeking relief from, it is important that you explain the delay.  Otherwise, it may seem to the court that you took your time in requesting relief but nevertheless would like the court to expedite its work on the case.  Needless to say, that perception would not be helpful to your case.

20. Insert a record reference into your brief at every possible opportunity.  It is a huge red flag to the court if a brief is not covered in record references.

21. Be respectful in all references to everyone - the trial court judge, opposing counsel, opposing parties, etc.  Personal attacks will not accomplish anything and might very well have the opposite of the intended effect.

Thank you to Dallas Court of Appeals Justices Douglas Lang and Bill Whitehill, Fort Court of Appeals Justices Anne Gardner and Bill Meier, Dallas Court of Appeals staff attorneys Greg Lensing and Cliffie Wesson, and Fort Worth Court of Appeals staff attorneys Rebecca Heinemann and Lisa West for offering so many helpful tips.

http://appeal.pro/things-that-court-of-appeals-justices-want-you-to-know/

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I was on the 6 o'clock news yesterday. The reporter asked me about the potential appeal of a suit against the National Football League.
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Texas Supreme Court Justice Don Willett’s Thoughts on Amicus Briefs

This afternoon, Texas Supreme Court Justice Don Willett and Austin lawyer Don Cruse spoke at a continuing legal education seminar.  Among other things, they addressed amicus briefs filed in the Supreme Court.

The court requests a response to the petition for review in about 33% of cases.  However, when an amicus brief has been filed prior to the time that the court decides whether to request a response, Mr. Cruse determined that the court requests a response about 85% of the time.  While only 2% of cases have amicus briefs filed prior to the time that the court decides whether to request a response, it seems that those petitions are disproportionately successful in getting a response requested.

The court requests briefs on the merits (a/k/a full briefing) in about 20% of cases.  However, when an amicus brief has been filed prior to the time that the court decides whether to request briefs on the merits, Mr. Cruse determined that the court requests briefs on the merits about 82% of the time.  While only 7% of cases have amicus briefs filed prior to the time that the court decides whether to request briefs on the merits, it seems that those petitions are disproportionately successful in getting briefs on the merits requested.

Consistent with this data, Justice Willett indicated that he enjoys reading amicus briefs and that it is advisable for a petitioner to have supporting amicus briefs filed early in the proceeding (e.g., before the court has decided to whether to request a response or at least before the court has decided whether to request briefs on the merits).

http://news.appeal.pro/appellate-court-judges/texas-supreme-court-justice-don-willetts-thoughts-on-amicus-briefs/

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The civil suit against Jerry Jones for alleged sexual assault may turn on the interpretation of some language in a 2013 Dallas Court of Appeals opinion. The Dallas Morning News quoted me as to how the appellate opinion might be construed.

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Five Judges from the Fifth Circuit Court of Appeals Offer Pointers on Appellate Advocacy

The Dallas Bar Association Business Litigation Section recently hosted an outstanding panel discussion with five judges from the Fifth Circuit Court of Appeals.  I have been attending appellate continuing legal educations presentations for seventeen years, and this one was among the best I’ve seen.  Judges Gregg Costa, Jennifer Elrod, James Graves, Stephen Higginson, and Catharina Haynes all offered pointers for lawyers practicing before the Fifth Circuit.  Here are some that I found particularly noteworthy:

1. It is extremely easy to waive error in federal court, much more so than in state court.  So having a lawyer focused on error preservation in the trial court is invaluable.

2. Complete your appellate brief at least seven days before its filing deadline.  Set your brief down for a couple of days and then re-read it.  You will likely find areas for improvement that you would not have found if you hadn’t taken a break from working on your brief.  Also, ask someone unfamiliar with your case to read your brief and provide input as to what could be clarified.

3. If the disposition of one of your issues is governed by a particular fact or by a controlling opinion, it might be helpful to specify that fact or opinion in the issue presented section of your brief.

4. Appellate judges are all generalists.  Even those who had a specialty before taking the bench have since become generalists.  Consequently, don’t assume that the judges are familiar with a particular area of law.  If your case involves an area of law that a generalist wouldn’t know, include some background about the relevant law in your brief.  Consider citing to well-known treatises for this background.

5. If you can’t avoid using technical jargon or acronyms in your brief, be sure to define them.

6. Draft your brief as if your audience was composed of well-educated laymen rather than lawyers.  Doing so will make the brief much clearer.

7. Clarity, brevity, honesty, and civility are the four most important characteristics of a good appellate brief.  Although it shouldn’t require an explanation, civility means not being rude or impolite.

8. If you indicate in your brief that something is in the record, be sure that it really is.  Electronic records make it quite easy for judges to confirm the accuracy of your references to the record.

9. If you truly want oral argument, be sure that your brief explains in detail why oral argument is needed for your case.  Boilerplate language is not helpful here.

10. In appellate briefing and at oral argument, don’t say “I think,” “I believe,” or “it seems to me.”  The judges don’t want your opinion.  They want you to tell them what the law requires.

11. Unnecessarily criticizing the trial court judge is offensive to the appellate judges.

12. At oral argument, begin by letting the judges know what issues you intend to address and in what order.  Then, when you are about to begin actually addressing one of those issues, let the judges know which issue are about to begin addressing.

13. At oral argument, be prepared for a judge to ask: (a) what is the most critical fact in your case; (b) what is the most important opinion you rely upon; and (c) what is the rule of law you would like the court to adopt.

14. At oral argument, (a) don’t speak too quickly; (b) don’t speak too quietly; (c) don’t gesticulate too much; (d) don’t be theatrical; and (e) don’t be self righteous or indignant.

15. At oral argument, don’t ask questions of the judges.  It is their job to ask you questions, not vice versa.

16. You can never be too prepared for oral argument.  Know the record.

17. If asked to concede an obvious matter at oral argument, do so.

18. At oral argument, don’t say “with all due respect.”  Judges perceive that as telling them you think that they are idiots.

19. At oral argument, be sure to directly address any question posed to you.

20. If, after filing your brief or making your oral argument, you realize that you have made a mistake (in citing to the record or the law), you should file a letter correcting your mistake.  This will go a long way toward restoring your credibility with the judges.

21. Don’t make weak arguments.  If there is a weakness in your case, acknowledge it and explain why you should nevertheless win.  Lack of candor is the single worst mistake that you can make in appellate advocacy.  If you fail to acknowledge important facts or legal authority, the judges will certainly talk to their colleagues about you. . . and may even admonish you publicly when they issue their opinion.

http://news.appeal.pro/appellate-speaking-engagements/five-fifth-circuit-judges/

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Judge Tobolowsky is expected to sign a $500 million judgment, which would be the largest judgment in Dallas County history. The Dallas Morning News has a great story (quoting me) about the case.

http://www.dallasnews.com/business/business-headlines/20140723-dallas-judge-awards-etp-500-million-in-enterprise-partnership-dispute.ece

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Frequently Asked Questions (FAQ) About Texas Appeals

Whether you are a law student studying Texas appellate procedure or are a Texas lawyer who doesn’t regularly handle appeals, you might be in need of answers to frequently asked questions about Texas appellate law. Having been unable to find a compilation of appellate law FAQs specific to Texas state courts, I have compiled a list of responses to questions frequently asked of me in my appellate law practice. This list of questions and answers is not intended to serve as a comprehensive resource about how to practice in a Texas court of appeals. However, if you can think of another frequently asked question about Texas appeals, please let me know.
 
1. Does filing a mandamus petition automatically stay the trial court order at issue?
No. However, the litigant filing a mandamus petition may file a motion in the court of appeals to stay the underlying order. See Texas Rule of Appellate Procedure 52.10(a). It is important to note that the court of appeals cannot consider such a motion until the mandamus petition itself has been filed. See In re Terminix Int’l Co., L.P., 131 S.W.3d 651, 653 (Tex. App. — Corpus Christi 2004, orig. proceeding).
 
2. Does filing an appeal stop enforcement of the judgment?
No. See Texas Rule of Appellate Procedure 25.1(g). However, the litigant filing the appeal may supersede the judgment (1) by agreement of the parties; (2) by filing a supersedeas bond; (3) by making a deposit with the trial court clerk; or (4) by providing alternate security ordered by the trial court. See Texas Rule of Appellate Procedure 24.1(a).
 
3. If parties do not supersede the judgment against them, do they lose their right to appeal?
No. See Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 787-87 (Tex. 2006).
 
4. Does the date that a trial court judge denies a motion for new trial impact appellate deadlines?
No. If a motion for new trial is timely-filed, the notice of appeal is due 90 days after the judgment was signed regardless of when the trial court denies the motion. See Texas Rule of Appellate Procedure 26.1(a)(1).
 
5. When can a court of appeals consider findings of fact? In what situations should a litigant request findings of fact?
A court of appeals can consider findings of fact — and a litigant should consequently request them — whenever the trial court judge served as finder of fact a/k/a fact finder. See Sears Roebuck & Co. v. Wilson, 963 S.W.2d 166, 168 (Tex. App. — Fort Worth 1998, no pet.). If a trial court judge grants summary judgment, the judge has held that there are no facts to find. Consequently, findings of fact on the granting of a summary judgment would be improper. See Williams v. Americas Tire Co., Inc., 190 S.W.3d 796, 811 (Tex. App. — Dallas 2006, pet. denied).
 
6. What happens if the trial court judge does not file findings of fact by the deadline?
If the trial court judge does not file findings of fact by the deadline to do so, the litigant seeking the findings must file a notice that the findings are past-due. See Texas Rule of Civil Procedure 297. If the trial court judge still does not file findings of fact, the court of appeals may abate the appeal and order the trial court judge to file the findings of fact. See Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298 (Tex. App. — Houston [14th Dist.] 2010, no pet.).
 
7. What is the deadline to file a petition for writ of mandamus?
There is no fixed deadline for filing a petition for writ of mandamus. See CMH Homes v. Perez, 340 S.W.3d 444, 454 (Tex. 2011). However, when litigants have unreasonably waited to file their mandamus petition, relief may be denied based on the equitable principle of laches. See In re Mabray, 355 S.W.3d 16, 22 (Tex. App. — Houston [1st Dist.] 2010, orig. proceeding [mand. denied]).
 
8. May a litigant cite to an unpublished opinion in an appellate brief?
Yes. While unpublished opinions technically have no precedential value, they may be cited in an appellate brief. The citation must include the parenthetical “not designated for publication.” See Texas Rule of Appellate Procedure 47.7(b). It is important to note that, since January 1, 2003, appellate courts have not had the option of issuing unpublished opinions. So, even if an opinion issued on or after that date carries the designation “unpublished,” the opinion nevertheless constitutes a published opinion. See Texas Rule of Appellate Procedure 47.7(b). This is true even if the official reporter has never included the opinion in a Southwest Reporter and assigned the opinion a volume and page number.
 
9. Is an appellate court judgement enforceable as soon as it is issued?
No. An appellate court judgment is not enforceable until the appellate court has issued its mandate. See In re City of Cresson, 245 S.W.3d 72, 74 (Tex. App. — Fort Worth 2008, orig. proceeding). An appellate court generally will not issue its mandate until after all deadlines for further review by Texas state appellate courts have passed. See Texas Rule of Appellate Procedure 18.1(b).
 
10. When may a litigant file an interlocutory appeal?
An interlocutory order is a trial court order that does not dispose of all parties and all claims in the case. See In re K.E.A., 359 S.W.3d 387, 388 (Tex. App. — Dallas 2012, no pet.). An appeal of an interlocutory order is an interlocutory appeal. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). An interlocutory appeal is only possible when expressly allowed by statute. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). Texas Civil Practice & Remedies Code section 51.014(a) lists a number of interlocutory orders which are appealable.
 
11. How can a litigant get an appeal accelerated or otherwise expedited?
Whenever an interlocutory appeal is permitted, the interlocutory appeal is automatically accelerated. See Texas Rule of Appellate Procedure 28.1(a). Appeals of final judgments in quo warranto proceedings are also accelerated. See Texas Rule of Appellate Procedure 28.1(a). The appeal of a final judgment in a primary contest is also accelerated. See Texas Rule of Appellate Procedure 28.1(a); Texas Election Code § 232.014(b). Although not technically accelerated, appeals of other final judgments are “given precedence by law.” See Texas Rule of Appellate Procedure 40.1(a). For example, appeals from final judgments in unemployment disputes are apparently given precedence by law. See Texas Labor Code § 212.208. The same is true when there is a final judgment of dismissal based on a litigant’s exercise of right of free speech, right to petition, or right of association. See Texas Civil Practice & Remedies Code § 27.008(b). Additionally, an appellate court has discretion to give precedence to any “case that the court determines should be given precedence in the interest of justice.” See Texas Rule of Appellate Procedure 40.1(c). So, a litigant may file a motion requesting that an appeal be accelerated.
 
12. How should a litigant calculate the amount of bond or cash deposit required to supersede a judgment?
The bond or cash deposit must be in an amount equal to or greater than “the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment.” See Texas Rule of Appellate Procedure 24.2(a)(1). When the judgment is for something other than money, the trial court judge must rule on how the judgment can be superseded. See Texas Rule of Appellate Procedure 24.2(a)(2, 3).
 
13. Can a judgment be superseded by pledging real estate or personal property?
A judgment can superseded by pledging real estate or personal property only if the trial court judge expressly approves doing so. See Texas Rule of Appellate Procedure 24.1(a)(4).
 
14. If the trial court clerk or court reporter misses the deadline (or is about to miss the deadline) to file the record, what do the appellants need to do?
Nothing. The trial court clerk and the court reporter — not the appellants — are responsible for filing the record. See Texas Rule of Appellate Procedure 35.3. Before this responsibility applies, however, the appellants must first request the record and make payment arrangements for it. See Aguero v. Aguero, 225 S.W.3d 236, 237 (Tex. App. — El Paso 2006, no pet.).
 
15. If an appeal is transferred from one court of appeals district to another and there is a conflict in the case law of the two courts, does the transferee court apply its own law or the law of the transferring court?
If an appeal is transferred from one court of appeals district to another and there is a conflict in the case law of the two courts, the transferee court must apply the law of the transferring court. See Texas Rule of Appellate Procedure 41.3.
 
16. Does the Texas Supreme Court have jurisdiction to review all appeals decided by one of the courts of appeals?
No. Texas Government Code section 22.001(a) lists the situations in which the Texas Supreme Court has appellate jurisdiction.
 
17. If a litigant misses the deadline to file a notice of appeal, can the case still be appealed?
Within fifteen days after the notice of appeal deadline, a litigant may file a notice of appeal and a motion to extend the notice of appeal deadline. See Texas Rule of Appellate Procedure 26.3.
 
18. If a litigant misses the deadline to file an appellate brief, may the litigant file a motion for extension after the fact?
Yes. See Texas Rule of Appellate Procedure 38.6(d).
 
19. If a litigant misses the deadline to file a petition for review, may the litigant file a motion for extension after the fact?
Yes, but only if the motion is filed within fifteen days after the deadline. See Texas Rule of Appellate Procedure 53.7(f).
 
20. When should a litigant file a petition for review versus an application for writ of error?
Prior to September 1, 1997, to seek Texas Supreme Court review of a court of appeals decision on an appeal, litigants needed to file an application for writ of error. From that date forward, litigants have needed to file a petition for review. See Texas Rule of Appellate Procedure 51.1; Checker Bag Co. v. Washington, 27 S.W.3d 625, 640 (Tex. App. — Waco 2000, pet. denied).
 
21. What is a Texas Court of Civil Appeals?
Prior to September 1, 1981, the Texas intermediate appellate courts had jurisdiction only over civil cases and were called “courts of civil appeals.” From that date forward, the intermediate appellate courts have also had jurisdiction over criminal cases and have been called “courts of appeals.” See In re Allcat Claims Service, L.P., 356 S.W.3d 455, 461 (Tex. 2011).
 
22. What is a transcript? What is a statement of facts?
The compilation of pleadings and other trial court documents prepared by the trial court clerk for purposes of appeal was known as a “transcript” until September 1, 1997, when it became known as a “clerk’s record.” In Texas appellate law, the term “transcript” does not correctly refer to — and has never correctly referred to — a court reporter’s transcription. The court reporter’s transcription of the proceedings (and any corresponding exhibits) for purposes of appeal was known as a “statement of facts” until September 1, 1997, when it became known as a “reporter’s record.” See Texas Rule of Appellate Procedure 34; Texas Dep’t of Pub. Safety v. Burrows, 976 S.W.2d 304, 307 n.2 (Tex. App. — Corpus Christi 1998, no pet.); In re VanDeWater, 966 S.W.2d 730, 733 n.4 (Tex. App. — San Antonio 1998, orig. proceeding). Under the current appellate rules, a “statement of facts” is the section of an appellate brief in which a litigant recites the facts of the underlying case. See Texas Rule of Appellate Procedure 38.1(g).
 
23. May a litigant ever choose which court of appeals will hear the litigant’s appeal?
Yes. Texas Government Code section 22.201 provides that both the Fifth Court of Appeals (in Dallas) and the Sixth Court of Appeals (in Texarkana) have jurisdiction over judgments of trial courts in Hunt County. Similarly, section 22.201 provides that both the Sixth Court of Appeals (in Texarkana) and the Twelfth Court of Appeals (in Tyler) have jurisdiction over judgments of trial courts in Wood, Upshur, Gregg, and Rusk counties. For cases arising out of these five counties, the appellants may chose between the two relevant courts of appeals. See Miles v. Ford Motor Co., 914 S.W.2d 135, 137, 138 n.4 (Tex. 1995). Although the First Court of Appeals and the Fourteenth Court of Appeals (both in Houston) have overlapping jurisdiction over a number of counties, for judgments out of such counties, the assignment to a court of appeals is random rather than by choice of the appellants. See Texas Government Code § 22.202(h).
 
24. If a litigant wishes to seek mandamus relief against a trial court judge, must the litigant seek such relief from the court of appeals before seeking the relief from the Texas Supreme Court?
Generally, yes. However, if there is a “compelling reason” to do otherwise, the litigant may proceed directly to the Supreme Court. See Texas Rule of Appellate Procedure 52(e).
 
25. Is a litigant required to file a motion for rehearing in the court of appeals before filing a petition for review with the Texas Supreme Court?
No. That requirement was eliminated effective September 1, 1997. See Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 n.3 (Tex.1998).
 
26. What must a litigant do to qualify for oral argument in the court of appeals?
If litigants would like oral argument, they must request it on the front cover of their brief. See Texas Rule of Appellate Procedure 39.7. However, even if oral argument is requested, the court of appeals may deny oral argument. See Texas Rule of Appellate Procedure 39.1.
 
27. Is filing a mandamus petition necessary to preserve error for appeal?
No. See Walker v. Packer, 827 S.W.2d 833, 842 n.9 (Tex. 1992).
 
28. What is a notice of restricted appeal?
If a litigant fails to file a timely notice of appeal, the litigant may file a notice of restricted appeal within six months of the complained-of judgment provided that the litigant did not participate — either in person or through counsel — in the hearing that resulted in the judgment and did not timely-file a postjudgment motion or a timely request for findings of fact. See Texas Rules of Appellate Procedure 26.1(c), 30.
 
29. What is a writ of error appeal?
The term “writ of error appeal” was replaced with the term “restricted appeal” effective September 1, 1997. See Texas Rule of Appellate Procedure 30.
 
DISCLAIMER: These responses to frequently asked questions about Texas appellate procedure are applicable to many appeals from Texas state courts. However, these responses only address the general rules and do not address any exceptions to the general rules. Consequently, these responses may not be applicable to your particular case. As such, you should not rely upon any of these Texas appellate law FAQ answers. Rather, you should have a Texas appellate lawyer review the background of your particular appeal and provide you with answers specific to your case. Dallas appellate attorney Chad Ruback has provided this general information about Texas appeals for educational purposes only, and nothing herein shall constitute legal advice. Moreover, nothing herein shall establish an attorney-client relationship with Mr. Ruback or his appellate law firm. Mr. Ruback will not be your attorney unless and until he signs a representation agreement expressly agreeing to be your attorney.


http://news.appeal.pro/appellate-lawyer-fun/texas-appeals-faq/

D Magazine just released its 2014 list of the "Best Lawyers in Dallas." I've consistently been included on this list since 2005. This is true of only four other appellate lawyers. My mom is proud!
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