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.
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.