Motions
- All motions must comply with Texas Rule of Appellate Procedure 10.1 unless another rule or statute dictates otherwise.
- Motions dependent on facts not in the record, not ex officio known to the Court, and not within the personal knowledge of the attorney signing the motion must be supported by affidavit or other satisfactory evidence. Tex. R. App. P. 10.2. If counsel tender copies of documents filed in or issued by other courts or governmental agencies, counsel should whenever possible tender copies certified by the appropriate court clerk or custodian of records.
- Apart from extension motions to file a brief, the Court generally will not hear or determine a motion until ten days after it is filed, as required by Texas Rule of Appellate Procedure 10.3(a).
- The justice assigned to handle presubmission motions generally acts daily on those motions that are ready to be determined. See Tex. R. App. P. 10.4(a). The panel to which the cause has been submitted generally acts on postsubmission motions after the expiration of the ten-day period.
- A motion to extend the time to perfect appeal must comply with Texas Rule of Appellate Procedure 10.1(a) and must also (1) state the deadline for filing the notice of appeal, (2) state the facts reasonably explaining the need for the extension, (3) identify the trial court, (4) state the date of the trial court's judgment, and (5) state the case number and the style of the case in the trial court. Tex. R. App. P. 10.5(b)(2). In addition, the motion must contain the date the notice of appeal was filed in the trial court. See Tex. R. App. P. 26.3(a). The date of filing the notice of appeal, if not known personally by the attorney, must be supported by affidavit or other satisfactory evidence. Tex. R. App. P. 10.2.
- All extension motions other than extension motions to perfect appeal should comply with Rule 10.5(b)(1). Motions for extension of time to file the clerk's or reporter's record are not permitted and will not be filed. See Tex. R. App. P. 37.3. Motions to supplement the clerk's or reporter's records are not required and will not be filed. Tex. R. App. P. 34.5(c) and 34.6(d).
- Motions to dismiss should indicate: (1) whether the appeal or the cause is to be dismissed; (2) how costs should be allocated; and (3) whether the mandate should be issued early. See Tex. R. App. P. 18.1(c). There is a difference between dismissing the appeal or dismissing the cause-dismissal of an appeal returns the cause to the status before the appeal was perfected and does not disturb the trial court's judgment; dismissal of the cause vacates the trial court's judgment. Counsel should comply with Texas Rule of Appellate Procedure 10 when filing a motion to dismiss for want of jurisdiction.
- Motions in civil cases must certify that the filing party conferred, or reasonably attempted to confer, with all other parties regarding the merits of the motion and whether those parties oppose the motion. Tex. R. App. P. 10.1(a)(5). The Clerk may decline to file a motion that does not contain a certificate of conference. Motions without opposition should bear the word "unopposed" in their caption. The Court will consider such unopposed motions as soon as practicable. See Tex. R. App. P. 10.3(a)(2). Agreed or joint motions must be signed by all parties or their counsel. See Tex. R. App. P. 6.6.
- Counsel who want a motion disposed of before the ten days required by Texas Rule of Appellate Procedure 10.3(a) should tender a separate motion to expedite. The certificate of service for both the underlying motion and the motion to expedite should reflect service on all other parties by either hand delivery or telecopier. An alternate way to avoid the ten-day period is to tender an unopposed motion.
Briefs
- The briefs must contain the information specified in Texas Rule of Appellate Procedure 38.1 and 38.2.
- The Court will expect appellees' briefs to be filed within thirty (30) days after the filing of appellants' briefs (or within twenty (20) days if the appeal is accelerated). Appellants' reply brief are due twenty (20) days after the filing of appellees' briefs. See Tex. R. App. P. 38.6. If a brief cannot be filed within the dates prescribed by the Rules of Appellate Procedure, a motion for extension of time to file the brief will be required. See Tex. R. App. P. 38.7.
- All post-submission briefs, including letter briefs, with the exception of those requested by the Court in oral argument, must be accompanied by a separate motion for leave to file the same. See Tex. R. App. P. 38.7.
- The Court will usually dismiss a civil appeal for want of prosecution if the appellant fails to file a brief or motion for extension of time. See Tex. R. App. P. 38.8(a)(1). A notice to that effect will be sent promptly after the expiration of the due date for the appellant's brief. Although generally a criminal appeal cannot be dismissed for want of prosecution, the Court is of the opinion that this prohibition does not apply to the State. See Tex. R. App. P. 38.8(b); State v. Sanchez, 764 S.W.2d 920 (Tex. App. –Austin 1989, no pet.).
Updated: 5-Mar-2007
