What Is the Filing Deadline for a Texas Civil Appeal?

When can you file a notice of appeal? Let’s start with the appeal of a civil jury trial. You would have 30 days from the date a trial court judgment was signed if you did not file a motion for new trial, 90 days if you did. What if the trial was a civil bench trial? Then, requesting findings of fact and conclusions of law or a moving the court for a new trial extends the deadline for filing a notice of appeal from 30 to 90 days (You would have 20 days from the signing of the judgment in the bench trial to make your first requests for findings of fact and conclusions of law.).

It would be foolish to do a civil appeal without consulting O’Connor’s Texas Civil Appeals, written this year by Alessandra Ziek Beavers, published by Jones McClure Publishing of Houston. As a practical matter, it is malpractice not to use the timetables in the back. It‘s got a practice guide. It is an annotated set of the Texas Rules of Appellate Procedure with forms. It’s got the local rules of the appellate courts. Don’t start writing an appeal without it.

A Texas Trial Judge Cannot Rule Pretrial that Appellate Delay Makes Seeking the Death Penalty Unfair.

Texas's Court of Criminal Appeals has overruled a trial judge who stated that a capital defendant on retrial could not receive due process after being in the appellate system for approximately 30 years. Judge Cathy Cochran wrote the opinion for the majority which, along with her consisted of Presiding Judge Sharon Keller and Judges Paul Womack, Cheryl Johnson, and Elsa Alcala. Judge Michael E. Keasler wrote a concurring opinion in which he was joined by Judges Laurence E. Meyers and Barbara Parker Hervey. Judge Tom Price dissented.
Longtime Dallas judge John Creuzot made a pretrial ruling that the State of Texas, represented by the District Attorney Craig Watkins's office, could not seek the death penalty against defendant Jonathan Bruce Reed in his current retrial because the passage of approximately 30 years had rendered some of his punishment mitigation evidence unavailable. The State filed writs of mandamus and prohibition to undo Cruezot's actions. The Court of Criminal Appeals majority held that the State had no remedy at law and that the trial judge had a ministerial duty to not make such a ruling for the following reasons:

• There is no authority that Judge Creuzot has the power to make such a ruling pretrial;
• The United States Supreme Court has not recognized a claim like Reed's;
• The thirty years' delay worked in Reed's advantage-- when he was first tried SCOTUS had not changed the law so as to provide a legal basis for his claims;
• Although he may have lost mitigation evidence from his youth, the evidence of his behavior during his 30 years of incarceration will be fresh, better evidence than he would have had before;
• The harm of the delay challenges the State-- it has the burden of proof;
• Reed's complaint about the evidence is not yet ripe-- he might be acquitted; his mitigation evidence might be sufficient to save his life-- all his injury is hypothetical;
• SCOTUS says that problems from delay must be shown at a trial;
• The delay is not the State's fault-- it should not be punished for a delay it had no hand in.

Judge Keasler's opinion would be narrower. It would reach the same conclusion as the majority, but based only on the majority's last reason-- the State shouldn't be prejudiced for something that is not it's fault.
Judge Price did not think that it was categorically impossible that a prejudicial degradation of evidence caused by delay could not be determined pretrial. Therefore,the trial court does not have a ministerial duty to rescind its order-- that is, the State does not have a clear right to the relief it seeks.

What Is the Maximum Term for Which a Defendant Is to Be Tried?

Randle P. McMurphy, the protagonist of One Flew Over the Cuckoo's Nest, is shocked to learn that instead of his term in the mental hospital's being limited to the term he would have served in prison, he was permanently committed.
In Texas, a defendant who is found incompetent to stand trial cannot be committed by the State to a mental hospital or other inpatient or residential facility for a period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried. Reinke was indicted for attempted murder, a second-degree felony for which the ordinary punishment was two to twenty years. However, he had two prior convictions which enhanced his possible sentence to five to ninety-nine years or life. The question is: how long may he be held pursuant to the statute? Twenty years or ninety-nine years or life?
Justice Jeff Rose, writing for a panel that also included Bob Pemberton and David Puryear, answered that Reinke could only be held on the basis of his incompetency finding for twenty years. The "offense for which the defendant was to be tried" was attempted murder. The enhancements only increased the punishment; it did not increase the maximum term of the crime (Such a defendant could be subject to civil commitment notwithstanding the statute.). Hat tip to the ever-helpful TDCAA for bringing up this case.

The Texas Court of Criminal Appeals

Texas is one of  only two states-- Oklahoma is the other one-- that has more than one highest court. In addition to the Texas Supreme Court-- the highest court for civil matters, including juvenile cases-- the Texas Court of Criminal Appeals is the highest Texas court for criminal matters. Like the Texas Supreme Court, it has nine members, though it only had eight recently when an appointment to the court was delayed as an economy measure. Supreme Court members are called justices while the members of the CCA are only called judges.
Led by Presiding Judge Sharon Keller, a Dallas real estate heiress infamous for closing the court on an execution evening. The rest of the court is nondescript. Judge Tom Price, for example, claims on the CCA website to be only the third person from Dallas ever on the court. The Court made news a few years ago when it refused to grant a new trial to Jose Medellin, murderer of a pair of teenage girls in Houston even though the International Court of Justice had ruled in Medellin's favor.
All death penalty cases in Texas are automatically appealed to the Court of Criminal Appeals.

The Texas Supreme Court

Texas's highest court, which only hears civil cases, consists of a Chief Justice and eight justices, each elected statewide for a six-year term. Since juvenile cases are civil cases, the Texas Supreme Court hears them, too. The Court chooses the cases it wants to hear, so they generally choose the ones they want to reverse. Presently all of the Justices are Republicans. The most common way to get on this bench as a practical matter is to get appointed by the governor with the approval of the State Senate to fill an unfinished term of an exiting justice.
This Court is extremely likely to reverse plaintiffs' judgments, and are more sensitive to the faults of  Democrat Court-of-Appeal justices than of their fellow Republicans, which is bad news for the blue Supreme Judicial Districts numbered Eight-- El Paso--and Thirteen--Corpus Christi/Edinburg.
Chief Justice Wallace B. Jefferson is the first African-American Chief Justice of Texas and the first African-American Justice of the Texas Supreme Court. Justice Nathan L. Hecht is a clever writer-- the kind of guy who would quote Shakespeare in an opinion. Formerly linked romantically with high-powered white-shoe Dallas lawyer, former White House Counsel and United States Supreme Court nominee Harriet Miers, Hecht beat ethics charges against him that arose when he gave interviews and made political phone calls on behalf of Miers. Dale Wainwright was a civil district judge in Houston. I remember seeing him at our local Fuddrucker's as he was bringing some kind of little league team he was a coach of out to supper. David Medina is also from Houston. I remember when he was a trial judge-- I lost a case in his court because of some pointless and impossible-to-satisfy rule about how he wanted papers presented to him, though I've got to give him credit, when I told him the story years later, he had the conscience to wince when he heard it. He was indicted for arson and altering documents, but the charges were dismissed. Justice Paul W. Green was an appeals court judge in San Antonio for ten years before he rose to the higher bench. Phil Johnson was the Chief Justice of the Amarillo Court of Appeals before he rose. Don R. Willett was as plugged in as a Christmas light to the Bush-Cheney administration, though he's got stellar legal credentials, too. Eva Guzman rose from a Houston family court bench to the Fourteenth Court of Appeals in Houston to Texas's highest. Debra Lehrmann is the Court's newest justice, a former Fort Worth family law judge.

Fifth Circuit Allows Warrantless Use of Slap-On GPS Tracker.

A Fifth Circuit panel of Chief Judge Edith Jones, and Circuit Judges Patrick Higginbotham, and Leslie Southwick held that a borrower of a truck has "standing" to challenge the use of a slap-on tracker which sent out an intermittent signal accurate to 50 yards on that truck, but not to challenge the placement of the tracker on the truck. The Court's reasoning in this case, United States v. Jose Juan Hernandez, was that the truck was not his and  that it was parked on a public street. He did not have a reasonable expectation of privacy that was violated by putting the tracker on the truck. Chief Judge Edith Jones's opinion contrasted the facts of this case with the facts United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert. granted sub nom, United States v. Antoine Jones, No. 1259 (April 15, 2011) in which the GPS device continuously monitored a suspect for a month, which the D.C. Circuit found to be an illegal warrantless search. The Hernandez  court appeared to think that Maynard is the only federal case which threw out a case on the ground that GPS tracking was an illegal search. The Hernandez device operated gave off pings on a regular basis. The government's agents found out how Hernandez had begun his drug delivery run, but after that, the battery in the device failed, and the agents tracked him the rest of the time by visual surveillance.
That the Supreme Court of the United States voted to hear Maynard/Jones makes me think it likely that the conservative wing of the court did not like the circuit opinion and wants to reverse it.
Hat tip to the weekly case summary of the Texas District and County Attorneys' Association.

The Supreme Court of the United States

The Supreme Court of the United States is the highest court in America. It has nine justices appointed on good behavior by the President and confirmed by the Senate. It has original jurisdiction over disputes involving 
ambassadors, other public ministers and consuls, and those in which a state shall be a party. It has appellate jurisdiction over the decisions of the United States Courts of Appeals and the highest courts of each state. In these appellate cases, the Supremes only hear those that four of their number agree to hear. It should be no surprise that those justices have an idea, at that point, how they think a case should turn out. It is not uncommon that in SCOTUS very often one side is fighting from the very high ground, while the other has very little chance of victory.
It is very difficult to get a case heard by the Supreme Court. Thousands apply, but only about 150 are taken up. The mission of the Supreme Court is less to correct errors in individual cases, than it is to resolve differences in legal interpretation made by the various federal courts of appeals and highest state courts. Note also that the U.S. Supreme Court has no authority to change law which is pure state law; they only have the authority to change federal law (State courts are, to the extent federal law impinges on their decisions, bound by the decisions of the United States Supreme Court.).
Pretty much since the Nixon administration-- it also happened at the beginning of FDR's administration-- the Supreme Court has been divided between a conservative wing and a left wing.  Presently, the conservatives are Chief Justice of the United States (not Chief Justice of the Supreme Court)  John G. Roberts, Jr., Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr. Justice Anthony Kennedy generally votes with the conservatives, but is generally the most left of the conservative justices and so is the swing vote on the Court. To the left are Justices Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Notice that the death or retirement of a single justice could well swing the balance of power in the court to the left.