Texas Supreme Court and Court of Criminal Appeals Clarify Texas Rule of Appellate Procedure 33.1

The Texas high courts say this rewording is intended only to clarify, and not to change, existing law. They say it's been in force since July 1, 2017. The new part is in bold; the old in regular Roman.
33.1. Preservation; How Shown
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.

(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal.


(d) Sufficiency of Evidence Complaints in Civil Nonjury Cases. In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence— including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact—may be made for the first time on appeal in the complaining party’s brief.

Texas Rule of Appellate Procedure 4.6 Did Not Go into Force Friday, September 1, 2017

In the last issue of the Texas Bar Journal-- August 2017, the Texas Supreme Court and the Texas Court of Criminal Appeals, promulgated Texas Rule of Appellate Procedure 4.6 as a rule that would go into effect last Friday, Sept. 1, 2017. The weekend's new September 2017 issue withdraws those notices so that there can be more public comment (I bet the prosecutors didn't like one or more things about it.).

Here is the proposed new T.R.A.P. 4.6.
No Notice of Trial Court’s Order on Motion for Forensic DNA Testing
     (a) Additional Time to File Notice of Appeal. Notwithstanding Rules 26.2 and 26.3, a defendant may move for additional time to file a notice of appeal under Code of Criminal Procedure chapter 64 (Motion for Forensic DNA Testing) if the defendant neither received notice nor acquired actual knowledge that the trial judge signed an appealable order before the time for filing a notice of appeal had expired.
     (b) Contents of Motion for Additional Time. The motion must be in writing and sworn, state the earliest date when the defendant first received notice or acquired actual knowledge that the appealable order had been signed, and comply with Rule 10.5(b)(2).
     (c) When and Where to File.
          (1) The motion must be filed within 30 days of the date upon which the defendant first received notice or acquired actual knowledge of the trial court’s signing of the appealable order. But in no event may the motion be filed more than120 days after the date the appealable order was signed.
          (2) The motion must be filed in the proper court of appeals.
     (d) Order of the Court. The court of appeals must grant a motion for additional time if it finds that the defendant neither received notice nor acquired actual knowledge of the trial judge’s signing of an appealable order before the time for filing a notice of appeal had expired and that the defendant timely filed the motion for additional time. The time for filing the document will begin to run on the date when the court grants the motion.

Plastic Disks No Longer Routine for Appellate Records

Now attorneys-in-charge can get access to documents in their appeals straight from the website of the relevant appeals court, including clerk's records and court reporter's records. Now appellate counsel won't have to get the record from a trial court clerk or an appeals court clerk. Many hours of time will be saved. Some people have complained that one has to sign up one appeals court at a time, but there is a way using a control key to sign up for all the ones you need. The Fourth Court of Appeals (San Antonio) and the Thirteenth Court of Appeals (Corpus Christi and Edinburg).have not adopted the portal.
As files became electronic, it seemed crazy to have to get a pony disk from a live person, often far out-of-town,
You know how your parents tell you how difficult it was to get to school when they were kids. Now, when you are a few decades older you will be able to tell baby lawyers that you actually had to arrange for plastic disks to be gotten to you, and then returned, and they will vacantly gaze at you as a true relic of the dark ages.
(When I was a law clerk, the word processor they had me use was bigger than a kitchen stove, and to start, the screen would roll up the CRT to look like a sheet of paper, so as not to frighten the legal secretaries who were the initial users of these monsters. Personal computers weren't used in the office, and email was extremely rare. There was no Westlaw or LexisNexis or anything like them in the office. Worker's comp cases could be tried. Treble damages and attorneys' fees were mandatory in deceptive trade practice act cases. And practically all the statutory hedges against plaintiffs' getting their actual damages hadn't been built yet. The Health Care Liability Act was just getting started.)

Amendments to the Federal Rules of Appellate Procedure Go into Force Today

Amendments to the federal rules of appellate procedure go into force today. This is a link to the rule changes. The most important changes will be to reducing word counts in briefs.

I feel forced to copy this here, because I don't know how long the Fifth Circuit's guidance about reducing word count and cases in briefing will be on the front of their web site.

Guidance regarding reduced word count and cases in briefing.

Reduced word counts became effective December 1, 2016, pursuant to changes to the Federal Rules of Appellate Procedure. To ensure fairness to parties, for cases in briefing where an appellant filed a brief before December 1, 2016, and an appellee's brief will be due on or after December 1, 2016, the appellee's brief may use the former (greater) word count limitation, if necessary.  As the court continues to consider possible changes with respect to new word count limitations, counsel are invited to review Fifth Circuit Circuit Rule 32.4.

Fifth Circuit miscellaneous fees are going up.

Texas State Criminal Appellate Court Costs

In a criminal appellate court proceeding, except in cases in which a presumption of indigence has been established as provided by Rule 20.1(a)(3), a petitioner must file an affidavit of indigence in the court in which the proceeding is filed, with or before the document seeking relief. A respondent who requests preparation of a record in connection with an appellate court proceeding must file an affidavit of indigence in the appellate court within 15 days after the date when the respondent requests preparation of the record, except in cases in which a presumption of indigence has been established as provided by Rule 20.1(a)(3).

When written notice of appeal from a judgment or order in a habeas corpus or bail proceeding is filed, the trial court clerk must prepare and certify the clerk’s record and, if the appellant requests, the court reporter must prepare and certify a reporter’s record.[1]

The court may make an appropriate order relating to costs, whether allowing costs and fixing the amount, or allowing no costs.[2]

---

[1] Tex. R. App. P. 31.1

[2] Id.

Results of the Contested Texas Democratic Appeals Court Races

Texas Democrats had three contested appeals courts races.
In the Eighth Court of Appeals (El Paso) Place Three for the unexpired term of Steven Hughes, Gina M. Palafox led the five-way race, with Maria Ramirez-- apparently a El Paso municipal judge-- a close second for the runoff.

Leticia Hinojosa decisively beat Carlos Valdez for Greg Perkes's seat on the Thirteenth Court of Appeals in Corpus Christi and Edinburg. Houston's 14th Court of Appeals Place incumbent Jim Sharp was ousted by Candance White as the Democratic candidate for Place Two who will face Republican Kevin Jewell.

Federal Court of Appeals Decisions without a Trial Court Judgment

There are very few exceptions to the general rule that you cannot have an appeal without a prior trial court dispute. 

One apparent exception is that the Supreme Court of the United States is not merely an appellate court. The United States Constitution says in Article III, Section 2 in the second paragraph says that "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction." In these cases, the Supreme Court commonly appoints a master to take the facts in a case and then renders a legal decision on those facts. thought it need not according to Supreme Court Rule 17 and other law.

In order to understand the one ordinary exception to this rule, you have to understand the difference between courts that are created under Article III of the United States Constitution, the main ones being the Supreme Court of the United States, the United States Courts of Appeals and the United States District Courts and non-Article III tribunals. Article III courts are the courts which are the models for America's judicial independence. The judges' pay cannot be reduced during their time in office and Article III judges cannot be removed except by impeachment of the House of Representatives and conviction by two-thirds of the Senate. Non-Article III judges lack these protections- they are chosen for fixed terms and are easier to remove. Non-Article III courts are generally decision-making bodies for specialized agencies, for example, United States Citizenship and Immigration Services, or the Environment Protection Agency. Federal statutes often provide that the final administrative decisions of such bodies may receive their first Article III proceeding in a court of appeals instead of a district court. E.g. Commodity Futures Trading Commission v. Schor,  478 U.S. 833 (1986)

Appellate Court Personal Jurisdiction

Usually, as to Texas state class C misdemeanors or municipal ordinance violations, personal jurisdiction in a trial court is obtained over a person by service of a summons, though in rare cases, it can be gained by the arrest of the defendant.
In higher level Texas crimes, personal jurisdiction is normally  invoked by the arrest of the defendant.
In civil matters, normally, one or more plaintiffs give notice to one or more defendants by service of citation and the petition or complaint is served with the citation. Except for special appearances-- procedurally tricky filings which allege that a court does not have jurisdiction over a matter-- even an unserved party can subject itself to jurisdiction by merely filing a document in the court's file.
In justice of the peace courts, a timely request with a bond or a pauper's oath will get one a de novo trial in a higher court. The same is true of municipal courts that are not courts of record-- that is, ones that do not keep track of things by a court reporter or recorder. Appeals from municipal courts of record are not de novo, the higher courts to them, sit as courts of errors like courts of appeals. Motions for new trial and bonds are required also.
In higher courts, an unhappy trial litigant files a notice of appeal in the trial court before the deadline, a timely appeal generally invokes the jurisdiction of a court of appeals. In civil litigation, it is not uncommon for some parties to want to appeal and others not to. Sometimes some trial litigants can hold on to trial rulings they like by not appealing, though other times any single appeal can invoke jurisdiction as against the other parties. Notices of appeal, petitions for discretionary review, and applications for writ of certiorari must generally be timely, otherwise they do not impose appellate jurisdiction. The main exception to this being that the Court of Criminal Appeals may authorize an out-of-time appeal by a writ of habeas corpus (See the post before this one.)
Extraordinary writs, which I have talked about earlier, may give a basis for a higher trial court or appellate court to invoke the jurisdiction of such a court without having started in a lower court.

What Do Appellate Judges Think of "May It Please the Court?"

Bryan A. Garner reports on what judges say about how to start talking to them.

The Courage of the Appellate Criminal Defense Lawyer

It takes courage to be a criminal lawyer, especially a criminal defense lawyer, especially a criminal defense trial lawyer, but sometimes it takes courage to be an appellate lawyer as here. This is not the whole hearing. Maybe there's something in the missing part that would, in part, excuse the judge's behavior, but the judge appears to be impatient with and discourteous to the public defender, which is contrary to Kentucky's Code of Judicial Conduct canon 3(B)(2).
Not everybody is going to be as lucky as David Barron, the public defender here, to have a video of judicial misconduct. In Texas, if there is going to be any chance that you are going to be in a situation like this (and I will grant that sometimes you cannot predict when trial judges are going to be hateful and obstreperous), you need to bring three disinterested witness to view the proceedings so that, if needful, they can swear to a bystander's bill, a way to make a trial court record when the judge or court reporter refused to make one or let you make one.
In the video, the judge complains that he wishes that a trial lawyer were before him instead of an appellate lawyer. There is a joke about a trial judge and an appellate judge duck hunting with a guide. They come upon some ducks. The guide tells the appellate judge to go first. Cocking the hammer, waiting for the birds to rise, the appellate judge fires when they do come off the water. The trial judge is next; when a group of birds fly by, that judge shoots a number of times, hoping that there was a duck somewhere.
I am a trial lawyer as well as an appellate lawyer. I have some sympathy for the trial judge who, from time to time, has to make momentous decisions on the spur of the moment in the heat of the courtroom, while appeals court judges get to take months to calmly ponder trial judges' decisions from cold records in the peace of appellate chambers.
But what a judge like the one in this video is complaining about, is that appellate lawyers get to (or have to, depending upon your point of view) judge trial lawyers and trial judges. They do that because appellate judges are in the business of correcting trial judges. Good appellate judges are not afraid to correct the errors of those siblings of the bench who are, formally, their juniors, and the best ones give some leeway to a trial judge who is physically at the trial, and needs much shoot from the hip to get a blast off at all. A trial judge who can't deal with being subordinate to the higher courts should get a different job-- perhaps try to be a high court judge.
Thanks to Martha Neil and the folks at the American Bar Association journal for bringing this to my attention.