Deadlines in a Texas Appeal

Handling an appeal is deadline-intensive, and missing an appellate deadline can have serious consequences.  Here are some of the deadlines to keep in mind.

Request for Findings of Fact and Conclusions of Law – The Texas Rules of Civil Procedure provide that the deadline to file a request for findings of fact and conclusions of law is twenty days after the trial court signs its judgment.  See TRCP 296.  The deadline for a trial court judge to file findings and conclusions is twenty days after a party requested them.  See TRCP 297.  If the trial court judge misses this deadline (which is not uncommon), the requesting party must file a notice of past-due findings and conclusions.  See TRCP 297.  The deadline for doing so is thirty days after filing the original request.   See TRCP 297.  After the judge files findings and conclusions, a party may want to file a request for additional or amended findings or conclusions.  The deadline for doing so is ten days after the judge files the original findings and conclusions.  See TRCP 298.  Pursuant to the Texas Rules of Appellate Procedure, when an appeal from an interlocutory order is permitted, the trial court is not required to file findings and conclusions.  See TRAP 28.1(c).

Post-Judgment Motions – If a party wishes to file a motion for new trial or a motion to modify, correct, or reform the judgment, the deadline to do so is thirty days after the trial court signed the judgment.  See TRCP 329b(a).  If the trial court judge has not signed an order on a motion for new trial or a motion to modify, correct, or reform the judgment by the 75th day after the judgment was signed, the motion is overruled by operation of law at that time.  See TRCP 329b(c).  If the trial court has signed an order denying a motion for new trial or a motion to modify, correct, or reform the judgment—or if such a motion has been overruled by operation of law—the trial court loses plenary power over the judgment thirty days after the motion was denied / overruled.  See TRCP 329b(e).  So, if a party files a timely motion for new trial, and that motion for new trial is overruled by operation of law 75 days after the judgment was signed, the trial court judge could nevertheless grant a motion for new trial as long as the judge does so by 105 days after the judgment was signed.  See TRCP 329b(c, e).  This is true even if a notice of appeal has already been filed.  See TRCP 329b(e).

Notice of Appeal – As a general rule, the deadline to file a notice of appeal is 30 days after the judgment was signed.  See TRAP 26.1.  However, if there was a deadline-extending document (e.g., motion for new trial, motion to modify judgment, request for findings of fact and conclusions of law in a case where these could properly be considered by the appellate court) timely-filed, the deadline to file a notice of appeal is generally 90 days after the judgment was signed.  See TRAP 26.1.  For an accelerated appeal, the deadline to file a notice of appeal is twenty days after the judgment or order was signed, and this deadline is not extended by filing any sort of deadline-extending document.  See TRAP 26.1(b).  Note that when an appeal is permitted from an interlocutory order, that appeal is accelerated.  See TRAP 28.1(a).  For a restricted appeal, the deadline to file a notice of appeal is always six months after the judgment was signed.  See TRAP 26.1(c).  For any notice of appeal (including accelerated appeals and restricted appeals), if one party files a timely notice of appeal, the deadline for other parties to file a notice of appeal is the later of (1) the time periods stated above or (2) fourteen days after the first-filed notice of appeal.  See TRAP 26.1(d).  Note that an appellee who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.  See TRAP 26.1(c).  If a party wishes to have the deadline extended to file a notice of appeal, that party has a deadline of fifteen days after the notice of appeal was due to file (1) the notice of appeal and (2) a motion to extend the deadline for filing the notice of appeal.  See TRAP 26.3.  A notice of appeal should be filed with the trial court clerk, and a copy of the notice of appeal should be filed with the clerk of the court of appeals.  See TRAP 25.1(a, e).  There is no charge to file the notice of appeal with the trial court clerk, but the court of appeals charges a $195 filing fee when the copy of the notice of appeal is received.

Docketing Statement – TRAP 32.1 requires an appellant to file a docketing statement “upon perfection of the appeal.”  However, in practice, docketing statements are often not filed until after the notice of appeal.  If an appellant files a notice of appeal without contemporaneously filing a docketing statement, the court of appeals will set a deadline for filing of the docketing statement.  This deadline is usually ten days after the notice of appeal was filed.

Appellate Briefs – The deadline for an appellant to file an appellant’s brief is generally thirty days after the date the clerk’s record was filed or thirty days after the date the reporter’s record was filed, whichever is later.  See TRAP 38.6(a).  In an accelerated appeal, the deadline for an appellant to file an appellant’s brief is twenty days after the date the clerk’s record was filed or twenty days after the date the reporter’s record was filed, whichever is later.  See TRAP 38.6(a).  The deadline for an appellee to file an appellee’s brief is generally thirty days after the date the appellant’s brief was filed.  See TRAP 38.6(b).  In an accelerated appeal, the deadline for an appellee to file an appellee’s brief is twenty days after the date the appellant’s brief was filed.  See TRAP 38.6(b).  The deadline for the appellant to file a reply brief is twenty days after the appellee’s brief was filed.  See TRAP 38.6(c).  The court of appeals may, upon consideration of a motion to do so, extend the deadline to file any appellate brief.  See TRAP 38.6(d).

Post-Appeal Motions – The deadline for a motion for rehearing (also known as a motion for reconsideration) of the court of appeals judgment is fifteen days after the court of appeals rendered its judgment.  See TRAP 49.1.  If a party wishes to file a motion for en banc reconsideration (to have all of the judges on the court of appeals reconsider the judgment rendered by the three judges assigned to the appeal), the deadline for doing so is also fifteen days after the court of appeals rendered its judgment.  See TRAP 49.7.  The deadline to file a motion to extend the deadline to file a motion for rehearing or a motion for en banc reconsideration is thirty days after the court of appeals rendered its judgment.    See TRAP 49.1, 49.7, 49.8.

Petition for Review – If no timely motion for rehearing or en banc reconsideration was filed, the deadline to file a petition for review (informally known as an appeal to the Texas Supreme Court) is generally 45 days after the court of appeals its rendered judgment.  See TRAP 53.7(1).  If a timely motion for rehearing or en banc reconsideration was filed, the deadline to file a petition for review is generally 45 days after the court of appeals last ruling on the motion for rehearing or en banc reconsideration.  See TRAP 53.7(2).  If one party files a timely petition for review, the deadline for other parties to file a petition for review is the later of (1) 45 days after the last timely motion for rehearing is overruled or (2) thirty days after any other petition for review was filed.  See TRAP 53.7(c).  If a party wishes to have more time to file a petition for review, the party may file a motion to extend the deadline.  The deadline for filing such a motion is fifteen days after the deadline to file the petition for review.  See TRAP 53.7(f).  The deadline for the respondent to file a response to the petitioner’s petition for review is thirty days after the petition was filed.  See TRAP 53.7(d).  A respondent may file a motion for extension of the deadline to file a response to the petition for review, and there is no hard deadline for filing such a motion.  See TRAP 53.7(f).  For strategic reasons, a respondent may choose not to file a response unless the Supreme Court requests one.  See TRAP 53.3.  In such a case, it is expected, although technically not required, to file a letter stating this (called a “waiver letter”) prior to the response deadline.  If no response is filed by the deadline, regardless of whether a waiver letter was filed, the supreme court may request a response.  If the supreme court does so, it will set a new deadline for the response.  The deadline for the petitioner to file a reply is fifteen days after the respondent’s response was filed.  See TRAP 53.7(e).  A petitioner may file a motion for extension of the deadline to file a reply to the respondent’s response, and there is no hard deadline for filing such a motion.  See TRAP 53.7(f).  There is no notice of appeal in Texas Supreme Court practice, and the petition for review itself contains legal argument.  If the Supreme Court wants additional legal argument, the court will request that the parties file “briefs on the merits” (a/k/a full briefing).  The Supreme Court’s notice requesting briefs on the merits sets deadlines for their filing.  However, in the unlikely event that the notice does not set deadlines, there are default deadlines contained in the Texas Rules of Appellate Procedure.  See TRAP 55.7.  A party may file a motion for extension of the deadline to file a brief on the merits, and there is no hard deadline for filing such a motion.  See TRAP 55.7.  The deadline to file a motion for rehearing in the Supreme Court is fifteen days after the Supreme Court renders judgment or makes an order disposing of a petition for review.  See TRAP 64.1.

Petition for Writ of Certiorari – The deadline to file a petition for writ of certiorari (informally known as an appeal to the U.S. Supreme Court) is 90 days after the Texas Supreme Court either (1) denies a petition for review or (2) renders judgment on a petition for review.  See Sup. Ct. R. 13(1).  The deadline to file a motion for extension of the petition deadline is ten days before the expiration of the petition deadline.  See U.S. Supreme Court Rule 13(5).

Mandate – An appellate judgment becomes final when the mandate is issued.  The time lines applicable to mandate issuance are found in TRAP 18.1.

Share