Rules Related to Drafting Texas Appellate Briefs and Motions

There are many rules governing the contents of Texas appellate documents, and these rules are not necessarily intuitive.  Here are some of those rules.

Pursuant to the Texas Rules of Appellate Procedure, all appellate documents must use 14-point font (although footnotes may be in 12-point font).  See TRAP 9.4(e).

Appellate documents must generally be e-filed.  However, be sure to check with the appellate court to determine whether paper copies are also required, as this varies from court to court and changes periodically.  If a paper copy is required, the first page of the paper copy should include the file-mark which the court added to the e-filed copy.

All appellate filings must include the attorney’s email address.  See TRAP 9.1(a).  All appellate filings must also contain a “certificate of service” specifying (1) the date of service; (2) the manner of service; (3) the name and address of each person served; and (4) if the person served is an attorney, the party represented by that attorney.  See TRAP 9.5(d, e).

Notice of Appeal – TRAP 25.1(d) lists what is required to be included in a notice of appeal.  Note that Rule 25.1(d) requires additional matters to be included in a notice of accelerated appeal and in a notice of restricted appeal.

Docketing Statement – TRAP 32.1 lists what is required to be included in the docketing statement.  Although not stated in the rules, the court of appeals clerks generally prefer that appellants use the PDF docketing statement form available on their respective websites.

Clerk’s Record Request – In a regular appeal or a restricted appeal (as opposed to an interlocutory appeal or a mandamus), appellate courts do not permit trial court documents (filings by the parties, orders signed by the judge, etc.) to be sent by counsel to the court of appeals.  Rather, such documents must be sent directly from the trial court clerk’s office as part of a clerk’s record.  The Rules of Appellate Procedure do not require the filing of a “clerk’s record request,” a/k/a “request for preparation of the clerk’s record” a/k/a “designation of items to include in the clerk’s record.”  But trial court clerks often call the appellant’s counsel and request the filing of such a document and even provide a deadline (which is unenforceable and is often unreasonably short).  I recommend filing a clerk’s record request (listing all pertinent documents and their filing date or signing date) if for no other reason than to help ensure that the trial court clerk includes in the clerk’s record all of the documents which you want sent to the court of appeals.  TRAP 34.5 lists items which must be included in the clerk’s record and, if you are making a list of documents for a clerk’s record request, it makes sense to include those documents.  Also be sure to include other trial court documents which are likely to be pertinent to the appeal.  The Rules of Appellate Procedure expressly prohibit a party from requesting that the entire case file be included in the clerk’s record.  See TRAP 34.5(b)(2).  An appellee may file a written request specifying that additional documents be included in the clerk’s record.  See TRAP 34.5(b)(1).  It is customary for the appellee to wait until the appellant has filed a clerk’s record request, review the appellant’s request, and then file a “request for additional items to be included in the clerk’s record” if the appellee determines that pertinent items were not included in the appellant’s request.  If the clerk has already prepared the clerk’s record, but there is a pertinent item missing, it is appropriate to file a “request for preparation of supplemental clerk’s record.”  See TRAP 34.5(c).  The trial court clerk generally will not file the clerk’s record with the court of appeals until the appellant has paid him for preparing the clerk’s record.  If the appellant does not pay fees required for preparation of the clerk’s record, the court of appeals may dismiss the appellant’s appeal for want of prosecution.    See TRAP 37.3(b).  When the clerk’s record is filed with the court of appeals, be sure to get a copy and check to make sure that all documents you requested were in fact included.  If the trial court clerk cannot locate an item which you requested to be included in the clerk’s record, he should contact you about this, but that doesn’t always happen.  (After the trial court clerk has filed the clerk’s record with the court of appeals,  appellate counsel of record may get a copy on CD-ROM free-of-charge from the court of appeals.  The same is true of the reporter’s record.)  If a clerk cannot locate an item which you requested to be included in the clerk’s record, you may need to provide him with some proof that the item should truly have been in his file (e.g., providing him with a file-stamped copy of the document).  So, for any item that you might ever want included in the clerk’s record, be sure to file it with the trial court clerk and save a file-stamped copy.

Reporter’s Record Request – The first step in requesting a reporter’s record is to determine who was the court reporter for all of the pertinent hearings or trial dates.  Sometimes this is quite easy, but other times it requires considerable investigation.  After determining the identity of the court reporter, he can provide you with an estimate of costs for preparation of the reporter’s record.  The appellant is required to file with the trial court clerk a written request for preparation of a reporter’s record.  See TRAP 34.6(b).  This written request should specify what hearing dates and trial dates should be included in the reporter’s record.  The written request should also specify whether all trial court exhibits should be included in the reporter’s record.  If the appellant wishes to order only a partial reporter’s record, the reporter’s record request must specify the points or issues to be raised on appeal.  See TRAP 34.6(c)(1).  It is customary for the reporter’s record request to be in letter form, addressed to the court reporter, with a cc to the trial court clerk for filing (and, of course, a cc to opposing counsel).  The court reporter generally requires a deposit to be paid to him before he will begin preparing the reporter’s record.  If the appellant does not request a reporter’s record or does not pay fees required for preparation of the reporter’s record, that is not a basis for dismissing the appellant’s appeal for want of prosecution.  See TRAP 37.3(c).  However, it is the appellant’s burden to establish entitlement to reversal on appeal, and in many situations this would be quite difficult to accomplish without a reporter’s record.  For example, it would be impossible to show that there was insufficient evidence offered at trial without a reporter’s record showing what testimony and other evidence was offered at trial.

Appellate Motions – An appellate motion (except for a motion for reconsideration / rehearing) must contain a certificate of conference.  See TRAP 10.1(a)(5).  A motion to extend time to file an appellate brief (the most common appellate motion) must contain (1) the deadline for filing the brief; (2) the length of extension sought; (3) an explanation of why an extension is needed; and (4) the number of previous extensions granted for filing the brief.  See TRAP 10.5(b).  Most appellate motions do not require a supporting verification or affidavit.  A verification or affidavit is required only when the motion asserts a fact to which none of the following apply: (1) in the appellate record; (2) within the appellate court’s knowledge; and (3) within personal knowledge of the attorney signing the motion.  See TRAP 10.2.  Most motions require a filing fee.

Cover of an Appellate Brief – TRAP 9.4(g) lists what must be included on the cover of an appellate brief.  Most notably, if a party wishes to request oral argument, that request must be on the cover of the party’s brief.  See TRAP 9.4(g); see also TRAP 39.7.

Appellant’s Brief –  The appellant’s brief must contain an “identity of parties and counsel” section.  See TRAP 38.1(a).  This section (which is used for recusal purposes) must include all lawyers who have served as trial counsel in the case.  See TRAP 38.1(a).  To prepare this correctly really requires review of the clerk’s record and reporter’s record.  This list should include all lawyers who appeared at hearings/trial or were listed on pleadings.  The appellant’s brief must contain a “table of contents.”  See TRAP 38.1(b).  The appellant’s brief must contain an “index of authorities.”  See TRAP 38.1(c).  Hyperlinks (from the table of contents, index of authorities, or otherwise) may be helpful to the court but are not required.  The appellant’s brief must contain a “statement of the case” section.  See TRAP 38.1(d).  The statement of the case should be approximately half a page or less, should be limited to a very basic recitation of the type of case (without discussing any of the facts of the case) and procedural history, and should be supported by record references.  See TRAP 38.1(d).  The appellant’s brief must contain an “issues presented” section.  See TRAP 38.1(f).  Regardless of whether argument about a matter is included in the appellate brief, a court of appeals can only reverse based on that matter if it is included in this “issues presented” section.  See Dallas County v. Crestview Corners Car Wash, 370 S.W.3d 25, 56 (Tex. App.—Dallas 2012, pet. denied).  The appellant’s brief must contain a “statement of facts” section.  See TRAP 38.1(g).  The statement of facts should present the facts of the case which are pertinent to the argument being presented in the brief, should not itself include any argument, and should be supported by record references.  See TRAP 38.1(g).  The appellant’s brief must contain a “summary of the argument” section.  See TRAP 38.1(h).  The appellant’s brief must contain an “argument” section.  See TRAP 38.1(I).  The argument must be supported by record references and citations to legal authority.  See TRAP 38.1(I).  The argument must not be conclusory but rather must include substantive legal analysis.  See Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 783-84 (Tex. App.—Dallas 2013, no pet.).  The citations to legal authority should be in Bluebook and Greenbook form, including pertinent writ history or petition history.  The appellant’s brief must contain an appendix.  See TRAP 38.1(k)(1).  The appendix must include (1) the trial court’s judgment or other order being appealed; (2) the jury charge and verdict if the case has such documents; (3) the findings of fact and conclusions of law if the case has such documents; (4) the text of any rule, regulation, ordinance, constitutional provision, or other law (excluding case law) on which the argument is based; and (5) the text of any contract or other document that is central to the argument.  See TRAP 38.1(k)(1).  The appendix may include other legal authority or appellate record excerpts when appropriate for advocacy purposes.  See TRAP 38.1(k)(2).  (Because the appendix is not itself part of the appellate record, which is composed of only the clerk’s record and the reporter’s record, merely including a document in the appendix does not make that document subject to being considered by the appellate court as to the factual or procedural history of the case.  For the appellate court to consider a document as to the factual or procedural history of the case, that document must be contained in the appellate record.)  For an appendix that includes more than one item, the appendix must contain bookmarks.  See TRAP 9.4(h).  Electronic bookmarks are preferred (as opposed to separator-page bookmarks).  The appendix (like the rest of the brief) must be text-searchable. See TRAP 9.4(j)(1).  Downloading appendix items (e.g., from Westlaw or a lower court’s website), rather than scanning them, is required whenever downloading is possible. See TRAP 9.4(j)(2).  When filing, the appendix should be included in the same PDF as the appellate brief.  See TRAP 9.4(j)(4).  Hyperlinks from the body of the brief to the appendix may be helpful.  To demonstrate compliance with word count limits, an appellant’s brief must contain a “certificate of compliance” specifying the number of words in certain specified portions of the brief.  See TRAP 9.4(i)(3).

Appellee’s Brief – The appellee’s brief must include most of the same sections as the appellant’s brief.  See TRAP 38.2.

Reply Brief – Although the rules don’t specify this, if the appellant files a reply brief, the reply brief is expected to include a table of contacts and an index of authorities.

Petition for Writ of Mandamus – A petition for writ of mandamus must include many of the same sections required in an appellant’s brief plus some additional sections.  See TRAP 52.3(e).  Additionally, a petition for writ of mandamus must contain a “statement of jurisdiction” section.  See TRAP 52.3(e).  A petition for writ of mandamus must also contain a certification from counsel that he has reviewed the petition and confirmed that every factual statement therein is supported by competent evidence included in the appendix or record.  See TRAP 52.3(j).  The appendix to a petition for writ of mandamus must contain a certified or sworn copy of any order complained of.  See TRAP 52.3(k)(1)(A).  When filing a petition for writ of mandamus, the filing party (called the “relator”) must also file a “mandamus record” containing (1) a certified or sworn (i.e., via affidavit from counsel) copy of every pertinent document; (2) an authenticated transcript of any relevant testimony or a statement that there was no testimony offered related to the complained-of matter; and (3) an index listing all of the materials included in the mandamus record.  See TRAP 52.7(a, c).  The mandamus record is not the same thing as the appendix to the petition for writ of mandamus.  Although not required by the rules, it is helpful to Bates label the mandamus record (like the trial court clerk does with a clerk’s record) and to reference those Bates labeled page numbers in the mandamus petition.  For a mandamus record that includes more than one item, the mandamus record must contain bookmarks.  See TRAP 9.4(h).  Electronic bookmarks are preferred (as opposed to separator-page bookmarks).

Petition for Review – A petition for review must include many of the same sections required in an appellant’s brief plus some additional sections.  See TRAP 53.2.  For example, a petition for review must contain a “statement of jurisdiction” section.  See TRAP 53.2(e).

An appendix in an appellate brief and a record in a mandamus proceeding often contain what the rules define as “sensitive data.”  That includes drivers license numbers, social security numbers, and bank account numbers.   See TRAP 9.9(a).  All sensitive data must be redacted from an appellate brief, a record in a mandamus proceeding, and any other appellate filing by a litigant (but not a filing by the trial court clerk or the court reporter).  See TRAP 9.9(a).

Share