CHEAT CHART FOR FAMILY LAW APPEALS

Transcription

1 CHEAT CHART FOR FAMILY LAW APPEALS BRANDY M. WINGATE Thirteenth Court of Appeals 100 E. Cano 5 th Floor Edinburg, Texas (956) brandy.wingate@courts.state.tx.us State Bar of Texas 22 ND ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE September 4-5, 2008 Austin CHAPTER 19.1

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3 TABLE OF CONTENTS MOTION FOR NEW TRIAL...1 REQUESTS FOR FINDINGS OF FACT/...2 CONCLUSIONS OF LAW...2 SUPERSEDING A JUDGMENT/TEMPORARY ORDERS PENDING APPEAL...4 INDIGENCY...7 INTERLOCUTORY APPEALS...9 APPEALS FROM FINAL JUDGMENTS...10 BILL OF REVIEW...11 i

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5 This chart is intended to provide a quick reference for diversions from ordinary appellate procedures in certain family law cases. Where the deviation is provided by statute, a citation to the statute is provided. Note that specific statutes govern over the general rules of procedure; thus, where a statute provides for different or conflicting procedures from the ordinary rules of civil and appellate procedure, the statute controls. 1 Please consult the relevant statutes in any family law case the consequences can be dire for your client if you fail to understand the procedures applicable to your case. MOTION FOR NEW TRIAL Ordinary Cases Procedure/Deadline MNT must be filed within 30 days after judgment signed TEX. R. CIV. P. 329b MNT extends deadline to file notice of appeal TEX. R. APP. P. 26.1(a): timely-filed motion for new trial extends deadline for filing notice of appeals to 90 days from date judgment was signed Family Law Cases Special Procedures Placement of children under care of TDFPS/State Termination Cases 2 TEX. FAM. CODE ANN : Motion for new trial, request for findings of fact/conclusions of law, etc. do not extend the appellate deadlines. 3 Motion for new trial must be filed not later than the 15 th day after the final order is signed. 4 Please note: in this type of case, appellant must also file a statement of points for appeal not later than the 15 th day after the final order is signed. See Ordinary Appeals, below. Trial court must hold a hearing not later than the 30 th day after the final order is signed to determine if motion for new trial should be granted Termination of parental rights TEX. FAM. CODE ANN : Private terminations; terminations where child not in state custody Appeal of final order accelerated. Deadlines applicable for accelerated/interlocutory appeals apply. See Interlocutory Appeals, below. Motion for new trial/request for findings of fact/conclusions of law, etc. do not extend filing deadlines. 5 UCCJEA appeals 6 TEX. FAM. CODE ANN : Appeal of final order is accelerated. 7 See Interlocutory Appeals, below. Motion for new trial/request for findings of fact/conclusions of law, etc. do not extend filing deadlines 8 1 Pena v. Garza, 61 S.W.3d 529, (Tex. App. San Antonio 2001, no pet.) (noting conflict between TEX. R. APP. P. 299a and TEX. FAM. CODE ANN , and following statutory procedure). 2 Texas Department of Family and Protective Services. See generally TEX. FAM. CODE ANN In re J.A.G., 92 S.W.3d 539, (Tex. App. Amarillo 2002, no pet.). 4 The trial court is without authority to extend this deadline. See In re M.N., 230 S.W.3d 248, (Tex. App. Eastland 2007, no pet.). Cf. In re D.W., 249 S.W.3d 625, 632 (Tex. App. Fort Worth 2008, pet. denied) (considering issue raised in supplemental statement of points for appeal and motion for new trial filed after 15-day deadline because issue was one that could only be considered by court of appeals, as it related to court s ability to review points not discussed in statement of points on appeal). 5 In the Interest of K.A.F., 160 S.W.3d 923, (Tex. 2005) (holding that accelerated deadlines apply in private termination cases; motion to modify judgment does not alter deadline to file notice of appeal, which was due 20 days after judgment). If you miss the deadline to file a notice of appeal, your only recourse is to file a motion with the court of appeals requesting an extension to file the notice of appeal. See In re B.G., 104 S.W.3d 565, 567 (Tex. App. Waco 2002, order) (holding that court could grant extension to file notice of appeal upon reasonable explanation for failure to timely file); In re T.L.S., 143 S.W.3d 284, (Tex. App. Waco 2004, no pet.) (dismissing case because motion to extend time to file notice of appeal was not filed within 15 days after deadline to file notice of appeal). 6 Uniform Child Custody Jurisdiction and Enforcement Act, TEX. FAM. CODE ANN

6 REQUESTS FOR FINDINGS OF FACT/ CONCLUSIONS OF LAW Ordinary Cases Procedure/Deadline Generally not included in judgment TEX. R. CIV. P. 299a: If findings of fact/conclusions of law are included in the judgment, they cannot form the basis of claim on appeal. 9 So if you want findings/conclusions, you have to request them separately, and the trial court has to render a separate order. Family Law Cases Special Procedures Placement of children under care of TDFPS/State Termination Cases TEX. FAM. CODE ANN : Ordinary procedures for request apply Motion for new trial, request for findings of fact/conclusions of law, etc. do not extend the appellate deadlines. 10 Initial Request TEX. R. CIV. P. 296: Any party can file a general request for findings of fact and conclusions of law. Procedure for initial request TEX. R. CIV. P. 296: Request must be titled Request for Findings of Fact and Conclusions of Law. Must be filed within 20 days after judgment is signed. Court clerk must call to trial judge s attention. Trial court must enter findings/conclusions within 20 days after timely request. Notice of Past Due Findings of Fact and Conclusions of Law TEX. R. CIV. P. 297: If trial court does not timely respond, then party must file Notice of Past Due Findings of Fact and Conclusions of Law within 30 days of filing initial request. Notice must state (1) when initial request filed, and (2) when findings were initially due. Filing notice of past due findings/conclusions extends time for trial court to respond until 40 days after initial request filed. Proper request extends appellate deadlines TEX. R. APP. P. 26.1: Notice of appeal due 90 days after judgment if a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court. Termination of parental rights TEX. FAM. CODE ANN : Ordinary procedures for request for findings/conclusions apply Motion for new trial/request for findings of fact/conclusions of law, etc. do not extend filing deadlines. 11 UCCJEA appeals TEX. FAM. CODE ANN : Appeal of final order is accelerated. 12 Motion for new trial/request for findings of fact/conclusions of law, etc. do not extend filing deadlines 13 Dissolution of Marriage TEX. FAM. CODE ANN When court has ordered division of marital estate, either party can request trial court to issue findings of fact/conclusions of law Findings/conclusions must state (1) characterization of each party's assets, liabilities, claims, and offsets on which disputed evidence has been presented; and (2) the value or amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been presented. 14 Request must conform to rules of civil procedure 296 & 297. ***Party should request that trial court include finding on value of a parties separate estates 15 Protective orders TEX. FAM. CODE ANN : 7 In the interest of K.L.V., 109 S.W.3d 61, 67 (Tex. App. Fort Worth 2003, pet. denied) (dismissing appeal in UCCJEA case where father failed to follow procedures for accelerated appeals by failing to file notice of appeal within 20 days after order signed). 8 Id. 9 Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex. App. Houston [1st Dist.] 1998, pet. dism d). 10 In re J.A.G., 92 S.W.3d at In the Interest of K.A.F., 160 S.W.3d at (holding that accelerated deadlines apply in private termination cases; motion to modify judgment does not alter deadline to file notice of appeal, which was due 20 days after judgment). If you miss the deadline to file a notice of appeal, your only recourse is to file a motion with the court of appeals requesting an extension to file the notice of appeal. See In re B.G., 104 S.W.3d at 567 (holding that court could grant extension to file notice of appeal upon reasonable explanation for failure to timely file); In re T.L.S., 143 S.W.3d at (dismissing case because motion to extend time to file notice of appeal was not filed within 15 days after deadline to file notice of appeal). 12 In the interest of K.L.V., 109 S.W.3d at Id. 14 Panchal v. Panchal, 132 S.W.3d 465, (Tex. App. Eastland 2003, order) (trial court s failure to file findings of fact and conclusions of law required court of appeals to abate case to allow trial court to file order). 15 Georganna L. Simpson, TFC v. TRAP: Hidden Appellate Traps in the Texas Family Code and How to Use them to Your Advantage, Soaking Up Some CLE A South Texas Litigation Seminar 2008, Ch. 15, at p. 3. 2

7 Certain findings must be in protective order regardless of request for findings of fact/conclusions of law Court must state whether (1) family violence has occurred and (2) whether it is likely to occur in the future. No separate request or separate findings of fact/conclusion of law necessary 16 Party should object or request additional findings if trial court s findings are insufficient under statute 17 SAPCR/Abuse cases TEX. FAM. CODE ANN : Court must make very specific findings regarding the appointment of a managing conservator for a child when the court finds credible evidence of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. No special request or separate findings required Party should object or request additional findings if trial court s findings are insufficient under statute 18 SAPCR/Deviation from Standard Possession order TEX. FAM. CODE ANN : Any party may request findings of fact/conclusions of law when possession of child is contested and possession order varies from standard possession order. Procedure: (1) Written request must be filed with court not later than 10 days after date of hearing or (2) Request made orally during hearing. Court must then state in possession order reasons for deviating from standard possession order. 19 Party should object or request additional findings if trial court s findings are insufficient under statute 20 SAPCR/Child Support TEX. FAM. CODE ANN (a): Any party can make request if the amount of child support ordered varies from the amount computed by applying the percentage guidelines. Procedure: (1) written request must be filed with court not later than 10 days after date of hearing or (2) request made orally during hearing. Court must then state (1) amount of obligor s monthly net resources; (2) amount of obligee s monthly net resources; (3) % applied to obligor s net resources for 16 Pena, 61 S.W.3d at See In the Interest of Valdez, 980 S.W.2d 910, 914 (Tex. App. Corpus Christi 1998, pet. denied) (holding appellant waived challenge to findings of fact/conclusions of law by failing to object to findings in trial court); see also Thompson v. Thompson, 827 S.W.2d 563, 568 (Tex. App. Corpus Christi 1992, writ denied) (husband waived argument that order deviated from guidelines by failing to object to findings, failing to request additional findings, and failing to raise point of error attacking findings on this ground). 18 In the Interest of Valdez, 980 S.W.2d at 914; Thompson, 827 S.W.2d at 568 (husband waived argument that order deviated from guidelines by failing to object to findings, failing to request additional findings, and failing to raise point of error attacking findings on this ground). 19 In re T.J.S., 71 S.W.3d 452, (Tex. App. Waco 2002, pet. denied) (holding that when trial court fails to make requested findings, review is same as when trial court fails to file findings of fact/conclusions of law; review implied findings to support order). 20 In the Interest of Valdez, 980 S.W.2d at 914; Thompson, 827 S.W.2d at In the Interest of Valdez, 980 S.W.2d at 914; Thompson, 827 S.W.2d at

8 child support in actual order rendered; (4) amount of support if % guidelines applied to first $7,500 of obligor s net resources; (5) if applicable, specific reasons for variation; and (6) if applicable because of multiple support obligations, state # of kids before the court, # of kids not before court residing in same household with obligor, and # of kids not before court and not in obligor s household for whom obligor is obligated by court order to pay support Party should object or request additional findings if trial court s findings are insufficient under statute 21 SUPERSEDING A JUDGMENT/TEMPORARY ORDERS PENDING APPEAL Ordinary Cases Procedure/Deadline TEX. R. APP. P. 25.1(g): Notice of appeal generally does not stay enforcement of judgment; party must supersede judgment under TEX. R. APP. P. 24 or find other law that allows supersedeas without security Superseding a Final Judgment for Money Damages TEX. R. APP. P. 24: To prevent the judgment from being enforced while the case is on appeal, you must supersede the judgment in other words, you must provide a sufficient guarantee that you will perform the judgment s requirements if you lose the appeal. First, client may file a written agreement with the judgment creditor wherein the creditor has agreed to forgo enforcing the judgment during the appeal. Second, your client can file a good and sufficient bond. Third, your client may make a deposit with the trial court clerk in lieu of a bond. Finally, your client can provide alternate security ordered by the trial court. Amount of the Bond, Deposit, or Security: The bond, deposit, or other security must be of a sufficient amount to guarantee payment of the judgment if the appellant loses the appeal. Rule 24.2 governs the amount of any bond, deposit, or security. If the judgment is or the recovery of money, the amount of the supersedeas must equal the sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment. The amount should not exceed the lesser of (1) 50 percent of the judgment debtor s net worth; or (2) 25 million dollars. If the judgment debtor seeks to file less security based on his or her net worth, the judgment debtor has the burden to prove net worth by filing an affidavit that states the debtor s net worth and provides complete, detailed information concerning the debtor s assets and liabilities from which net worth can be ascertained. This affidavit is deemed prima facie evidence of net worth. The creditor can file a contest, which need not be sworn, and may conduct reasonable discovery. If a contest is filed, the trial Family Law Cases Special Procedures Dissolution of Marriage/Temporary orders TEX. FAM. CODE ANN : Party can move trial court to render temporary order necessary for preservation of property or protection of parties during appeal, including order to: (1) require the support of either spouse; (2) require the payment of reasonable attorney's fees and expenses; (3) appoint a receiver for the preservation and protection of the property of the parties; or (4) award one spouse exclusive occupancy of the parties' residence pending the appeal. Party must move for temporary order protecting property/parties during appeal not later than 30 th day after date appeal is perfected (or court may do so on its own motion) Court may render order after notice and hearing. The trial court retains jurisdiction to enforce such a temporary order unless the appellate court, on a proper showing, supersedes the trial court's order. [if temporary order is objectionable, consider raising issues in the appellate court in appeal from final judgment or mandamus if appellate remedy is inadequate, i.e. when erroneous temporary order requires immediate compliance during the appeal. 22 ]. Dissolution of Marriage/Abatement of powers during appeal TEX. FAM. CODE ANN : The power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending. 23 SAPCR/Temporary orders TEX. FAM. CODE ANN : Party can move trial court to render temporary order necessary for protection of child during appeal, including order to: (1) appoint temporary conservators for the child and provide for possession of the child; (2) require the temporary support of the child by a party; (3) restrain a party from molesting or disturbing 22 In re Merriam, 228 S.W.3d 413, 416 (Tex. App. Beaumont 2007, orig. proceeding) (relator failed to show appellate remedy was inadequate because order required payment of attorney s fees after appeal concluded). 23 See In re Fischer-Stoker, 174 S.W.3d 268, 272 (Tex. App. Houston [1st Dist.] 2005, orig. proceeding) (mandamus available to force trial court to dismiss husband s contempt proceeding filed against wife for failure to provide an accounting as ordered in divorce degree; court could not assist in implementation of property division during wife s appeal). 4

9 court must hold a hearing promptly after any discovery is the peace of the child or another party; (4) prohibit a completed. The judgment debtor, who is seeking relief person from removing the child beyond a from the supersedeas requirements, bears the burden of geographical area identified by the court; (5) require proof at the hearing. The trial court, after the hearing, payment of reasonable attorney's fees and expenses; or must then issue an order stating the debtor s net worth and (6) suspend the operation of the order or judgment that stating with particularity the factual basis for its is being appealed. Court cannot supersede order determination. terminating parental rights in suit brought by state If half of the debtor s net worth is still too much for the or political subdivision debtor to post as a security, the debtor may move the trial Party must move for temporary order protecting child court to reduce the amount under Rule 24.2(b). The trial during appeal not later than 30 th day after date appeal is court, after notice and hearing, can reduce the amount to perfected (or court may do so on its own motion). an amount that will not cause the judgment debtor Court may render order after notice and hearing. substantial economic harm. A trial court can enjoin a The trial court retains jurisdiction to enforce such a temporary order unless the appellate court, on a proper showing, supersedes the trial court's order. [This judgment debtor from dissipating or transferring his assets to avoid satisfaction of a judgment, but it cannot issue any order that interferes with the judgment debtor s use of his property in the normal course of business. Technical requirements: If the judgment debtor opts for a bond, the bond must be payable to the judgment creditor, signed by the judgment debtor or the debtor s agent, and signed by a sufficient surety or sureties as obligors. If a deposit is used, the judgment debtor may deposit (1) cash; (2) a cashier s check payable to the clerk drawn on any federally insured and federally or state-chartered bank or savings-and-loan association; (3) or if the court grants leave, a negotiable obligation of the federal government or of any federally insured and federally or state-chartered bank or savings-and-loan association. The clerk then must immediately deposit the cash or any cashier s check and must hold the deposit until the conditions of liability are extinguished. Conditions: Any bond, deposit, or security must be conditioned upon the outcome of the appeal to protect the judgment creditor. The sureties on the bond, any deposit, or alternate security will be liable to the judgment creditor up to the amount of the bond, deposit, or security if (1) the debtor does not appeal or the appeal is dismissed, and the debtor fails to pay the judgment; or (2) after the appeal is final, the debtor does not pay the adverse judgment. If the bond meets these requirements, then Rule 24.1(f) states that [e]nforcement of a judgment must be suspended if the judgment is superseded. Enforcement begun before the judgment is superseded must cease when the judgment is superseded. Stay During Interlocutory Appeal TEX. CIV. PRAC. & REM. CODE ANN : Interlocutory appeals from the following orders automatically stay the commencement of trial on the merits: (1) order appointing a receiver or trustee or an order overruling a motion to vacate an order appointing a receiver or trustee; (2) order denying a motion for summary judgment by a media defendant based on a defense arising under the free speech or free press clauses of the United States or Texas Constitution or Chapter 73 of the Civil Practice and Remedies Code; (3) order denying a motion to dismiss a medical malpractice case under Texas Civil Practice and Remedies Code (b); (4) order that grants relief sought in a medical malpractice case under Texas Civil Practice and Remedies Code (l); (5) order that grants relief sought in a medical malpractice statute expressly provides that there is no interlocutory review of these orders. If temporary order is objectionable, consider raising issues in the appellate court in appeal from final judgment or mandamus if appellate remedy is inadequate, i.e. when erroneous temporary order requires immediate compliance during the appeal. 24 ] SAPCR/Superseding judgment TEX. FAM. CODE ANN (c): Appeal, with or without a supersedeas bond, does not suspend SAPCR order unless court making order so specifies or appellate court, ''on a proper showing,'' permits the order to be suspended UCCJEA appeals TEX. FAM. CODE ANN : Court enforcing an out-of-state child custody order may not suspend enforcement of the order pending appeal, unless the court enters a temporary emergency order under Texas Family Code to protect a child in the state who has been abandoned or in an emergency to prevent abuse 24 In re Merriam, 228 S.W.3d at

10 case under Texas Civil Practice and Remedies Code In contrast, interlocutory appeal from an order that certifies or refuses to certify a class the following orders automatically stays all proceedings in the trial court, including the commencement of trial on the merits The following types of orders can obtain an automatic stay pending an interlocutory appeal, but only in certain circumstances: (1) order denying a motion for summary judgment based on an assertion of governmental immunity; (2) order that grants or denies a defendant s special appearance, except in a suit under the Family Code; (3) order that grants or denies a plea to the jurisdiction by a governmental entity. Automatic stay does not apply unless the motion for summary judgment, special appearance, or plea is filed and requested for hearing in the trial court not later than the later of: (1) the date set in a scheduling order for hearing such motions; or (2) the 180 th day after the date the defendant files: (A) the original answer; (B) the first other responsive pleading; or (C) if an amended pleading is filed alleging a new cause of action against the defendant to which these defenses apply, the responsive pleading that raises that defense. Only an appeal from an order denying a motion for summary judgment based on governmental immunity will automatically stay all proceedings in the trial court; appeals from a plea to the jurisdiction or a special appearance will only stay commencement of trial. You can always ask the trial court or the court of appeals for a discretionary stay. And, if you are only entitled to an automatic stay of the commencement of trial, you can always ask for a discretionary stay of all proceedings in the trial court. 6

11 INDIGENCY Ordinary Cases Procedure/Deadline Procedures for establishing indigency in civil cases Tex. R. App. P. 20: Party who cannot pay the costs in an appellate court may proceed without advance payment of costs if: (1) party files an affidavit of indigence; (2) claim of indigence is not contested or, if contested, the contest is not sustained by written order; and (3) party timely files a notice of appeal. Contents of Affidavit: Affidavit of indigency must identify party filing the affidavit and must state what amount of costs, if any, the party can pay. The affidavit must also contain complete information about: (1) the nature and amount of the party's current employment income, government-entitlement income, and other income; (2) the income of the party's spouse and whether that income is available to the party; (3) real and personal property the party owns; (4) cash the party holds and amounts on deposit that the party may withdraw; (5) the party's other assets; (6) the number and relationship to the party of any dependents; (7) the nature and amount of the party's debts; (8) the nature and amount of the party's monthly expenses; (9) the party's ability to obtain a loan for court costs; (10) whether an attorney is providing free legal services to the party without a contingent fee; and (11) whether an attorney has agreed to pay or advance court costs. Timing/procedure: (1) Appeals: An appellant must file the affidavit of indigence in the trial court with or before the notice of appeal. An appellee who is required to pay part of the cost of preparation of the record under Rule 34.5(b)(3) or 34.6(c)(3) must file an affidavit of indigence in the trial court within 15 days after the date when the appellee becomes responsible for paying that cost. (2) Other Proceedings: In any other appellate court proceeding, a petitioner must file the 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. (3) Extension of Time: The appellate court may extend the time to file an affidavit of indigence if, within 15 days after the deadline for filing the affidavit, the party files in the appellate court a motion complying with Rule 10.5(b). Clerk s duties: (1) Trial Court Clerk: If the affidavit of indigence is filed with the trial court clerk under (c)(1), the clerk must promptly send a copy of the affidavit to the appropriate court reporter. (2) Appellate Court Clerk: If the affidavit of indigence is filed with the appellate court clerk under (c)(2) and if the filing party is requesting the preparation of a record, the appellate court clerk Family Law Cases Special Procedures SAPCR/Inability to pay for reporter s record TEX. FAM. CODE ANN : If party files affidavit of inability to pay costs for appeal in SAPCR suit, court may order county to pay for reporter s record Placement of children under care of TDFPS/State Termination Cases TEX. FAM. CODE ANN : Party must file affidavit of indigence as set forth in TEX. R. APP. P. 20 If a party claims indigency and requests appointment of an attorney, the court shall require the person to file an affidavit of indigency and shall hear evidence to determine the issue of indigency. If court does not render a written order denying the claim of indigence or requiring the person to pay partial costs before the 36th day after the date the final order being appealed is signed, the court shall consider the person to be indigent and shall appoint counsel. Trial court must hold hearing no later than 30 days after final order to determine (1) if party s claim of indigence should be sustained and (2) whether case is frivolous, pursuant to TEX. CIV. PRAC. & REM. CODE ANN (b) If court determines that appellant is indigent and that appeal is not frivolous, appellant is entitled to a obtain a free record on appeal 25 If court determines that appellant is not indigent or appeal would be frivolous, appellant can appeal that order. Court must file reporter s record and clerk s record relevant to indigency hearing with COA. These records must be provided without advanced payment. CR and RR must be filed not later than the 10th day after the date the court makes the decision. COA must review records and may require briefs but may not hear oral argument on indigency/frivolousness. The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any See In re M.R.J.M., 193 S.W.3d 670, (Tex. App. Fort Worth 2006, no pet.). 26 See id. at 674 (court determined that appropriate order under statute would include an order by court of appeals requiring the court reporter to forward the entire trial court record, without advanced payment, reasoning that it could not evaluate whether appellants factual sufficiency argument was frivolous without seeing the entire record). 7

12 must: (A) send a copy of the affidavit to the trial court clerk and the appropriate court reporter; and (B) send to the trial court clerk, the court reporter, and all parties, a notice stating the deadline for filing a contest to the affidavit of indigence. Contest: The clerk, the court reporter, or any party may challenge the claim of indigence by filing--in the court in which the affidavit was filed--a contest to the affidavit. The contest must be filed on or before the date set by the clerk if the affidavit was filed in the appellate court, or within 10 days after the date when the affidavit was filed if the affidavit was filed in the trial court. The contest need not be sworn. Burden of Proof: If a contest is filed, the party who filed the affidavit of indigence must prove the affidavit's allegations. If the indigent party is incarcerated at the time the hearing on a contest is held, the affidavit must be considered as evidence and is sufficient to meet the indigent party's burden to present evidence without the indigent party's attending the hearing. Decision (1) in Appellate Court:-If the affidavit of indigence is filed in an appellate court and a contest is filed, the court may: (a) conduct a hearing and decide the contest; (b) decide the contest based on the affidavit and any other timely filed documents; (c) request the written submission of additional evidence and, without conducting a hearing, decide the contest based on the evidence; or (d) refer the matter to the trial court with instructions to hear evidence and grant the appropriate relief. (2) in Trial Court: If the affidavit of indigence is filed in the trial court and a contest is filed, or if the appellate court refers a contest to the trial court, the trial court must set a hearing and notify the parties and the appropriate court reporter of the setting. The trial court must either conduct a hearing or sign an order extending the time to conduct a hearing: (a) within 10 days after the contest was filed, if initially filed in the trial court; or (b) within 10 days after the trial court received a contest referred from the appellate court. The time for conducting a hearing on the contest must not be extended for more than 20 days from the date the order is signed. Unless--within the period set for the hearing--the trial court signs an order sustaining the contest, the affidavit's allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs. No contest filed: Unless a contest is timely filed, no hearing will be conducted, the affidavit's allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs. Payment: If a party establishes indigence, the trial court clerk and the court reporter must prepare the appellate record without prepayment. If the party can pay or give security for some of the costs, the court must order the party, in writing, to pay or give security, or both, to the extent of the party's ability. The court will allocate the payment among the officials to whom payment is due. If a party who has proceeded in the appellate court without having to pay all the costs is later able to pay some or all of the costs, the appellate court may order the party to pay costs to the extent of the party's ability. Additional findings required TEX. CIV. PRAC. & REM. CODE ANN : 8

13 A court reporter shall provide without cost a statement of facts and a clerk of a court shall prepare a transcript for appealing a judgment from the court only if: (1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and (2) the trial judge finds: (A) the appeal is not frivolous; and (B) the statement of facts and the clerk's transcript is needed to decide the issue presented by the appeal. In determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review. The trial judge may order a clerk of a court to prepare a transcript, or any part of the transcript, necessary for determining whether statement of facts/clerks transcript is needed to decide issue presented by appeal INTERLOCUTORY APPEALS Ordinary Cases Procedure/Deadline TEX. CIV. PRAC. & REM. CODE Receiver/trustee appointments Class certification Temporary injunctive relief Denial of MSJ by gov t officer/employee Denial of MSJ filed by media defendant in 1 st Amendment case Denial of special appearance, except in family code suit Plea to the jurisdiction by gov t unit Expert report in health care liability claims Denial of motion to dismiss in silica/asbestos case Acceleration TEX. R. APP. P. 28.1(a): Appeal of interlocutory orders are accelerated. TC can file findings of fact/conclusions of law within 30 days. Motion for new trial/request for findings of fact/conclusions of law will not extend time to perfect appeal. Family Law Cases Special Procedures General interlocutory appeal statute applies. Interlocutory appeals available in family law cases where receiver/trustee appointed or temporary relief granted. No additional interlocutory appeals provided under Family Code. i.e. Dissolution of Marriage TEX. FAM. CODE ANN : No interlocutory appeal from temporary orders Use mandamus for: Jurisdictional conflicts 27 Temporary orders in a SAPCR suit 28 Mandatory venue in SAPCR suit, TEX. FAM. CODE ANN , , Mandamus: must use diligence in pursuing remedy 30 Time to perfect accelerated appeal TEX. R. APP. P. 26.1(b): Notice of appeal must be filed within 20 days after order signed Record in accelerated appeal TEX. R. APP. P. 35.1(b): Record must be filed in court of appeals 10 days after notice of appeal filed Briefs in accelerated appeal TEX. R. APP. P.38.6(a)-(c): Appellant s brief due 20 days after later of either (1) date clerk s record filed, or (2) date reporter s record filed. Appellee s brief due 20 days after appellant s brief filed. Appellant s reply, if any, due 20 days after appellee s brief filed. 27 See Powell v. Stover, 165 S.W.3d 322, (Tex. 2005) (orig. proceeding) (UCCJEA); In re Forlenza, 140 S.W.3d 373, (Tex. 2004) (orig. proceeding) (UCCJEA). 28 Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Levay, 179 S.W.3d 93, 95 (Tex. App. San Antonio 2005, orig. proceeding); In re Fischer-Stoker, 174 S.W.3d at 272; In re Lemons, 47 S.W.3d 202, (Tex. App. Beaumont 2001, orig. proceeding). 29 Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding); Arias v. Spector, 623 S.W.2d 312, (Tex. 1981) (orig. proceeding). 30 Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, (Tex. 1993). 9

14 APPEALS FROM FINAL JUDGMENTS Ordinary Cases Procedure/Deadline Time to perfect ordinary appeal TEX. R. APP. P. 26.1(a): Notice of appeal must be filed within 30 days after order signed, except that notice of appeal must be filed within 90 days after judgment signed if appellant filed a deadline extending motion : (1) motion for new trial; (2) motion to modify the judgment; (3) motion to reinstate under TEX. R. CIV. P. 165a; (4) request for findings of fact and conclusions of law in case where rules require request or if court of appeals could properly consider the findings Record in ordinary appeal TEX. R. APP. P. 35.1: Record due in court of appeals 60 days after judgment signed, except that record is due 120 days after judgment is signed if appellant filed a deadline-extending motion in the trial court Briefs in ordinary appeal to court of appeals TEX. R. APP. P. 38.6(a)-(c): Appellant s brief due 30 days after later of either (1) date clerk s record filed, or (2) date reporter s record filed. Appellee s brief due 30 days after appellant s brief filed. Appellant s reply, if any, due 20 days after appellee s brief filed. Extensions to file briefs TEX. R. APP. P. 10.5(b)(1)(C), 38.6(d): Party can obtain an extension by filing a motion and providing a reasonable explanation for the extension. A reasonable explanation is any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance. 31 Family Law Cases Special Procedures Placement of children under care of TDFPS/State Termination Cases TEX. FAM. CODE ANN : Terminations of parental rights where TDFPS is involved Motion for new trial/request for findings of fact/conclusions does not extend filing deadlines. See Motion for New Trial, above. Statement of points for appeal: MUST file with the trial court a statement of the point(s) that the party intends to appeal (may be combined with motion for new trial). Statement of points for appeal must be filed with trial court not later than 15 days after final order signed. Party must also request a hearing to present the points. 32 COA can only review issues raised in statement of points for appeal. 33 General statement that evidence is legally insufficient/factually insufficient does not preserve error for appeal 34 Appeal of final order accelerated. Deadlines for accelerated appeals apply, see Interlocutory Appeals above, except that record is due in court of appeals 60 days after final order is signed unless (1) TC grants a new trial or (2) TC denies a request for a free record. See Indigency, above. Court of appeals cannot grant extension of time to file record or brief without showing of good cause!!! Note that general allegations of workload are an insufficient justification for an extension of time. 35 Workload has been held sufficient justification for an extension only when the workload is overwhelming and the attorney asks for a very brief extension. 36 Termination of parental rights TEX. FAM. CODE ANN : Private terminations; terminations where child not in state custody Appeal of final order accelerated. Deadlines applicable for accelerated/interlocutory appeals apply. See Interlocutory appeals, above. Motion for new trial/request for findings of fact/conclusions, etc. do not extend filing deadlines. In private termination cases not involving TDFPS, statement of points on appeal is not required to be filed in trial court 37 A party may be able to get a 15-day extension to file a notice of appeal if reasonable explanation is provided Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex.1989). 32 In re R.J.S., 219 S.W.3d 623, 626 (Tex. App. Dallas 2007, no pet.). 33 Id. at (court held that appellant failed to present any issues for court s consideration by failing to timely file statement of points for appeal in trial court). At least one court has held that this requirement is unconstitutional because it violates the separation of powers doctrine. See In re D.W., 249 S.W.3d at See In re A.J.H., 205 S.W.3d 79, (Tex. App. Fort Worth 2006, no pet.) (statement of points sufficient where it referred to particular provisions in termination statute). 35 In re J.I., 156 S.W.3d 651, 652 (Tex. App. Fort Worth 2005, order) (granting short extension). 36 Pool v. Tex. Dep t of Family & Protective Servs., 227 S.W.3d 212, 215 n.10 (Tex. App. Houston [1st Dist.] 2007, no pet.). 37 In re R.J.S., 219 S.W.3d at 628 (discussing difference between private termination suit and one involving TDFPS). 38 In re B.G., 104 S.W.3d at 567; In re T.W., 89 S.W.3d 641, (Tex. App. Amarillo 2002, no pet.). 10

15 Termination of parental rights TEX. FAM. CODE ANN : Direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit. UCCJEA appeals TEX. FAM. CODE ANN : Appeal of final order is accelerated. 39 Deadlines applicable for accelerated/interlocutory appeals apply. see interlocutory appeals above. Motion for new trial does not extend filing deadlines BILL OF REVIEW Ordinary Cases Procedure/Deadline Bill of review proceeding brought within 4 years after judgment signed TEX. CIV. PRAC. & REM. CODE Family Law Cases Special Procedures Termination of parental rights TEX. FAM. CODE ANN : Validity of order terminating parental rights of person who was personally served or who has executed an affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child or whose rights have been terminated under Section (b) is not subject to collateral or direct attack after the sixth month after the date the order was signed Validity of order terminating the parental rights of a person who was served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed. Termination of parental rights TEX. FAM. CODE ANN : Direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit. 39 In the interest of K.L.V., 109 S.W.3d at