What is Texas Appellate Law?

The following is an overview of the Texas appellate law as well as the Fifth Circuit appellate law. Every step of an appeals process can involve numerous and complex issues or they can be resolved rather simply. The following overview is intended to be simply that, an overview.

In Texas courts a decision by a district judge can be appealed to the Court of Appeals and then to the Texas Supreme Court. If a case is in federal court, a decision by the federal district court can be appealed to the 5th Circuit and then the United States Supreme Court.

All cases begin in a trial court, before they ever reach an appellate court. The trial judge has the ability to dismiss the case on the pleadings early in the litigation as well as dismissing it after a summary sentence motion well into the litigation. The case has the potential of being tried before a judge or a jury and a final judgment could be entered after a full trial. And in some cases, the trial judge will enter a judgment that is different from the jury's verdict. But at some point, the proceedings in the trial court will come to an end. And at that point, a party unhappy with the income, typically the losing side, but sometimes even the winning side, has the opportunity to appeal.

An appeal is placed in motion with the filing of the notice of appeal in the trial court. The party appealing, which is referred to as the appellant, must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal.

Appellate Panel and Oral Argument

An appellate panel decides appearances. The Texas Court of Appeal and the Fifth Circuit decides cases in three-judge panels. These judges are chosen randomly from the pool of available appellate judges on the courts. In appeals to state supreme courts and the US Supreme Court, the entire court usually hears the appeal. State supreme courts typically have seven justifications, and the US Supreme Court has nine justices.

Once the briefing is completed, the appellate court will hear an oral argument. The time between the close of briefing and oral argument varies tremendously between different courts. The Texas Courts of Appeal typically will set oral argument a few months after the close of briefing; the Fifth Circuit often takes well over a year to set oral argument. The Fifth Circuit, however, often decides cases without oral argument.

The oral argument in the Texas Court of Appeal is at most 30 minutes and is usually about 5 – 15 minutes. The Fifth Circuit usually sets oral argument at 10 minutes, but sometimes 20 minutes. By the time of oral argument, the judges on most appellate courts will have read the briefs, had at least one of their research attorneys or clerks prepare a bench memorandum discussing the issues, and often discussed it among themselves.

The lawyers at oral argument usually focus on just the most important aspects of their case, and the judges will frequently ask questions. This is not the time to reargue the entire case.

At the close of oral argument the case is submitted to the appellate court for a decision.


In a standard appeal process, the parties will file a total of three briefs with the court.

The appellant begins with the 'opening brief.' The appellant's opening brief will explain the facts and procedural history of the case, and then explain what went wrong in the trial court and why the appellate court should reverse the earlier decision.

Next, the non-appelling party, who is called the appellee, will file a responsive brief. In this brief, the appellee or respondent basically explains the facts and the procedural history of the case and then argues why the trial court reached the right result and why the appellate court should not reverse the decision.

Finally, the appellate can file a reply brief. In this brief, the appellant has the opportunity to argument why the respondent's claims are wrong. However, the appellant may not make any new legal argument in the reply brief; the appellate can only "reply" to the respondent.

All briefs must contain proper citations to legal authorities (cases, statutes, etc.) and proper citations to the appellate record.

Standards of Appellate Review

An appeal does not mean that a new trial has been granted. The appellate courts do not retry cases or hear new evidence, they do not even hear new legal arguments. Instead, appellate courts review what occurred in the trial court to see if the proper procedures have been followed and the proper law has been applied. Because of the restricted nature of this review, the issues that are raised on appeal are normally significantly different from those that are raised at trial.

In most cases, the appellate court will turn to the trial court or jury on factual issues. However, the appellate court determinates and decides the definition of the law. On issues of law, the interpretation of prior case law, or a statute, or the Constitution, the appellate court will not defer to the trial court but will instead independently decide the issue.On an appealing if there is a pre-trial dismissal after a summary judgment motion or a demurrer, in most of these situations, the appellate court will review the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial.On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were preliminary which means the income would have been different during the trial. It should be noted that minor legal errors are normally not reason enough for a reversal. This rule is often referred to as the harmless error rule.


The appellate panel issues a written opinion which explains how it came to the decision that it did. Similar to the time between briefing and oral argument, the time between oral argument and the written decision can vary greatly between different courts. The Texas Court of Appeal has 90 days to issue an opinion, although they have the option of resubmitting the case and extending their time by 90 days. The Fifth Circuit has no deadline, and the time can vary tremendously.

If the appellate court deems it appropriate, the written opinion will be published in the official reports and will be binding authority for litigants in the future.

Rehearing by the Appellate Court

Any party that is dislikes or is disappointed with the opinion has a brief time window in which to request that the appellate court rehear the case. (When the time window closes, the appellate court loses jurisdiction to rehearse the case.) Because of these, these petitions are almost never granted. If the arguments have already been made and considered, the court will more than likely not consider them again. And if the arguments have not already been made, the court probably will not consider new argument.

But, in very rare cases, the appellate court may have misunderstood the law or the applicable facts of the case. (Note: this is not the same as understanding but disagreeing with a party's claims about the law and the facts of the case.) If this is the situation, the appellate court has discretion to rehear the case.

Review by a Higher Court

A party who is dissatisfied with the results on appeal can also petition a higher appellate court to review the case. In Texas, this would be the Texas Supreme Court, and in the Fifth Circuit, it is the US Supreme Court. (If a federal issue is involved, the US Supreme Court can take cases from the Texas courts.)

With a few exceptions (like death penalty appearances), the Texas and US Supreme Courts are not required to take any particular case; they choose what cases they will decide. The courts generally do not view themselves as simply providing a second layer of appellate review. Instead, they view themselves as insuring uniformity in the law in important issues. As a result, the Texas and US Supreme Courts are likely to take cases where the lower courts have reached different conclusions on the same issue. They are not likely to take a case purely because the appellate court reached the wrong result.

Consequently, the petition asking the higher court to take review must be carefully drafted with this in mind.

Interlocutory Appeals and Appellate Writs

Most appeals involve cases that have been concluded in the trial court, but there are times when a party can appeal from a trial court order before the case is over. In the Fifth Circuit, these are called interlocutory appearances. In the Texas Court of Appeal, these are technically not appearances at all, but are original proceedings, called writ petitions, asking the Court of Appeal to issue an order (or writ) directing the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ varies from court to court and are often very technical.

That defines what Texas Appellate Law is; I'd like to thank Diamond McCarthy LLP for taking the time to answer my questions as I wrote this piece. If you have further questions or inquiries you should speak with a lawyer in your area today or check with a law library in Texas.

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Source by Brenda Segna