Does a state's request for findings of fact and conclusions of law have any special language?

When submitting this request, should the state propose findings and conclusions?

Is there a timeline the judge has to file these after the request?

No formal language required, simply file a motion requesting FOF and COL because you are the losing party--per Cullen and Oages. A request on the record should also suffice.

Yes, it is usually a good idea to offer proposed FOF & COL so that your language may get incorporated and assist you on appeal.

In Cullen, 195 sw3d 696, the CCA said the trial court has 20 days from date of its ruling

Don't forget you can always file objections to the trial court's FOF & COL too.

Also, remember that the State has only 15 days from the trial court's ruling to file its notice of appeal; thus, you may find you have to file your NOA before you receive the trial court's FOF & COL.

JAS

I thought the adverse party was supposed to provide the proposed findings?

In civil if the court does not file them in 20 days you must file a reminder and if you don't send the reminder then too bad, no findings for you!

My memory on this is fuzzy plus I'm not a lawyer so don't take my word for anything.

But the CCA did refer to the civil rules in Cullen.

JAS

THANKS!!!

quote:

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Originally posted by AlexLayman:
I thought the adverse party was supposed to provide the proposed findings?

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The judge will usually ask the winning party to prepare the findings, since they are the party with an interest in being upheld on appeal, but I would go ahead and prepare proposed findings myself. Assuming the judge thinks your findings are accurate, that is the best way to put the appeal in the most favorable light for your side. And if the other side doesn't get their version done in time, the judge may punish them by using yours.

The sad part in all that is that if the Court later enters findings that a State's witness was not credible, then you will have to politely dismiss the appeal. This is one reason why art. 44.01(d) remains in need of amendment.

I always prepare a findings of fact and conclusions of law regardless of whose side the judge landed. The judge is free to take or leave what I write, but it is there for her in the language I think is correct.

If you know in advance that it's likely to be a close call on the suppression issue, invite your appellate prosecutor to attend the suppression hearing.

He or she will appreciate the advance warning and might even be willing to sit down with you after the hearing to help you craft the FOFs & COLs. (I'd also recommend writing these within an hour or so after the hearing while everything is still fresh on your mind.)

Your appellate prosecutor might also be able to help you draft your FOFs & COLs in such a way as to make the document both palatable to the trial court and beneficial to your side in light of the predilections of the specific appellate justices who will review the trial court's work.

I worked with a great bunch of felony prosecutors who were excellent about giving me the head's up when I was the appellate lackey at Gregg County. If those of you in "sales" help out your "warranty" division by giving them advance warning, they'll definitely appreciate you for it.

Now you're just making me jealous. I am the intake, juvenile, p.o., suppression, trial, and appellate prosecutor!! The idea that I could have another prosecutor to sit with me, much less take over the appeal sounds...well, luxurious.

Seriously though, I've got a good start, thanks for all the ideas.