October 01, 2009, 16:23suzannewest
Is there a civil requirement that a Motion for New Trial be "presented" within 10 days of filing like there is in the criminal world?
October 01, 2009, 16:26Stacey L. Brownlee
858 sw2d 365
897 sw2d 464
108 sw3d 368
58 sw3d 242
Rule Tx Rule of Civ P 324(b), 329b(a)
October 02, 2009, 09:25JJ
Check out FC Sec. 56.01 it was amended by HB1688 this legislative session. It appears that MNT in juvi cases are not governed by the rules of civil procedure.
October 28, 2009, 16:00suzannewest
it looks like there was a year or two when courts of appeals disagreed with each other and some allowed juveniles to appeal issues that were not in motions for new trial--declining to apply the civil rules out of the interest of justice.
THe problem is, that doesn't necessarily mean that HAD they filed motions for new trial, the courts would have applied the criminal rules, which don't bar appeals, but do require supporting affidavits. No such rule in civil.
So does the juvenile get to get by with neither set of rules--they can appeal anything like criminal rules allow, but don't have to use a supporting affidavit like civil rules allow?
Anyone know of any courts before this new law that said criminal freedoms to appeal apply, so the criminal rule of an affidavit requirement applies as well? The problem is that it is like proving a negative...if the court allowed an appeal even though there was no motion for new trial (criminal standard) then there would have been no motion and thus no application of rules or analysis on lack of affidavit (criminal standard) so there is probably no case at all that would say this!
So can I make a "can't have it both ways" argument? The affidavit (criminal rule) and perfection of appeal with motion for new trial rule (civil rule) seem to both serve the same purpose--to make sure appellate arguments are valid and not fishing expeditions...but it would be great if a court thought that was true and not just me.
October 29, 2009, 00:07david curl
I find your post really confusing. Are you talking about what needs to be done to get a hearing on a motion for new trial?
Perfection of appeal requires only a notice of appeal. In civil jury trials certain issues need to be preserved with a motion for new trial. In criminal motions for new trial, the issue of supporting affidavits usually relates to whether the trial court abused its discretion in failing to grant a hearing.
I don't see how a motion for new trial will be required for either preservation or perfection of appeal. Unless your juvenile appellant is complaining about a ruling on a motion for new trial or a failure to grant a hearing on his motion for new trial it's hard to see why the motion for new trial would even be important.
October 29, 2009, 08:03suzannewest
Yes, you're right, my post was not very clear. The motion I am dealing with is so vague that I am way over-thinking it. I can't research a legal issue they are arguing because they haven't cited one, so I was going the procedural route, which got really, really confusing--because there was no set procedure that applies across the board.
Big, big thanks to whoever got the law changed so this will not come up again.