The new appellate rules (effective 9/1/08) are available at
Interesting changes include:
(1) TRAP 41.3 -- which will require appellate courts when dealing with transferred appeals to use the law of the transferring court;
(2) TRAP 49 -- seems to be intended to eliminate the TRAP of people confusing a motion for rehearing and a motion for reconsideration (see also Rule 19.1;
(3) TRAP 50 -- which limits the coas power to issue Rule 50 opinions;
(4) TRAP 68.7 -- will have PDR replies filed in the coa (thus shortening the process to get it ready to be submitted to the CCA); and
(5) TRAP 9.8 -- requires the names of the children and the parents in a parental termination case to be protected in both the appellate court opinion and the BRIEFS.
Thanks for the wonderful news David. By far the most significant rule yet on an issue that the courts have generally refused to address head on in their opinions. Many of us have been "hurt" by transfers to other intermediate appellate courts with different philsophical positions about issues. The worst were the transfers after briefing had already been completed.
Under the new TRAPS, it appears that a memorandum opinion can be published. See TRAP 47.2 & 47.7. If it qualifies as a memo opinion under TRAP 47.4, though, why would it need publishing? The comment to 47.7 states that the change was implemented only to "clarify." But isn't this actually a change in the law? I understood (perhaps wrongly)that if an opinion qualified as a memorandum opinion it also didn't meet the critera for publication.
From another thread on this topic:
"The interesting thing to me is when a memorandum opinion in a criminal case is designated for publication, since supposedly the issues are well settled yet the opinion has precedential value. Seems like an oxymoron."
Even so, it has been proper to order publication of memorandum opinions all along. At least, many courts have been doing so.
The problem lies more in the use of the memorandum label than the decision to publish.
Did they change Rule 68.2 to refer to both a "motion for rehearing" and a "motion for reconsideration"?
In its order, the CCA did not adopt all of the changes CCA Order Adopting Rules Changes. Conceivably that means new Rule 41.3 applies only in civil transfers. Furthermore, there is no transition rule governing how and where Replys to PDRs are filed with respect to PDRs filed between August 3 and August 30. Do you file the reply with the CoA, even though the PDR went to Austin? Are motions for extensions of time still filed in Austin under 68.2(c)?
That's weird about the cca's order. I have to believe that unless a TRAP rule is expressly limited with something like "In a civil case" then the rule applies to both criminal and civil cases. They couldn't expect people to consult Court orders to figure out which rule applies. How are litigants going to know whether a general provision like TRAP 38.1(c) only applies to civil cases? Also, if the Supreme Court's order is only supposes to apply to civil cases, then why do they include all of the cca's TRAP changes.
Still, they are accepting comments and perhaps the issue should be clarified.
Another weird thing is that the Supreme Court's Rules make some changes to criminal provisions that are not included in the cca order. See TRAP 47.7(a).
On where to file PDR responses, I would think you should be able to mail replies to Austin until August 31, 2008.
Okay, Martin raises an interesting point. In the Bar Journal official version of the order, it appears that both courts adopt all the rules revisions. The version of the order on the CCA website is more limited. I figured the website version was just bad because there were a couple of blank pages at the end. Anyone know if the CCA order really is different? I figure the Bar Journal version controls because that is the usual organ for publishing these things to the bar.
Okay, 33 Tex. Reg. 2570 is where you can find the copy of the order sent to the Texas Secretary of State. The order, reprinted there in full, contains all of the changes shown in the Bar Journal. It looks to me like we get all the new rules, not just the ones on the CCA website version of the order.
Heres the link to the Texas Register: Link
Sorry I confused the issue. I guess I just figured the court would have posted a correct copy of its own order to its website. Maybe there is an interesting story behind why the order got changed somewhere along the way.
Who knows? Maintaining web sites and web content is more difficult than we think, probably.
Does anyone know for certain when and where PDR replys are due for PDRs pending on 9/1?
I assume that Rule 68.7 only applies for PDRs filed after 8/31, but wondered if anyone had heard from on high whether that was correct.
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