Our office doesn't get many PDRs, in fact this is the first in the two years I've been here. Does anyone out there have a particular "form letter" they use when replying via letter? Any assistance would be appreciated.
While Rule 68.9 is not very specific about the form or content of the "Reply", I think I would hesitate to utilize just a letter (though I have used that method under Rule 68.10). If the PDR merits any reply, I think a short brief is likely called for.
Do you just want the letter that says you are not replying and agree with the COA? I can send you one on Monday, but it really just says "The State agrees with the opinion of the court of appeals and will not be filing a reply." Speeds up the process by thirty days.
So, I am resurrecting a rather old post.
Here's the question.
I've only had 1 PDR in the few years I've been doing this...that one was pro se.
I got one last Friday from an attorney.
I think the CoA got the opinion right. I have no intention of replying to appellant's rehashed arguments.
However, if I don't reply now, have I waived a reply if the CCA decides to grant the PDR?
No. If the PDR is granted, then each side files a brief. If you are worried, your letter could be something like: The State agrees with the opinion and judgment of the court of appeals and will not file a response to Appellant's PDR. If the Court grants review, the State will file a reply brief in response to Appellant's Brief on Discretionary Review."
Fact is, filing the waiver letter speeds up the process by 30 days, but I have almost never done it in 14 years.
I thought that's how it works, but the postcard the CoA sends is rather vague.
Until this year, like John, we rarely filed responses to PDRS. Now, when the 2nd COA sends a letter advising a PDR has been filed and the date our response is due, it adds: "Please let us know if you do not intend to file a reply." So, if we are not formally responding to the PDR, we send a brief letter as soon as possible.
Are there other COAs doing this?
The main thing to watch out for is the 10-day deadline for a cross-petition. TRAP 68.2(b). If there is any part of a point of error that you think you wrongly lost on in the court of appeals (for example, if they said there was harmless error but you don't think there was even error) you need to do a cross petition.
I almost always file a two page letter response trying to show why the PDR should not be granted. I can only think of five times in 17 1/2 years when I needed to file a longer formal response.
The PDRs I see almost never show legal mistakes by the coa. It costs nothing more than 20 or 30 minutes to make a short argument why the case is unworthy of discretionary review.
Does filing a letter stating there will be no reply still serve to speed up the process? Now that the reply is filed with the Clerk of the Court of Appeals and the fact that the Clerk can take up to 60 days from the date the petition was filed to send it to Austin (without regard to whether any reply is filed) it appears there is no need or reason to file a "no reply" advisory, except maybe in the 2nd COA.
Unknown. This thread is really crusty. The last I heard anyone from CCA talk about it was 10 years ago.
|Powered by Social Strata
© TDCAA, 2001. All Rights Reserved.