From a very interesting El Paso case issued last week:

"The State's brief was due on or before May 18, 2007. Tex. R. App. P. 38.6(b). The State did not file a brief nor request additional time in which to do so. Rule 38.8(b) of the Texas Rules of Appellate Procedure expressly guides this Court as to what to do if an appellant fails to file a brief; however, there is no corresponding rule to guide us when the State fails to file a brief in response to an appellant's brief. Several intermediate appellate courts, including this Court, have held that whenever the State fails to file a brief, an appellate court should conduct an independent analysis of the merits of the appellant's claim of error, limited to the arguments raised at trial by the State, to determine if there was error. (citations omitted) The decision to independently review the merits of Appellants' issues should not be construed as approval of the State's dereliction of its responsibility to file a brief. The State's failure to file a brief, in this or any other action, makes the job of this Court considerably more time consuming and difficult."

Little v. State

I'll admit there have definitely been some cases where I didn't think a brief was really necessary, but I've still always filed one. Anyone else had this situation arise, or think the court should've handled it differently?

Incidentally, the facts of the case make for a very interesting (and disturbing) read.

Setting aside any legal or factual reasons for not filing a brief, why would a prosecutor ever want to do nothing, creating a potentially hostile relationship with the court of appeals?

Well, at times a prosecutor may be so overwhelmed with other work that preparing a brief for a patently meritless appeal is not possible. We respond to every brief, but our workload and the current status of our home court allow it. I saw times at my old gig where prosecutor dockets and court practice required serious consideration of "general denial" briefs. We managed to avoid it, but I think we burned out some prosecutors in the process.

For counties without an appellate section, I could see it happening because trial calendars and appellate calendars don't mesh well.

That aside, it is not a recommended practice.

It is not so very different to a prosecutor failing to show up for trial. Any prosecutor is failing in his or her duty if they don't file something in an appellate court. Justice is not being adequately served, and untold damage to office credibility is the likely result of any policy not to file anything.

JAS

I think that the State should file a brief in every case (except of course an appellate attorney's Anders Brief). I think it is important to let the appellate court know this case is important to us. Even when the appellant files a post Anders pro se brief. This has also been my policy with every writ (except the time credit ones) and PDRs. I was always taught to never pass up the opportunity to present your position to the Court. Does it give us an edge? I don't know. But it does let the appellate court know we are interested in this case. And with an excellent appellate paralegal we usually don't have to ask for an extension to file.