                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER ON MOTIONS

Appellate case name:        Fernando Haffid Camero v. Samantha Jo Camero

Appellate case number:      01-15-00860-CV

Trial court case number:    76468-F

Trial court:                300th District Court of Brazoria County

       On October 1, 2015, appellant, Fernando Haffid Camero, proceeding pro se and
incarcerated, mistakenly filed a notice of appeal in this Court, from the August 10, 2015
final decree of divorce, but is deemed filed in the trial court on October 1, 2015. See
TEX. R. APP. P. 25.1(a). Appellant filed no post-judgment motion, making September 9,
2015, his deadline for filing a notice of appeal. See id. 26.1; TEX. R. CIV. P. 329b(a), (g).
Because appellant’s October 1, 2015 notice of appeal may not have been timely filed, this
Court issued an Order and Notice of Intent to Dismiss for Want of Jurisdiction on
January 21, 2016. See TEX. R. APP. P. 26.1, 42.3(a), (c). This Court’s Order further
directed appellant to timely move for extension of time to file his notice of appeal by
providing a reasonable explanation why his notice of appeal should be deemed timely
under the “prisoner mailbox rule,” including any proof of when appellant placed the
notice of appeal in the outgoing prison mailbox. Houser v. McElveen, 243 S.W.3d 646,
646-47 (Tex. 2008) (per curiam); see also Verburgt v. Dorner, 959 S.W.2d 615, 617–18
(Tex. 1997).

        “Under the mailbox rule, a document is deemed timely filed if it is sent to the
proper clerk by first-class mail in a properly addressed, stamped envelope on or before
the last day for filing and is received not more than ten days beyond the filing deadline.”
Glover v. Berleth, No. 01-09-00679-CV, 2012 WL 114200, at *2 (Tex. App.—Houston
[1st Dist.] Jan. 12, 2012, no pet.) (mem. op.) (citing TEX. R. APP. P. 9.2(b)(1)); see also
Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam) (noting that
appellant has burden of “providing some measure of proof that [his] notice[] of appeal
w[as] placed in the United States mail on or before [the deadline],” such as “record in the
form of the filing letter accompanying the [appellant’s] notice[] of appeal” stating the
date the notice of appeal was placed in the “outgoing prison mailbox.”). Under the
“prisoner mailbox rule,” the “pleadings of pro se inmates shall be deemed filed at the
time they are delivered to prison authorities for forwarding to the court clerk.” Campbell
v. State, 320 S.W.3d 338, 342, 344 (Tex. Crim. App. 2010).

       On August 26, 2016, appellant moved for extension of time to file his pro se brief-
affidavit, with a three-page pro se brief/affidavit filed in this Court addressing the merits
of his appeal. 1 Appellant also attached two exhibits to his brief, Step 1 and Step 2
offender grievance forms alleging that his legal paperwork was temporarily confiscated
by prison staff on August 24, 2015, and not all of it was returned, which may have caused
his appellate deadline to expire.

       On August 31, 2016, appellant filed a letter in this Court, dated August 24, 2016,
claiming that he had provided proof of when he placed his notice of appeal in the
outgoing prison mailbox by referring to the Step 1 and 2 grievances he previously
submitted. In addition, appellant attached two other exhibits, the first was a letter from
the district clerk, dated September 30, 2015, stating that she had received appellant’s
September 19, 2015 cover letter, but that he had failed to include the notice of appeal.
The second exhibit was appellant’s one-page cover letter entitled “Notice To Appeal,”
dated September 19, 2015, and postmarked September 22, 2015, stating that he was
enclosing his notice of appeal, but it included no separate notice of appeal.

        This Court construes appellant’s August 31, 2016 letter as his letter-motion for
extension of time to file his notice of appeal because it attaches exhibits to support that
motion, and refers to the prior August 26, 2016 pro se brief/affidavit and Step 1 and 2
exhibits, and considers all as proof for his motion. See Glover, 2012 WL 114200, at *2
(stating that “Rule 9.2(b)(2) of the Texas Rules of Appellate Procedure, entitled ‘Proof of
Mailing,’ identifies items that an appellate court will accept as conclusive proof of the
date of mailing, and expressly permits that an appellate court may consider other proof.”)
(citation omitted). This Court further construes appellant’s pro se cover letter, dated
September 19, 2015, as his notice of appeal because he provided proof of when he placed
the notice of appeal in the outgoing prison mailbox as it was postmarked on September
22, 2015. See id. Also, appellant titled his cover letter “Notice To Appeal,” stated that
he was enclosing his notice of appeal, cited the underlying trial court cause number and
divorce decree, and addressed it to the district clerk, indicating his intention to appeal.

      In this case, appellant’s cover letter “Notice To Appeal,” postmarked September
22, 2015, was mailed by prison staff to the district clerk before the last day for filing,

1
       On August 18, 2016, this Court granted appellant’s third extension of time to file his pro
       se brief-affidavit in support of his until September 14, 2016. On August 31, 2016, the
       Clerk of this Court retroactively granted appellant’s fourth motion for extension of time
       to file his pro se brief-affidavit until August 26, 2016, because he included a brief with
       the motion, both dated August 23, 2016.
                                               2
which was September 24, 2015, including the fifteen-day grace period under rule 26.3(a),
implying a motion for extension of time to file a notice of appeal. See Houser, 243
S.W.3d at 646 (holding that inmate’s “notice of appeal was deemed filed on the day he
mailed it [35 days after trial court’s judgment was signed], since it was received one day
after the 15-day deadline, . . . and a motion for extension was thereby implied. . . .”)
(internal citations omitted); see also McCray v. Mulder, No. 05–08–00420–CV, 2008 WL
2600700, at *1 (Tex. App.—Dallas July 2, 2008, pet. denied) (per curiam) (mem. op.)
(noting that “the notice of appeal [in Houser] was received by the trial court clerk on the
sixteenth day after it was originally due, which was within ten days of the date it was due
under rule 26.3(a).”) (citation omitted). Although appellant’s separate notice of appeal
was not attached to his September 19, 2015 cover letter, his “Notice To Appeal,” dated
September 28, 2015, was mistakenly filed in this Court on October 1, 2015, and deemed
filed the same day with the trial court. See TEX. R. APP. P. 25.1(a). Thus, appellant’s
“Notice To Appeal” was deemed filed on October 1, 2015, which means it was “received
not more than ten days beyond the filing deadline.” Ramos, 228 S.W.3d at 673.

        Accordingly, appellant’s August 31, 2016 letter-motion for extension of time to
file his notice of appeal is GRANTED under the “prisoner mailbox rule,” and we have
jurisdiction to consider his appeal on the merits. See TEX. R. APP. P. 9.2(b), 10.5(b),
26.3(b); Houser, 243 S.W.3d at 646; Ramos, 228 S.W.3d at 673; see also Glover, 2012
WL 114200, at *3 (concluding that appellant’s notice of appeal was timely filed under
the mailbox rule and that court of appeals had jurisdiction to consider merits of appeal).

       Because both appellant’s pro se brief, filed August 26, 2016, and his pro se
supplemental brief, filed on September 1, 2016, appear to address the merits of his
divorce appeal, appellee’s brief, if any, is ORDERED to be filed within 30 days of the
date of this order. See TEX. R. APP. P. 38.6(b), (d). Appellant’s reply brief, if any, must
be filed within 20 days after the filing date of appellee’s brief. See id. 38.6(c).

       Finally, because appellant is a pro se inmate and submitted a letter-motion
requesting a copy of this Court’s local rules, local procedure and evidence rules, filed in
this Court on September 1, 2016, his letter-motion is GRANTED for appellant for his
reply brief, if any. See TEX. R. APP. P. 38.3. The Clerk of this Court is directed to mail a
copy of this Court’s Local Rules, the Texas Rules of Appellate Procedure, and the Texas
Rules of Evidence to appellant within 5 days of this order.

       It is so ORDERED.

Judge’s signature:   /s/ Laura Carter Higley
                     x Acting individually                             Acting for the Court

Date: September 8, 2016


                                               3
                           TEXAS RULES OF APPELLATE PROCEDURE
                                                Table of Contents



                SECTION ONE.                                               (c) Where to File.
             GENERAL PROVISIONS                                            (d) Order of the Court.

Rule 1. Scope of Rules; Local Rules of Courts of            Rule 5. Fees in Civil Cases
Appeals
                                                            Rule 6. Representation by Counsel
      1.1.   Scope.
                                                                    6.1.   Lead Counsel
      1.2.   Local Rules                                                   (a) For Appellant.
             (a) Promulgation.                                             (b) For a Party Other Than Appellant.
             (b) Copies.                                                   (c) How to Designate.
             (c) Party's Noncompliance.
                                                                    6.2.   Appearance of Other Attorneys
Rule 2. Suspension of Rules
                                                                    6.3.   To Whom Communications Sent
Rule 3. Definitions; Uniform Terminology
                                                                    6.4.   Nonrepresentation Notice
      3.1.   Definitions                                                   (a) In General.
                                                                           (b) Appointed Counsel.
      3.2.   Uniform Terminology in Criminal
             Cases                                                  6.5.   Withdrawal
                                                                           (a) Contents of Motion.
Rule 4. Time and Notice Provisions                                         (b) Delivery to Party.
                                                                           (c) If Motion Granted.
      4.1.   Computing Time                                                (d) Exception for Substitution           of
             (a) In General.                                                   Counsel.
             (b) Clerk's     Office    Closed     or
                 Inaccessible.                                      6.6.   Agreements of Parties or Counsel

      4.2.   No Notice of Trial Court’s Judgment            Rule 7. Substituting Parties
             in Civil Case
             (a) Additional Time to File Documents.                 7.1.   Parties Who Are Not Public Officers
                 (1) In general.                                           (a) Death of a Party.
                 (2) Exception for restricted appeal.                          (1) Civil Cases.
             (b) Procedure to Gain Additional Time.                            (2) Criminal Cases.
             (c) The Court’s Order.                                        (b) Substitution for Other Reasons.

      4.3.   Periods Affected by Modified                           7.2.   Public Officers
             Judgment in Civil Case                                        (a) Automatic Substitution of Officer.
             (a) During Plenary-Power Period.                              (b) Abatement.
             (b) After Plenary Power Expires.
                                                            Rule 8. Bankruptcy in Civil Cases
      4.4.   Periods Affected When           Process
             Served by Publication                                  8.1.   Notice of Bankruptcy

      4.5.   No Notice of Judgment or Order of                      8.2.   Effect of Bankruptcy
             Appellate Court; Effect on Time to
             File Certain Documents                                 8.3.   Motion to Reinstate or Sever Appeal
             (a) Additional Time to File Documents.                        Suspended by Bankruptcy
             (b) Procedure to Gain Additional Time.                        (a) Motion to Reinstate.

                                                        i
              (b) Motion to Sever.                                  Civil Cases
                                                                           (a) Sensitive Data Defined.
Rule 9. Documents Generally                                                (b) Filing of Documents Containing
                                                                               Sensitive Data Prohibited.
       9.1.   Signing                                                      (c) Redaction of Sensitive Data;
              (a) Represented Parties.                                         Retention Required.
              (b) Unrepresented Parties.                                   (d) Notice to Clerk.
              (c) Electronic Signatures.                                   (e) Restriction on Remote Access.

       9.2.   Filing                                          9.10. Privacy Protection for Documents Filed in
              (a) With Whom.                                        Criminal Cases
              (b) Filing by Mail.                                         (a) Sensitive Data Defined.
                   (1) Timely Filing.                                     (b) Redacted Filings.
                   (2) Proof of Mailing.                                  (c) Exemptions from the Redaction
              (c) Electronic Filing.                                          Requirement.
                                                                          (d) Redaction Procedures.
       9.3.   Number of Copies; Electronic Copies                         (e) Certification.
              (a) Courts of Appeals.                                      (f) Reference List.
              (b) Supreme Court and Court of                              (g) Sealed materials.
                  Criminal Appeals.                                       (h) Waiver of Protection of Identifiers.
              (c) Exception for Record.
                                                              Rule 10. Motions in the Appellate Courts
       9.4.   Form
              (a) Printing.                                         10.1. Contents of Motions; Response
              (b) Paper Type and Size.                                    (a) Motion.
              (c) Margins.                                                (b) Response.
              (d) Spacing.
              (e) Typeface.                                         10.2. Evidence on Motions
              (f) Binding and Covering.
              (g) Contents of Cover.                                10.3. Determining Motions
              (h) Appendix.                                               (a) Time for Determination.
              (i) Length.                                                 (b) Reconsideration.
              (j) Electronically Filed Documents.
              (k) Nonconforming Documents.                          10.4. Power of Panel or Single Justice or
                                                                          Judge to Entertain Motions
       9.5.   Service                                                     (a) Single Justice.
              (a) Service of All Documents Required.                      (b) Panel.
              (b) Manner of Service.
              (c) When complete.                                    10.5. Particular Motions
              (d) Proof of Service.                                       (a) Motions Relating to Informalities in
              (e) Certificate Requirements.                                   the Record.
                                                                          (b) Motions to Extend Time.
       9.6.   Communications with the Court                                   (1) Contents of Motion in General.
                                                                              (2) Contents of Motion to Extend
       9.7.   Adoption by Reference                                                Time to File Notice of Appeal.
                                                                              (3) Contents of Motion to Extend
       9.8.   Protection of Minor’s Identity in                                    Time to File Petition for
              Parental-Rights Termination Cases                                    Review or Petition for
              and Juvenile Court Cases                                             Discretionary Review.
                                                                          (c) Motions to Postpone Argument.
              (a)   Alias Defined.
              (b)   Parental-Rights Termination Cases.        Rule 11. Amicus Curiae Briefs
              (c)   Juvenile Court Cases.
              (d)   No Alteration of Appellate Record.        Rule 12. Duties of Appellate Clerk

9.9.   Privacy Protection for Documents Filed in                    12.1. Docketing the Case

                                                         ii
      12.2. Docket Numbers                                         15.2. Appearance Without Service; Actual
            (a) Numbering System.                                        Knowledge
            (b) Numbering Order.
            (c) Multiple Notices of Appeal.                  Rule 16. Disqualification or Recusal of Appellate
            (d) Appeals Not Yet Filed.                       Judges

      12.3. Custody of Papers                                      16.1. Grounds for Disqualification

      12.4. Withdrawing Papers                                     16.2. Grounds for Recusal

      12.5. Clerk's Duty to Account                                16.3. Procedure for Recusal
                                                                         (a) Motion.
      12.6. Notices of Court’s Judgments and                             (b) Decision.
            Orders                                                       (c) Appeal.

Rule 13. Court Reporters and Court Recorders                 Rule 17. Court of    Appeals    Unable   to   Take
                                                             Immediate Action
      13.1. Duties of      Court   Reporters     and
            Recorders                                              17.1. Inability to Act

      13.2. Additional Duties of Court Recorder                    17.2. Nearest Available Court of Appeals

      13.3. Priorities of Reporters                                17.3. Further Proceedings

      13.4. Report of Reporters                              Rule 18. Mandate

      13.5. Appointing Deputy Reporter                             18.1. Issuance
                                                                         (a) In the Court of Appeals.
      13.6. Filing of Notes in a Criminal Case                           (b) In the Supreme Court and the Court
                                                                             of Criminal Appeals.
Rule 14. Recording   and     Broadcasting      Court                     (c) Agreement to Issue.
Proceedings
                                                                   18.2. Stay of Mandate
      14.1. Recording        and      Broadcasting
            Permitted                                              18.3. Trial Court Case Number

      14.2. Procedure                                              18.4. Filing of Mandate
            (a) Request to cover Court proceeding.
            (b) Response.                                          18.5. Costs
            (c) Court May Shorten Time.
            (d) Decision of Court.                                 18.6. Mandate in Accelerated Appeals

      14.3. Equipment and Personnel                                18.7. Recall of Mandate

      14.4. Enforcement                                      Rule 19. Plenary Power of the Courts of Appeals
                                                             and Expiration of Term
Rule 15. Issuance of Writ or Process by Appellate
Court                                                              19.1. Plenary Power of Courts of Appeals

      15.1. In General                                             19.2. Plenary Power       Continues     After
            (a) Signature Under Seal.                                    Petition Filed
            (b) To Whom Directed; by Whom
                Served.                                            19.3. Proceedings After Plenary Power
            (c) Return; Lack of Execution;                               Expires
                Simultaneous Writs.


                                                       iii
      19.4. Expiration of Term                                 22.3. Time to File Motion

Rule 20. When Party is Indigent                                22.4. Court's Ruling
                                                                     (a) Time to Rule; Form of Ruling.
      20.1. Civil Cases                                              (b) Failure to Rule.
            (a) Costs Defined.
            (b) When a Statement Was Filed in the              22.5. Effect of Denying
                Trial Court.
                (1) General Rule; Status in Trial              22.6. Effect of Granting
                    Court Carries Forward.                           (a) Defendant Restored.
                (2) Establishing the Right to                        (b) Defendant      Discharged       or
                    Proceed Under the General                            Remanded.
                    Rule.
                (3) Exception; Material Change in         Rule 23. Nunc Pro Tunc Proceedings in Criminal
                    Circumstances.                        Cases
            (c) When No Statement Was Filed in the
                Trial Court.                                   23.1. Judgment and Sentence

      20.2. Criminal Cases                                     23.2. Credit on Sentence

   SECTION TWO. APPEALS FROM TRIAL                        Rule 24. Suspension of Enforcement of Judgment
     COURT JUDGMENTS AND ORDERS                           Pending Appeal in Civil Cases

Rule 21. New Trials in Criminal Cases                          24.1. Suspension of Enforcement
                                                                     (a) Methods.
      21.1. Definitions                                              (b) Bonds.
            (a) New Trial.                                           (c) Deposit in Lieu of Bond.
            (b) New Trial on Punishment.                                 (1) Types of Deposits.
                                                                         (2) Amount of Deposit.
      21.2. When Motion for New Trial Required                           (3) Clerk’s Duties; Interest.
                                                                     (d) Conditions of Liability.
      21.3. Grounds                                                  (e) Orders of Trial Court.
                                                                     (f) Effect of Supersedeas.
      21.4. Time to File and Amend Motion
            (a) To file.                                       24.2. Amount of Bond, Deposit, or Security
            (b) To Amend.                                            (a) Type of Judgment.
                                                                         (1) For Recovery of Money.
      21.5. State May Controvert; Effect                                 (2) For Recovery of Property.
                                                                         (3) Other Judgment.
      21.6. Time to Present                                              (4) Conservatorship or Custody.
                                                                         (5) For a Governmental Entity.
      21.7. Types of Evidence Allowed at Hearing                     (b) Lesser Amount.
                                                                     (c) Determination of Net Worth.
      21.8. Court's Ruling                                               (1) Judgment Debtor's Affidavit
            (a) Time to Rule.                                                 Required; Contents; Prima
            (b) Ruling.                                                       Facie Evidence.
            (c) Failure to Rule.                                         (2) Contest; Discovery.
                                                                         (3) Hearing; Burden of Proof;
      21.9. Granting a New Trial                                              Findings; Additional Security.
                                                                     (d) Injunction.
Rule 22. Arrest of Judgment in Criminal Cases
                                                               24.3. Continuing Trial Court Jurisdiction;
      22.1. Definition                                               Duties of Judgment Debtor
                                                                     (a) Continuing Jurisdiction.
      22.2. Grounds                                                  (b) Duties of Judgment Debtor.



                                                     iv
      24.4. Appellate Review
            (a) Motions; Review.                                 28.1. Accelerated Appeals
            (b) Grounds of Review.                                     (a) Types of Accelerated Appeals.
            (c) Temporary Orders.                                      (b) Perfection of Accelerated Appeal.
            (d) Action by Appellate Court.                             (c) Appeals of Interlocutory Orders.
            (e) Effect of Ruling.                                      (d) Quo Warranto Appeals.
                                                                       (e) Record and Briefs.
Rule 25. Perfecting Appeal
                                                                 28.2. Agreed Interlocutory Appeals in Civil
      25.1. Civil Cases.                                               Cases
            (a) Notice of Appeal.                                      (a) Perfecting Appeal.
            (b) Jurisdiction of Appellate Court.                       (b) Other Requirements.
            (c) Who Must File Notice.                                  (c) Contents of Notice.
            (d) Contents of Notice.                                    (d) Determination of Jurisdiction.
            (e) Service of Notice.                                     (e) Record; Briefs.
            (f) Clerk’s Duties.                                        (f) No Automatic Stay of Proceedings
            (g) Amending the Notice.                                       in Trial Court.
            (h) Enforcement of Judgment Not
                Suspended by Appeal.                             28.3. Permissive Appeals in Civil Cases.
                                                                       (a) Petition Required.
      25.2. Criminal Cases                                             (b) Where Filed.
            (a) Rights to Appeal.                                      (c) When Filed.
                (1) Of the State.                                      (d) Extension of Time to File Petition.
                (2) Of the Defendant.                                  (e) Contents.
            (b) Perfection of Appeal.                                  (f) Response; Reply; Cross-Petition;
            (c) Form and Sufficiency of Notice.                            Time for Filing.
            (d) Certification of Defendant's Right of                  (g) Length of Petition, Cross-Petition,
                Appeal.                                                    Response, and Reply.
            (e) Clerk's Duties.                                        (h) Service.
            (f) Amending the Notice.                                   (i) Docketing Statement.
            (g) Effect of Appeal.                                      (j) Time for Determination.
            (h) Advice of Right of Appeal.                             (k) When Petition Granted.

Rule 26. Time to Perfect Appeal                                  28.4. Accelerated Appeals in Parental
                                                                       Termination and Child Protection
      26.1. Civil Cases                                                Cases
                                                                       (a) Application and Definitions.
      26.2. Criminal Cases                                             (b) Appellate Record.
            (a) By the Defendant.                                      (c) Remand for New Trial.
            (b) By the State.
                                                            Rule 29. Orders Pending Interlocutory Appeal in
      26.3. Extension of Time                               Civil Cases

Rule 27. Premature Filings                                       29.1. Effect of Appeal

      27.1. Prematurely Filed Notice of Appeal                   29.2. Security
            (a) Civil Cases.
            (b) Criminal Cases.                                  29.3. Temporary Orders of Appellate Court

      27.2. Other Premature Actions                              29.4. Enforcement of Temporary Orders

      27.3. If Appealed Order Modified or                        29.5. Further Proceedings in Trial Court
            Vacated
                                                                 29.6. Review of Further Orders
Rule 28. Accelerated, Agreed,     and    Permissive                    (a) Motion to Review Further Orders.
Appeals in Civil Cases                                                 (b) Record.


                                                        v
                                                          Rule 34. Appellate Record
Rule 30. Restricted Appeal to Court of Appeals in
Civil Cases                                                     34.1. Contents

Rule 31. Appeals in Habeas Corpus, Bail, and                    34.2. Agreed Record
Extradition Proceedings in Criminal Cases
                                                                34.3. Agreed Statement of the Case
      31.1. Filing the Record; Submission
                                                                34.4. Form
      31.2. Hearing
                                                                34.5. Clerk’s Record
      31.3. Orders on Appeal                                          (a) Contents.
                                                                      (b) Request for Additional Items.
      31.4. Stay of Mandate                                               (1) Time for Request.
            (a) When Motion for Stay Required.                            (2) Request Must Be Specific.
            (b) Determination of the motion.                              (3) Requesting Unnecessary Items.
            (c) Denial of stay.                                           (4) Failure to Timely Request.
                                                                      (c) Supplementation.
      31.5. Judgment Conclusive                                       (d) Defects or Inaccuracies.
                                                                      (e) Clerk’s Record Lost or Destroyed.
      31.6. Defendant Detained by Other Than                          (f) Original Documents.
            Officer                                                   (g) Additional Copies of Clerk’s Record
                                                                          in Criminal Cases.
      31.7. Judgment to be Certified                                  (h) Clerk May Consult With Parties.

Rule 32. Docketing Statement                                    34.6. Reporter’s Record
                                                                      (a) Contents.
      32.1. Civil Cases                                                   (1) Stenographic Recording.
                                                                          (2) Electronic Recording.
      32.2. Criminal Cases                                            (b) Request for Preparation.
                                                                          (1) Request to Court Reporter.
      32.3. Supplemental Statements                                       (2) Filing.
                                                                          (3) Failure to Timely Request.
      32.4. Purpose of Statement                                      (c) Partial Reporter’s Record.
                                                                          (1) Effect on Appellate Points or
Rule 33. Preservation of Appellate Complaints                                 Issues.
                                                                          (2) Other Parties May Designate
      33.1. Preservation; How Shown                                           Additions.
            (a) In General.                                               (3) Costs; Requesting Unnecessary
            (b) Ruling by Operation of Law.                                   Matter.
            (c) Formal Exception and Separate                             (4) Presumptions.
                Order Not Required.                                       (5) Criminal Cases.
            (d) Sufficiency of Evidence Complaints                    (d) Supplementation.
                in Nonjury Cases.                                     (e) Inaccuracies in the Reporter’s
                                                                          Record.
      33.2. Formal Bills of Exception                                     (1) Correction of Inaccuracies by
            (a) Form.                                                         Agreement.
            (b) Evidence.                                                 (2) Correction of Inaccuracies by
            (c) Procedure.                                                    Trial Court.
            (d) Conflict.                                                 (3) Correction After Filing in
            (e) Time to File.                                                 Appellate Court.
                (1) Civil Cases.                                      (f) Reporter’s     Record    Lost   or
                (2) Criminal Cases.                                       Destroyed.
                (3) Extension of Time.                                (g) Original Exhibits.
            (f) Inclusion in Clerk’s Record.                              (1) Reporter     May     Use     in
                                                                              Preparing Reporter’s Record.


                                                     vi
                 (2) Use of Original Exhibits by                  (g)   Statement of Facts.
                     Appellate Court.                             (h)   Summary of the Argument.
             (h) Additional Copies of Reporter’s                  (i)   Argument.
                 Record in Criminal Cases.                        (j)   Prayer.
             (i) Supreme Court and Court of                       (k)   Appendix in Civil Cases.
                 Criminal Appeals May Set Fee.                          (1) Necessary Contents.
                                                                        (2) Optional Contents.
Rule 35. Time to File Record; Responsibility for
Filing Record                                               38.2. Appellee's Brief
                                                                  (a) Form of Brief.
      35.1. Civil Cases                                           (b) Cross-Points.
                                                                      (1) Judgment Notwithstanding the
      35.2. Criminal Cases                                                Verdict.
                                                                      (2) When Evidentiary Hearing
      35.3. Responsibility for Filing Record                              Needed.
            (a) Clerk’s Record.
            (b) Reporter’s Record.                          38.3. Reply Brief
            (c) Courts to Ensure Record Timely
                Filed.                                      38.4. Deleted

Rule 36. Agency Record in Administrative Appeals            38.5. Appendix for Cases Recorded
                                                                  Electronically
      36.1. Scope                                                 (a) Appendix.
                                                                      (1) In General.
      36.2. Inclusion in Appellate Record                             (2) Repetition Not Required.
                                                                      (3) Form.
      36.3. Correcting the Record                                     (4) Notice.
            (a) Correction by Agreement.                          (b) Presumptions.
            (b) Correction by Trial Court.                        (c) Supplemental Appendix.
                                                                  (d) Inability to Pay.
Rule 37. Duties of the Appellate Clerk on Receiving               (e) Inaccuracies.
the Notice of Appeal and Record                                       (1) Correction by Agreement.
                                                                      (2) Correction by Appellate or
      37.1. On Receiving the Notice of Appeal                             Trial Court.
                                                                  (f) Costs.
      37.2. On Receiving the Record
                                                            38.6. Time to File Briefs
      37.3. If No Record Filed                                    (a) Appellant's Filing Date.
            (a) Notice of late record.                            (b) Appellee's Filing Date.
                (1) Civil Cases.                                  (c) Filing Date for Reply Brief.
                (2) Criminal Cases.                               (d) Modifications of Filing Time.
            (b) If No Clerk’s Record Filed Due to
                Appellant's Fault.                          38.7. Amendment or Supplementation
            (c) If No Reporter’s Record Filed
                Due to Appellant's Fault.                   38.8. Failure of Appellant to File Brief
                                                                  (a) Civil Cases.
Rule 38. Requisites of Briefs                                     (b) Criminal Cases.
                                                                      (1) Effect.
      38.1. Appellant's Brief                                         (2) Notice.
            (a) Identity of Parties and Counsel.                      (3) Hearing.
            (b) Table of Contents.                                    (4) Appellate Court Action.
            (c) Index of Authorities.
            (d) Statement of the Case.                      38.9. Briefing Rules to be Construed
            (e) Any Statement Regarding Oral                      Liberally
                Argument.                                         (a) Formal Defects.
            (f) Issues Presented.                                 (b) Substantive Defects.


                                                      vii
                                                                   42.3. Involuntary Dismissal in Civil Cases
Rule 39. Oral   Argument;      Decision    Without
Argument                                                           42.4. Involuntary Dismissal in Criminal
                                                                         Cases
      39.1. Right to Oral Argument                                       (a) Timely     Return to Custody;
                                                                             Reinstatement.
      39.2. Purpose of Argument                                          (b) Life Sentence.

      39.3. Time Allowed                                     Rule 43. Judgment of the Court of Appeals

      39.4. Number of Counsel                                      43.1. Time

      39.5. Argument by Amicus                                     43.2. Types of Judgment

      39.6. When Only One Party Files a Brief                      43.3. Rendition   Appropriate         Unless
                                                                         Remand Necessary
      39.7. Request and Waiver
                                                                   43.4. Judgment for Costs in Civil Cases
      39.8. Clerk’s Notice
                                                                   43.5. Judgment Against Sureties in Civil
Rule 40. ORDER OF DECISION                                               Cases

      40.1. Civil Cases                                            43.6. Other Orders

      40.2. Criminal Cases                                   Rule 44. Reversible Error

Rule 41. Panel and En Banc Decision                                44.1. Reversible Error in Civil Cases
                                                                         (a) Standard for Reversible Error.
      41.1. Decision by Panel                                            (b) Error Affecting Only Part of Case.
            (a) Constitution of Panel.
            (b) When Panel Cannot Agree on                         44.2. Reversible Error in Criminal Cases
                Judgment.                                                (a) Constitutional Error.
            (c) When Court Cannot Agree on                               (b) Other Errors.
                Judgment.                                                (c) Presumptions.

      41.2. Decision by En Banc Court                              44.3. Defects in Procedure
            (a) Constitution of En Banc Court.
            (b) When En Banc Court Cannot Agree                    44.4. Remediable Error of the Trial Court
                on Judgment.                                             (a) Generally.
            (c) En Banc Consideration Disfavored.                        (b) Court of Appeals Direction if Error
                                                                             Remediable.
      41.3. Precedent in Transferred Cases.
                                                             Rule 45. Damages for Frivolous Appeals in Civil
Rule 42. Dismissal                                           Cases

      42.1. Voluntary Dismissal in Civil Cases               Rule 46. Remittitur in Civil Cases
            (a) On Motion or By Agreement.
                (1) On Motion of Appellant.                        46.1. Remittitur After Appeal Perfected
                (2) By Agreement.                                        Trial
            (b) Partial Disposition.
            (c) Effect on Court's Opinion.                         46.2. Appeal on Remittitur
            (d) Costs.
                                                                   46.3. Suggestion of Remittitur by Court of
      42.2. Voluntary     Dismissal   in   Criminal                      Appeals
            Cases
                                                                   46.4. Refusal to Remit Must Not Be

                                                      viii
            Mentioned in Later
                                                              49.8. Extensions of Time
      46.5. Voluntary Remittitur
                                                              49.9. Not Required for Review
Rule 47. Opinions, Publication, and Citation
                                                              49.10. Deleted
      47.1. Written Opinions
                                                              49.11. Relationship to Petition for Review
      47.2. Designation and Signing of Opinions;
            Participating Justices                            49.12. Certificate   of    Conference        Not
            (a) Civil and Criminal Cases.                            Required
            (b) Criminal Cases.
            (c) Civil Cases.                            Rule 50. Abolished eff Sept 1, 2011

      47.3. Distribution of Opinions                    Rule 51. Enforcement of Judgments After Mandate

      47.4. Memorandum Opinions                               51.1. Civil Cases
                                                                    (a) Statement of Costs.
      47.5. Concurring and Dissenting Opinions                      (b) Enforcement of Judgment.

      47.6. Change in Designation by En Banc                  51.2. Criminal Cases
            Court                                                   (a) Clerk’s Duties.
                                                                    (b) Judgment of Affirmance; Defendant
      47.7. Citation of Unpublished Opinions                            Not in Custody.
            (a) Criminal Cases.                                         (1) Capias to Be Issued.
            (b) Civil Cases.                                            (2) Contents of Capias.
                                                                        (3) Sheriff's Duties.
Rule 48. Copy of Opinion and Judgment to                            (c) Judgment of Reversal.
Interested Parties and Other Courts                                     (1) When new Trial Ordered.
                                                                        (2) When Case Dismissed.
      48.1. Mailing Opinion and Judgment in All                     (d) Judgment of Acquittal.
            Cases
                                                        SECTION THREE. ORIGINAL PROCEEDINGS
      48.2. Additional Recipients in Criminal              IN THE SUPREME COURT AND THE
            Cases                                                COURTS OF APPEALS

      48.3. Filing Opinion and Judgment                 Rule 52. Original Proceedings

      48.4. Opinion Sent to Criminal Defendant                52.1. Commencement

Rule 49. Motion for Rehearing and En Banc                     52.2. Designation of Parties
Reconsideration
                                                              52.3. Form and Contents of Petition
      49.1. Further Motion for Rehearing                            (a) Identity of Parties and Counsel.
                                                                    (b) Table of Contents.
      49.2. Response                                                (c) Index of Authorities.
                                                                    (d) Statement of the Case.
      49.3. Decision on Motion                                      (e) Statement of Jurisdiction.
                                                                    (f) Issues Presented.
      49.4. Accelerated Appeals.                                    (g) Statement of Facts.
                                                                    (h) Argument.
      49.5. Further Motion for Rehearing                            (i) Prayer.
                                                                    (j) Certification.
      49.6. Amendments                                              (k) Appendix.
                                                                        (1) Necessary Contents.
      49.7. En Banc Reconsideration                                     (2) Optional Contents.


                                                   ix
                                                              53.5. Petitioner's Reply to Response
      52.4. Response
                                                              53.6. Deleted
      52.5. Relator’s Reply to Response
                                                              53.7. Time and Place of Filing
      52.6. Deleted                                                 (a) Petition.
                                                                    (b) Premature Filing.
      52.7. Record                                                  (c) Petitions Filed by Other Parties.
            (a) Filing by Relator Required.                         (d) Response.
            (b) Supplementation Permitted.                          (e) Reply.
            (c) Service of Record on All Parties.                   (f) Extension of Time.
                                                                    (g) Petition Filed in Court of Appeals.
      52.8. Action on Petition
            (a) Relief Denied.                                53.8. Amendment
            (b) Interim Action.
            (c) Relief Granted.                               53.9. Court May Require Revision
            (d) Opinion.
                                                        Rule 54. Filing the Record
      52.9. Motion for Rehearing
                                                              54.1. Request for Record
      52.10. Temporary Relief
             (a) Motion for Temporary Relief;                 54.2. Duty of Court of Appeals Clerk
                 Certificate of Compliance.                         (a) Request for Record.
             (b) Grant of Temporary Relief.                         (b) Nondocumentary Exhibits.
             (c) Motion to Reconsider.
                                                              54.3. Expenses
      52.11. Groundless Petition or Misleading
             Statement or Record                              54.4. Duty of Supreme Court Clerk

  SECTION FOUR. PROCEEDINGS IN THE                      Rule 55. Briefs on the Merits
           SUPREME COURT
                                                              55.1. Request by Court
Rule 53. Petition for Review
                                                              55.2. Petitioner's Brief on the Merits
      53.1. Method of Review                                        (a) Identity of Parties and Counsel.
                                                                    (b) Table of Contents.
      53.2. Contents of Petition                                    (c) Index of Authorities.
            (a) Identity of Parties and Counsel.                    (d) Statement of the Case.
            (b) Table of Contents.                                  (e) Statement of Jurisdiction.
            (c) Index of Authorities.                               (f) Issues Presented.
            (d) Statement of the Case.                              (g) Statement of Facts.
            (e) Statement of Jurisdiction.                          (h) Summary of the Argument.
            (f) Issues Presented.                                   (i) Argument.
            (g) Statement of Facts.                                 (j) Prayer.
            (h) Summary of the Argument.
            (i) Argument.                                     55.3. Respondent's Brief
            (j) Prayer.
            (k) Appendix.                                     55.4. Petitioner's Brief in Reply
                (1) Necessary Contents.
                (2) Optional Contents.                        55.5. Reliance on Prior Brief

      53.3. Response to Petition for Review                   55.6. Deleted

      53.4. Points Not Considered in Court of                 55.7. Time and Place of Filing; Extension of
            Appeals                                                 Time



                                                    x
      55.8. Amendment
                                                                58.9. Opinion on Certified Questions
      55.9. Court May Require Revision
                                                                58.10. Answering Certified Questions
Rule 56. Orders on Petition for Review
                                                          Rule 59. Submission and Argument
      56.1. Orders on Petition for Review
            (a) Considerations in Granting Review.              59.1. Submission Without Argument
            (b) Petition Denied or Dismissed.
                (1) “Denied.”                                   59.2. Submission With Argument
                (2) “Dismissed w.o.j.”
            (c) Petition Refused.                               59.3. Purpose of Argument
            (d) Improvident Grant.
                                                                59.4. Time for Argument
      56.2. Moot Cases
                                                                59.5. Number of Counsel
      56.3. Settled Cases
                                                                59.6. Argument by Amicus Curiae
      56.4. Notice to Parties
                                                          Rule 60. Judgments in the Supreme Court
      56.5. Return of Documents to Court of
            Appeals                                             60.1. Announcement of Judgments

Rule 57. Direct Appeals to the Supreme Court                    60.2. Types of Judgment

      57.1. Application                                         60.3. Remand in the Interest of Justice

      57.2. Jurisdiction                                        60.4. Judgment for Costs

      57.3. Statement of Jurisdiction                           60.5. Judgment Against Sureties

      57.4. Preliminary Ruling on Jurisdiction                  60.6. Other Orders

      57.5. Direct Appeal       Exclusive   While         Rule 61. Reversible Error
            Pending
                                                                61.1. Standard for Reversible Error
Rule 58. Certification of Questions of Law by
United States Courts                                            61.2. Error Affecting Only Part of the Case

      58.1. Certification                                       61.3. Defects in Procedure

      58.2. Contents of the Certification Order                 61.4. Remediable Error of the Trial Court
                                                                      or Court of Appeals
      58.3. Transmission of Certification Order                       (a) Generally.
                                                                      (b) Supreme Court Direction if Error
      58.4. Transmission of Record                                        Remediable.

      58.5. Fees and Costs                                Rule 62. Damages for Frivolous Appeals

      58.6. Notice                                        Rule 63. Opinions; Copy of Opinion and Judgment
                                                          to Interested Parties and Other Courts
      58.7. Briefs and Oral Argument
            (a) Briefs.                                   Rule 64. Motion for Rehearing
            (b) Oral Argument.
                                                                64.1. Time for Filing
      58.8. Intervention by the State

                                                     xi
      64.2. Contents                                                   (d)   Statement of the Case.
                                                                       (e)   Statement of Procedural History.
      64.3. Response and Decision                                      (f)   Grounds for Review.
                                                                       (g)   Argument.
      64.4. Second Motion                                              (h)   Prayer for Relief.
                                                                       (i)   Appendix.
      64.5. Extensions of Time
                                                                 68.5. Deleted
      64.6. Deleted
                                                                 68.6. Nonconforming Petition
Rule 65. Enforcement of Judgment after Mandate
                                                                 68.7. Court of Appeals Clerk's Duties
      65.1. Statement of Costs                                         (a) On filing of the Petition.
                                                                       (b) Reply.
      65.2. Enforcement of Judgment                                    (c) Sending Petition and Reply to Court
                                                                           of Criminal Appeals.

   SECTION FIVE. PROCEEDINGS IN THE                              68.8. Court of Criminal Appeals Clerk’s
     COURT OF CRIMINAL APPEALS                                         Duties

Rule 66. Discretionary Review in General                         68.9. Reply

      66.1. With or Without Petition                             68.10. Amendment

      66.2. Not a Matter of Right                                68.11. Service on State Prosecuting Attorney

      66.3. Reasons for Granting Review                    Rule 69. Action of Court on Petition for
                                                           Discretionary Review and After Granting Review
      66.4. Documents to Aid Decision
            (a) Acquiring Documents.                             69.1. Granting or Refusal
            (b) Return of Documents.
                                                                 69.2. Setting Case for Submission
Rule 67. Discretionary Review Without Petition
                                                                 69.3. Improvident Grant of Review
      67.1. Four Judges' Vote
                                                                 69.4. Clerk's Duties
      67.2. Order Staying Mandate                                      (a) On Refusal or Dismissal.
                                                                       (b) On Granting Review.
      67.3. Time to Issue Mandate Extended
                                                           Rule 70. Brief on the Merits
Rule 68. Discretionary Review with Petition
                                                                 70.1. Initial Brief
      68.1. Generally
                                                                 70.2. Reply Brief
      68.2. Time to File Petition
            (a) First Petition.                                  70.3. Brief Contents and Form
            (b) Subsequent Petition.
            (c) Extension of Time.                               70.4. Other Briefs

      68.3. Where to File Petition                         Rule 71. Direct Appeals

      68.4. Contents of Petition                                 71.1. Direct Appeal
            (a) Table of Contents.
            (b) Index of Authorities.                            71.2. Record
            (c) Statement      Regarding      Oral
                Argument.                                        71.3. Briefs

                                                     xii
                                                                          Submission
      71.4. Additional Briefs
                                                                    75.2. Request for Argument
Rule 72. Extraordinary Matters
                                                                    75.3. Oral Argument
      72.1. Leave to File
                                                              Rule 76. Submissions En Banc
      72.2. Disposition
                                                              Rule 77. Opinions
Rule 73. Postconviction Applications for Writs of
Habeas Corpus                                                       77.1. Generally

      73.1. Form for Application Filed Under                        77.2. Signing; Publication
            Article 11.07 of the Code of Criminal
            Procedure                                               77.3. Unpublished Opinions

      73.2. Noncompliant Applications                               77.4. Copies

      73.3. State’s Response                                  Rule 78. Judgments in the Court of Criminal
                                                              Appeals
      73.4. Filing and Transmission of Habeas
            Corpus                                                  78.1. Types of Judgment

      73.5. Time Frame for Resolution of Claims                     78.2. Remand in the Interests of Justice
            Raised in Application
                                                                    78.3. Other Orders
      73.6. Action on Application
                                                              Rule 79. Rehearings
Rule 74. Review of Certified State Criminal-Law
Questions                                                           79.1. Motion for Rehearing

      74.1. Certification                                           79.2. Contents

      74.2. Contents of the Certification Order                     79.3. Amendments

      74.3. Transmission of Certification Order                     79.4. Decision

      74.4. Transmission of Record                                  79.5. Further Motion for Rehearing

      74.5. Notice                                                  79.6. Extension of Time

      74.6. Briefs and Oral Argument                                79.7. Service
            (a) Briefs.
            (b) Oral Argument.

      74.7. Intervention by the State

      74.8. Opinion on Certified Question

      74.9. Motion for Rehearing

      74.10. Answering Certified Questions

Rule 75. Notification; Oral Argument

      75.1. Notification    of   Argument         or

                                                       xiii
                           TEXAS RULES OF APPELLATE PROCEDURE
                               Updated with Amendments Effective September 1, 2016




   SECTION ONE: GENERAL PROVISIONS
                                                                               Notes and Comments
 Rule 1. Scope of Rule; Local Rules of Courts of                         Comment to 1997 change: Former
                        Appeals                                subdivision (a) regarding appellate court jurisdiction is
                                                               deleted. The power to suspend rules is extended to
1.1. Scope                                                     civil cases. Other nonsubstantive changes are made.

        These rules govern procedure in appellate                  Rule 3. Definitions; Uniform Terminology
courts and before appellate judges and post-trial
procedure in trial courts in criminal cases.                   3.1. Definitions

1.2. Local Rules                                                   (a) Appellant means a party taking an appeal to
                                                                       an appellate court.
    (a) Promulgation. A court of appeals may
        promulgate rules governing its practice that               (b) Appellate court means the courts of appeals,
        are not inconsistent with these rules. Local                   the Court of Criminal Appeals, and the
        rules governing civil cases must first be                      Supreme Court.
        approved by the Supreme Court. Local rules
        governing criminal cases must first be                     (c) Appellee means a party adverse to an
        approved by the Court of Criminal Appeals.                     appellant.

    (b) Copies. The clerk must provide a copy of the               (d) Applicant means a person seeking relief by a
        court's local rules to anyone who requests it.                 habeas corpus in a criminal case;

    (c) Party's Noncompliance. A court must not                    (e) Petitioner means a party petitioning the
        dismiss an appeal for noncompliance with a                     Supreme Court or the Court of Criminal
        local rule without giving the noncomplying                     Appeals for review.
        party notice and a reasonable opportunity to
        cure the noncompliance.                                    (f) Relator means a person seeking relief in an
                                                                       original proceeding in an appellate court
                Notes and Comments                                     other than by habeas corpus in a criminal
                                                                       case.
     Comment to 1997 change: Subdivision 1.1 is
simplified without substantive change. Subdivision                 (g) Reporter or court reporter means the court
1.2 is amended to make clear that any person is entitled               reporter or court recorder.
to a copy of local rules. Paragraph 1.2(c), restricting
dismissal of a case for noncompliance with a local                 (h) Respondent means:
rule, is added.
                                                                        (1) a party adverse to a petitioner in the
             Rule 2. Suspension of Rule                                     Supreme Court or the Court of Criminal
                                                                            Appeals; or
     On a party's motion or on its own initiative an
appellate court may — to expedite a decision or for                     (2) a party against whom relief is sought in
other good cause — suspend a rule's operation in a                          an original proceeding in an appellate
particular case and order a different procedure; but a                      court.
court must not construe this rule to suspend any
provision in the Code of Criminal Procedure or to alter        3.2. Uniform Terminology in Criminal Cases
the time for perfecting an appeal in a civil case.


                                                           1
     In documents filed in criminal appeals, the parties                         by Texas Rule of Civil Procedure
are the State and the appellant. But if the State has                            306a.3      or    acquired      actual
appealed under Article 44.01 of the Code of Criminal                             knowledge of the signing, then a
Procedure, the defendant is the appellee. Otherwise,                             period that, under these rules, runs
papers should use real names for parties, and such                               from the signing will begin for that
labels as appellee, petitioner, respondent, and movant                           party on the earlier of the date when
should be avoided unless necessary for clarity. In                               the party receives notice or acquires
habeas corpus proceedings, the person for whose relief                           actual knowledge of the signing.
the writ is requested is the applicant; Code of Criminal                         But in no event may the period
Procedure article 11.13.                                                         begin more than 90 days after the
                                                                                 judgment or order was signed.
                Notes and Comments
                                                                            (2) Exception for restricted appeal.
     Comment to 1997 change: The definition of court                            Subparagraph (1) does not extend
below and the reference to “suing out a writ of error to                        the time for perfecting a restricted
the court of appeals,” are deleted as those terms are no                        appeal.
longer used in these rules. Other changes are made.
                                                                   (b) Procedure to Gain Additional Time. The
        Rule 4. Time and Notice Provisions                             procedure to gain additional time is governed
                                                                       by Texas Rule of Civil Procedure 306a.5.
4.1. Computing Time
                                                                   (c) The Court’s Order. After hearing the motion,
    (a) In General. The day of an act, event, or                       the trial court must sign a written order that
        default after which a designated period                        finds the date when the party or the party’s
        begins to run is not included when computing                   attorney first either received notice or
        a period prescribed or allowed by these rules,                 acquired actual knowledge that the judgment
        by court order, or by statute. The last day of                 or order was signed.
        the period is included, but if that day is a
        Saturday, Sunday, or legal holiday, the period         4.3. Periods Affected by Modified Judgment in
        extends to the end of the next day that is not              Civil Case
        a Saturday, Sunday, or legal holiday.
                                                                   (a) During Plenary-Power Period. If a judgment
    (b) Clerk's Office Closed or Inaccessible. If the                  is modified in any respect while the trial court
        act to be done is filing a document, and if the                retains plenary power, a period that, under
        clerk's office where the document is to be                     these rules, runs from the date when the
        filed is closed or inaccessible during regular                 judgment is signed will run from the date
        hours on the last day for filing the document,                 when the modified judgment is signed.
        the period for filing the document extends to
        the end of the next day when the clerk's office            (b) After Plenary Power Expires. If the trial court
        is open and accessible. The closing or                         corrects or reforms the judgment under Texas
        inaccessibility of the clerk's office may be                   Rule of Civil Procedure 316 after expiration
        proved by a certificate of the clerk or counsel,               of the trial court’s plenary power, all periods
        by a party's affidavit, or by other satisfactory               provided in these rules that run from the date
        proof, and may be controverted in the same                     the judgment is signed run from the date the
        manner.                                                        corrected judgment is signed for complaints
                                                                       that would not apply to the original judgment.
4.2. No Notice of Trial Court’s Judgment in Civil
     Case                                                      4.4. Periods Affected When Process Served by
                                                                    Publication
    (a) Additional Time to File Documents.
                                                                   If process was served by publication and if a
              (1) In general. If a party affected by a         motion for new trial was filed under Texas Rule of
                  judgment or other appealable order           Civil Procedure 329 more than 30 days after the
                  has not — within 20 days after the           judgment was signed, a period that, under these rules,
                  judgment or order was signed —               runs from the date when the judgment is signed will be
                  either received the notice required          computed as if the judgment were signed on the date



                                                           2
when the motion for new trial was filed.
                                                                               Notes and Comments
4.5. No Notice of Judgment or Order of Appellate                   Comment to 1997 change: This is former Rule 5.
Court; Effect on Time to File Certain Documents.              Paragraph 4.1(b) is added. Former paragraph (b)(1) is
                                                              omitted because it is covered by other provisions of
    (a) Additional Time to File Documents. A party            the rules. Former paragraphs (b)(2) and (b)(3) are
        may move for additional time to file a                omitted because they are duplicative of provisions in
        motion for rehearing or en banc                       the Rules of Civil Procedure, which prescribes the
        reconsideration in the court of appeals, a            applicable procedure. The phrase “modified, corrected
        petition for review, or a petition for                or reformed in any respect” in paragraph 4.3(a) is
        discretionary review, if the party did not—           changed to “modified in any respect,” but no change
        until after the time expired for filing the           in substance is intended. Former subdivision (e)
        document—either receive notice of the                 regarding notice of judgment by the court of appeals is
        judgment or order from the clerk or acquire           moved to Rule 12.6. Subdivision 4.5 is revised and
        actual knowledge of the rendition of the              now makes clear that the court must grant the motion
        judgment or order.                                    for additional time if the court finds that the party did
                                                              not receive the notice or acquire actual knowledge in
    (b) Procedure to Gain Additional Time. The                time. Other changes are made throughout the rule.
        motion must state the earliest date when the
        party or the party's attorney received notice              Comment to 2002 change: Subdivision 4.5 is
        or acquired actual knowledge that the                 amended to clarify that a party may obtain additional
        judgment or order had been rendered. The              time to file documents when the party fails to receive
        motion must be filed within 15 days of that           notice not only of an appellate court judgment, but of
        date but in no event more than 90 days after          an appellate court order - such as one denying a motion
        the date of the judgment or order.                    for rehearing - that triggers the appeal period.

    (c) Where to File.                                            Comment to 2007 change: Subdivision 4.5 is
                                                              changed, consistent with other changes in the rules, to
        (1) A motion for additional time to file a            specifically address a motion for en banc
            motion for rehearing or en banc                   reconsideration and treat it as a motion for rehearing.
            reconsideration in the court of appeals
            must be filed in and ruled on by the court
            of appeals in which the case is pending.                       Rule 5. Fees in Civil Cases

        (2) A motion for additional time to file a                 A party who is not excused by statute or these
            petition for review must be filed in and          rules from paying costs must pay — at the time an item
            ruled on by the Supreme Court.                    is presented for filing — whatever fees are required by
                                                              statute or Supreme Court order. The appellate court
        (3) A motion for additional time to file a            may enforce this rule by any order that is just.
            petition for discretionary review must be
            filed in and ruled on by the Court of                             Notes and Comments
            Criminal Appeals.                                     Comment to 1997 change: This is former Rule 13.
                                                              The rule is simplified. The fees an appellate court may
        (d) Order of the Court. If the court finds that       charge in a civil case are now specified by Supreme
            the motion for additional time was                Court order.
            timely filed and the party did not—
            within the time for filing the motion for                  Rule 6. Representation by Counsel
            rehearing or en banc reconsideration,
            petition for review, or petition for              6.1. Lead Counsel
            discretionary review, as the case may
            be—receive the notice or have actual                  (a) For Appellant. Unless another attorney is
            knowledge of the judgment or order, the                   designated, lead counsel for an appellant is
            court must grant the motion. The time                     the attorney whose signature first appears on
            for filing the document will begin to run                 the notice of appeal.
            on the date when the court grants the
            motion.                                               (b) For a Party Other Than Appellant. Unless



                                                          3
         another attorney is designated, lead counsel                 being sent notices, copies of documents, or
         for a party other than an appellant is the                   other communications, that attorney may file
         attorney whose signature first appears on the                a nonrepresentation notice in the appellate
         first document filed in the appellate court on               court. The notice must:
         that party's behalf.
                                                                      (1) state that the attorney is not representing
    (c) How to Designate. The original or a new lead                      the party on appeal;
        counsel may be designated by filing a notice
        stating that attorney's name, mailing address,                (2) state that the court and other counsel
        telephone number, fax number, if any, email                       should communicate directly with the
        address, and State Bar of Texas identification                    party in the future;
        number. If a new lead counsel is being
        designated, both the new attorney and either                  (3) give the party's name and last known
        the party or the former lead counsel must sign                    address and telephone number; and
        the notice.
                                                                      (4) be signed by the party.
6.2. Appearance of Other Attorneys
                                                                  (b) Appointed Counsel. In a criminal case, an
     An attorney other than lead counsel may file a                   attorney appointed by the trial court to
notice stating that the attorney represents a specified               represent an indigent party cannot file a
party to the proceeding and giving that attorney's                    nonrepresentation notice.
name, mailing address, telephone number, fax
number, if any, and State Bar of Texas identification         6.5. Withdrawal
number. The clerk will note on the docket the
attorney's appearance. When a brief or motion is filed,           An appellate court may, on appropriate terms and
the clerk will note on the docket the name of each            conditions, permit an attorney to withdraw from
attorney, if not already noted, who appears on the            representing a party in the appellate court.
document.
                                                                  (a) Contents of Motion. A motion for leave to
6.3. To Whom Communications Sent                                      withdraw must contain the following:

    Any notice, copies of documents filed in an                       (1) a list of current deadlines and settings in
appellate court, or other communications must be sent                     the case;
to:
                                                                      (2) the party's name and last known address
    (a) each party’s lead counsel on appeal;                              and telephone number;

    (b) a party’s lead counsel in the trial court if:                 (3) a statement that a copy of the motion was
                                                                          delivered to the party; and
         (1) that party was represented by counsel in
             the trial court;                                         (4) a statement that the party was notified in
                                                                          writing of the right to object to the
         (2) lead counsel on appeal has not yet been                      motion.
             designated for that party; and
                                                                  (b) Delivery to Party. The motion must be
         (3) lead counsel in the trial court has not                  delivered to the party in person or mailed —
             filed a nonrepresentation notice or been                 both by certified and by first-class mail — to
             allowed to withdraw;                                     the party at the party's last known address.

    (c) a party if the party is not represented by                (c) If Motion Granted. If the court grants the
        counsel.                                                      motion, the withdrawing attorney must
                                                                      immediately notify the party, in writing, of
6.4. Nonrepresentation Notice                                         any deadlines or settings that the attorney
                                                                      knows about at the time of withdrawal but
    (a) In General. If, in accordance with paragraph                  that were not previously disclosed to the
        6.3(b), the lead counsel in the trial court is                party. The withdrawing attorney must file a



                                                          4
         copy of that notice with the court clerk.                       appellate court may order substitution on
                                                                         any party's motion at any time.
    (d) Exception for Substitution of Counsel. If an
        attorney substitutes for a withdrawing                  7.2. Public Officers
        attorney, the motion to withdraw need not
        comply with (a) but must state only the                     (a) Automatic Substitution of Officer. When a
        substitute attorney’s name, mailing address,                    public officer is a party in an official capacity
        telephone number, fax number, if any, and                       to an appeal or original proceeding, and if
        State Bar of Texas identification number.                       that person ceases to hold office before the
        The withdrawing attorney must comply with                       appeal or original proceeding is finally
        (b) but not (c).                                                disposed of, the public officer’s successor is
                                                                        automatically substituted as a party if
6.6. Agreements of Parties or Counsel                                   appropriate.       Proceedings         following
                                                                        substitution are to be in the name of the
    To be enforceable, an agreement of parties or their                 substituted party, but any misnomer that does
counsel concerning an appellate court proceeding                        not affect the substantial rights of the parties
must be in writing and signed by the parties or their                   may be disregarded. Substitution may be
counsel. Such an agreement is subject to any appellate                  ordered at any time, but failure to order
court order necessary to ensure that the case is                        substitution of the successor does not affect
properly presented.                                                     the substitution.

                Notes and Comments                                  (b) Abatement. If the case is an original
       Comment to 1997 change: Former Rules 7 and                       proceeding under Rule 52, the court must
57 are merged and substantially revised. Former Rule                    abate the proceeding to allow the successor to
8 regarding agreements of counsel is included here as                   reconsider the original party's decision. In all
subdivision 6.6 and the requirement that an agreement                   other cases, the suit will not abate, and the
be filed and included in the record is deleted.                         successor will be bound by the appellate
                                                                        court's judgment or order as if the successor
                                                                        were the original party.
            Rule 7. Substituting Parties
                                                                                Notes and Comments
7.1. Parties Who Are Not Public Officers                             Comment to 1997 change: This is former Rule 9.
                                                                Former subdivision (a) regarding death of a party in a
    (a) Death of a Party.                                       civil case is now subparagraph 7.1(a)(1). Former
                                                                subdivision (b) regarding death of a party in a criminal
         (1) Civil Cases. If a party to a civil case dies       case is now subparagraph 7.1(a)(2). Former
             after the trial court renders judgment but         subdivision (c) regarding separation of office by
             before the case has been finally disposed          public officers is now subdivision 7.2. Former
             of on appeal, the appeal may be                    paragraph (c)(3) regarding a successor's liability for
             perfected, and the appellate court will            costs is omitted as unnecessary. Former subdivision
             proceed to adjudicate the appeal as if all         (d) regarding substitution for other causes is now
             parties were alive. The appellate court's          paragraph 7.1(b). Subdivision 7.2 is revised to make it
             judgment will have the same force and              applicable to all cases in which a public officer is a
             effect as if rendered when all parties             party, and to make substitution automatic if
             were living. The decedent party's name             appropriate.
             may be used on all papers.

         (2) Criminal Cases. If the appellant in a                       Rule 8. Bankruptcy in Civil Cases
             criminal case dies after an appeal is
             perfected but before the appellate court           8.1. Notice of Bankruptcy
             issues the mandate, the appeal will be
             permanently abated.                                    Any party may file a notice that a party is in
                                                                bankruptcy. The notice must contain:
    (b) Substitution for Other Reasons. If
        substitution of a party in the appellate court is           (a) the bankrupt party’s name;
        necessary for a reason other than death, the



                                                            5
    (b) the court in which the bankruptcy proceeding
        is pending;                                             9.1. Signing

    (c) the bankruptcy proceeding’s style and case                  (a) Represented Parties. If a party is represented
        number; and                                                     by counsel, a document filed on that party's
                                                                        behalf must be signed by at least one of the
    (d) the date when the bankruptcy petition was                       party's attorneys. For each attorney whose
        filed. Comment to 2008 change: The                              name appears on a document as representing
        requirement that the bankruptcy notice                          that party, the document must contain that
        contain certain pages of the bankruptcy                         attorney's State Bar of Texas identification
        petition is eliminated, given that electronic                   number, mailing address, telephone number,
        filing is now prevalent in bankruptcy courts                    fax number, if any, and email address.
        and bankruptcy petitions are available
        through the federal PACER system.                           (b) Unrepresented Parties. A party not
                                                                        represented by counsel must sign any
8.2. Effect of Bankruptcy                                               document that the party files and give the
                                                                        party’s mailing address, telephone number,
     A bankruptcy suspends the appeal and all periods                   fax number, if any, and email address.
in these rules from the date when the bankruptcy
petition is filed until the appellate court reinstates or           (c) Electronic Signatures. A document that
severs the appeal in accordance with federal law. A                     is electronically served, filed, or issued by a
period that began to run and had not expired at the time                court or clerk is considered signed if the
the proceeding was suspended begins anew when the                       document includes:
proceeding is reinstated or severed under 8.3. A
document filed by a party while the proceeding is                        (1) a "/s/" and name typed in the space where
suspended will be deemed filed on the same day, but                          the signature would otherwise appear,
after, the court reinstates or severs the appeal and will                    unless the document is notarized or
not be considered ineffective because it was filed                           sworn; or
while the proceeding was suspended.
                                                                         (2) an electronic image or scanned image of
8.3.    Motion to Reinstate or Sever Appeal                                  the signature.
Suspended by Bankruptcy

    (a) Motion to Reinstate. If a case has been                 9.2. Filing
        suspended by a bankruptcy filing, a party
        may move that the appellate court reinstate                 (a) With Whom. A document is filed in an
        the appeal if permitted by federal law or the                   appellate court by delivering it to:
        bankruptcy court. If the bankruptcy court has
        lifted or terminated the stay, a certified copy                  (1) the clerk of the court in which the
        of the order must be attached to the motion.                         document is to be filed; or

    (b) Motion to Sever. A party may move to sever                       (2) a justice or judge of that court who is
        the appeal with respect to the bankrupt party                        willing to accept delivery. A justice or
        and to reinstate the appeal with respect to the                      judge who accepts delivery must note on
        other parties. The motion must show that the                         the document the date and time of
        case is severable and must comply with                               delivery, which will be considered the
        applicable federal law regarding severance of                        time of filing, and must promptly send it
        a bankrupt party. The court may proceed                              to the clerk.
        under this paragraph on its own initiative.
                                                                    (b) Filing by Mail.
                Notes and Comments
                                                                         (1) Timely Filing. A document received
    Comment to 1997 change: This is a new rule.                              within ten days after the filing deadline
                                                                             is considered timely filed if:

Rule 9. Documents Generally                                                    (A) it was sent to the proper clerk by



                                                            6
             United States Postal Service or a                      particular case.
             commercial delivery service;
                                                                (4) Timely Filing. Unless a document must
        (B) it was placed in an envelope or                         be filed by a certain time of day, a
            wrapper properly addressed and                          document is considered timely filed if it
            stamped; and                                            is electronically filed at any time before
                                                                    midnight (in the court's time zone) on the
        (C) it was deposited in the mail or                         filing deadline. An electronically filed
            delivered to a commercial delivery                      document is deemed filed when
            service on or before the last day for                   transmitted to the filing party's electronic
            filing.                                                 filing service provider, except:

    (2) Proof of Mailing. Though it may                             (A) if a document is transmitted on a
        consider other proof, the appellate court                       Saturday, Sunday, or legal holiday,
        will accept the following as conclusive                         it is deemed filed on the next day
        proof of the date of mailing:                                   that is not a Saturday, Sunday, or
                                                                        legal holiday; and
        (A) a legible postmark affixed by the
            United States Postal Service;                           (B) if a document requires a motion and
                                                                        an order allowing its filing, the
        (B) a receipt for registered or certified                       document is deemed filed on the
            mail if the receipt is endorsed by the                      date the motion is granted.
            United States Postal Service;
                                                                (5) Technical Failure. If a document is
        (C) a certificate of mailing by the United                  untimely due to a technical failure or a
            States Postal Service; or                               system outage, the filing party may seek
                                                                    appropriate relief from the court.
        (D) a receipt endorsed by             the
            commercial delivery service.                        (6) Confirmation of Filing. The electronic
                                                                    filing manager will send a filing
(c) Electronic Filing.                                              confirmation notice to the filing party.

    (1) Requirement. Attorneys in civil cases                   (7) Electronic Notices From the Court. The
        must electronically file documents.                         clerk may send notices, orders, or other
        Attorneys in criminal cases must                            communications about the case to the
        electronically file documents except for                    party electronically. A court seal may be
        good cause shown in a motion filed in                       electronic.
        the     appellate court. Unrepresented
        parties in civil and criminal cases may          9.3. Number of Copies
        electronically file documents, but it is
        not required.                                       (a) Courts of Appeals.

    (2) Mechanism. Electronic filing must be                    (1) Document Filed in Paper Form. If a
        done through the     electronic    filing                   document is not electronically filed, a
        manager established by the Office of                        party must file the original and one
        Court Administration and an electronic                      unbound copy of the document unless
        filing service provider certified by the                    otherwise required by local rule. The
        Office of Court Administration.                             unbound copy of an appendix must
                                                                    contain a separate page before each
    (3) Exceptions. Documents filed under seal,                     document and must not include tabs that
        subject to a pending motion to seal, or to                  extend beyond the edge of the page.
        which access is otherwise restricted by
        law or court order must not be                          (2) Electronically       Filed   Document.
        electronically filed. For good cause, an                    Unless required by local rule, a party
        appellate court may permit a party to file                  need not file a paper copy of an
        other documents in paper form in a                          electronically filed document.



                                                     7
                                                                  inch margins on both sides and at the top and
    (b) Supreme Court and Court of Criminal                       bottom.
        Appeals.
                                                              (d) Spacing. Text must be double-spaced, but
         (1) Document Filed in Paper Form. If a                   footnotes, block quotations, short lists, and
             document is not electronically filed, a              issues or points of error may be single-
             party must file the original and 11 copies           spaced.
             of any document addressed to either the
             Supreme Court or the Court of Criminal           (e) Typeface. A document produced on a
             Appeals, except that in the Supreme                  computer must be printed in a conventional
             Court only an original and one copy must             typeface no smaller than 14-point except for
             be filed of any motion, response to the              footnotes, which must be no smaller than 12-
             motion, and reply in support of the                  point. A typewritten document must be
             motion, and in the Court of Criminal                 printed in standard 10-character-per-inch
             Appeals, only the original must be filed             (cpi) monospaced typeface.
             of a motion for extension of time or a
             response to the motion, or a pleading            (f) Binding and Covering. A paper document
             under Code of Criminal Procedure                     must be bound so as to ensure that it will not
             article 11.07.                                       lose its cover or fall apart in regular use. A
                                                                  paper document should be stapled once in the
         (2) Electronically Filed Document. Paper                 top left-hand corner or be bound so that it will
             copies of each document that is                      lie flat when open. A paper petition or brief
             electronically filed with the Supreme                should have durable front and back covers
             Court or the Court of Criminal Appeals               which must not be plastic or be red, black, or
             must be mailed or hand- delivered to the             dark blue.
             Supreme Court or the Court of Criminal
             Appeals, as appropriate, within three            (g) Contents of Cover. A document's front cover,
             business days after the document is                  if any, must contain the case style, the case
             electronically filed.   The number of                number, the title of the document being filed,
             paper copies required shall be                       the name of the party filing the document,
             determined, respectively, by order of the            and the name, mailing address, telephone
             Supreme Court or the Court of Criminal               number, fax number, if any, email address,
             Appeals.                                             and State Bar of Texas identification number
                                                                  of the lead counsel for the filing party. If a
    (c) Exception for Record. Only the original                   party requests oral argument in the court of
        record need be filed in any proceeding.                   appeals, the request must appear on the front
                                                                  cover of that party’s first brief.
9.4. Form
                                                              (h) Appendix and Original Proceeding Record.
     Except for the record, a document filed with an              A appendix may be bound either with the
appellate court, including a paper copy of an                     document to which it is related or separately.
electronically filed document, must — unless the court            If separately bound, the appendix must
accepts another form in the interest of justice — be in           comply with paragraph (f). A paper record in
the following form:                                               an original proceeding or a paper appendix
                                                                  must be tabbed and indexed. An
    (a) Printing. A document may be produced by                   electronically filed record in an original
        standard typographic printing or by any                   proceeding or an electronically filed
        duplicating process that produces a distinct              appendix that includes more than one item
        black image. Printing must be on one side of              must contain bookmarks to assist in locating
        the paper.                                                each item.

    (b) Paper Type and Size. The paper on which               (i) Length.
        a document is produced must be 8a/2 by 11
        inches, white or nearly white, and opaque.                (1) Contents Included and Excluded.
                                                                      In calculating the length of a document,
    (c) Margins. Documents must have at least one-                    every word and every part of the



                                                          8
   document,         including      headings,                           reply to a response to a petition in an
   footnotes, and quotations, must be                                   original proceeding in the Supreme
   counted except the following: caption,                               Court, and a reply to a response to a
   identity of parties and counsel, statement                           petition for discretionary review in
   regarding oral argument, table of                                    the Court of Criminal Appeals:
   contents, index of authorities, statement                            2,400 words if computer-generated,
   of the case, statement of issues                                     and 8 pages if not.
   presented, statement of jurisdiction,
   statement of procedural history,                          (3) Certificate of Compliance. A computer-
   signature, proof of service, certification,                   generated document that is subject to a
   certificate of compliance, and appendix.                      word limit under this rule must include a
                                                                 certificate    by    counsel     or   an
(2) Maximum Length.    The documents                             unrepresented party stating the number
    listed below must not exceed the                             of words in the document. The person
    following limits:                                            certifying may rely on the word count of
                                                                 the computer program used to prepare
   (A)       A brief and response in a direct                    the document.
         appeal to the Court of Criminal
         Appeals in a case in which the death                (4) Extensions. A court may, on motion,
         penalty has been assessed: 37,500                       permit a document that exceeds the
         words if computer- generated, and                       prescribed limit.
         125 pages if not.
                                                         (j) Electronically Filed Documents.               An
   (B) A brief and response in an appellate                  electronically filed document must:
       court (other than a brief under
       subparagraph (A)) and a petition                             (1) be in text-searchable         portable
       and response in an original                                      document format (PDF);
       proceeding in the court of appeals:
       15,000      words     if computer-                           (2) be directly converted to PDF
       generated, and 50 pages if not. In a                             rather than scanned, if possible;
       civil case in the court of appeals, the
       aggregate of all briefs filed by a                           (3) not be locked;
       party must not exceed 27,000 words
       if computer- generated, and 90                               (4) be combined with any appendix
       pages if not.                                                    into one computer file, unless that
                                                                        file would exceed the size limit
   (C) A reply brief in an appellate court                              prescribed by the electronic filing
       and a reply to a response to a                                   manager; and
       petition in an original proceeding in
       the court of appeals: 7,500 words if                         (5) otherwise   comply     with   the
       computer- generated, and 25 pages                                Technology Standards set by the
       if not.                                                          Judicial Committee on Information
                                                                        Technology and approved by the
   (D) A petition and response in an                                    Supreme Court.
       original proceeding in the Supreme
       Court, a petition for review and                  (k) Nonconforming Documents. If a document
       response in the Supreme Court, a                      fails to conform with these rules, the court
       petition for discretionary review and                 may strike the document or identify the error
       response in the Court of Criminal                     and permit the party to resubmit the
       Appeals, and a motion for rehearing                   document in a conforming format by a
       and response in an appellate court:                   specified deadline.
       4,500 words if computer- generated,
       and 15 pages if not.                          9.5. Service

   (E) A reply to a response to a petition               (a) Service of All Documents Required. At or
       for review in the Supreme Court, a                    before the time of a document's filing, the



                                                 9
    filing party must serve a copy on all parties to                 filed promptly.
    the proceeding. Service on a party
    represented by counsel must be made on that                 (e) Certificate Requirements. A certificate of
    party’s lead counsel. Except in original                        service must be signed by the person who
    proceedings, a party need not serve a copy of                   made the service and must state:
    the record.
                                                                     (1) the date and manner of service;
(b) Manner of Service.
                                                                     (2) the name and address of each person
    (1) Documents Filed Electronically. A                                served; and
        document filed electronically under Rule
        9.2 must be served electronically                            (3) if the person served is a party's attorney,
        through the electronic filing manager if                         the name of the party represented by that
        the email address of the party or attorney                       attorney.
        to be served is on file with the electronic
        filing manager. If the email address of             9.6. Communications With the Court
        the party or attorney to be served is not
        on file with the electronic filing                      Parties and counsel may communicate with the
        manager, the document may be served                 appellate court about a case only through the clerk.
        on that party or attorney under
        subparagraph (2).                                   9.7. Adoption by Reference

    (2) Documents Not Filed Electronically. A                    Any party may join in or adopt by reference all or
        document that is not filed electronically           any part of a brief, petition, response, motion, or other
        may be served in person, by mail, by                document filed in an appellate court by another party
        commercial delivery service, by fax, or             in the same case.
        by email. Personal service includes
        delivery to any responsible person at the           9.8. Protection of Minor's Identity in Parental-
        office of the lead counsel for the party            Rights Termination Cases and Juvenile Court
        served.                                             Cases

(c) When Complete.                                              (a) Alias Defined. For purposes of this rule, an
                                                                    alias means one or more of a person's initials
    (1) Service by mail is complete on mailing.                     or a fictitious name, used to refer to the
                                                                    person.
    (2) Service by commercial delivery service
        is complete when the document is placed                 (b) Parental-Rights Termination Cases. In an
        in the control of the delivery service.                     appeal or an original proceeding in an
                                                                    appellate court, arising out of a case in which
    (3) Service by fax is complete on receipt.                      the termination of parental rights was at
                                                                    issue:
    (4) Electronic service is complete on
        transmission of the document to the                          (1) except for a docketing statement, in all
        serving party's electronic filing service                        papers submitted to the court, including
        provider. The electronic filing manager                          all appendix items submitted with a
        will send confirmation of service to the                         brief, petition, or motion:
        serving party.
                                                                          (A) a minor must be identified only by
(d) Proof of Service. A document presented for                                an alias unless the court orders
    filing must contain a proof of service in the                             otherwise;
    form of either an acknowledgment of service
    by the person served or a certificate of                              (B) the court may order that a minor's
    service. Proof of service may appear on or be                             parent or other family member be
    affixed to the filed document. The clerk may                              identified only by an alias if
    permit a document to be filed without proof                               necessary to protect a minor's
    of service, but will require the proof to be                              identity; and



                                                       10
                                                                            when the underlying suit was filed.
            (C) all documents must be redacted
                accordingly;                                       (b) Filing of Documents Containing Sensitive
                                                                       Data Prohibited. Unless the inclusion of
       (2) the court must, in its opinion, use an alias                sensitive data is specifically required by a
           to refer to a minor, and if necessary to                    statute, court rule, or administrative
           protect the minor's identity, to the                        regulation, an electronic or paper document
           minor's parent or other family member.                      containing sensitive data may not be filed
                                                                       with a court unless the sensitive data is
   (c) Juvenile Court Cases. In an appeal or an                        redacted, except for the record in an appeal
       original proceeding in an appellate court,                      under Section Two.
       arising out of a case under Title 3 of the
       Family Code:                                                (c) Redaction of Sensitive Data; Retention
                                                                       Requirement. Sensitive data must be redacted
       (1) except for a docketing statement, in all                    by using the letter "X" in place of each
           papers submitted to the court, including                    omitted digit or character or by removing the
           all appendix items submitted with a                         sensitive data in a manner indicating that the
           brief, petition, or motion:                                 data has been redacted. The filing party must
                                                                       retain an unredacted version of the filed
            (A) a minor must be identified only by                     document during the pendency of the appeal
                an alias;                                              and any related proceedings filed within six
                                                                       months of the date the judgment is signed.
            (B) a minor's parent or other family
                member must be identified only by                  (d) Notice to Clerk.      If a document must
                an alias; and                                          contain sensitive data, the filing party must
                                                                       notify the clerk by:
            (C) all documents must be redacted
                accordingly;                                            (1) designating    the     document      as
                                                                            containing sensitive data when the
       (2) the court must, in its opinion, use an alias                     document is electronically filed; or
           to refer to a minor and to the minor's
           parent or other family member.                               (2) if the document is not electronically
                                                                            filed, by including, on the upper left-
   (d) No Alteration of Appellate Record. Nothing                           hand side of the first page, the phrase:
       in this rule permits alteration of the original                      "NOTICE:        THIS      DOCUMENT
       appellate record except as specifically                              CONTAINS SENSITIVE DATA."
       authorized by court order.
                                                                   (e) Restriction on Remote Access. Documents
9.9 Privacy Protection for Documents Filed in                          that contain unredacted sensitive data in
Civil Cases.                                                           violation of this rule must not be posted on
                                                                       the Internet.
   (a) Sensitive Data Defined. Sensitive data
       consists of:                                                           Notes and Comments

       (1) a driver's license number, passport                      Comment to 1997 change: This is former Rule
           number, social security number, tax                 4. Subdivision 9.4, prescribing the form of documents
           identification number or similar                    filed in the appellate courts, is changed and the form
           government-issued          personal                 to be used is stated in significantly more detail.
           identification number;                              Former subdivisions (f) and (g), regarding service of
                                                               documents, are merged into subdivision 9.5. Former
       (2) a bank account number, credit card                  Rule 6 is included as subdivision 9.6, but no
           number, or other financial account                  substantive change is made. Other changes are made
           number; and                                         throughout the rule. Electronic filing is authorized by
                                                               §§ 51.801-.807 of the Government Code.
       (3) a birth date, a home address, and the
           name of any person who was a minor                      Comment to 2002 change: The change [to Rule



                                                          11
9.5(a)] clarifies that the filing party must serve a copy        appellate courts, effective January 1, 2014. In
of the document filed on all other parties, not only in          addition, Rule 9.9 is added to provide privacy
an appeal or review, but in original proceedings as              protection for all documents, both paper and
well. The rule applies only to filing parties. Thus,             electronic, filed in civil cases in appellate courts.
when the clerk or court reporter is responsible for
filing the record, as in cases on appeal, a copy need not        9.10 Privacy Protection for Documents Filed in
be served on the parties. The rule for original civil            Criminal Cases.
proceedings, in which a party is responsible for filing
the record, is stated in subdivision 52.7.                           (a) Sensitive Data Defined.        Sensitive data
                                                                         consists of:
     Subdivision 9.7 is added to provide express
authorization for the practice of adopting by reference                  (1) a driver's license number, passport
all or part of another party's filing.                                       number, social security number, tax
                                                                             identification number or similar
     Comment to 2008 change: Subdivision 9.3 is                              government-issued          personal
amended to reduce the number of copies of a motion                           identification number;
for extension of time or response filed in the Supreme
Court. Subdivision 9.8 is new. To protect the privacy                    (2) bank account number, credit card
of minors in suits affecting the parent-child                                number, and other financial account
relationship (SAPCR), including suits to terminate                           number;
parental rights, Section 109.002(d) of the Family Code
authorizes appellate courts, in their opinions, to                       (3) a birth date, a home address, and the
identify parties only by fictitious names or by initials.                    name of any person who was a minor at
Similarly, Section 56.01(j) of the Family Code                               the time the offense was committed.
prohibits identification of a minor or a minor's family
in an appellate opinion related to juvenile court                    (b) Redacted Filings. Unless a court orders
proceedings. But as appellate briefing becomes more                      otherwise, an electronic or paper filing with
widely available through electronic media sources,                       the court, including the contents of any
appellate courts' efforts to protect minors' privacy by                  appendices, must not contain sensitive data.
disguising their identities in appellate opinions may be
defeated if the same children are fully identified in                (c) Exemptions from the Redaction Requirement.
briefs and other court papers available to the public.                   The redaction requirement does not apply to
The rule provides protection from such disclosures.                      the following:
Any fictitious name should not be pejorative or
suggest the person's true identity. The rule does not                    (1) A court filing that is related to a criminal
limit an appellate court's authority to disguise parties'                    matter or investigation and that is
identities in appropriate circumstances in other cases.                      prepared before the filing of a criminal
Although appellate courts are authorized to enforce the                      charge or is not filed as part of any
rule's provisions requiring redaction, parties and amici                     docketed criminal case;
curiae are responsible for ensuring that briefs and
other papers submitted to the court fully comply with                    (2) An arrest or search warrant;
the rule.
                                                                         (3) A charging document and an affidavit
     Comment to 2012 Change: Rule 9 is revised to                            filed in support of any charging
consolidate all length limits and establish word limits                      document;
for documents produced on a computer. All
documents produced on a computer must comply with                        (4) A defendant’s date of birth;
the word limits. Page limits are retained for documents
that are typewritten or otherwise not produced on a                      (5) A defendant’s address; and
computer.
                                                                         (6) Any government issued number
    Comment to 2013 Change: Rule 9 is revised to                             intended to identify the defendant
incorporate rules for electronic filing, in accordance                       associated with a criminal filing, except
with the Supreme Court's order - Misc. Docket No. 12-                        for the defendant’s social security
9206, amended by Misc. Docket Nos. 13-9092 and 13-                           number or driver’s license number.
9164 - mandating electronic filing in civil cases in



                                                            12
(d) Redaction procedures. Sensitive data must be                     sealed container if the sealed material is filed
    redacted by using the letter “X” in place of                     in paper form, or be the first document that
    each omitted digit or character or by                            appears if filed in electronic form. Sealed
    removing the sensitive data in a manner                          portions of the clerk's and reporter's records
    indicating that the data has been redacted.                      should be clearly marked and separated from
    The filer must retain an unredacted version of                   unsealed portions and tendered as separate
    the filed document during the pendency of                        records, whether in paper form or electronic
    the appeal and any related proceedings filed                     form. Sealed material shall not be available
    within three years of the date the judgment is                   either on the internet or in other form without
    signed. If a district court clerk or appellate                   court order.
    court clerk discovers unredacted sensitive
    data in the record, the clerk shall notify the               (h) Waiver of Protection of Identifiers. A person
    parties and seek a ruling from the court.                        waives the protection of this rule as to a
                                                                     person’s own information by filing it without
(e) Certification. The filing of a document                          redaction and not under seal.
    constitutes a certification by the filer that the
    document complies with paragraphs (a) and                    Rule 10. Motions in the Appellate Courts
    (b) of this rule.
                                                             10.1. Contents of Motions; Response
(f) Reference List. If a filer believes any
    information described in paragraph (a) of this               (a) Motion. Unless these rules prescribe another
    rule is essential to a document or that the                      form, a party must apply by motion for an
    document would be confusing without the                          order or other relief. The motion must:
    information, the filer may submit the
    information to the court in a reference list that                (1) contain or be accompanied by any matter
    is in paper form and under seal. The reference                       specifically required by a rule governing
    list must specify an appropriate identifier that                     such a motion;
    corresponds uniquely to each item listed. Any
    reference in the document to a listed                            (2) state with particularity the grounds on
    identifier will be construed to refer to the                         which it is based;
    corresponding item of information. If the filer
    provides a reference list pursuant to this rule,                 (3) set forth the order or relief sought;
    the front page of the document containing the
    redacted information must indicate that the                      (4) be served and filed with any brief,
    reference list has been, or will be, provided.                       affidavit, or other paper filed in support
    On its own initiative, the court may order a                         of the motion; and
    sealed reference list in any case.
                                                                     (5) in civil cases, except for motions for
(g) Sealed materials. Materials that are required                        rehearing and en banc reconsideration,
     by statute to be sealed, redacted, or kept                          contain or be accompanied by a
     confidential, such as the items set out in                          certificate stating that the filing party
     Articles 35.29 (Personal Information About                          conferred, or made a reasonable attempt
     Jurors), 38.45 (Evidence Depicting or                               to confer, with all other parties about the
     Describing Abuse of or Sexual Conduct by                            merits of the motion and whether those
     Child or Minor), and 42.12, § 9(j), must be                         parties oppose the motion.
     treated in accordance with the pertinent
     statutes and shall not be publicly available on             (b) Response. A party may file a response to a
     the internet. A court may also order that a                     motion at any time before the court rules on
     document be filed under seal in paper form or                   the motion or by any deadline set by the
     electronic form, without redaction. The court                   court. The court may determine a motion
     may later unseal the document or order the                      before a response is filed.
     filer to provide a redacted version of the
     document for the public record. If a court              10.2. Evidence on Motions
     orders material sealed, whether it be sensitive
     data or other materials, the court's sealing                A motion need not be verified unless it depends
     order must be affixed to the outside of the             on the following types of facts, in which case the



                                                        13
motion must be supported by affidavit or other                      Record. A motion relating to informalities in
satisfactory evidence. The types of facts requiring                 the manner of bringing a case into court must
proof are those that are:                                           be filed within 30 days after the record is filed
                                                                    in the court of appeals. The objection, if
    (a) not in the record;                                          waivable, will otherwise be deemed waived.

    (b) not within the court's knowledge in its official        (b) Motions to Extend Time.
        capacity; and
                                                                    (1) Contents of Motion in General. All
    (c) not within the personal knowledge of the                        motions to extend time, except a motion
        attorney signing the motion.                                    to extend time for filing a notice of
                                                                        appeal, must state:
10.3. Determining Motions
                                                                        (A) the deadline for filing the item in
    (a) Time for Determination. A court should not                          question;
        hear or determine a motion until 10 days after
        the motion was filed, unless:                                   (B) the length of the extension sought;

        (1) the motion is to extend time to file a                      (C) the facts relied on to reasonably
            brief, a petition for review, or a                              explain the need for an extension;
            petition for discretionary review;                              and

        (2) the motion states that the parties have                     (D) the number of previous extensions
            conferred and that no party opposes the                         granted regarding the item in
            motion; or                                                      question.

        (3) the motion is an emergency.                             (2) Contents of Motion to Extend Time to
                                                                        File Notice of appeal. A motion to
    (b) Reconsideration. If a motion is determined                      extend the time for filing a notice of
        prematurely, any party adversely affected                       appeal must:
        may request the court to reconsider its order.
                                                                        (A) comply with (1)(A) and (C);
10.4. Power of Panel or Single Justice or Judge to
Entertain Motions                                                       (B) identify the trial court;

    (a) Single Justice. In addition to the authority                    (C) state the date of the trial court’s
        expressly conferred by these rules or by law,                       judgment or appealable order; and
        a single justice or judge of an appellate court
        may grant or deny a request for relief that                     (D) state the case number and style of
        these rules allow to be sought by motion. But                       the case in the trial court.
        in a civil case, a single justice should not do
        the following:                                              (3) Contents of motion to extend time to file
                                                                        petition for review or petition for
        (1) act on a petition for an extraordinary                      discretionary review. A motion to
            writ; or                                                    extend time to file a petition for review
                                                                        or petition for discretionary review must
        (2) dismiss or otherwise determine an                           also specify:
            appeal or a motion for rehearing.
                                                                        (A) the court of appeals;
    (b) Panel. An appellate court may provide, by
        order or rule, that a panel or the full court                   (B) the date of the court of appeals’
        must act on any motion or class of motions.                         judgment;

10.5. Particular Motions                                                (C) the case number and style of the
                                                                            case in the court of appeals; and
    (a) Motions Relating to Informalities in the



                                                           14
              (D) the date every motion for rehearing
                  or en banc reconsideration was                    (c) disclose the source of any fee paid or to be
                  filed, and either the date and nature                 paid for preparing the brief; and
                  of the court of appeals' ruling on the
                  motion, or that it remains pending.               (d) certify that copies have been served on all
                                                                        parties.
    (c) Motions to Postpone Argument. Unless all
        parties agree, or unless sufficient cause is                            Notes and Comments
        apparent to the court, a motion to postpone
        argument of a case must be supported by                      Comment to 1997 change: This is former Rule 20.
        sufficient cause.                                       The rule is rewritten and now requires disclosure of
                                                                the identity of the person or entity on whose behalf the
                Notes and Comments                              brief is filed, and the source of any fee paid.

     Comment to 1997 change: This is former Rule 19.                Comment to 2002 change: The change expressly
Under subdivision 10.1, a response may be filed at any          recognizes that a court may refuse to consider an
time before the court rules on the motion. The                  amicus curiae brief for good cause.
provision of former subdivision (b) regarding
docketing motions is incorporated in Rule 12.2. The
provision of former subdivision (b) for noting                           Rule 12. Duties of Appellate Clerk
attorneys’ names on the docket is incorporated in Rule
6.2. Former subdivision (c), requiring the clerk to             12.1. Docketing the Case
send notices of the filing of motions is deleted as
unnecessary because the parties must serve all motions               On receiving a copy of the notice of appeal, the
under Rule 9.5. Subdivision 10.2 is amended to                  petition for review, the petition for discretionary
eliminate the requirement of an oath where the facts            review, the petition in an original proceeding, or a
are within the personal knowledge of the attorney.              certified question, the appellate clerk must:
Subdivision 10.5 is new and incorporates the
provisions of other rules concerning motions, as                    (a) endorse on the document the date of receipt;
follows: 10.5(a) from former Rule 71; 10.5(b) from
former Rules 73, 130(d), and 160; and 10.5(c) from                  (b) collect any filing fee;
former Rule 70. Other changes are made.
                                                                    (c) docket the case;
     Comment to 2008 change: It happens so
infrequently that a non-movant does not oppose a                    (d) notify all parties of the receipt of the
motion for rehearing or en banc reconsideration that                    document; and
such motions are excepted from the certificate-of-
conference requirement in Subdivision 10.1(a)(5).                   (e) if the document filed is a petition for review
Subdivision 10.2 is revised to clarify that facts                       filed in the Supreme Court, notify the court
supporting a motion need not be verified by the filer if                of appeals clerk of the filing of the petition.
supporting evidence is in the record, the facts are
known to the court, or the filer has personal knowledge         12.2. Docket Numbers
of them. Subdivision 10.5(b)(3)(D) is added.
                                                                     The clerk must put the case's docket number on
                                                                each item received in connection with the case and
Rule 11. Amicus Curiae Briefs                                   must put the docket number on the envelope in which
                                                                the record is stored.
     An appellate clerk may receive, but not file, an
amicus curiae brief. But the court for good cause may               (a) Numbering System. Each case filed in a court
refuse to consider the brief and order that it be                       of appeals must be assigned a docket number
returned. An amicus curiae brief must:                                  consisting of the following four parts,
                                                                        separated by hyphens:
    (a) comply with the briefing rules for parties;
                                                                         (1) the number of the court of appeals
    (b) identify the person or entity on whose behalf                        district;
        the brief is tendered;



                                                           15
         (2) the last two digits of the year in which                       clerk’s office;
             the case is filed;
                                                                       (g) if the court allows an original document or
         (3) the number assigned to the case; and                          exhibit to be taken by a party and it is not
                                                                           returned, the court may accept the opposing
         (4) the designation “CV” for a civil case or                      party’s statement concerning the document’s
             “CR” for a criminal case.                                     or exhibit’s nature and contents;

    (b) Numbering Order. Each case must be                             (h) withdrawn material must not be removed
        docketed in the order of its filing.                               from the court’s jurisdiction; and

    (c) Multiple Notices of Appeal. All notices of                     (i) the court may, on the motion of any party or
        appeal filed in the same case must be given                        its own initiative, modify any of these
        the same docket number.                                            conditions.

    (d) Appeals Not Yet Filed. A motion relating to                12.5. Clerk's Duty to Account
        an appeal that has been perfected but not yet
        filed must be docketed and assigned a docket                   The clerk of an appellate court who receives
        number that will also be assigned to the                   money due another court must promptly pay the
        appeal when it is filed.                                   money to the court to whom it is due. This rule is
                                                                   enforceable by the Supreme Court.
12.3. Custody of Papers
                                                                   12.6. Notices of Court’s Judgments and Orders
     The clerk must safeguard the record and every
other item filed in a case. If the record or any part of it             In any proceeding, the clerk of an appellate court
or any other item is missing, the court will make an               must promptly send a notice of any judgment, mandate
order for the replacement of the record or item that is            or other court order to all parties to the proceeding.
just under the circumstances.
                                                                                   Notes and Comments
12.4. Withdrawing Papers
                                                                       Comment to 1997 change: This is former Rule 18.
     The clerk may permit the record or other filed                Former subdivision (b), regarding the preparation of
item to be taken from the clerk’s office at any time, on           the record, is moved to the order concerning the
the following conditions:                                          preparation of the appellate record. Former Rule 14,
                                                                   which is revised and simplified, is relocated here as
    (a) the clerk must have a receipt for the record or            subdivision 12.5. Subdivision 12.6, requiring the clerk
        item;                                                      to send a notice of any order or judgment of an
                                                                   appellate court, is added. Other changes are made.
    (b) the clerk should make reasonable conditions
        to ensure that the withdrawn record or item is                  Comment to 2002 change: Subdivision 12.6 is
        preserved and returned;                                    amended to require the clerk to notify the parties of all
                                                                   of the court's rulings, including the mandate.
    (c) the clerk may demand the return of the record
        or item at any time;
                                                                    Rule 13. Court Reporters and Court Recorders
    (d) after the case is submitted to the court and
        before the court’s decision, the record cannot             13.1. Duties of Court Reporters and Recorders
        be withdrawn;
                                                                       The official court reporter or court recorder must:
    (e) after the court’s decision, the losing party
        must be given priority in withdrawing the                      (a) unless excused by agreement of the parties,
        record;                                                            attend court sessions and make a full record
                                                                           of the proceedings;
    (f) the clerk may not allow original documents
        filed under Rule 34.5(f) or original exhibits                  (b) take all exhibits offered in evidence during a
        filed under Rule 34.6(g) to be taken from the                      proceeding and ensure that they are marked;



                                                              16
                                                                  before the court take preference over other work.
    (c) file all exhibits with the trial court clerk after
        a proceeding ends;                                        13.4. Report of Reporters

    (d) perform the duties prescribed by Rules 34.6                    To aid the trial court in setting priorities under
        and 35; and                                               13.3, each court reporter must give the trial court a
                                                                  monthly written report showing the amount and nature
    (e) perform other acts relating to the reporter's             of the business pending in the reporter's office. A copy
        or recorder's official duties, as the trial court         of this report must be filed with the appellate clerk of
        directs.                                                  each district in which the court sits.

13.2. Additional Duties of Court Recorder                         13.5. Appointing Deputy Reporter

    The official court recorder must also:                             When the official court reporter is unable to
                                                                  perform the duties in 13.1 or 13.2 because of illness,
    (a) ensure that the recording system functions                press of official work, or unavoidable absence or
        properly throughout the proceeding and that               disability, the trial court may designate a deputy
        a complete, clear, and transcribable recording            reporter. If the court appoints a deputy reporter, that
        is made;                                                  person must file with the trial court clerk a document
                                                                  stating:
    (b) make a detailed, legible log of all proceedings
        being recorded, showing:                                      (a) the date the deputy worked;

         (1) the number and style of the case before                  (b) the court in which the deputy worked; and
             the court;
                                                                      (c) the number and style of the case on which the
         (2) the name of each person speaking;                            deputy worked.

         (3) the event being recorded such as the voir            13.6. Filing of Notes in a Criminal Case
             dire, the opening statement, direct and
             cross- examinations, and bench                            When a defendant is convicted and sentenced, or
             conferences;                                         is granted deferred adjudication for a felony other that
                                                                  a state jail felony, and does not appeal, the court
         (4) each exhibit offered, admitted, or                   reporter must — within 20 days after the time to
             excluded;                                            perfect the appeal has expired — file the untranscribed
                                                                  notes or the original recording of the proceeding with
         (5) the time of day of each event; and                   the trial court clerk. The trial court clerk need not
                                                                  retain the notes beyond 15 years of their filing date.
         (6) the index number on the recording
             device showing where each event is                                   Notes and Comments
             recorded;
                                                                       Comment to 1997 change: Former Rules 11 and
    (c) after a proceeding ends, file with the clerk              12 are merged. Former Rules 11(a), (c) and (d) now
        the original log;                                         appear as subdivisions 13.1, 13.5 and 13.6. Former
                                                                  Rule 11(b) is omitted as unnecessary. The provisions
    (d) have the original recording stored to ensure              of former Rule 12(a) are moved to Rule 35.3. Former
        that it is preserved and is accessible; and               Rules 12(b) and (c) now appear as subdivisions 13.3
                                                                  and 13.4. The rule is made to apply to court recorders
    (e) ensure that no one gains access to the original           as well as court reporters. Paragraph 13.1(a) merges
        recording without the court's written order.              paragraphs (a)(1) and (2) of former Rule 11, and now
                                                                  requires the reporter to make a record of voir dire and
13.3. Priorities of Reporters                                     closing argument unless excused by agreement of the
                                                                  parties. Paragraph 13.1(b) is new, but codifies current
     The trial court must help ensure that the court              practice. Subdivision 13.2 is new and specifies rules
reporter's work is timely accomplished by setting work            for electronic recording of proceedings. A provision
priorities. The reporter's duties relating to proceedings         requiring a deputy court reporter to file with the trial



                                                             17
court clerk a document identifying the proceedings in                   argument, the response should state the injury
which the reporter worked is included in paragraph                      that will allegedly result from coverage.
13.5. Other changes are made.
                                                                   (c) Court May Shorten Time. The court may, in
   Comment to 2002 change: Subdivision 13.1(a) is                      the interest of justice, shorten the time for
amended merely for clarification.                                      filing a document under this rule if no party
                                                                       or interested person would be unduly
                                                                       prejudiced.
   Rule 14. Recording and Broadcasting Court
                  Proceedings                                      (d) Decision of Court. In deciding whether to
                                                                       allow coverage, the court may consider
14.1. Recording and Broadcasting Permitted                             information known ex parte to the court. The
                                                                       court may allow, deny, limit, or terminate
    An appellate court may permit courtroom                            coverage for any reason the court considers
proceedings to be broadcast, televised, recorded, or                   necessary or appropriate, such as protecting
photographed in accordance with this rule.                             the parties' rights or the dignity of the court
                                                                       and ensuring the orderly conduct of the
14.2. Procedure                                                        proceedings.

    (a) Request to Cover Court Proceeding.                     14.3. Equipment and Personnel

        (1) A person wishing to broadcast, televise,               The court may, among other things:
            record, or photograph a court proceeding
            must file with the court clerk a request to            (a) require that a person seeking to cover a
            cover the proceeding. The request must                     proceeding demonstrate or display the
            state:                                                     equipment that will be used;

             (A) the case style and number;                        (b) prohibit equipment that produces distracting
                                                                       sound or light;
             (B) the date and time when the
                 proceeding is to begin;                           (c) prohibit signal lights or devices showing
                                                                       when equipment is operating, or require their
             (C) the name of the requesting person                     concealment;
                 or organization;
                                                                   (d) prohibit moving lights, flash attachments, or
             (D) the type of coverage requested (for                   sudden lighting changes;
                 example,        televising       or
                 photographing); and                               (e) require the use of the courtroom's existing
                                                                       video, audio, and lighting systems, if any;
             (E) the type and extent of equipment to
                 be used.                                          (f) specify the placement of personnel and
                                                                       equipment;
        (2) A request to cover argument of a case
            must be filed no later than five days                  (g) determine the number of cameras to be
            before the date the case is set for                        allowed in the courtroom; and
            argument and must be served on all
            parties to the case. A request to cover any            (h) require pooling of equipment if more than
            other proceeding must be filed no later                    one person wishes to cover a proceeding.
            than two days before the date when the
            proceeding is to begin.                            14.4. Enforcement

    (b) Response. Any party may file a response to                 The court may sanction a violation of this rule by
        the request. If the request is to cover                measures that include barring a person or organization
        argument, the response must be filed no later          from access to future coverage of proceedings in that
        than two days before the date set for                  court for a defined period.
        argument. If a party objects to coverage of the



                                                          18
               Notes and Comments
                                                                   The grounds for disqualification of an appellate
     Comment to 1997 change: This is former Rule 21.           court justice or judge are determined by the
The rule is rewritten and now allows recording and             Constitution and laws of Texas.
broadcasting of court proceedings at the discretion of
the court and subject to the stated guidelines.                16.2. Grounds for Recusal

                                                                    The grounds for recusal of an appellate court
Rule 15. Issuance of Writ or Process by Appellate              justice or judge are the same as those provided in the
                      Court                                    Rules of Civil Procedure. In addition, a justice or
                                                               judge must recuse in a proceeding if it presents a
15.1. In General                                               material issue which the justice or judge participated
                                                               in deciding while serving on another court in which
    (a) Signature Under Seal. A writ or process                the proceeding was pending.
        issuing from an appellate court must bear the
        court's seal and be signed by the clerk.               16.3. Procedure for Recusal

    (b) To Whom Directed; by Whom Served. Unless                   (a) Motion. A party may file a motion to recuse
        a rule or statute provides otherwise, the writ                 a justice or judge before whom the case is
        or process must be directed to the person or                   pending. The motion must be filed promptly
        court to be served. The writ or process may                    after the party has reason to believe that the
        be served by the sheriff, constable, or other                  justice or judge should not participate in
        peace officer whose jurisdiction includes the                  deciding the case.
        county in which the person or court to be
        served may be found.                                       (b) Decision. Before any further proceeding in
                                                                       the case, the challenged justice or judge must
    (c) Return; Lack of Execution; Simultaneous                        either remove himself or herself from all
        Writs. The writ or process must be returned                    participation in the case or certify the matter
        to the issuing court according to the writ's                   to the entire court, which will decide the
        direction. If the writ or process is not                       motion by a majority of the remaining judges
        executed, the clerk may issue another writ or                  sitting en banc. The challenged justice or
        process if requested by the party who                          judge must not sit with the remainder of the
        requested the former writ or process. At a                     court to consider the motion as to him or her.
        party's request, the clerk may issue two or
        more writs simultaneously.                                 (c) Appeal. An order of recusal is not reviewable,
                                                                       but the denial of a recusal motion is
15.2.  Appearance       Without     Service;   Actual                  reviewable.
Knowledge
                                                                               Notes and Comments
     A party who appears in person or by attorney in
an appellate court proceeding — or who has actual                   Comment to 1997 change: Former Rules 15 and
knowledge of the court's opinion, judgment, or order           15a are merged. Former Rule 15a appears as
related to a writ or process — is bound by the opinion,        subdivision 16.2. For grounds for disqualification,
judgment, or order to the same extent as if personally         reference is made to the Constitution and statutes
served under 15.1.                                             rather than the Rules of Civil Procedure. The
                                                               procedure for disqualification is not specified. The
               Notes and Comments                              nature of prior participation in a proceeding that
                                                               requires recusal is clarified. Former subdivision (b) of
   Comment to 1997 change: This is former Rule 17.             Rule 15, requiring service of the motion, is omitted as
Nonsubstantive changes are made.                               unnecessary. The remaining subdivisions of former
                                                               Rule 15 are contained in subdivision 16.3. Other
                                                               changes are made.
 Rule 16. Disqualification or Recusal of Appellate
                      Judges
                                                                   Rule 17. Court of Appeals Unable to Take
16.1. Grounds for Disqualification                                            Immediate Action


                                                          19
                                                                                (B) no timely filed motion to extend
17.1. Inability to Act                                                              time to file a petition for review or
                                                                                    petition for discretionary review is
     A court of appeals is unable to take immediate                                 pending; and
action if it cannot — within the time when action must
be taken — assemble a panel because members of the                              (C) in a criminal case, the Court of
court are ill, absent, or unavailable. A justice who is                             Criminal Appeals has not granted
disqualified or recused is unavailable. A court of                                  review on its own initiative.
appeals’ inability to act immediately may be
established by certificate of the clerk, a member of the                   (2) Ten days after the time has expired for
court, or a party’s counsel, or by affidavit of a party.                       filing a motion to extend time to file a
                                                                               motion for rehearing of a denial, refusal,
17.2. Nearest Available Court of Appeals                                       or dismissal of a petition for review, or a
                                                                               refusal or dismissal of a petition for
     If a court of appeals is unable to take immediate                         discretionary review, if no timely filed
action, the nearest court of appeals that is able to take                      motion for rehearing or motion to extend
immediate action may do so with the same effect as                             time is pending.
the other court. The nearest court of appeals is the one
whose courthouse is nearest — measured by a straight                  (b) In the Supreme Court and the Court of
line — the courthouse of the trial court.                                 Criminal Appeals. Ten days after the time
                                                                          has expired for filing a motion to extend time
17.3. Further Proceedings                                                 to file a motion for rehearing if no timely
                                                                          filed motion for rehearing or motion to
     After acting or refusing to act, the nearest court of                extend time is pending.
appeals must promptly send a copy of its order, and
the original or a copy of any document presented to it,               (c) Agreement to Issue. The mandate may be
to the other court, which will conduct any further                        issued earlier if the parties so agree, or for
proceedings in the matter.                                                good cause on the motion of a party.

                 Notes and Comments                               18.2. Stay of Mandate

    Comment to 1997 change: This is former Rule 16.                    A party may move to stay issuance of the mandate
The rule is rewritten and simplified.                             pending the United States Supreme Court's disposition
                                                                  of a petition for writ of certiorari. The motion must
                                                                  state the grounds for the petition and the circumstances
                  Rule 18. Mandate                                requiring the stay. The appellate court authorized to
                                                                  issue the mandate may grant a stay if it finds that the
18.1. Issuance                                                    grounds are substantial and that the petitioner or others
                                                                  would incur serious hardship from the mandate's
      The clerk of the appellate court that rendered the          issuance if the United States Supreme Court were later
judgment must issue a mandate in accordance with the              to reverse the judgment. In a criminal case, the stay
judgment and send it to the clerk of the court to which           will last for no more than 90 days, to permit the timely
it is directed and to all parties to the proceeding when          filing of a petition for writ of certiorari. After that
one of the following periods expires:                             period and others mentioned in this rule expire, the
                                                                  mandate will issue.
    (a) In the Court of Appeals.
                                                                  18.3. Trial Court Case Number
         (1) Ten days after the time has expired for
             filing a motion to extend time to file a                The mandate must state the trial court case
             petition for review or a petition for                number.
             discretionary review if:
                                                                  18.4. Filing of Mandate
              (A) no timely petition for review or
                  petition for discretionary review has                The clerk receiving the mandate will file it with
                  been filed;                                     the case's other papers and note it on the docket.




                                                             20
18.5. Costs                                                     19.2. Plenary Power Continues After Petition Filed

     The mandate will be issued without waiting for                  In a civil case, the court of appeals retains plenary
costs to be paid. If the Supreme Court declines to grant        power to vacate or modify its judgment during the
review, Supreme Court costs must be included in the             periods prescribed in 19.1 even if a party has filed a
court of appeals’ mandate.                                      petition for review in the Supreme Court.

18.6. Mandate in Accelerated Appeals                            19.3. Proceedings After Plenary Power Expires

     The appellate court's judgment on an appeal from               After its plenary power expires, the court cannot
an interlocutory order takes effect when the mandate            vacate or modify its judgment. But the court may:
is issued. The court may issue the mandate with its
judgment or delay the mandate until the appeal is                   (a) correct a clerical error in its judgment or
finally disposed of. If the mandate is issued, any                      opinion;
further proceeding in the trial court must conform to
the mandate.                                                        (b) issue and recall its mandate as these rules
                                                                        provide;
18.7. Recall of Mandate
                                                                    (c) enforce or suspend enforcement of its
     If an appellate court vacates or modifies its                      judgment as these rules or applicable law
judgment or order after issuing its mandate, the                        provide;
appellate clerk must promptly notify the clerk of the
court to which the mandate was directed and all                     (d) order or modify the amount and type of
parties. The mandate will have no effect and a new                      security required to suspend a judgment, and
mandate may be issued.                                                  decide the sufficiency of the sureties, under
                                                                        Rule 24; and
                Notes and Comments
                                                                    (e) order its opinion published in accordance
    Comment to 1997 change: This is a new rule that                     with Rule 47.
combines the provisions of former Rules 43(g), 86,
186, 231, and 232.                                              19.4. Expiration of Term

    Comment to 2002 change: Subdivision 18.1 is                      The expiration of the appellate court's term does
amended consistent with the change in subdivision               not affect the court's plenary power or its jurisdiction
12.6.                                                           over a case that is pending when the court's term
                                                                expires.

 Rule 19. Plenary Power of the Courts of Appeals                                Notes and Comments
             and Expiration of Term
                                                                    Comment to 1997 change: This is a new rule
19.1. Plenary Power of Courts of Appeals                        except the provisions of former Rule 234 are
                                                                incorporated in subdivision 19.4.
    A court of appeals' plenary power over its
judgment expires:                                                   Comment to 2002 change: Subdivision 19.1 is
                                                                amended to clarify that a motion for en banc
    (a) 60 days after judgment if      no timely filed          reconsideration extends the court of appeals' plenary
        motion for rehearing            or en banc              power in the same manner as a motion for rehearing
        reconsideration, or timely     filed motion to          addressed to the panel of justices who rendered the
        extend time to file such a     motion, is then          judgment or under consideration.
        pending; or
                                                                    Comment to 2008 change: Subdivision 19.1 is
    (b) 30 days after the court overrules all timely            changed, consistent with other changes in the rules, to
        filed motions for rehearing or en banc                  specifically address a motion for en banc
        reconsideration, and all timely filed motions           reconsideration and treat it as a motion for rehearing.
        to extend time to file such a motion.




                                                           21
         Rule 20. When Party is Indigent                                            complies with Texas Rule of Civil
                                                                                    Procedure 145. The Statement that
20.1. Civil Cases                                                                   was filed in the trial court does not
                                                                                    meet the requirements of this rule.
    (a) Costs Defined. In this rule, “costs” mean
        filing fees charged by the appellate court.                            (B) Action by Appellate Court. The
        Fees charged for preparation of the appellate                              appellate court may decide the
        record are governed by Texas Rule of Civil                                 motion based on the record or refer
        Procedure 145.                                                             the motion to the trial court with
                                                                                   instructions to hear evidence and
    (b) When a Statement Was Filed in the Trial                                    issue findings of fact. If a motion is
        Court.                                                                     referred to the trial court, the
                                                                                   appellate court must review the trial
        (1) General Rule; Status in Trial Court                                    court’s findings and the record of
            Carries Forward. A party who filed a                                   the hearing before ruling on the
            Statement of Inability to Afford Payment                               motion.
            of Court Costs in the trial court is not
            required to pay costs in the appellate                   (c) When No Statement Was Filed in the Trial
            court unless the trial court overruled the                   Court. An appellate court may permit a party
            party’s claim of indigence in an order                       who did not file a Statement of Inability to
            that complies with Texas Rule of Civil                       Afford Payment of Court Costs in the trial
            Procedure 145. A party is not required to                    court to proceed without payment of costs.
            pay costs in the appellate court if the trial                The court may require the party to file a
            court ordered the party to pay partial                       Statement in the appellate court. If the court
            costs or to pay costs in installments.                       denies the party’s request to proceed without
                                                                         payment of costs, it must do so in a written
        (2) Establishing the Right to Proceed Under                      order.
            the General Rule. To establish the right
            to proceed without payment of costs                  Comment to 2016 Change:
            under (1), a party must communicate to
            the appellate court clerk in writing that            The rule has been rewritten so that it only governs
            the party is presumed indigent under this            filing fees and any other fee charged by the appellate
            rule. In an appeal under Section Two of              court. Texas Rule of Civil Procedure 145 governs a
            these rules, the applicability of the                party’s claim that the party is unable to afford costs for
            presumption should be stated in the                  preparation of the appellate record.
            notice of appeal and in the docketing
            statement.                                           Because appellate filing fees are minimal, a party that
                                                                 filed a Statement of Inability to Afford Payment of
        (3) Exception; Material         Change in                Court Costs in the trial court is not required to file a
            Circumstances. An appellate court may                new Statement in the appellate court unless the trial
            permit a party who is not entitled to                court made affirmative findings under Texas Rule of
            proceed under (1) to proceed without                 Civil Procedure 145 that the party is able to afford all
            payment of costs if the party establishes            court costs and to pay those costs as they are incurred.
            that the party’s financial circumstances             Furthermore, because a determination of indigence by
            have materially changed since the date of            the trial court carries forward to appeal in all cases,
            the trial court’s order under Texas Rule             Family Code section 107.013 is satisfied.
            of Civil Procedure 145.
                                                                 Experience has shown that, in most cases, a party’s
            (A) Requirements. The party must file a              financial circumstances do not change substantially
                motion in the appellate court                    between the trial court proceedings and the appellate
                alleging that the party’s financial              court proceedings. Nonetheless, (b)(3) permits a party
                circumstances have materially                    whom the trial court determined is able to afford all
                changed since the date of the trial              costs to demonstrate to the appellate court that the
                court’s order and a current                      party’s circumstances have changed since the trial
                Statement of Inability to Afford                 court’s ruling and that the party is unable to afford
                Payment of Court Costs that                      appellate filing fees.



                                                            22
                                                                  proceedings properly filed in the appellate court under
20.2. Criminal Cases                                              subdivision 20.1(c)(2). Although Subdivision 3.1(g)
                                                                  defines “court reporter” to include court recorder,
     Within the time for perfecting the appeal, an                subdivision 20.1(e) is amended to make clear that a
appellant who is unable to pay for the appellate record           court recorder can contest an affidavit.
may, by motion and affidavit, ask the trial court to
have the appellate record furnished without charge. If                                  Reference
after hearing the motion the court finds that the
appellant cannot pay or give security for the appellate               See also Civil Practice and Remedies Code
record, the court must order the reporter to transcribe           §13.003.
the proceedings. When the court certifies that the
appellate record has been furnished to the appellant,
the reporter must be paid from the general funds of the              SECTION TWO: APPEALS FROM TRIAL
county in which the offense was committed, in the                      COURT JUDGMENTS AND ORDERS
amount set by the trial court.
                                                                        Rule 21. New Trials in Criminal Cases
                Notes and Comments
                                                                  21.1. Definition
     Comment to 1997 change: The rule is new and
combines the provisions of former Rules 13(k),                        (a) New trial means the rehearing of a criminal
40(a)(3), and 53(j). The procedure for proceeding in                      action after the trial court has, on the
civil cases in an appellate court without advance                         defendant's motion, set aside a finding or
payment of costs, in both appeals and original                            verdict of guilt.
proceedings, is stated. The information that must be
given in the affidavit is prescribed. An extension of                 (b) New trial on punishment means a new
time to file the affidavit is now available. The indigent                 hearing of the punishment state of a criminal
party is no longer required to serve the court reporter,                  action after the trial court has, on the
but must file the affidavit with the appropriate clerk                    defendant's motion, set aside an assessment
who is to notify the court reporter. A contest need not                   of punishment without setting aside a finding
be under oath. Provision is made for later ability to pay                 or verdict of guilt.
the costs. Nonsubstantive changes are made to the
rule for criminal cases.                                          21.2. When Motion for New Trial Required

     Comment to 2008 change: Subdivision 20.1(a) is                   A motion for new trial is a prerequisite to
added to provide, as in Texas Rule of Civil Procedure             presenting a point of error on appeal only when
145, that an affidavit of indigence accompanied by an             necessary to adduce facts not in the record.
IOLTA or other Texas Access to Justice Foundation
certificate cannot be challenged. Subdivision                     21.3. Grounds
20.1(c)(1) is revised to clarify that an affidavit of
indigence filed to proceed in the trial court without                 The defendant must be granted a new trial, or a
advance payment of costs is insufficient to establish             new trial on punishment, for any of the following
indigence on appeal; a separate affidavit must be filed           reasons:
with or before the notice of appeal. Subdivision
20.1(c)(3) is revised to provide that an appellate court              (a) except in a misdemeanor case in which the
must give an appellant who fails to file a proper                         maximum possible punishment is a fine,
appellate indigence affidavit notice of the defect and                    when the defendant has been unlawfully tried
an opportunity to cure it before dismissing the appeal                    in absentia or has been denied counsel;
or affirming the judgment on that basis. See Higgins
v. Randall County Sheriff's Office, 193 S.W.3d 898                    (b) when the court has misdirected the jury about
(Tex. 2006). The limiting phrase “under (c)(2)” in                        the law or has committed some other material
Subdivision 20.1(d)(2) is deleted to clarify that the                     error likely to injure the defendant's rights;
appellate clerk's duty to forward copies of the affidavit
to the trial court clerk and the court reporter, along                (c) when the verdict has been decided by lot or
with a notice setting a deadline to contest the affidavit,                in any manner other than a fair expression of
applies to affidavits on appeal erroneously filed in the                  the jurors' opinion;
appellate court, not only to affidavits in other appellate



                                                             23
     (d) when a juror has been bribed to convict or has
         been guilty of any other corrupt conduct;                  21.8. Court's Ruling

     (e) when a material defense witness has been                       (a) Time to Rule. The court must rule on a motion
         kept from court by force, threats, or fraud, or                    for new trial within 75 days after imposing or
         when evidence tending to establish the                             suspending sentence in open court.
         defendant's innocence has been intentionally
         destroyed or withheld, thus preventing its                     (b) Ruling. In ruling on a motion for new trial,
         production at trial;                                               the court may make oral or written findings
                                                                            of fact. The granting of a motion for new trial
     (f) when, after retiring to deliberate, the jury                       must be accomplished by written order. A
         has received other evidence; when a juror has                      docket entry does not constitute a written
         talked with anyone about the case; or when a                       order.
         juror became so intoxicated that his or her
         vote was probably influenced as a result;                      (c) Failure to Rule. A motion not timely ruled on
                                                                            by written order will be deemed denied when
     (g) when the jury has engaged in such                                  the period prescribed in (a) expires.
         misconduct that the defendant did not receive
         a fair and impartial trial; or                             21.9. Granting a New Trial

     (h) when the verdict is contrary to the law and the                (a) A court must grant a new trial when it has
         evidence.                                                          found a meritorious ground for new trial, but
                                                                            a court must grant only a new trial on
21.4. Time to File and Amend Motion                                         punishment when it has found a ground that
                                                                            affected only the assessment of punishment.
     (a) To File. The defendant may file a motion for
         new trial before, but no later than 30 days                    (b) Granting a new trial restores the case to its
         after, the date when the trial court imposes or                    position before the former trial, including, at
         suspends sentence in open court.                                   any party's option, arraignment or pretrial
                                                                            proceedings initiated by that party.
     (b) To Amend. Within 30 days after the date
         when the trial court imposes or suspends                       (c) Granting a new trial on punishment restores
         sentence in open court but before the court                        the case to its position after the defendant was
         overrules any preceding motion for new trial,                      found guilty. Unless the defendant, State, and
         a defendant may, without leave of court, file                      trial court all agree to a change, punishment
         one or more amended motions for new trial.                         in a new trial shall be assessed in accordance
                                                                            with the defendant's original election under
21.5. State May Controvert; Effect                                          article 37.07, § 2(b) of the Code of Criminal
                                                                            Procedure.
     The State may oppose in writing any reason the
defendant sets forth in the motion for new trial. The                   (d) A finding or verdict of guilt in the former trial
State's having opposed a motion for new trial does not                      must not be regarded as a presumption of
affect a defendant's responsibilities under 21.6.                           guilt, nor may it be alluded to in the presence
                                                                            of the jury that hears the case on retrial of
21.6. Time to Present                                                       guilt. A finding of fact or an assessment of
                                                                            punishment in the former trial may not be
      The defendant must present the motion for new                         alluded to in the presence of the jury that
trial to the trial court within 10 days of filing it, unless                hears the case on retrial of punishment.
the trial court in its discretion permits it to be presented
and heard within 75 days from the date when the court                              Notes and Comments
imposes or suspends sentence in open court.
                                                                        Comment to 1997 change: Former Rules 30, 31,
21.7. Types of Evidence Allowed at Hearing                          and 32 are merged. Paragraph (b)(6) of former Rule 30
                                                                    is deleted because the rule-making authority of the
    The court may receive evidence by affidavit or                  Court of Criminal Appeals was withdrawn. See Code
otherwise.                                                          of Criminal Procedure article 40.001. Other



                                                               24
nonsubstantive changes are made.                                           the defendant is restored to the position that
                                                                           he or she had before the indictment or
  Rule 22. Arrest of Judgment in Criminal Cases                            information was presented.

22.1. Definition                                                      (b) Defendant Discharged or Remanded. If the
                                                                          judgment is arrested, the defendant will be
     Motion in arrest of judgment means a defendant's                     discharged. But the trial court may remand
oral or written suggestion that, for reasons stated in the                the defendant to custody or fix bail if the
motion, the judgment rendered against the defendant                       court determines, from the evidence adduced
was contrary to law. Such a motion is made in the trial                   at trial, that the defendant may be convicted
court.                                                                    on a proper indictment or information, or on
                                                                          a proper verdict in relation to the indictment
22.2. Grounds                                                             or information.

    The motion may be based on any of the following                              Notes and Comments
grounds:
                                                                      Comment to 1997 change: Former Rules 33, 34,
    (a) that the indictment or information is subject             and 35 are merged without substantive change.
        to an exception on substantive grounds;

    (b) that in relation to the indictment or                                  Rule 23. Nunc Pro Tunc
        information a verdict is substantively                              Proceedings in Criminal Cases
        defective; or
                                                                  23.1. Judgment and Sentence
    (c) that the judgment is invalid for some other
        reason.                                                        Unless the trial court has granted a new trial or
                                                                  arrested the judgment, or unless the defendant has
22.3. Time to File Motion                                         appealed, a failure to render judgment and pronounce
                                                                  sentence may be corrected at any time by the court's
     A defendant may file a motion in arrest of                   doing so.
judgment before, but no later than 30 days after, the
date when the trial court imposes or suspends sentence            23.2. Credit on Sentence
in open court.
                                                                      When sentence is pronounced, the trial court must
22.4. Court's Ruling                                              give the defendant credit on that sentence for:

    (a) Time to Rule; Form of Ruling. The court must                  (a) all time the defendant has been confined
        rule on a motion in arrest of judgment within                     since the time when judgment and sentence
        75 days after imposing or suspending                              should have been entered and pronounced;
        sentence in open court. The ruling may be                         and
        oral or in writing.
                                                                      (b) all time between the defendant's arrest
    (b) Failure to Rule. A motion not timely ruled on                     and confinement to the time when judgment
        will be deemed denied when the period                             and sentence should have been entered and
        prescribed in (a) expires.                                        pronounced.

22.5. Effect of Denying                                                          Notes and Comments

    For purposes of the defendant's giving notice of                  Comment to 1997 change: This is former Rule 36.
appeal, an order denying a motion in arrest of                    The rule is amended without substantive change.
judgment will be considered an order denying a
motion for new trial.
                                                                  Rule 24. Suspension of Enforcement of Judgment
22.6. Effect of Granting                                                    Pending Appeal in Civil Cases

    (a) Defendant Restored. If judgment is arrested,              24.1. Suspension of Enforcement


                                                             25
                                                                            government or of any federally
(a) Methods.     Unless the law or these rules                              insured and federally or state-
    provide otherwise, a judgment debtor may                                chartered bank or savings-and-loan
    supersede the judgment by:                                              association.

    (1) filing with the trial court clerk a written                (2) Amount of Deposit. The deposit must be
        agreement with the judgment creditor for                       in the amount required by 24.2.
        suspending      enforcement       of    the
        judgment;                                                  (3) Clerk’s Duties; Interest. The      clerk
                                                                       must promptly deposit any cash or a
    (2) filing with the trial court clerk a good                       cashier’s check in accordance with law.
        and sufficient bond;                                           The clerk must hold the deposit until the
                                                                       conditions of liability in (d) are
    (3) making a deposit with the trial court                          extinguished. The clerk must then
        clerk in lieu of a bond; or                                    release any remaining funds in the
                                                                       deposit to the judgment debtor.
    (4) providing alternate security ordered by
        the court.                                             (d) Conditions of Liability. The surety or
                                                                   sureties on a bond, any deposit in lieu of a
(b) Bonds.                                                         bond, or any alternate security ordered by the
                                                                   court is subject to liability for all damages
    (1) A bond must be:                                            and costs that may be awarded against the
                                                                   debtor — up to the amount of the bond,
        (A) in the amount required by 24.2;                        deposit, or security — if:

        (B) payable to the judgment creditor;                      (1) the debtor does not perfect an appeal or
                                                                       the debtor’s appeal is dismissed, and the
        (C) signed by the judgment debtor or the                       debtor does not perform the trial court’s
            debtor’s agent;                                            judgment;

        (D) signed by a sufficient surety or                       (2) the debtor does not perform an
            sureties as obligors; and                                  adverse judgment final on appeal; or

        (E) conditioned as required by (d).                        (3) the judgment is for the recovery of an
                                                                       interest in real or personal property, and
    (2) To be effective a bond must be approved                        the debtor does not pay the creditor the
        by the trial court clerk. On motion of any                     value of the property interest’s rent or
        party, the trial court will review the                         revenue during the pendency of the
        bond.                                                          appeal.

(c) Deposit in Lieu of Bond.                                   (e) Orders of Trial Court. The trial court may
                                                                   make any order necessary to adequately
    (1) Types of Deposits. Instead of filing a                     protect the judgment creditor against loss or
        surety bond, a party may deposit with the                  damage that the appeal might cause.
        trial court clerk:
                                                               (f) Effect of Supersedeas. Enforcement of a
        (A) cash;                                                  judgment must be suspended if the judgment
                                                                   is superseded. Enforcement begun before the
        (B) a cashier’s check payable to the                       judgment is superseded must cease when the
            clerk, drawn on any federally                          judgment is superseded. If execution has
            insured and federally or state-                        been issued, the clerk will promptly issue a
            chartered bank or savings-and-loan                     writ of supersedeas.
            association; or
                                                           24.2. Amount of Bond, Deposit, or Security
        (C) with leave of court, a negotiable
            obligation   of    the    federal                  (a) Type of Judgment.



                                                      26
                                                                unless ordered by the trial court. But
(1) For Recovery of Money. When the                             upon a proper showing, the appellate
    judgment is for money, the amount of the                    court may suspend enforcement of the
    bond, deposit, or security must equal the                   judgment with or without security.
    sum of compensatory damages awarded
    in the judgment, interest for the                      (5) For a Governmental Entity. When a
    estimated duration of the appeal, and                      judgment in favor of a governmental
    costs awarded in the judgment. But the                     entity in its governmental capacity is one
    amount must not exceed the lesser of:                      in which the entity has no pecuniary
                                                               interest, the trial court must determine
    (A) 50 percent of the judgment debtor's                    whether to suspend enforcement, with or
        current net worth; or                                  without security, taking into account the
                                                               harm that is likely to result to the
    (B) 25 million dollars.                                    judgment debtor if enforcement is not
                                                               suspended, and the harm that is likely to
(2) For Recovery of Property. When the                         result to others if enforcement is
    judgment is for the recovery of an                         suspended. The appellate court may
    interest in real or personal property, the                 review the trial court’s determination
    trial court will determine the type of                     and suspend enforcement of the
    security that the judgment debtor must                     judgment, with or without security, or
    post. The amount of that security must be                  refuse to suspend the judgment. If
    at least:                                                  security is required, recovery is limited
                                                               to the governmental entity’s actual
    (A) the value of the property interest's                   damages resulting from suspension of
        rent or revenue, if the property                       the judgment.
        interest is real; or
                                                       (b) Lesser Amount. The trial court must lower
    (B) the value of the property interest on              the amount of security required by (a) to an
        the date when the court rendered                   amount that will not cause the judgment
        judgment, if the property interest is              debtor substantial economic harm if, after
        personal.                                          notice to all parties and a hearing, the court
                                                           finds that posting a bond, deposit, or security
(3) Other Judgment. When the judgment is                   in the amount required by (a) is likely to
    for something other than money or an                   cause the judgment debtor substantial
    interest in property, the trial court must             economic harm.
    set the amount and type of security that
    the judgment debtor must post. The                 (c) Determination of Net Worth.
    security must adequately protect the
    judgment creditor against loss or damage               (1) Judgment Debtor's Affidavit Required;
    that the appeal might cause. But the trial                 Contents; Prima Facie Evidence. A
    court may decline to permit the judgment                   judgment debtor who provides a bond,
    to be superseded if the judgment creditor                  deposit, or security under (a)(1)(A) in an
    posts security ordered by the trial court                  amount based on the debtor's net worth
    in an amount and type that will secure                     must simultaneously file with the trial
    the judgment debtor against any loss or                    court clerk an affidavit that states the
    damage caused by the relief granted the                    debtor's net worth and states complete,
    judgment creditor if an appellate court                    detailed information concerning the
    determines, on final disposition, that that                debtor's assets and liabilities from which
    relief was improper.                                       net worth can be ascertained. An
                                                               affidavit that meets these requirements is
(4) Conservatorship or Custody. When                           prima facie evidence of the debtor's net
    the     judgment       involves      the                   worth for the purpose of establishing the
    conservatorship or custody of a minor or                   amount of the bond, deposit, or security
    other person under legal disability,                       required to suspend enforcement of the
    enforcement of the judgment will not be                    judgment. A trial court clerk must
    suspended, with or without security,                       receive and file a net-worth affidavit



                                                  27
            tendered for filing by a judgment debtor.                 jurisdiction attaches in an appellate court, the
                                                                      trial court orders or modifies the security or
       (2) Contest; Discovery. A judgment creditor                    decides the sufficiency of sureties, the
           may file a contest to the debtor's claimed                 judgment debtor must notify the appellate
           net worth. The contest need not be                         court of the trial court's action.
           sworn.     The creditor may conduct
           reasonable discovery concerning the                 24.4. Appellate Review
           judgment debtor's net worth.
                                                                  (a) Motions; Review. A party may seek review
       (3) Hearing; Burden of Proof; Findings;                        of the trial court's ruling by motion filed in
           Additional Security. The trial court must                  the court of appeals with jurisdiction or
           hear a judgment creditor's contest of the                  potential jurisdiction over the appeal from the
           judgment debtor's claimed net worth                        judgment in the case. A party may seek
           promptly after any discovery has been                      review of the court of appeals' ruling on the
           completed. The judgment debtor has the                     motion by petition for writ of mandamus in
           burden of proving net worth. The trial                     the Supreme Court. The appellate court may
           court must issue an order that states the                  review:
           debtor's net worth and states with
           particularity the factual basis for that                   (1) the sufficiency or excessiveness of the
           determination. If the trial court orders                       amount of security, but when the
           additional or other security to supersede                      judgment is for money, the appellate
           the judgment, the enforcement of the                           court must not modify the amount of
           judgment will be suspended for twenty                          security to exceed the limits imposed by
           days after the trial court's order. If the                     Rule 24.2(a)(1);
           judgment debtor does not comply with
           the order within that period, the                          (2) the sureties on any bond;
           judgment may be enforced against the
           judgment debtor.                                           (3) the type of security;

   (d) Injunction. The trial court may enjoin the                     (4) the determination whether to permit
       judgment debtor from dissipating or                                suspension of enforcement; and
       transferring assets to avoid satisfaction of the
       judgment, but the trial court may not make                     (5) the trial court's exercise of discretion
       any order that interferes with the judgment                        under Rule 24.3(a).
       debtor's use, transfer, conveyance, or
       dissipation of assets in the normal course of              (b) Grounds of Review. Review may be based
       business.                                                      both on conditions as they existed at the time
                                                                      the trial court signed an order and on changes
24.3. Continuing Trial Court            Jurisdiction;                 in those conditions afterward.
Duties of Judgment Debtor
                                                                  (c) Temporary Orders. The appellate court may
   (a) Continuing Jurisdiction. Even after the trial                  issue any temporary orders necessary to
       court's plenary power expires, the trial court                 preserve the parties’ rights.
       has continuing jurisdiction to do the
       following:                                                 (d) Action by Appellate Court. The motion must
                                                                      be heard at the earliest practicable time. The
       (1) order the amount and type of security                      appellate court may require that the amount
           and decide the sufficiency of sureties;                    of a bond, deposit, or other security be
           and                                                        increased or decreased, and that another
                                                                      bond, deposit, or security be provided and
       (2) if circumstances change, modify the                        approved by the trial court clerk. The
           amount or type of security required to                     appellate court may require other changes in
           continue the suspension of a judgment's                    the trial court order. The appellate court may
           execution.                                                 remand to the trial court for entry of findings
                                                                      of fact or for the taking of evidence.
   (b) Duties of Judgment Debtor.            If, after



                                                          28
    (e) Effect of Ruling. If the appellate court                   25.1. Civil Cases
        orders additional or other security to
        supersede the judgment, enforcement will be                    (a) Notice of Appeal. An appeal is perfected
        suspended for 20 days after the appellate                          when a written notice of appeal is filed with
        court’s order.      If the judgment debtor                         the trial court clerk. If a notice of appeal is
        does not comply with the order within that                         mistakenly filed with the appellate court, the
        period, the judgment may be enforced. When                         notice is deemed to have been filed the same
        any additional bond, deposit, or security has                      day with the trial court clerk, and the
        been filed, the trial court clerk must notify                      appellate clerk must immediately send the
        the appellate court. The posting of additional                     trial court clerk a copy of the notice.
        security will not release the previously posted
        security or affect any alternative security                    (b) Jurisdiction of Appellate Court. The filing
        arrangements that the judgment debtor                              of a notice of appeal by any party invokes the
        previously made unless specifically ordered                        appellate court’s jurisdiction over all parties
        by the appellate court.                                            to the trial court’s judgment or order appealed
                                                                           from. Any party’s failure to take any other
                 Notes and Comments                                        step required by these rules, including the
                                                                           failure of another party to perfect an appeal
     Comment to 1997 change: Former Rules 47, 48,                          under (c), does not deprive the appellate court
and 49 are merged. The rule is substantially revised.                      of jurisdiction but is ground only for the
Paragraph 24.1(a) now provides for superseding the                         appellate court to act appropriately, including
judgment by agreement. Paragraph 24.1(c) is taken                          dismissing the appeal.
from former Rule 48 and provides for a deposit in lieu
of the bond, including specific provisions for the                     (c) Who Must File Notice. A party who seeks to
release of the deposit. Paragraph 24.1(d) provides the                     alter the trial court’s judgment or other
conditions for the surety to honor the bond and for the                    appealable order must file a notice of appeal.
deposit to be paid to the judgment creditor. In                            Parties whose interests are aligned may file a
subdivision 24.2, the provisions for determining the                       joint notice of appeal. The appellate court
amount of the bond or deposit are simplified. All                          may not grant a party who does not file a
provisions regarding superseding a judgment for an                         notice of appeal more favorable relief than
interest in property are merged into subparagraph                          did the trial court except for just cause.
24.2(a)(2). The procedure for allowing security in a
lesser amount is moved to paragraph 24.2(b) and is                     (d) Contents of Notice. The notice of appeal
made applicable to all judgments. Subdivision 24.4 is                      must:
taken from former Rule 49. The procedure for
appellate review is more precisely stated.                                 (1) identify the trial court and state the
                                                                               case’s trial court number and style;
     Comment to 2008 change: Subdivision 24.2(c) is
amended to clarify the procedure in determining net                        (2) state the date of the judgment or order
worth. A debtor's affidavit of net worth must be                               appealed from;
detailed, but the clerk must file what is tendered
without determining whether it complies with the rule.                     (3) state that the party desires to appeal;
If the trial court orders that additional or other security
be given, the debtor is afforded time to comply.                           (4) state the court to which the appeal is
Subdivision 24.4(a) is revised to clarify that a party                         taken unless the appeal is to either the
seeking relief from a supersedeas ruling should file a                         First or Fourteenth Court of Appeals, in
motion in the court of appeals that has or presumably                          which case the notice must state that the
will have jurisdiction of the appeal. After the court of                       appeal is to either of those courts;
appeals has ruled, a party may seek review by filing a
petition for writ of mandamus in the Supreme Court.                        (5) state the name of each party filing the
See In re Smith / In re Main Place Custom Homes, Inc.,                         notice;
192 S.W.3d 564, 568 (Tex. 2006) (per curiam).
                                                                           (6) in an accelerated appeal, state that the
                                                                               appeal is accelerated and state whether it
             Rule 25. Perfecting Appeal                                        is a parental termination or child
                                                                               protection case, as defined in Rule 28.4;



                                                              29
                                                                      (2) the appellant is entitled to supersede
     (7) in a restricted appeal:                                          the judgment without security by filing a
                                                                          notice of appeal.
          (A) state that the appellant is a party
              affected by the trial court’s                    25.2. Criminal Cases
              judgment but did not participate—
              either in person or through                         (a) Rights to Appeal.
              counsel—in the hearing that
              resulted in the judgment complained                     (1) Of the State. The State is entitled to
              of;                                                         appeal a court’s order in a criminal case
                                                                          as provided by Code of Criminal
          (B) state that the appellant did not                            Procedure article 44.01
              timely file either a postjudgment
              motion, request for findings of fact                    (2) Of the Defendant. A defendant in a
              and conclusions of law, or notice of                        criminal case has the right of appeal
              appeal; and                                                 under Code of Criminal Procedure
                                                                          article 44.02 and these rules. The trial
          (C) be verified by the appellant if the                         court shall enter a certification of the
              appellant does not have counsel.                            defendant’s right of appeal each time it
                                                                          enters a judgment of guilt or other
     (8) state, if applicable, that the appellant is                      appealable order. In a plea bargain case
         presumed indigent and may proceed                                – that is, a case in which a defendant’s
         without paying costs under Rule 20.1.                            plea was guilty or nolo contendere and
                                                                          the punishment did not exceed the
(e) Service of Notice. The notice of appeal must                          punishment recommended by the
    be served on all parties to the trial court's final                   prosecutor and agreed to by the
    judgment or, in an interlocutory appeal, on all                       defendant – a defendant may appeal
    parties to the trial court proceeding.                                only:

(f) Clerk’s Duties. The trial court clerk must                             (A) those matters that were raised by
    immediately send a copy of the notice of                                   a written motion filed and ruled on
    appeal to the appellate court clerk and to the                             before trial, or
    court reporter or court reporters responsible
    for preparing the reporter’s record.                                   (B) after getting the trial        court’s
                                                                               permission to appeal.
(g) Amending the Notice. An amended notice of
    appeal correcting a defect or omission in an                  (b) Perfection of Appeal. In a criminal case,
    earlier filed notice may be filed in the                          appeal is perfected by timely filing a
    appellate court at any time before the                            sufficient notice of appeal. In a death-penalty
    appellant's brief is filed. The amended notice                    case it is unnecessary to file a notice of
    is subject to being struck for cause on the                       appeal, but, in every death-penalty case, the
    motion of any party affected by the amended                       clerk of the trial court shall file a notice of
    notice. After the appellant's brief is filed, the                 conviction with the Court of Criminal
    notice may be amended only on leave of the                        Appeals within thirty days after the defendant
    appellate court and on such terms as the court                    is sentenced to death.
    may prescribe.
                                                                  (c) Form and Sufficiency of Notice.
(h) Enforcement of Judgment Not Suspended by
    Appeal. The filing of a notice of appeal does                     (1) Notice must be given in writing and filed
    not suspend enforcement of the judgment.                              with the trial court clerk. If the notice of
    Enforcement of the judgment may proceed                               appeal is received in the court of appeals,
    unless:                                                               the clerk of that court shall immediately
                                                                          record on the notice the date that it was
     (1) the judgment is superseded                 in                    received and send the notice to the trial
         accordance with Rule 24, or                                      court clerk.




                                                          30
    (2) Notice is sufficient if it shows the party's            (g) Effect of Appeal. Once the record has been
        desire to appeal from the judgment or                       filed in the appellate court, all further
        other appealable order, and, if the State                   proceedings in the trial court – except as
        is the appellant, the notice complies with                  provided otherwise by law or by these rules -
        Code of Criminal Procedure article                          will be suspended until the trial court receives
        44.01.                                                      the appellate – court mandate.

(d) Certification of Defendant’s Right of Appeal.               (h) Advice of Right of Appeal. When a court
    If the defendant is the appellant, the record                   enters a judgment or other appealable order
    must include the trial court’s certification of                 and the defendant has a right of appeal, the
    the defendant’s right of appeal under Rule                      court (orally or in writing) shall advise the
    25.2(a)(2). The certification shall include a                   defendant of his right of appeal and of the
    notice that the defendant has been informed                     requirements for timely filing a sufficient
    of his rights concerning an appeal, as well as                  notice of appeal.
    any right to file a pro se petition for
    discretionary review. This notification shall                            Notes and Comments
    be signed by the defendant, with a copy
    given to him. The certification should be                    Comment on 1997 change: This is former Rule
    part of the record when notice is filed, but            40. In civil cases, the requirement of an appeal bond is
    may be added by timely amendment or                     repealed. Appeal is perfected by filing a notice of
    supplementation under this rule or Rule                 appeal. A notice must be filed by any party seeking to
    34.5(c)(1) or Rule 37.1 or by order of the              alter the trial court’s judgment. The restricted appeal
    appellate court under Rule 34.5(c)(2). The              — formerly the appeal by writ of error — is perfected
    appeal must be dismissed if a certification             by filing a notice of appeal in the trial court as in other
    that shows the defendant has the right of               appeals. The contents of the notice of appeal is
    appeal has not been made part of the record             prescribed. The notice of limitation of appeal is
    under these rules.                                      repealed. In criminal cases, the rule is amended to
                                                            apply to notices by the State, and to refer to additional
(e) Clerk's Duties. The trial court clerk must note         statutory requirements for the State’s notice. In felony
    on the copies of the notice of appeal and the           cases in which the defendant waived trial by jury,
    trial court’s certification of the defendant’s          pleaded guilty or nolo contendere, and received a
    right of appeal the case number and the date            punishment that did not exceed what the defendant
    when each was filed. The clerk must then                agreed to in a plea bargain, the rule is amended to
    immediately send one copy of each to the                make clear that regardless of when the alleged error
    clerk of the appropriate court of appeals and,          occurred, an appeal must be based on a jurisdictional
    if the defendant is the appellant, one copy of          defect or a written motion ruled on before trial, or be
    each to the State's attorney.                           with the permission of the trial court.

(f) Amending the Notice or Certification. An                     Comment to 2002 change: Rule 25.2, for criminal
    amended notice of appeal or trial court’s               cases, is amended. Subdivision 25.2(a) states the
    certification of the defendant’s right of               parties’ rights of appeal that are established by Code
    appeal correcting a defect or omission in an            of Criminal Procedure article 44.01 and by article
    earlier filed notice or certification, including        44.02, the proviso of which was repealed when
    a defect in the notification of the defendant’s         rulemaking power was given to the Court of Criminal
    appellate rights, may be filed in the appellate         Appeals. Subdivision 25.2(b) is given the requirement
    court in accordance with Rule 37.1, or at any           that a notice of appeal be in “sufficient” form, which
    time before the appealing party's brief is filed        codifies the decisional law.      The requirement in
    if the court of appeals has not used Rule 37.1.         former subdivision 25.2(b)(3) that a plea-bargaining
    The amended notice or certification is subject          appellant’s notice of appeal specify the right of appeal
    to being struck for cause on the motion of any          is replaced by a requirement in subdivision 25.2(d)
    party affected by the amended notice or                 that the trial court certify the defendant’s right of
    certification. After the appealing party’s brief        appeal in every case in which a judgment or other
    is filed, the notice or certification may be            appealable order is entered. The certificate should be
    amended only on leave of the appellate court            signed at the time the judgment or other appealable
    and on such terms as the court may prescribe.           order is pronounced. The form of certification of the
                                                            defendant’s right of appeal is provided in an appendix



                                                       31
to these rules. If the record does not include the trial
court’s certification that the defendant has the right of                 (2) within 90 days after the day sentence
appeal, the appeal must be dismissed. If a sufficient                         is imposed or suspended in open court if
notice of appeal or certification is not filed after the                      the defendant timely files a motion for
appellate court deals with the defect (see Rules 34.5(c)                      new trial.
and 37.1), preparation of an appellate record and
representation by an appointed attorney may cease.                   (b) By the State. The notice of appeal must be
                                                                         filed within 20 days after the day the trial
          Rule 26. Time to Perfect Appeal                                court enters the order, ruling, or sentence to
                                                                         be appealed.
26.1. Civil Cases
                                                                 26.3. Extension of Time
     The notice of appeal must be filed within 30 days
after the judgment is signed, except as follows:                           The appellate court may extend the time to
                                                                 file the notice of appeal if, within 15 days after the
    (a) the notice of appeal must be filed within 90             deadline for filing the notice of appeal, the party:
        days after the judgment is signed if any party
        timely files:                                                     (a)       files in the trial court the notice of
                                                                                    appeal; and
         (1) a motion for new trial;
                                                                          (b)       files in the appellate court a motion
         (2) a motion to modify the judgment;                                       complying with Rule 10.5(b).

         (3) a motion to reinstate under Texas Rule of                            Notes and Comments
             Civil Procedure 165a; or
                                                                      Comment to 1997 change: This is former Rule 41.
         (4) a request for findings of fact and                  All times for perfecting appeal in civil cases —
             conclusions of law if findings and                  including the time for perfecting a restricted appeal —
             conclusions either are required by the              are stated. An extension of time is available for all
             Rules of Civil Procedure or, if not                 appeals. The provisions of former Rule 41(c)
             required, could properly be considered              regarding prematurely filed documents are moved to
             by the appellate court;                             Rule 27. Nonsubstantive changes are made in the rule
                                                                 for criminal cases.
    (b) in an accelerated appeal, the notice of appeal
        must be filed within 20 days after the
        judgment or order is signed;                                            Rule 27. Premature Filings

    (c) in a restricted appeal, the notice of appeal             27.1. Prematurely Filed Notice of Appeal
        must be filed within six months after the
        judgment or order is signed; and                             (a) Civil Cases. In a civil case, a prematurely
                                                                         filed notice of appeal is effective and deemed
    (d) if any party timely files a notice of appeal,                    filed on the day of, but after, the event that
        another party may file a notice of appeal                        begins the period for perfecting the appeal.
        within the applicable period stated above or
        14 days after the first filed notice of appeal,              (b) Criminal Cases. In a criminal case, a
        whichever is later.                                              prematurely filed notice of appeal is effective
                                                                         and deemed filed on the same day, but after,
26.2. Criminal Cases                                                     sentence is imposed or suspended in open
                                                                         court, or the appealable order is signed by the
    (a) By the Defendant. The notice of appeal must                      trial court. But a notice of appeal is not
        be filed:                                                        effective if filed before the trial court makes
                                                                         a finding of guilt or receives a jury verdict.
         (1) within 30 days after the day sentence
             is imposed or suspended in open court,              27.2. Other Premature Actions
             or after the day the trial court enters an
             appealable order; or                                    The appellate court may treat actions taken before



                                                            32
an appealable order is signed as relating to an appeal                    court need not file findings of fact and
of that order and give them effect as if they had been                    conclusions of law but may do so within 30
taken after the order was signed. The appellate court                     days after the order is signed.
may allow an appealed order that is not final to be
modified so as to be made final and may allow the                     (d) Quo Warranto Appeals. The trial court may
modified order and all proceedings relating to it to be                   grant a motion for new trial timely filed under
included in a supplemental record.                                        Texas Rule of Civil Procedure 329b(a)–(b)
                                                                          until 50 days after the trial court's final
27.3. If Appealed Order Modified or Vacated                               judgment is signed. If not determined by
                                                                          signed written order within that period, the
     After an order or judgment in a civil case has been                  motion will be deemed overruled by
appealed, if the trial court modifies the order or                        operation of law on expiration of that period.
judgment, or if the trial court vacates the order or
judgment and replaces it with another appealable order                (e) Record and Briefs. In lieu of the clerk's
or judgment, the appellate court must treat the appeal                    record, the appellate court may hear an
as from the subsequent order or judgment and may                          accelerated appeal on the original papers
treat actions relating to the appeal of the first order or                forwarded by the trial court or on sworn and
judgment as relating to the appeal of the subsequent                      uncontroverted copies of those papers. The
order or judgment. The subsequent order or judgment                       appellate court may allow the case to be
and actions relating to it may be included in the                         submitted without briefs. The deadlines and
original or supplemental record. Any party may                            procedures for filing the record and briefs in
nonetheless appeal from the subsequent order or                           an accelerated appeal are provided in Rules
judgment.                                                                 35.1 and 38.6.

                Notes and Comments                                28.2. Agreed Interlocutory Appeals in Civil Cases

   Comment to 1997 change: This rule is new and                       (a) Perfecting Appeal. An agreed appeal of an
combines the provisions of former Rules 41(c) and 58.                     interlocutory order permitted by statute must
                                                                          be perfected as provided in Rule 25.1. The
                                                                          notice of appeal must be filed no later than
  Rule 28. Accelerated, Agreed, and Permissive                            the 20th day after the date the trial court signs
             Appeals in Civil Cases                                       a written order granting permission to appeal,
                                                                          unless the court of appeals extends the time
28.1. Accelerated Appeals                                                 for filing pursuant to Rule 26.3.

    (a) Types of Accelerated Appeals. Appeals from                    (b) Other Requirements. In addition to perfecting
        interlocutory orders (when allowed by                             appeal, the appellant must file with the clerk
        statute), appeals      in     quo      warranto                   of the appellate court a docketing statement
        proceedings, appeals required by statute to                       as provided in Rule 32.1 and pay to the clerk
        be accelerated or expedited, and appeals                          of the appellate court all required fees
        required by law to be filed or perfected within                   authorized to be collected by the clerk.
        less than 30 days after the date of the order or
        judgment being appealed are accelerated                       (c) Contents of Notice. The notice of accelerated
        appeals.                                                          appeal must contain, in addition to the items
                                                                          required by Rule 25.1(d), the following:
    (b) Perfection of Accelerated Appeal. Unless
        otherwise provided by statute, an accelerated                          (1) a list of the names of all parties to
        appeal is perfected by filing a notice of appeal                           the trial court proceeding and the
        in compliance with Rule 25.1 within the time                               names, addresses, and telefax
        allowed by Rule 26.1(b) or as extended by                                  numbers of all trial and appellate
        Rule 26.3. Filing a motion for new trial, any                              counsel;
        other post-trial motion, or a request for
        findings of fact will not extend the time to                           (2) a copy of the trial court's order
        perfect an accelerated appeal.                                             granting permission to appeal;

    (c) Appeals of Interlocutory Orders.        The trial                      (3) a copy of the trial court order



                                                             33
              appealed from;                                  28.3. Permissive Appeals in Civil Cases.

         (4) a statement that all parties to the trial            (a) Petition Required. When a trial court has
             court proceeding agreed to the trial                     permitted an appeal from an interlocutory
             court's order granting permission to                     order that would not otherwise be appealable,
             appeal;                                                  a party seeking to appeal must petition the
                                                                      court of appeals for permission to appeal.
         (5) a statement that all parties to the trial
             court proceeding agreed that the                     (b) Where Filed. The petition must be filed with
             order granting permission to appeal                      the clerk of the court of appeals having
             involves a controlling question of                       appellate jurisdiction over the action in which
             law as to which there is a                               the order to be appealed is issued. The First
             substantial ground for difference of                     and Fourteenth Courts of Appeals must
             opinion;                                                 determine in which of those two courts a
                                                                      petition will be filed.
         (6) a brief statement of the issues or
             points presented; and                                (c) When Filed. The petition must be filed
                                                                      within 15 days after the order to be appealed
         (7) a concise explanation of how an                          is signed. If the order is amended by the trial
             immediate appeal may materially                          court, either on its own or in response to a
             advance the ultimate termination of                      party’s motion, to include the court’s
             the litigation.                                          permission to appeal, the time to petition the
                                                                      court of appeals runs from the date the
(d) Determination of Jurisdiction. If the court of                    amended order is signed.
    appeals determines that a notice of appeal
    filed under this rule does not demonstrate the                (d) Extension of Time to File Petition. The court
    court's jurisdiction, it may order the appellant                  of appeals may extend the time to file the
    to file an amended notice of appeal. On a                         petition if the party:
    party's motion or its own initiative, the court
    of appeals may also order the appellant or any                         (1) files the petition within 15 days
    other party to file briefing addressing                                    after the deadline, and
    whether the appeal meets the statutory
    requirements, and may direct the parties to                            (2) files a motion complying with Rule
    file supporting evidence. If, after providing                              10.5(b).
    an opportunity to file an amended notice of
    appeal or briefing addressing potential                       (e) Contents. The petition must:
    jurisdictional defects, the court of appeals
    concludes that a jurisdictional defect exists, it                 (1) contain the information required by
    may dismiss the appeal for want of                                    Rule 25.1(d) to be included in a notice of
    jurisdiction at any stage of the appeal.                              appeal;

(e) Record; Briefs. The rules governing the filing                    (2) attach a copy of the order from which
    of the appellate record and briefs in                                 appeal is sought;
    accelerated appeals apply. A party may
    address in its brief any issues related to the                    (3) contain a table of contents, index of
    court of appeals' jurisdiction, including                             authorities, issues presented, and a
    whether the appeal meets the statutory                                statement of facts; and
    requirements.
                                                                      (4) argue clearly and concisely why the
(f) No Automatic Stay of Proceedings in Trial                             order to be appealed involves a
    Court. An agreed appeal of an interlocutory                           controlling question of law as to which
    order permitted by statute does not stay                              there is a substantial ground for
    proceedings in the trial court except as agreed                       difference of opinion and how an
    by the parties and ordered by the trial court or                      immediate appeal from the order may
    the court of appeals.                                                 materially advance the ultimate
                                                                          termination of the litigation.



                                                         34
                                                                                  parent-child relationship is at issue.
   (f) Response; Reply; Cross-Petition; Time for
       Filing. If any party timely files a petition, any                     (B) a “child protection case” means a
       other party may file a response or a cross-                               suit affecting the parent-child
       petition within 10 days. A party may file a                               relationship filed by a governmental
       response to a cross-petition within 10 days of                            entity          for        managing
       the date the cross-petition is filed. A                                   conservatorship.
       petitioner or cross-petitioner may reply to
       any matter in a response within 7 days of the                (b) Appellate Record.
       date the response is filed. The court of
       appeals may extend the time to file a                             (1) Responsibility for Preparation of the
       response, reply, and cross-petition.                                  Reporter’s Record. In addition to the
                                                                             responsibility imposed on the trial court
   (g) Length of Petition, Cross-Petition, Response,                         in Rule 35.3(c), when the reporter’s
       and Reply. A petition, cross-petition,                                responsibility to prepare, certify and
       response, and reply must comply with the                              timely file the reporter’s record arises
       page limitations in 9.4(i)(2)(D)-(E).                                 under Rule 35.3(b), the trial court must
                                                                             direct the official or deputy reporter to
   (h) Service. A petition, cross-petition, response,                        immediately commence the preparation
       and reply must be served on all parties to the                        of the reporter’s record. The trial court
       trial court proceeding.                                               must arrange for a substitute reporter, if
                                                                             necessary.
   (i) Docketing Statement.         Upon filing the
       petition, the petitioner must file the docketing                  (2) Extension of Time. The appellate court
       statement required by Rule 32.1.                                      may grant an extension of time to file a
                                                                             record under Rule 35.3(c); however, the
   (j) Time for Determination. Unless the court of                           extension or extensions granted must not
       appeals orders otherwise, a petition, and any                         exceed 30 days cumulatively, absent
       cross-petition, response, and reply, will be                          extraordinary circumstanced.
       determined without oral argument, no earlier
       than 10 days after the petition is filed.                         (3) Restriction on Preparation Inapplicable.
                                                                             Section 13.003 of the Civil Practice &
   (k) When Petition Granted. If the petition is                             Remedies Code does not apply to an
       granted, a notice of appeal is deemed to have                         appeal from a parental termination or
       been filed under Rule 26.1(b) on that date,                           child protection case.
       and the appeal is governed by the rules for
       accelerated appeals. A separate notice of                    (c) Remand for New Trial. If the judgment of
       appeal need not be filed. A copy of the order                    the appellate court reverses and remands a
       granting the petition must be filed with the                     parental termination or child protection case
       trial court clerk.                                               for a new trial, the judgment must instruct the
                                                                        trial court to commence the new trial no later
28.4.  Accelerated    Appeals     in   Parental                         than 180 days after the mandate is issued by
Termination and Child Protection Cases                                  the appellate court.

   (a) Application and Definitions.                                            Notes and Comments

       (1) Appeals in parental termination and                       Comment to 2011 Change: Section 51.014(d)-(f)
           child protection cases are governed by               of the Texas Civil Practice and Remedies Code, as
           the rules of appellate procedure for                 amended in 2011, provides for appeals of orders not
           accelerated appeals, except as otherwise             otherwise appealable when permitted by the trial
           provided in Rule 28.4.                               court. The 2011 amendments, which explicitly apply
                                                                only to cases commenced on or after September 1,
       (2) In Rule 28.4:                                        2011, eliminated the prior requirement that the parties
                                                                agree to the appeal and reinstated a requirement that
            (A) a “parental termination case” means             the court of appeals also permit the appeal. Act of May
                a suit in which termination of the              25, 2011, 82nd Leg., R.S., ch. 203, §§ 3.01, 6.01



                                                           35
[HB274], amending Act of May 27, 2005, 79th Leg.,                 29.3. Temporary Orders of Appellate Court
R.S., ch. 1051 [HB1294], §§ 1-2, 2005 Tex. Gen.
Laws 3512, 3512-3513 and Act of May 17, 2001, 77th                     When an appeal from an interlocutory order is
Leg., R.S., Ch. 1389 [HB978], § 1.2001 Tex. Gen.                  perfected, the appellate court may make any
Laws 3575.       The amendments necessitated the                  temporary orders necessary to preserve the parties'
addition of Rule 28.3 and the adoption of Rule of Civil           rights until disposition of the appeal and may require
Procedure 168, which governs the procedure for                    appropriate security. But the appellate court must not
obtaining permission to appeal from the trial court.              suspend the trial court's order if the appellant's rights
                                                                  would be adequately protected by supersedeas or
    New Rule 283 applies only to appeals in cases that            another order made under Rule 24.
were filed in the trial court on or after September 1,
2011. Rule 28.2 applies only to appeals in cases that             29.4. Enforcement of Temporary Orders
were filed in the trial court before September 1, 2011.
                                                                        While an appeal from an interlocutory order is
     Rule of Civil Procedure 168 clarifies that the trial         pending, only the appellate court in which the appeal
court’s permission to appeal should be included in the            is pending may enforce the order. But the appellate
order to be appealed rather than in a separate order.             court may refer any enforcement proceeding to the
As stated in Rule 28.3(c), if a prior order containing            trial court with instructions to:
the trial court’s ruling is amended to include such
permission, the time for appeal runs from the amended                 (a) hear evidence and grant appropriate relief; or
order. Rule 28.3(k) further clarifies that if the petition
is granted, appeal is thereby perfected, and the appeal               (b) make findings and recommendations and
proceeds as an accelerated appeal, with all deadlines -                   report them to the appellate court.
including deadlines and obligations for preparing the
record - running from the date the petition was granted.          29.5. Further Proceedings in Trial Court
A separate notice of appeal need not be filed. The
petition procedure in Rule 28.3 is intended to be                     While an appeal from an interlocutory order is
similar to the Rule 53 procedure governing petitions              pending, the trial court retains jurisdiction of the case
for review in the Supreme Court.                                  and unless prohibited by statute may make further
                                                                  orders, including one dissolving the order complained
Rule 29. Orders Pending Interlocutory Appeal in                   of on appeal. If permitted by law, the trial court may
                  Civil Cases                                     proceed with a trial on the merits. But the court must
                                                                  not make an order that:
29.1. Effect of Appeal
                                                                      (a) is inconsistent with any appellate court
     Perfecting an appeal from an order granting                          temporary order; or
interlocutory relief does not suspend the order
appealed from unless:                                                 (b) interferes with or impairs the jurisdiction of
                                                                          the appellate court or effectiveness of any
    (a) the order is superseded in accordance with                        relief sought or that may be granted on
        29.2; or                                                          appeal.

    (b) the appellant is entitled to supersede the                29.6. Review of Further Orders
        order without security by filing a notice of
        appeal.                                                       (a) Motion to Review Further Orders. While an
                                                                          appeal from an interlocutory order is
29.2. Security                                                            pending, on a party's motion or on the
                                                                          appellate court's own initiative, the appellate
      The trial court may permit an order granting                        court may review the following:
interlocutory relief to be superseded pending an appeal
from the order, in which event the appellant may                           (1) a further appealable interlocutory
supersede the order in accordance with Rule 24. If the                         order concerning the same subject
trial court refuses to permit the appellant to supersede                       matter; and
the order, the appellant may move the appellate court
to review that decision for abuse of discretion.                           (2) any interlocutory order that interferes
                                                                               with or impairs the effectiveness of the



                                                             36
              relief sought or that may be granted on           restricted appeals.
              appeal.
                                                                                Notes and Comments
    (b) Record. The party filing the motion may rely
        on the original record or may file a                         Comment to 1997 change: This is former Rule 45.
        supplemental record with the motion.                    The appeal by writ of error procedure is repealed. A
                                                                procedure for an appeal filed within 6 months —
                Notes and Comments                              called a restricted appeal — is substituted. This rule
                                                                sets out who may take a restricted appeal. Rules 25.1
    Comment to 1997 change: This is former Rule 43.             and 26.1 set out the method of perfection and the time
The provision in the former rule that an appeal from            for perfecting the appeal.
an order certifying a class suspends the order is
repealed. The provision in the former rule that an order
denying interlocutory relief cannot be suspended is               Rule 31. Appeals in Habeas Corpus, Bail, and
omitted as unnecessary because the rule provides for               Extradition Proceedings in Criminal Cases
superseding only orders granting relief. No substantive
change is intended. The provision in former Rule                31.1. Filing the Record; Submission
43(d) prohibiting the trial court from making an order
granting substantially the same relief as the order                   When written notice of appeal from a judgment or
appealed is repealed as being too broad. The                    order in a habeas corpus or bail proceeding is filed, the
provisions of former Rule 43(g) regarding the mandate           trial court clerk must prepare and certify the clerk’s
are moved to Rule 18.6 and 18.7. The provision of               record and, if the appellant requests, the court reporter
former Rule 43(h) regarding rehearings is moved to              must prepare and certify a reporter’s record. The clerk
Rule 49.4.                                                      must send the clerk’s record and the court reporter
                                                                must send the reporter’s record to the appellate court
     Comment to 2002 change: Rule 29.5 is amended               within 15 days after the notice of appeal is filed. On
to acknowledge that a trial court may be prohibited by          reasonable explanation, the appellate court may
law from proceeding to trial during the pendency of an          shorten or extend the time to file the record. When the
interlocutory appeal, as for example by section                 appellate court receives the record, the court will — if
51.014(b) of the Texas Civil Practice and Remedies              it desires briefs — set the time for filing briefs, and
Code.                                                           will set the appeal for submission.

     Comment to 2008 change: Rule 29.5 is amended               31.2. Hearing
to be consistent with Section 51.014(b) of the Civil
Practice and Remedies Code, as amended in 2003,                      An appeal in a habeas corpus or bail proceeding
staying all proceedings in the trial court pending              will be heard at the earliest practicable time. The
resolution of interlocutory appeals of class                    applicant need not personally appear, and the appeal
certification orders, denials of summary judgments              will be heard and determined upon the law and the
based on assertions of immunity by governmental                 facts shown by the record. The appellate court will not
officers or employees, and orders granting or denying           review any incidental question that might have arisen
a governmental unit’s plea to the jurisdiction.                 on the hearing of the application before the trial court.
                                                                The sole purpose of the appeal is to do substantial
                                                                justice to the parties.
Rule 30. Restricted Appeals to Court of Appeals in
                    Civil Cases                                 31.3. Orders on Appeal

     A party who did not participate—either in person               The appellate court will render whatever
or through counsel—in the hearing that resulted in the          judgment and make whatever orders the law and the
judgment complained of and who did not timely file a            nature of the case require. The court may make an
postjudgment motion or request for findings of fact             appropriate order relating to costs, whether allowing
and conclusions of law, or a notice of appeal within            costs and fixing the amount, or allowing no costs.
the time permitted by Rule 26.1(a), may file a notice
of appeal within the time permitted by Rule 26.1(c).            31.4. Stay of Mandate
Restricted appeals replace writ of error appeals to the
court of appeals. Statutes pertaining to writ of error              (a) When Motion for Stay Required. Despite
appeals to the court of appeals apply equally to                        Rule 18 or any other of these rules, in the



                                                           37
        following circumstances a party who in good             grant discretionary review. If the Court of Criminal
        faith intends to seek discretionary review              Appeals grants discretionary review, that court's
        must — within 15 days after the court of                judgment is final and conclusive. In either case, no
        appeals renders judgment — file with the                further application in the same case can be made for
        court of appeals clerk a motion for stay of             the writ unless the law provides otherwise.
        mandate, to which is appended the party's
        petition for discretionary review showing               31.6. Defendant Detained by Other Than Officer
        reasons why the Court of Criminal Appeals
        should review the appellate court judgment:                  If the defendant is held by a person other than an
                                                                officer, the sheriff receiving the appellate court
        (1) when a court of appeals affirms the                 mandate so ordering must immediately cause the
            judgment of the trial court in an                   defendant to be discharged, for which discharge the
            extradition matter and thereby sanctions            mandate is sufficient authority.
            a defendant's extradition; or
                                                                31.7. Judgment to be Certified
        (2) when a court of appeals reverses the
            trial court’s judgment in a bail matter —               The appellate court clerk will certify the court's
            including bail pending appeal under                 judgment to the officer holding the defendant in
            Code of Criminal Procedure article                  custody or, if the defendant is held by a person other
            44.04(g) — and thereby grants or                    than an officer, to the appropriate sheriff.
            reduces the amount of bail.
                                                                                 Notes and Comments
    (b) Determination of the Motion. The clerk must
        promptly submit the motion and appendix to                   Comment to 1997 change: This is former Rule 44.
        the court of appeals, or to one or more judges          Since the purpose of the appeal is to do substantial
        as the court deems appropriate, for immediate           justice, it is extended to both parties in recognition that
        consideration and determination.                        both parties now have the right to appeal. Other
                                                                nonsubstantive changes are made.
        (1) If the motion for stay is granted, the clerk
            will immediately forward the petition for
            discretionary review to the clerk of the                        Rule 32. Docketing Statement
            Court of Criminal Appeals.
                                                                32.1. Civil Cases
        (2) If the motion is denied, the clerk will
            issue a mandate in accordance with the                   Promptly upon filing the notice of appeal in a civil
            court of appeals' judgment.                         case, the appellant must file in the appellate court a
                                                                docketing statement that includes the following
    (c) Denial of Stay. If the motion for stay is denied        information:
        under 31.4(b)(2), the losing party may then
        present the motion and appendix to the clerk                (a) (1) if the appellant filing the statement has
        of the Court of Criminal Appeals, who will                          counsel, the name of that appellant and
        promptly submit them to the Court, or to one                        the name, address, telephone number,
        or more judges as the Court deems                                   fax number, if any, and State Bar of
        appropriate, for immediate consideration and                        Texas identification number of the
        determination. The Court of Criminal                                appellant's lead counsel; or
        Appeals may deny the motion or stay or recall
        the mandate. If the mandate is stayed or                         (2) if the appellant filing the statement is
        recalled, the clerk of the Court of Criminal                         not represented by an attorney, that
        Appeals will file the petition for                                   party’s name, address, telephone
        discretionary review and process the case                            number, and fax number, if any;
        in accordance with Rule 68.7.
                                                                    (b) the date the notice of appeal was filed in the
31.5. Judgment Conclusive                                               trial court and, if mailed to the trial court
                                                                        clerk, the date of mailing;
    The court of appeals' judgment is final and
conclusive if the Court of Criminal Appeals does not                (c) the trial court's name and county, the name of



                                                           38
    the judge who tried the case, and the date the                  (4) if the trial court signed an order under
    judgment or order appealed from was signed;                         Texas Rule of Civil Procedure 145, the
                                                                        court’s      findings     regarding     the
(d) the date of filing of any motion for new trial,                     appellant’s ability to afford costs and the
    motion to modify the judgment, request for                          date that the order was signed;
    findings of fact, motion to reinstate, or other
    filing that affects the time for perfecting the            (l) whether the appellant has filed or will file
    appeal;                                                        a supersedeas bond; and

(e) the names of all other parties to the trial                (m) any other information the appellate court
    court's judgment or the order appealed from,                   requires.
    and:
                                                           32.2. Criminal Cases
    (1) if represented by counsel, their lead
        counsel's names, addresses, telephone                   Upon perfecting the appeal in a criminal case, the
        numbers, and fax numbers, if any; or               appellant must file in the appellate court a docketing
                                                           statement that includes the following information:
    (2) if not represented by counsel, the name,
        address, and telephone number of the                   (a) (1) if the appellant has counsel, the name
        party, or a statement that the appellant                       of the appellant and the name, address,
        diligently inquired but could not                              telephone number, fax number, if any,
        discover that information;                                     and State Bar of Texas identification
                                                                       number of the appellant’s counsel, and
(f) the general nature of the case — for                               whether the counsel is appointed or
    example, personal injury, breach of contract,                      retained; or
    or temporary injunction;
                                                                    (2) if the appellant is not represented by
(g) whether the appeal's submission should be                           an attorney, that party's name, address,
    given priority, whether the appeal is an                            telephone number, and fax number, if
    accelerated one under Rule 28 or another rule                       any;
    or statute, and whether it is a parental
    termination or child protection case, as                   (b) the date the notice of appeal was filed in the
    defined in Rule 28.4;                                          trial court and, if mailed to the trial court
                                                                   clerk, the date of mailing;
(h) whether the appellant has requested or will
    request a reporter’s record, and whether the               (c) the trial court's name and county, and the
    trial was electronically recorded;                             name of the judge who tried the case;

(i) the name of the court reporter;                            (d) the date the trial court imposed or
                                                                   suspended sentence in open court, or the date
(j) whether the appellant intends to seek                          the judgment or order appealed from was
    temporary or ancillary relief while the appeal                 signed;
    is pending;
                                                               (e) the date of filing any motion for new trial,
(k) if the appellant filed a Statement of Inability                motion in arrest of judgment, or any other
    to Afford Payment of Court Costs in the trial                  filing that affects the time for perfecting the
    court:                                                         appeal;

    (1) the date that the Statement was filed;                 (f) the offense charged and the date of the
                                                                   offense;
    (2) the date of filing of any motion
        challenging the Statement;                             (g) the defendant's plea;

    (3) the date of any hearing on the appellant’s             (h) whether the trial was jury or nonjury;
        ability to afford costs; and
                                                               (i) the punishment assessed;



                                                      39
                                                                                 specificity to make the trial court
    (j) whether the appeal is from a pretrial order;                             aware of the complaint, unless the
                                                                                 specific grounds were apparent
    (k) whether the appeal involves the validity of a                            from the context; and
        statute, ordinance, or rule;
                                                                            (B) complied with the requirements of
    (l) whether a reporter’s record has been or will                            the Texas Rules of Civil or Criminal
        be requested, and whether the trial was                                 Evidence or the Texas Rules of Civil
        electronically recorded;                                                or Appellate Procedure; and

    (m) the name of the court reporter;                                 (2) the trial court:

    (n) (1) the dates of filing of any motion and                           (A) ruled on the request, objection, or
            affidavit of indigence;                                             motion, either expressly or
                                                                                implicitly; or
        (2) the date of any hearing;
                                                                            (B) refused to rule on the request,
        (3) the date of any order; and                                          objection, or motion, and the
                                                                                complaining party objected to the
        (4) whether the motion was granted or                                   refusal.
            denied; and
                                                                   (b) Ruling by Operation of Law. In a civil case,
    (o) any other information the appellate court                      the overruling by operation of law of a
        requires.                                                      motion for new trial or a motion to modify the
                                                                       judgment preserves for appellate review a
32.3. Supplemental Statements                                          complaint properly made in the motion,
                                                                       unless taking evidence was necessary to
    Any party may file a statement supplementing or                    properly present the complaint in the trial
correcting the docketing statement.                                    court.

32.4. Purpose of Statement                                         (c) Formal Exception and Separate Order Not
                                                                       Required. Neither a formal exception to a
     The docketing statement is for administrative                     trial court ruling or order nor a signed,
purposes and does not affect the appellate court's                     separate order is required to preserve a
jurisdiction.                                                          complaint for appeal.

               Notes and Comments                                  (d) Sufficiency of Evidence Complaints in
                                                                       Nonjury Cases. In a nonjury case, a
    Comment to 1997 change: The rule is new.                           complaint regarding the legal or factual
                                                                       insufficiency of the evidence - including a
                                                                       complaint that the damages found by the
  Rule 33. Preservation of Appellate Complaints                        court are excessive or inadequate, as
                                                                       distinguished from a complaint that the trial
33.1. Preservation; How Shown                                          court erred in refusing to amend a fact finding
                                                                       or to make an additional finding of fact - may
    (a) In General. As a prerequisite to presenting a                  be made for the first time on appeal in the
        complaint for appellate review, the record                     complaining party’s brief.
        must show that:
                                                               33.2. Formal Bills of Exception
        (1) the complaint was made to the trial court
            by a timely request, objection, or motion               To complain on appeal about a matter that would
            that:                                              not otherwise appear in the record, a party must file a
                                                               formal bill of exception.
             (A) stated the grounds for the ruling that
                 the complaining party sought from                 (a) Form. No particular form of words is
                 the trial court with sufficient                       required in a bill of exception. But the



                                                          40
    objection to the court's ruling or action, and                          people who observed the matter to which
    the ruling complained of, must be stated with                           the bill of exception is addressed. The
    sufficient specificity to make the trial court                          affidavits must attest to the correctness
    aware of the complaint.                                                 of the bill as presented by the party. The
                                                                            matters contained in that bill of
(b) Evidence. When the appellate record contains                            exception may be controverted and
    the evidence needed to explain a bill of                                maintained by additional affidavits filed
    exception, the bill itself need not repeat the                          by any party within ten days after the
    evidence, and a party may attach and                                    filing of that bill. The truth of the bill of
    incorporate a transcription of the evidence                             exception will be determined by the
    certified by the court reporter.                                        appellate court.

(c) Procedure.                                                     (d) Conflict. If a formal bill of exception
                                                                       conflicts with the reporter’s record, the bill
    (1) The complaining party must first present                       controls.
        a formal bill of exception to the trial
        court.                                                     (e) Time to file.

    (2) If the parties agree on the contents of the                    (1) Civil Cases. In a civil case, a formal bill
        bill of exception, the judge must sign the                         of exception must be filed no later than
        bill and file it with the trial court clerk. If                    30 days after the filing party’s notice of
        the parties do not agree on the contents                           appeal is filed.
        of the bill, the trial judge must — after
        notice and hearing — do one of the                             (2) Criminal Cases. In a criminal case, a
        following things:                                                  formal bill of exception must be filed:

         (A) sign the bill of exception and file it                         (A) no later than 60 days after the trial
             with the trial court clerk if the judge                            court pronounces or suspends
             finds that it is correct;                                          sentence in open court; or

         (B) suggest to the complaining party                               (B) if a motion for new trial has been
             those corrections to the bill that the                             timely filed, no later than 90 days
             judge believes are necessary to                                    after the trial court pronounces or
             make it accurately reflect the                                     suspends sentence in open court.
             proceedings in the trial court, and if
             the party agrees to the corrections,                      (3) Extension of Time. The appellate court
             have the corrections made, sign the                           may extend the time to file a formal bill
             bill, and file it with the trial court                        of exception if, within 15 days after the
             clerk; or                                                     deadline for filing the bill, the party files
                                                                           in the appellate court a motion
         (C) if the complaining party will not                             complying with Rule 10.5(b).
             agree to the corrections suggested
             by the judge, return the bill to the                  (f) Inclusion in Clerk’s Record. When filed, a
             complaining party with the judge's                        formal bill of exception should be included in
             refusal written on it, and prepare,                       the appellate record.
             sign, and file with the trial court
             clerk such bill as will, in the judge's                          Notes and Comments
             opinion, accurately reflect         the
             proceedings in the trial court.                       Comment to 1997 change: This is former Rule 52.
                                                               Subdivision 33.1 is rewritten. Former Rule 52(b),
    (3) If the complaining party is dissatisfied               regarding offers of proof, is omitted as unnecessary.
        with the bill of exception filed by the                See TEX. R. CIV. EVID. 103; TEX. R. CRIM. EVID.
        judge under (2)(C), the party may file                 103. Subdivision 33.2 is also rewritten and the
        with the trial court clerk the bill that was           procedure is more definitely stated. Former Rule
        rejected by the judge. That party must                 52(d), regarding motions for new trial, is omitted as
        also file the affidavits of at least three             unnecessary. See TEX. R. CIV. P. 324(a) & (b).



                                                          41
    Comment to 2002 change: The last sentence of                      (3) the court's docket sheet;
former Rule 52(d) of the Rules of Appellate Procedure
has been reinstated in substance.                                     (4) the court's charge and the jury's verdict,
                                                                          or the court's findings of fact and
                                                                          conclusions of law;
              Rule 34. Appellate Record
                                                                      (5) the court's judgment or other order that is
34.1. Contents                                                            being appealed;

    The appellate record consists of the clerk’s record               (6) any request for findings of fact and
and, if necessary to the appeal, the reporter’s record.                   conclusions of law, any post-judgment
Even if more than one notice of appeal is filed, there                    motion, and the court's order on the
should be only one appellate record in a case.                            motion;

34.2. Agreed Record                                                   (7) the notice of appeal;

     By written stipulation filed with the trial court                (8) any formal bill of exception;
clerk, the parties may agree on the contents of the
appellate record. An agreed record will be presumed                   (9) any request for a reporter’s record,
to contain all evidence and filings relevant to the                       including any statement of points or
appeal. To request matter to be included in the agreed                    issues under Rule 34.6(c);
record, the parties must comply with the procedures in
Rules 34.5 and 34.6.                                                  (10) any request for preparation of the clerk’s
                                                                           record;
34.3. Agreed Statement of the Case
                                                                      (11) in civil cases, a certified bill of costs,
     In lieu of a reporter’s record, the parties may agree                 including the cost of preparing the
on a brief statement of the case. The statement must be                    clerk’s record, showing credits for
filed with the trial court clerk and included in the                       payments made;
appellate record.
                                                                      (12) in criminal cases, the trial court's
34.4. Form.                                                                certification of the defendant's right of
                                                                           appeal under Rule 25.2; and
    The Supreme Court and Court of Criminal
Appeals will prescribe the form of the appellate                      (13) subject to (b), any filing that a party
record.                                                                    designates to have included in the
                                                                           record.
34.5. Clerk’s Record
                                                                  (b) Request for Additional Items.
    (a) Contents. Unless the parties designate the
        filings in the appellate record by agreement                  (1) Time for Request. At any time before
        under Rule 34.2, the record must include                          the clerk’s record is prepared, any party
        copies of the following:                                          may file with the trial court clerk a
                                                                          written designation specifying items to
         (1) in civil cases, all pleadings on which the                   be included in the record.
             trial was held;
                                                                      (2) Request Must be Specific. A party
         (2) in criminal cases, the indictment or                         requesting that an item be included in the
             information, any special plea or defense                     clerk’s record must specifically describe
             motion that was presented to the court                       the item so that the clerk can readily
             and overruled, any written waiver, any                       identify it. The clerk will disregard a
             written stipulation, and, in cases in                        general designation, such as one for “all
             which a plea of guilty or nolo contendere                    papers filed in the case.”
             has been entered, any documents
             executed for the plea;                                   (3) Requesting Unnecessary Items. In a civil



                                                             42
         case, if a party requests that more items
         than necessary be included in the clerk’s             (f) Original Documents. If the trial court
         record or any supplement, the appellate                   determines that original documents filed with
         court may — regardless of the appeal's                    the trial court clerk should be inspected by the
         outcome — require that party to pay the                   appellate court or sent to that court in lieu of
         costs for the preparation of the                          copies, the trial court must make an order for
         unnecessary portion.                                      the safekeeping, transportation, and return of
                                                                   those original documents. The order must list
    (4) Failure to Timely Request. An appellate                    the original documents and briefly describe
        court must not refuse to file the clerk’s                  them. All the documents must be arranged in
        record or a supplemental clerk’s record                    their listed sequence and bound firmly
        because of a failure to timely request                     together. On any party's motion or its own
        items to be included in the clerk’s record.                initiative, the appellate court may direct the
                                                                   trial court clerk to send it any original
(c) Supplementation.                                               document.

    (1) If a relevant item has been omitted from               (g) Additional Copies of Clerk’s Record in
        the clerk’s record, the trial court, the                   Criminal Cases. In a criminal case, the
        appellate court, or any party may by                       clerk’s record must be made in duplicate, and
        letter direct the trial court clerk to                     in a case in which the death penalty was
        prepare, certify, and file in the appellate                assessed, in triplicate. The trial court clerk
        court a supplement containing the                          must retain the copy or copies for the parties
        omitted item.                                              to use with the court’s permission.

    (2) If the appellate court in a criminal case              (h) Clerk May Consult With Parties. The clerk
        orders the trial court to prepare and file                 may consult with the parties concerning the
        findings of fact and conclusions of law                    contents of the clerk’s record.
        as required by law, or certification of the
        defendant's right of appeal as required by          34.6. Reporter’s Record
        these rules, the trial court clerk must
        prepare, certify, and file in the appellate            (a) Contents.
        court a supplemental clerk’s record
        containing      those     findings     and                 (1) Stenographic      Recording.      If    the
        conclusions.                                                   proceedings were stenographically
                                                                       recorded, the reporter’s record consists
    (3) Any supplemental clerk’s record will be                        of the court reporter’s transcription of so
        part of the appellate record.                                  much of the proceedings, and any of the
                                                                       exhibits, that the parties to the appeal
(d) Defects or Inaccuracies. If the clerk’s record                     designate.
    is defective or inaccurate, the appellate clerk
    must inform the trial court clerk of the defect                (2) Electronic Recording. If the proceedings
    or inaccuracy and instruct the clerk to make                       were electronically recorded, the
    the correction.                                                    reporter’s record consists of certified
                                                                       copies of all tapes or other audio-storage
(e) Clerk’s Record Lost or Destroyed. If a                             devices on which the proceedings were
    filing designated for inclusion in the clerk’s                     recorded, any of the exhibits that the
    record has been lost or destroyed, the parties                     parties to the appeal designate, and
    may, by written stipulation, deliver a copy of                     certified copies of the logs prepared by
    that item to the trial court clerk for inclusion                   the court recorder under Rule 13.2.
    in the clerk’s record or a supplement. If the
    parties cannot agree, the trial court must —               (b) Request for preparation.
    on any party's motion or at the appellate
    court's request — determine what constitutes                   (1) Request to Court Reporter. At or before
    an accurate copy of the missing item and                           the time for perfecting the appeal, the
    order it to be included in the clerk’s record or                   appellant must request in writing that the
    a supplement.                                                      official reporter prepare the reporter’s



                                                       43
        record. The request must designate the                 (5) Criminal Cases. In a criminal case, if
        exhibits to be included. A request to the                  the statement contains a point
        court reporter — but not the court                         complaining that the evidence is
        recorder — must also designate the                         insufficient to support a finding of guilt,
        portions of the proceedings to be                          the record must include all the evidence
        included.                                                  admitted at the trial on the issue of guilt
                                                                   or innocence and punishment.
    (2) Filing. The appellant must file a copy of
        the request with the trial court clerk.            (d) Supplementation. If anything relevant is
                                                               omitted from the reporter’s record, the trial
    (3) Failure to Timely Request. An appellate                court, the appellate court, or any party may
        court must not refuse to file a reporter’s             by letter direct the official court reporter to
        record or a supplemental reporter’s                    prepare, certify, and file in the appellate court
        record because of a failure to timely                  a supplemental reporter’s record containing
        request it.                                            the omitted items. Any supplemental
                                                               reporter’s record is part of the appellate
(c) Partial Reporter’s Record.                                 record.

    (1) Effect on Appellate Points or Issues. If           (e) Inaccuracies in the Reporter’s Record.
        the appellant requests a partial reporter’s
        record, the appellant must include in the              (1) Correction      of     Inaccuracies    by
        request a statement of the points or issues                Agreement. The parties may agree to
        to be presented on appeal and will then                    correct an inaccuracy in the reporter’s
        be limited to those points or issues.                      record, including an exhibit, without the
                                                                   court reporter's recertification.
    (2) Other Parties May Designate Additions.
        Any other party may designate                          (2) Correction of Inaccuracies by Trial
        additional exhibits and portions of the                    Court. If the parties cannot agree on
        testimony to be included in the reporter’s                 whether or how to correct the reporter's
        record.                                                    record so that the text accurately
                                                                   discloses what occurred in the trial court
    (3) Costs; Requesting            Unnecessary                   and the exhibits are accurate, the trial
        Matter. Additions requested by another                     court must – after notice and hearing –
        party must be included in the reporter’s                   settle the dispute. If the court finds any
        record at the appellant's cost. But if the                 inaccuracy, it must order the court
        trial court finds that all or part of the                  reporter to conform the reporter’s record
        designated additions are unnecessary to                    (including text and any exhibits) to what
        the appeal, the trial court may order the                  occurred in the trial court, and to file
        other party to pay the costs for the                       certified corrections in the appellate
        preparation of the unnecessary additions.                  court.
        This paragraph does not affect the
        appellate court's power to tax costs                   (3) Correction After Filing in Appellate
        differently.                                               Court. If the dispute arises after the
                                                                   reporter’s record has been filed in the
    (4) Presumptions. The appellate court must                     appellate court, that court may submit
        presume that the partial reporter’s record                 the dispute to the trial court for
        designated by the parties constitutes the                  resolution. The trial court must then
        entire record for purposes of reviewing                    proceed as under subparagraph (e)(2).
        the stated points or issues. This
        presumption applies even if the                    (f) Reporter’s Record Lost or Destroyed. An
        statement includes a point or issue                    appellant is entitled to a new trial under the
        complaining of the legal or factual                    following circumstances:
        insufficiency of the evidence to support
        a specific factual finding identified in               (1) if the appellant has timely requested
        that point or issue.                                       a reporter’s record;




                                                      44
    (2) if, without the appellant's fault, a                               any original exhibit.
        significant exhibit or a significant
        portion of the court reporter's notes and                (h) Additional Copies of Reporter’s Record in
        records has been lost or destroyed or – if                   Criminal Cases. In a criminal case in which a
        the proceedings were electronically                          party requests a reporter’s record, the court
        recorded – a significant portion of the                      reporter must prepare a duplicate of the
        recording has been lost or destroyed or is                   reporter’s record and file it with the trial court
        inaudible;                                                   clerk. In a case where the death penalty was
                                                                     assessed, the court reporter must prepare two
    (3) if the lost, destroyed, or inaudible                         duplicates of the reporter’s record.
        portion of the reporter’s record, or the
        lost or destroyed exhibit, is necessary to               (i) Supreme Court and Court of Criminal
        the appeal's resolution; and                                 Appeals May Set Fee. From time to time, the
                                                                     Supreme Court and the Court of Criminal
    (4) if the lost, destroyed or inaudible portion                  Appeals may set the fee that the court
        of the reporter's record cannot be                           reporters may charge for preparing the
        replaced by agreement of the parties, or                     reporter’s record.
        the lost or destroyed exhibit cannot be
        replaced either by agreement of the                                  Notes and Comments
        parties or with a copy determined by the
        trial court to accurately duplicate with                  Comment to 1997 change: Former Rules 50, 51
        reasonable certainty the original exhibit.           and 53 are merged. Clerk’s record is substituted for
                                                             transcript, and reporter’s record is substituted for
(g) Original Exhibits.                                       statement of facts throughout the rules. In subdivision
                                                             34.2, the requisites of an agreed record are more
    (1) Reporter May Use in Preparing                        clearly stated. Former Rule 50(d), regarding the
        Reporter’s Record. At the court                      burden to file a complete record, is repealed.
        reporter's request, the trial court clerk            Subdivision 34.4 is from former Rules 51(c) and
        must give all original exhibits to the               53(h). Former Rule 50(f), regarding a violation of the
        reporter for use in preparing the                    rules, is repealed. Subparagraph 34.5(b)(3) allows the
        reporter’s record. Unless ordered to                 appellate court to tax costs against a party for requiring
        include original exhibits in the reporter’s          unnecessary items to be included in the clerk’s record.
        record, the court reporter must return the           Paragraph 34.5(c) is new and provides for
        original exhibits to the clerk after                 supplementation of the clerk’s record. The provisions
        copying them for inclusion in the                    of paragraph 34.5(d) are from former Rule 55(b). The
        reporter’s record. If someone other than             provisions of paragraph 34.5(e) are from former Rule
        the trial court clerk possesses an original          50(e). Paragraph 34.5(h) specifically allows the clerk
        exhibit, either the trial court or the               to consult with the parties to determine the contents of
        appellate court may order that person to             the clerk’s record. Paragraph 34.6(a), defining the
        deliver the exhibit to the trial court clerk.        reporter’s record, is new. Former Rules 53(b) (Other
                                                             Requests), (d) (Partial Statement), and (e)
    (2) Use of Original Exhibits by Appellate                (Unnecessary Portions) are merged into paragraph
        Court. If the trial court determines that            34.6(c). Paragraph 34.6(d) is new. Paragraph 34.6(e)
        original exhibits should be inspected by             is from former Rule 55. Paragraph 34.6(f) is from
        the appellate court or sent to that court in         former Rule
        lieu of copies, the trial court must make            50(d).      The provisions of former Rules 53(f)
        an order for the safekeeping,                        (Certification by Court Reporter) and (h) (Form) are
        transportation, and return of those                  moved to the Order of the Supreme Court and the
        exhibits. The order must list the exhibits           Court of Criminal Appeals on the preparation of the
        and briefly describe them. To the extent             record. Former Rule 53(I) (Narrative Statement) is
        practicable, all the exhibits must be                repealed. The provisions of former Rule 53(j) (Free
        arranged in their listed order and bound             Statement of Facts) are moved to Rule 20. Former
        firmly together before being sent to the             Rule 53(k) (Duty of Appellant to File) is repealed; it is
        appellate clerk. On any party's motion or            now the duty of the court reporter to file the reporter’s
        its own initiative, the appellate court              record. Paragraph 34.6(g) is from former Rule 51(d).
        may direct the trial court clerk to send it          Former Rule 53(g) is now paragraph 34.6(I). Former



                                                        45
Rule 53(l) is now paragraph 34.6(h). The need for two                  (c) if a motion for new trial is granted, within 60
duplicate records in a death penalty case was created                      days after the order granting the motion is
by the habeas corpus provision in Code of Criminal                         signed.
Procedure article 11.071.
                                                                   35.3. Responsibility for Filing Record
     Comment to 2002 change: Rule 34.5(a) is
amended to require that the record in a criminal case                  (a) Clerk’s Record. The trial court clerk is
include the certification of defendant's right of appeal;                  responsible for preparing, certifying, and
see Rule 25.2(d). Rule 34.5(c) is amended to make                          timely filing the clerk’s record if:
clear that an appellate court may order the trial court
to make such a certification for inclusion in a                            (1) a notice of appeal has been filed, and
supplemental clerk's record. Subparagraphs 34.6(e)                             in criminal proceedings, the trial court
and (f) are amended to clarify the application to                              has certified the defendant's right of
exhibits. The language in subparagraph (e)(2)                                  appeal, as required by Rule 25.2(d); and
referring to the text of the record is simplified without
substantive change. Subparagraph (e)(3) incorporates                       (2) the party responsible for paying for the
the procedures specified in (e)(2). The language in                            preparation of the clerk’s record has paid
subparagraph (f) is clarified to require agreement only                        the clerk's fee, has made satisfactory
as to the portion of the text at issue, and to provide that                    arrangements with the clerk to pay the
the trial court may determine that a copy of an exhibit                        fee, or is entitled to appeal without
should be used even if the parties cannot agree.                               paying the fee.

                                                                       (b) Reporter’s Record. The official or deputy
 Rule 35. Time to File Record; Responsibility for                          reporter is responsible for preparing,
                  Filing Record                                            certifying, and timely filing the reporter’s
                                                                           record if:
35.1. Civil Cases
                                                                           (1) a notice of appeal has been filed;
    The appellate record must be filed in the appellate
court within 60 days after the judgment is signed,                         (2) the appellant has requested that the
except as follows:                                                             reporter’s record be prepared; and

    (a) if Rule 26.1(a) applies, within 120 days after                     (3) the party responsible for paying for the
        the judgment is signed;                                                preparation of the reporter’s record has
                                                                               paid the reporter’s fee, or has made
    (b) if Rule 26.1(b) applies, within 10 days after                          satisfactory arrangements with the
        the notice of appeal is filed; or                                      reporter to pay the fee, or is entitled to
                                                                               appeal without paying the fee.
    (c) if Rule 26.1(c) applies, within 30 days after
        the notice of appeal is filed.                                 (c) Courts to Ensure Record Timely Filed. The
                                                                           trial and appellate courts are jointly
35.2. Criminal Cases                                                       responsible for ensuring that the appellate
                                                                           record is timely filed. The appellate court
    The appellate record must be filed in the appellate                    may extend the deadline to file the record if
court:                                                                     requested by the clerk or reporter. Each
                                                                           extension must not exceed 30 days in an
    (a) if a motion for new trial is not filed, within 60                  ordinary or restricted appeal, or 10 days in an
        days after the date the sentence is imposed or                     accelerated appeal. The appellate court must
        suspended in open court or the order appealed                      allow the record to be filed late when the
        from is signed;                                                    delay is not the appellant’s fault, and may do
                                                                           so when the delay is the appellant’s fault. The
    (b) if a timely motion for new trial is filed and                      appellate court may enter any order necessary
        denied, within 120 days after the date the                         to ensure the timely filing of the appellate
        sentence is imposed or suspended in open                           record.
        court; or




                                                              46
                Notes and Comments

     Comment to 1997 change: This is former Rule 54.                   Rule 37. Duties of the Appellate Clerk on
In subdivision 35.1, the time to file the record in civil             Receiving the Notice of Appeal and Record
cases is based on the date the judgment is signed
except in accelerated and restricted appeals, in which            37.1. On Receiving the Notice of Appeal
the time to file the record is based on the date the
notice of appeal is filed. Subdivision 35.3 is new and                 If the appellate clerk determines that the notice of
makes it the responsibility of the trial court clerk and          appeal or certification of defendant's right of appeal in
court reporter to file the record. Former Rule 54(c),             a criminal case is defective, the clerk must notify the
providing for an extension of time to file the record, is         parties of the defect so that it can be remedied, if
repealed as unnecessary. The trial court clerk and court          possible. If a proper notice of appeal or certification of
reporter should make arrangements with the court of               a criminal defendant's right of appeal is not filed in the
appeals if additional time is required to file the record,        trial court within 30 days of the date of the clerk's
as suggested in Rule 37.3.                                        notice, the clerk must refer the matter to the appellate
                                                                  court, which will make an appropriate order under this
    Rule 36. Agency Record in Administrative                      rule or Rule 34.5(c)(2).
                    Appeals
                                                                  37.2. On Receiving the Record
36.1. Scope
                                                                       On receiving the clerk’s record or the reporter’s
     This rule applies only to cases involving judicial           record, the appellate clerk must determine whether
review of state agency decisions in contested cases               each complies with the Supreme Court’s and Court of
under the Administrative Procedure Act.                           Criminal Appeals’ order on preparation of the record.
                                                                  If so, the clerk must endorse on each the date of
36.2. Inclusion in Appellate Record                               receipt, file it, and notify the parties of the filing and
                                                                  the date. If not, the clerk must endorse on the clerk’s
      The record of an agency proceeding filed in the             record or reporter’s record — whichever is defective
trial court may be included in either the clerk’s record          — the date of receipt and return it to the official
or the reporter’s record.                                         responsible for filing it. The appellate court clerk must
                                                                  specify the defects and instruct the official to correct
36.3. Correcting the Record                                       the defects and return the record to the appellate court
                                                                  by a specified date. In a criminal case, the record must
    (a) Correction by Agreement. At any stage of                  not be posted on the Internet.
        the proceeding, the parties may agree to
        correct an agency record filed under Section              37.3. If No Record Filed
        2001.175(b) of the Government Code to
        ensure that the agency record accurately                      (a) Notice of Late Record.
        reflects the contested case proceedings before
        the agency. The court reporter need not                            (1) Civil Cases. If the clerk’s record or
        recertify the agency record.                                           reporter’s record has not been timely
                                                                               filed, the appellate clerk must send
    (b) Correction by Trial Court. If the parties                              notice to the official responsible for
        cannot agree to a correction to the agency                             filing it, stating that the record is late and
        record, the appellate court must — on any                              requesting that the record be filed within
        party's motion or its own incentive — send                             30 days if an ordinary or restricted
        the question to the trial court. After notice                          appeal, or 10 days if an accelerated
        and hearing, the trial court must determine                            appeal. The appellate clerk must send a
        what constitutes an accurate copy of the                               copy of this notice to the parties and the
        agency record and order the agency to send                             trial court. If the clerk does not receive
        an accurate copy to the clerk of the court in                          the record within the stated period, the
        which the case is pending.                                             clerk must refer the matter to the
                                                                               appellate court. The court must make
                Notes and Comments                                             whatever order is appropriate to avoid
                                                                               further delay and to preserve the parties'
    Comment to 1997 change: The rule is new.                                   rights.



                                                             47
                                                                  following:
        (2) Criminal Cases. If the clerk’s record or
            reporter’s record has not been timely                     (a) Identity of Parties and Counsel. The brief
            filed, the appellate court clerk must refer                   must give a complete list of all parties to the
            the matter to the appellate court. The                        trial court's judgment or order appealed from,
            court must make whatever order is                             and the names and addresses of all trial and
            appropriate to avoid further delay and to                     appellate counsel, except as otherwise
            preserve the parties’ rights.                                 provided in Rule 9.8.

    (b) If No Clerk’s Record Filed Due to Appellant's                 (b) Table of Contents. The brief must have a
        Fault. If the trial court clerk failed to file the                table of contents with references to the pages
        clerk’s record because the appellant failed                       of the brief. The table of contents must
        to pay or make arrangements to pay the                            indicate the subject matter of each issue or
        clerk’s fee for preparing the clerk’s record,                     point, or group of issues or points.
        the appellate court may — on a party’s
        motion or its own initiative — dismiss the                    (c) Index of Authorities. The brief must have an
        appeal for want of prosecution unless the                         index of authorities arranged alphabetically
        appellant was entitled to proceed without                         and indicating the pages of the brief where
        payment of costs. The court must give the                         the authorities are cited.
        appellant a reasonable opportunity to cure
        before dismissal.                                             (d) Statement of the Case. The brief must state
                                                                          concisely the nature of the case (e.g., whether
    (c) If No Reporter’s Record Filed Due to                              it is a suit for damages, on a note, or involving
        Appellant's Fault. Under the following                            a murder prosecution), the course of
        circumstances, and if the clerk’s record has                      proceedings, and the trial court's disposition
        been filed, the appellate court may — after                       of the case. The statement should be
        first giving the appellant notice and a                           supported by record references, should
        reasonable opportunity to cure — consider                         seldom exceed one-half page, and should not
        and decide those issues or points that do not                     discuss the facts.
        require a reporter’s record for a decision. The
        court may do this if no reporter’s record has                 (e) Any Statement Regarding Oral Argument.
        been filed because:                                               The brief may include a statement explaining
                                                                          why oral argument should or should not be
        (1) the appellant failed to           request a                   permitted. Any such statement must not
            reporter’s record; or                                         exceed one page and should address how the
                                                                          court’s decisional process would, or would
        (2) (A) appellant failed to pay or                                not, be aided by oral argument. As required
                make arrangements to pay the                              by Rule 39.7, any party requesting oral
                reporter's fee to prepare the                             argument must note that request on the front
                reporter’s record; and                                    cover of the party’s brief.

             (B)     the appellant is not entitled to                 (f) Issues Presented. The brief must state
                   proceed without payment of costs.                      concisely all issues or points presented for
                                                                          review. The statement of an issue or point
                Notes and Comments                                        will be treated as covering every subsidiary
                                                                          question that is fairly included.
    Comment to 1997 change: Former Rules 56 and
57(a) are merged. Subdivisions 37.2 and 37.3 are new.                 (g) Statement of Facts. The brief must state
                                                                          concisely and without argument the facts
                                                                          pertinent to the issues or points presented. In
            Rule 38. Requisites of Briefs                                 a civil case, the court will accept as true the
                                                                          facts stated unless another party contradicts
38.1. Appellant's Brief                                                   them. The statement must be supported by
                                                                          record references.
    The appellant’s brief must, under appropriate
headings and in the order here indicated, contain the                 (h) Summary of the Argument. The brief must



                                                             48
        contain a succinct, clear, and accurate                             required unless        necessary to
        statement of the arguments made in the body                         supplement        or    correct  the
        of the brief. This summary must not merely                          appellant's list;
        repeat the issues or points presented for
        review.                                                         (B) the appellee’s brief need not include
                                                                            a statement of the case, a statement
    (i) Argument. The brief must contain a clear and                        of the issues presented, or a
        concise argument for the contentions made,                          statement of facts, unless the
        with appropriate citations to authorities and                       appellee is dissatisfied with that
        to the record.                                                      portion of the appellant's brief; and

    (j) Prayer. The brief must contain a short                          (C) the appendix to the appellee’s brief
        conclusion that clearly states the nature of the                    need not contain any item already
        relief sought.                                                      contained in an appendix filed by
                                                                            the appellant.
    (k) Appendix in Civil Cases.
                                                                    (2) When practicable, the appellee's brief
        (1) Necessary Contents. Unless voluminous                       should respond to the appellant's issues
            or impracticable, the appendix must                         or points in the order the appellant
            contain a copy of:                                          presented those issues or points.

             (A) the trial court’s judgment or                  (b) Cross-Points.
                 other appealable order from which
                 relief is sought;                                  (1) Judgment Notwithstanding the Verdict.
                                                                        When the trial court renders judgment
             (B) the jury charge and verdict, if any,                   notwithstanding the verdict on one or
                 or the trial court’s findings of fact                  more questions, the appellee must bring
                 and conclusions of law, if any; and                    forward by cross-point any issue or point
                                                                        that would have vitiated the verdict or
             (C) the text of any rule, regulation,                      that would have prevented an affirmance
                 ordinance, statute, constitutional                     of the judgment if the trial court had
                 provision, or other law (excluding                     rendered judgment on the verdict.
                 case law) on which the argument is                     Failure to bring forward by cross-point
                 based, and the text of any contract or                 an issue or point that would vitiate the
                 other document that is central to the                  verdict or prevent an affirmance of the
                 argument.                                              judgment waives that complaint.
                                                                        Included in this requirement is a point
        (2) Optional Contents. The appendix may                         that:
            contain any other item pertinent to the
            issues or points presented for review,                      (A) the verdict or one or more jury
            including copies or excerpts of relevant                        findings      have       insufficient
            court opinions, laws, documents on                              evidentiary support or are against
            which the suit was based, pleadings,                            the overwhelming preponderance of
            excerpts from the reporter’s record, and                        the evidence as a matter of fact; or
            similar material. Items should not be
            included in the appendix to attempt to                      (B) the verdict should be set aside
            avoid the page limits for the brief.                            because of improper argument of
                                                                            counsel.
38.2. Appellee's Brief
                                                                    (2) When Evidentiary Hearing Needed.
    (a) Form of Brief.                                                  The appellate court must remand a case
                                                                        to the trial court to take evidence if:
        (1) An appellee's brief must conform to the
            requirements of Rule 38.1, except that:                     (A) the appellate court has sustained a
                                                                            point raised by the appellant; and
             (A) the list of parties and counsel is not



                                                           49
             (B) the appellee raised a cross-point that            34.6(c)(4) apply to the parties' appendixes.
                 requires the taking of additional                 The appellate court need not review any part
                 evidence.                                         of the electronic recording.

38.3. Reply Brief                                              (c) Supplemental Appendix. The appellate court
                                                                   may direct or allow a party to file a
    The appellant may file a reply brief addressing                supplemental appendix containing a
any matter in the appellee’s brief. However, the                   transcription of additional portions of the
appellate court may consider and decide the case                   recording.
before a reply brief is filed.
                                                               (d) Inability to Pay. A party who cannot pay the
38.4. Deleted                                                      cost of an appendix must file the affidavit
                                                                   provided for by Rule 20. The party must also
38.5. Appendix for Cases Recorded Electronically                   state in the affidavit or a supplemental
                                                                   affidavit that the party has neither the access
     In cases where the proceedings were                           to the equipment necessary nor the skill
electronically recorded, the following rules apply:                necessary to prepare the appendix. If a
                                                                   contest to the affidavit is not sustained by
    (a) Appendix.                                                  written order, the court recorder must
                                                                   transcribe or have transcribed those portions
        (1) In General. At or before the time a                    of the recording that the party designates and
            party's brief is due, the party must file              must file the transcription as that party's
            one copy of an appendix containing a                   appendix, along with all exhibits.
            transcription of all portions of the
            recording that the party considers                 (e) Inaccuracies.
            relevant to the appellate issues or points.
            Unless another party objects, the                      (1) Correction by Agreement. The parties
            transcription will be presumed accurate.                   may agree to correct an inaccuracy in the
                                                                       transcription of the recording.
        (2) Repetition Not Required. A party's
            appendix need not repeat evidence                      (2) Correction by Appellate or Trial Court.
            included in any previously filed                           If the parties dispute whether an
            appendix.                                                  electronic recording or transcription
                                                                       accurately discloses what occurred in the
        (3) Form. The form of the appendix and                         trial court but cannot agree on
            transcription must conform to any                          corrections, the appellate court may:
            specifications of the Supreme Court and
            Court of Criminal Appeals concerning                        (A) settle the dispute by reviewing
            the form of the reporter’s record except                        the recording; or
            that it need not have the reporter’s
            certificate.                                                (B) submit the dispute to the trial
                                                                            court, which must — after notice
        (4) Notice. At the time the appendix is filed,                      and hearing — settle the dispute and
            the party must give written notice of the                       ensure that the recording or
            filing to all parties to the trial court's                      transcription is made to conform to
            judgment or order. The notice must                              what occurred in the trial court.
            specify, by referring to the index
            numbers in the court recorder's logs,              (f) Costs. The actual expense of preparing the
            those parts of the recording that are                  appendixes or the amount prescribed for
            included in the appendix. The filing                   official reporters, whichever is less, is taxed
            party need not serve a copy of the                     as costs. The appellate court may disallow the
            appendix but must make a copy available                cost of any portion of the appendixes that it
            to all parties for inspection and copying.             considers surplusage or that does not
                                                                   conform to any specifications prescribed by
    (b) Presumptions. The same presumptions that                   the Supreme Court or Court of Criminal
        apply to a partial reporter’s record under Rule            Appeals.



                                                          50
                                                                             considers proper; or
38.6. Time to File Briefs
                                                                         (3) if an appellee’s brief is filed, the court
    (a) Appellant's Filing Date. Except in a habeas                          may regard that brief as correctly
        corpus or bail appeal, which is governed by                          presenting the case and may affirm the
        Rule 31, an appellant must file a brief within                       trial court's judgment upon that brief
        30 days — 20 days in an accelerated appeal                           without examining the record.
        — after the later of:
                                                                     (b) Criminal Cases.
        (1) the date the clerk’s record was filed; or
                                                                         (1) Effect. An appellant's failure to timely
        (2) the date the reporter’s record was filed.                        file a brief does not authorize either
                                                                             dismissal of the appeal or, except as
    (b) Appellee's Filing Date. The appellee's brief                         provided in (4), consideration of the
        must be filed within 30 days — 20 days in an                         appeal without briefs.
        accelerated appeal — after the date the
        appellant's brief was filed. In a civil case, if                 (2) Notice. If the appellant's brief is not
        the appellant has not filed a brief as provided                      timely filed, the appellate clerk must
        in this rule, an appellee may file a brief within                    notify counsel for the parties and the trial
        30 days — 20 days in an accelerated appeal                           court of that fact. If the appellate court
        — after the date the appellant's brief was due.                      does not receive a satisfactory response
                                                                             within ten days, the court must order the
    (c) Filing Date for Reply Brief. A reply brief, if                       trial court to immediately conduct a
        any, must be filed within 20 days after the                          hearing to determine whether the
        date the appellee's brief was filed.                                 appellant desires to prosecute his appeal,
                                                                             whether the appellant is indigent, or, if
    (d) Modifications of Filing Time. On motion                              not indigent, whether retained counsel
        complying with Rule 10.5(b), the appellate                           has abandoned the appeal, and to make
        court may extend the time for filing a brief                         appropriate          findings           and
        and may postpone submission of the case. A                           recommendations.
        motion to extend the time to file a brief may
        be filed before or after the date a brief is due.                (3) Hearing. In accordance with (2), the trial
        The court may also, in the interests of justice,                     court must conduct any necessary
        shorten the time for filing briefs and for                           hearings, make appropriate findings and
        submission of the case.                                              recommendations, and have a record of
                                                                             the proceedings prepared, which record
38.7. Amendment or Supplementation                                           — including any order and findings —
                                                                             must be sent to the appellate court.
    A brief may be amended or supplemented
whenever justice requires, on whatever reasonable                        (4) Appellate Court Action. Based on the
terms the court may prescribe.                                               trial court's record, the appellate court
                                                                             may act appropriately to ensure that the
38.8. Failure of Appellant to File Brief                                     appellant's     rights     are  protected,
                                                                             including         initiating    contempt
    (a) Civil Cases. If an appellant fails to timely file                    proceedings against appellant's counsel.
        a brief, the appellate court may:                                    If the trial court has found that the
                                                                             appellant no longer desires to prosecute
        (1) dismiss the appeal for want of                                   the appeal, or that the appellant is not
            prosecution, unless the appellant                                indigent but has not made the necessary
            reasonably explains the failure and the                          arrangements for filing a brief, the
            appellee is not significantly injured by                         appellate court may consider the appeal
            the appellant's failure to timely file a                         without briefs, as justice may require.
            brief;
                                                                 38.9. Briefing Rules to be Construed Liberally
        (2) decline to dismiss the appeal and give
            further direction to the case as it                      Because briefs are meant to acquaint the court



                                                            51
with the issues in a case and to present argument that
will enable the court to decide the case, substantial
compliance with this rule is sufficient, subject to the               Rule 39. Oral Argument; Decision Without
following.                                                                            Argument

    (a) Formal Defects. If the court determines that              39.1. Right to Oral Argument
        this rule has been flagrantly violated, it may
        require a brief to be amended, supplemented,                   A party who has filed a brief and who has timely
        or redrawn. If another brief that does not                requested oral argument may argue the case to the
        comply with this rule is filed, the court may             court unless the court, after examining the briefs,
        strike the brief, prohibit the party from filing          decides that oral argument is unnecessary for any of
        another, and proceed as if the party had failed           the following reasons:
        to file a brief.
                                                                      (a) the appeal is frivolous;
    (b) Substantive Defects. If the court determines,
        either before or after submission, that the case              (b) the dispositive issue or issues have been
        has not been properly presented in the briefs,                    authoritatively decided;
        or that the law and authorities have not been
        properly cited in the briefs, the court may                   (c) the facts and legal arguments are adequately
        postpone submission, require additional                           presented in the briefs and record; or
        briefing, and make any other order necessary
        for a satisfactory submission of the case.                    (d) the decisional process would not              be
                                                                          significantly aided by oral argument.
                Notes and Comments
                                                                  39.2. Purpose of Argument
     Comment to 1997 change: This is former Rule 74.
The rule is substantially rewritten. Paragraph 38.1(e)                 Oral argument should emphasize and clarify the
now specifically allows a party to either present issues          written arguments in the briefs. Counsel should not
or points of error. Paragraphs 38.1(f) and (g) are new            merely read from prepared text. Counsel should
and require a brief to include a statement of facts and           assume that all members of the court have read the
summary of the argument. Paragraph 38.2(b) is new                 briefs before oral argument and counsel should be
and gives specific requirements for cross-points. See             prepared to respond to questions. A party should not
also TEX. R. CIV. P. 324(c). Subdivision 38.3 is new              refer to or comment on matters not involved in or
and provides for a reply brief. Subdivision 38.4                  pertaining to what is in the record.
imposes a total brief limit of 90 pages on each party.
Thus, if more than one party has filed a notice of                39.3. Time Allowed
appeal, there will be multiple appellant’s, appellee’s,
and reply briefs, but each party is limited to a total of             The court will set the time that will be allowed for
90 pages. Subdivision 38.5 is new and provides for an             argument. Counsel must complete argument in the
appendix in cases recorded electronically in the trial            time allotted and may continue after the expiration of
court. Paragraph 38.6(b) now provides that the                    the allotted time only with permission of the court.
appellee has 30 — rather than 25 — days to file a brief.          Counsel is not required to use all the allotted time. The
The provisions of former Rules 74(I) (Number of                   appellant must be allowed to conclude the argument.
Copies), (j) (Briefs Typewritten or Printed), and (q)
(Service of Briefs) are omitted as unnecessary. See               39.4. Number of Counsel
Rule 9.
                                                                       Generally, only one counsel should argue for each
     Comment to 2002 change: Rule 38.6(d) is                      side. Except on leave of court, no more than two
amended to clarify that an appellate court may                    counsel on each side may argue. Only one counsel may
postpone the filing of any brief, not just the appellant's        argue in rebuttal.
brief.
                                                                  39.5. Argument by Amicus
     Comment to 2008 change: A party may choose to
include a statement in the brief regarding oral                        With leave of court obtained before the argument
argument. The optional statement does not count                   and with a party's consent, an amicus curiae may share
toward the briefing page limit.                                   allotted time with that party. Otherwise, counsel for



                                                             52
amicus may not argue.
                                                                  40.1. Civil Cases
39.6. When Only One Party Files a Brief
                                                                      The court of appeals may determine the order in
    If counsel for only one party has filed a brief, the          which civil cases will be decided. But the following
court may allow that party to argue.                              types of cases have precedence over all others:

39.7. Request and Waiver                                              (a) a case given precedence by law;

     A party desiring oral argument must note that                    (b) an accelerated appeal; and
request on the front cover of the party’s brief. A party's
failure to request oral argument waives the party's                   (c) a case that the court determines should be
right to argue. But even if a party has waived oral                       given precedence in the interest of justice.
argument, the court may direct the party to appear and
argue.                                                            40.2. Criminal Cases

39.8. Clerk’s Notice                                                  In cases not otherwise given precedence by law,
                                                                  the court of appeals must hear and determine a
     The clerk must send to the parties—at least 21               criminal appeal at the earliest possible time, having
days before the date the case is set for argument or              due regard for the parties' rights and for the proper
submission without argument—a notice telling the                  administration of justice.
parties:
                                                                                       Reference
    (a) whether the court will allow oral argument or
        will submit the case without argument;                        See Code of Criminal Procedure article 44.01(f).

    (b) the date of argument or              submission                          Notes and Comments
        without argument;
                                                                       Comment on 1997 change: The provisions of
    (c) if argument is allowed, the time allotted                 former Rules 76, 77 and 78 are merged. Civil cases
        for argument; and                                         involving the Railroad Commission, the State, and
                                                                  “cases submitted on oral argument for all parties” are
    (d) the names of the members of the panel to                  no longer given preference unless given preference by
        which the case will be argued or submitted,               law.
        subject to change by the court.

A party's failure to receive the notice does not prevent                 Rule 41. Panel and En Banc Decision
a case's argument or submission on the scheduled date.
                                                                  41.1. Decision by Panel
                Notes and Comments
                                                                      (a) Constitution of Panel. Unless a court of
    Comment to 1997 change: This is former Rule 75.                       appeals with more than three justices votes to
Technical and nonsubstantive changes are made.                            decide a case en banc, a case must be
                                                                          assigned for decision to a panel of the court
     Comment to 2008 change: Subdivision 39.1 is                          consisting of three justices, although not
amended to provide for oral argument unless the court                     every member of the panel must be present
determines it is unnecessary and to set out the reasons                   for argument. If the case is decided without
why argument may be unnecessary. The appellate                            argument, three justices must participate in
court must evaluate these reasons in view of the                          the decision. A majority of the panel, which
traditional importance of oral argument. The court                        constitutes a quorum, must agree on the
need not agree on, and generally should not announce,                     judgment. Except as otherwise provided in
a specific reason or reasons for declining oral                           these rules, a panel's opinion constitutes the
argument.                                                                 court's opinion, and the court must render a
                                                                          judgment in accordance with the panel
                                                                          opinion.
             Rule 40. Order of Decision


                                                             53
   (b) When Panel Cannot Agree on Judgment.                        (c) En Banc Consideration Disfavored. En
       After argument, if for any reason a member                      banc consideration of a case is not favored
       of the panel cannot participate in deciding a                   and should not be ordered unless necessary to
       case, the case may be decided by the two                        secure or maintain uniformity of the court's
       remaining justices. If they cannot agree on a                   decisions      or      unless     extraordinary
       judgment, the chief justice of the court of                     circumstances require en banc consideration.
       appeals must:                                                   A vote to determine whether a case will be
                                                                       heard or reheard en banc need not be taken
       (1) designate another justice of the court to                   unless a justice of the court requests a vote. If
           sit on the panel to consider the case;                      a vote is requested and a majority of the
                                                                       court's members vote to hear or rehear the
       (2) request the Chief Justice of the Supreme                    case en banc, the en banc court will hear or
           Court to temporarily assign an eligible                     rehear the case. Otherwise, a panel of the
           justice or judge to sit on the panel to                     court will consider the case.
           consider the case; or
                                                               41.3. Precedent in Transferred Cases
       (3) convene the court en banc to consider the
           case. The reconstituted panel or the en                  In cases transferred by the Supreme Court from
           banc court may order the case reargued.             one court of appeals to another, the court of appeals to
                                                               which the case is transferred must decide the case in
   (c) When Court Cannot Agree on Judgment.                    accordance with the precedent of the transferor court
       After argument, if for any reason a member              under principles of stare decisis if the transferee court's
       of a court consisting of only three justices            decision otherwise would have been inconsistent with
       cannot participate in deciding a case, the case         the precedent of the transferor court. The court's
       may be decided by the two remaining                     opinion may state whether the outcome would have
       justices. If they cannot agree on a judgment,           been different had the transferee court not been
       that fact must be certified to the Chief Justice        required to decide the case in accordance with the
       of the Supreme Court. The Chief Justice may             transferor court's precedent.
       then temporarily assign an eligible justice or
       judge to sit with the court of appeals to                                Notes and Comments
       consider the case. The reconstituted court
       may order the case reargued.                                 Comment to 1997 change: This is former Rule 79.
                                                               The rule is reorganized. Paragraphs 41.1(b) and (c) are
41.2. Decision by En Banc Court                                amended to make clear that a three judge panel must
                                                               hear the case. Therefore, only if a member of a panel
   (a) Constitution of En Banc Court. An en banc               is lost after argument do the provisions for
       court consists of all members of the court              appointment of another justice to break a deadlock
       who are not disqualified or recused and — if            come into play. Paragraph 41.2(a) is amended to
       the case was originally argued before or                define an en banc court.
       decided by a panel — any members of the
       panel who are not members of the court but                   Comment to 2008 change: Subdivisions 41.1 and
       remain eligible for assignment to the court. A          41.2 are amended to acknowledge the full authority of
       majority of the en banc court constitute a              the Chief Justice of the Supreme Court to temporarily
       quorum. A majority of the en banc court must            assign a justice or judge to hear a matter pending in an
       agree on a judgment.                                    appellate court. The statutory provisions governing
                                                               the assignment of judges to appellate courts are
   (b) When En Banc Court Cannot Agree on                      located in Chapters 74 and 75 of the Government
       Judgment. If a majority of an en banc court             Code. Other minor changes are made for consistency.
       cannot agree on a judgment, that fact must be           Subdivision 41.3 is added to require, in appellate cases
       certified to the Chief Justice of the Supreme           transferred by the Supreme Court under Section
       Court. The Chief Justice may then                       73.001 of the Government Code for docket
       temporarily assign an eligible justice or judge         equalization or other purposes, that the transferee
       to sit with the court of appeals to consider the        court must generally resolve any conflict between the
       case. The reconstituted court may order the             precedent of the transferor court and the precedent of
       case reargued.                                          the transferee court — or that of any other intermediate
                                                               appellate court the transferee court otherwise would



                                                          54
have followed — by following the precedent of the                         withdrawal of the opinion.
transferor court, unless it appears that the transferor
court itself would not be bound by that precedent. The               (d) Costs. Absent agreement of the parties, the
rule requires the transferee court to “stand in the                      court will tax costs against the appellant.
shoes” of the transferor court so that an appellate
transfer will not produce a different outcome, based             42.2. Voluntary Dismissal in Criminal Cases
on application of substantive law, than would have
resulted had the case not been transferred. The                      (a) At any time before the appellate court's
transferee court is not expected to follow the transferor                decision, the appellate court may dismiss the
court’s local rules or otherwise supplant its own local                  appeal upon the appellant's motion. The
procedures with those of the transferor court.                           appellant and his or her attorney must sign the
                                                                         written motion to dismiss and file it in
                  Rule 42. Dismissal                                     duplicate with the appellate clerk, who must
                                                                         immediately send the duplicate copy to the
42.1. Voluntary Dismissal and Settlement in Civil                        trial court clerk.
Cases
                                                                     (b) After the court of appeals hands down its
    (a) On Motion or by Agreement. The appellate                         opinion, it may not grant an appellant's
        court may dispose of an appeal as follows:                       motion to dismiss the appeal unless the other
                                                                         parties consent. If the other parties consent
         (1) On Motion of Appellant. In accordance                       and the court of appeals grants the appellant's
             with a motion of appellant, the court may                   motion to dismiss the appeal, the appellate
             dismiss the appeal or affirm the appealed                   opinion must be withdrawn and the appeal
             judgment or order unless such                               dismissed. The appellate clerk must send
             disposition would prevent a party from                      notice of the dismissal to the trial court clerk.
             seeking relief to which it would
             otherwise be entitled.                              42.3. Involuntary Dismissal in Civil Cases

         (2) By Agreement. In accordance with an                      Under the following circumstances, on any party's
             agreement signed by the parties or their            motion — or on its own initiative after giving ten days'
             attorneys and filed with the clerk, the             notice to all parties — the appellate court may dismiss
             court may                                           the appeal or affirm the appealed judgment or order.
                                                                 Dismissal or affirmance may occur if the appeal is
              (A) render judgment effectuating the               subject to dismissal:
                  parties' agreement;
                                                                     (a) for want of jurisdiction;
              (B) set     aside the       trial   court's
                  judgment without regard to the                     (b) for want of prosecution; or
                  merits and remand the case to the
                  trial court for rendition of judgment              (c) because the appellant has failed to comply
                  in accordance with the agreement;                      with a requirement of these rules, a court
                  or                                                     order, or a notice from the clerk requiring a
                                                                         response or other action within a specified
              (C) abate the appeal and permit                            time.
                  proceedings in the trial court to
                  effectuate the agreement.                      42.4. Involuntary Dismissal in Criminal Cases

    (b) Partial Disposition. A severable portion of                   The appellate court must dismiss an appeal on the
        the proceeding may be disposed of under (a)              State’s motion, supported by affidavit, showing that
        if it will not prejudice the remaining parties.          the appellant has escaped from custody pending the
                                                                 appeal and that to the affiant's knowledge, the
    (c) Effect on Court's Opinion. In dismissing a               appellant has not, within ten days after escaping,
        proceeding, the appellate court will                     voluntarily returned to lawful custody within the state.
        determine whether to withdraw any opinion
        it has already issued. An agreement or motion                (a) Timely Return to Custody; Reinstatement.
        for dismissal cannot be conditioned on                           The appeal may not be dismissed — or, if



                                                            55
         dismissed, must be reinstated — if an
         affidavit of an officer or other credible person            (c) reverse the trial court's judgment in whole or
         is filed showing that the appellant, within ten                 in part and render the judgment that the trial
         days after escaping, voluntarily returned to                    court should have rendered;
         lawful custody within the state.
                                                                     (d) reverse the trial court's judgment and remand
    (b) Life Sentence. The appellate court may                           the case for further proceedings;
        overrule the motion to dismiss — or, if the
        motion was granted, may reinstate the appeal                 (e) vacate the trial court's judgment and dismiss
        — if:                                                            the case; or

         (1) the appellant received a life sentence;                 (f) dismiss the appeal.
             and
                                                                 43.3.Rendition     Appropriate      Unless       Remand
         (2) the appellant is recaptured or                      Necessary
             voluntarily surrenders within 30 days
             after escaping.                                         When reversing a trial court's judgment, the court
                                                                 must render the judgment that the trial court should
                                                                 have rendered, except when:
                Notes and Comments
                                                                     (a) a remand is           necessary    for    further
     Comment to 1997 change: Former Rules 59 and                         proceedings; or
60 are merged. Paragraph 42.1(c), allowing a court of
appeals to withdraw its opinion, is new. Provision is                (b) the interests of justice require a remand for
made in paragraph 42.3(c) for dismissal of an appeal                     another trial.
for failure to comply with a notice from the clerk.
Other changes are made.                                          43.4. Judgment for Costs in Civil Cases

     Comment to 2002 change: Rule 42.1 is amended                     The court of appeals’ judgment should award to
to clarify the procedures for implementing settlements           the prevailing party costs incurred by that party related
on appeal and to expressly give courts flexibility in            to the appeal, including filing fees in the court of
effectuating settlements. The rule is also clarified to          appeals and costs for preparation of the record. The
expressly permit the dismissal of an appeal without              court of appeals may tax costs otherwise as required
dismissal of the action itself. The rule does not permit         by law or for good cause. But the judgment must not
an appellate court to order a new trial merely on the            require the payment of costs by a party who was
agreement of the parties absent reversible error, or to          entitled to proceed without payment of costs under
vacate a trial court's judgment absent reversible error          Rule 20.1, and a provision in the judgment purporting
or a settlement.                                                 to do so is void.

    Rule 43. Judgment of the Court of Appeals                    43.5. Judgment Against Sureties in Civil Cases

                                                                     When a court of appeals affirms the trial court
43.1. Time                                                       judgment, or modifies that judgment and renders
                                                                 judgment against the appellant, the court of appeals
    The court of appeals should render its judgment              must render judgment against the sureties on the
promptly after submission of a case.                             appellant's supersedeas bond, if any, for the
                                                                 performance of the judgment and for any costs taxed
43.2. Types of Judgment                                          against the appellant.

    The court of appeals may:                                    43.6. Other Orders

    (a) affirm the trial court's judgment in whole or                The court of appeals may make any other
        in part;                                                 appropriate order that the law and the nature of the
                                                                 case require.
    (b) modify the trial court's judgment and affirm
        it as modified;                                                           Notes and Comments


                                                            56
                                                                          court of appeals must presume:
     Comment to 1997 changes: Former Rules 80(a) -
(c) and 82 are merged. Paragraph 43.2(e) allows the                       (1) that venue was proved in the trial court;
court of appeals to vacate the trial court’s judgment
and dismiss the case; paragraph 43.2(f) allows the                        (2) that the jury was properly impaneled
court of appeals to dismiss the appeal. Both provisions                       and sworn;
are new but codify current practice. Paragraph 43.3(a)
is moved here from former Rule 81(c). Paragraph                           (3) that the defendant was arraigned;
43.3(b), allowing a remand in the interest of justice, is
new. Subdivisions 43.4 and 43.5 are from former Rule                      (4) that the defendant pleaded to the
82.                                                                           indictment or other charging instrument;
                                                                              and
             Rule 44. Reversible Error
                                                                          (5) that the court's charge was certified by
44.1. Reversible Error in Civil Cases                                         the trial court and filed by the clerk
                                                                              before it was read to the jury.
    (a) Standard for Reversible Error. No judgment
        may be reversed on appeal on the ground that             44.3. Defects in Procedure
        the trial court made an error of law unless the
        court of appeals concludes that the error                     A court of appeals must not affirm or reverse a
        complained of:                                           judgment or dismiss an appeal for formal defects or
                                                                 irregularities in appellate procedure without allowing
         (1) probably caused the rendition of an                 a reasonable time to correct or amend the defects or
             improper judgment; or                               irregularities.

         (2) probably prevented the appellant from               44.4. Remediable Error of the Trial Court
             properly presenting the case to the court
             of appeals.                                             (a) Generally. A court of appeals must not affirm
                                                                         or reverse a judgment or dismiss an appeal if:
    (b) Error Affecting Only Part of Case. If the error
        affects part of, but not all, the matter in                       (1) the trial court's erroneous action or
        controversy and that part is separable without                        failure or refusal to act prevents the
        unfairness to the parties, the judgment must                          proper presentation of a case to the court
        be reversed and a new trial ordered only as to                        of appeals; and
        the part affected by the error. The court may
        not order a separate trial solely on                              (2) the trial court can correct its action or
        unliquidated damages if liability is contested.                       failure to act.

44.2. Reversible Error in Criminal Cases                             (b) Court of Appeals Direction if Error
                                                                         Remediable. If the circumstances described
    (a) Constitutional Error. If the appellate record                    in (a) exist, the court of appeals must direct
        in a criminal case reveals constitutional error                  the trial court to correct the error. The court
        that is subject to harmless error review, the                    of appeals will then proceed as if the
        court of appeals must reverse a judgment of                      erroneous action or failure to act had not
        conviction or punishment unless the court                        occurred.
        determines beyond a reasonable doubt that
        the error did not contribute to the conviction                          Notes and Comments
        or punishment.
                                                                      Comment to 1997 change: Former Rules 80(d), 81
    (b) Other Errors. Any other error, defect,                   and 83 are merged. The reversible error standard in
        irregularity, or variance that does not affect           subdivision 44.1 is amended to omit the reference to
        substantial rights must be disregarded.                  an action “reasonably calculated to cause” an improper
                                                                 judgment, but no substantive change is intended.
    (c) Presumptions. Unless the following matters               Paragraph 44.2(a) is amended to limit its standard of
        were disputed in the trial court, or unless the          review to constitutional errors that are subject to
        record affirmatively shows the contrary, the             harmless error review. Paragraph 44.2(b) is new and



                                                            57
is taken from Federal Rule of Criminal Procedure                   the remittitur is timely filed, the court must reform and
52(a) without substantive change. Paragraph 44.2(c)                affirm the trial court's judgment in accordance with the
is former Rule 80(d) without substantive change.                   remittitur. If the remittitur is not timely filed, the court
Subdivision 44.3 is amended to delete the reference to             must reverse the trial court's judgment.
defects of “substance” and to delete the provisions
regarding the late filing of the record.                           46.4. Refusal to Remit Must Not Be Mentioned in
                                                                   Later Trial

 Rule 45. Damages for Frivolous Appeals in Civil                        If the court of appeals suggests a remittitur but no
                     Cases                                         remittitur is filed, evidence of the court's
                                                                   determination regarding remittitur is inadmissible in a
      If the court of appeals determines that an appeal            later trial of the case.
is frivolous, it may — on motion of any party or on its
own initiative, after notice and a reasonable                      46.5. Voluntary Remittitur
opportunity for response — award each prevailing
party just damages. In determining whether to award                     If a court of appeals reverses the trial court's
damages, the court must not consider any matter that               judgment because of a legal error that affects only part
does not appear in the record, briefs, or other papers             of the damages awarded by the judgment, the affected
filed in the court of appeals.                                     party may - within 15 days after the court of appeals'
                                                                   judgment - voluntarily remit the amount that the
                 Notes and Comments                                affected party believes will cure the reversible error.
                                                                   A party may include in a motion for rehearing -
    Comment to 1997 change: This is former Rule 84.                without waiving any complaint that the court of
The limit on the amount of the sanction that may be                appeals erred - a conditional request that the court
imposed is repealed. A requirement of notice and                   accept the remittitur and affirm the trial court's
opportunity to respond is added.                                   judgment as reduced. If the court of appeals
                                                                   determines that the voluntary remittitur is not
         Rule 46. Remittitur in Civil Cases                        sufficient to cure the reversible error, but that
                                                                   remittitur is appropriate, the court must suggest a
46.1. Remittitur After Appeal Perfected                            remittitur in accordance with Rule 46.3. If the
                                                                   remittitur is timely filed and the court of appeals
      If the trial court suggests a remittitur but the case        determines that the voluntary remittitur cures the
is appealed before the remittitur is filed, the party who          reversible error, the court must accept the remittitur
would make the remittitur may do so in the court of                and reform and affirm the trial court judgment in
appeals in the same manner as in the trial court. The              accordance with the remittitur.
court of appeals must then render the judgment that the
trial court should have rendered if the remittitur had                              Notes and Comments
been made in the trial court.
                                                                       Comment to 1997 change: This is former Rule 85.
46.2. Appeal on Remittitur                                         The rule is revised without substantive change.

      If a party makes the remittitur at the trial judge’s              Comment to 2002 change: Subdivision 46.5 is
suggestion and the party benefitting from the remittitur           amended to clarify the procedure for offering a
appeals, the remitting party is not barred from                    voluntary remittitur. The offer may be made in a
contending in the court of appeals that all or part of the         motion for rehearing without waiving any complaint
remittitur should not have been required, but the                  that the court of appeals erred, thereby extending the
remitting party must perfect an appeal to raise that               deadlines for further appeal.
point. If the court of appeals sustains the remitting
party's contention that remittitur should not have been
required, the court must render the judgment that the                 Rule 47. Opinions, Publication, and Citation
trial court should have rendered.
                                                                   47.1. Written Opinions
46.3.   Suggestion of Remittitur by Court of
Appeals                                                                The court of appeals must hand down a written
                                                                   opinion that is as brief as practicable but that addresses
    The court of appeals may suggest a remittitur. If              every issue raised and necessary to final disposition of



                                                              58
the appeal.                                                              modifies an existing rule, or applies an
                                                                         existing rule to a novel fact situation likely to
47.2.   Designation and Signing of Opinions;                             recur in future cases;
Participating Justices
                                                                    (b) involves issues of constitutional law or other
    (a) Civil and Criminal Cases. Each opinion of                       legal issues important to the jurisprudence of
        the court must be designated either an                          Texas;
        “Opinion” or a “Memorandum Opinion.” A
        majority of the justices who participate in                 (c) criticizes existing law; or
        considering the case must determine whether
        the opinion will be signed by a justice or will             (d) resolves an apparent conflict of authority.
        be per curiam and whether it will be
        designated an opinion or memorandum                     47.5. Concurring and Dissenting Opinions
        opinion. The names of the participating
        justices must be noted on all written opinions               Only a justice who participated in the decision of
        or orders of the court or a panel of the court.         a case may file or join in an opinion concurring in or
                                                                dissenting from the judgment of the court of appeals.
    (b) Criminal Cases. In addition, each opinion               Any justice on the court may file an opinion in
        and memorandum opinion in a criminal case               connection with a denial of a hearing or rehearing en
        must bear the notation “publish” or “do not             banc.
        publish” as determined — before the opinion
        is handed down — by a majority of the                   47.6. Change in Designation by En Banc Court
        justices who participate in considering the
        case. Any party may move the appellate                       A court en banc may change a panel's designation
        court to change the notation, but the court of          of an opinion.
        appeals must not change the notation after the
        Court of Criminal Appeals has acted on any              47.7. Citation of Unpublished Opinions
        party's petition for discretionary review or
        other request for relief. The Court of                      (a) Criminal Cases. Opinions and memorandum
        Criminal Appeals may, at any time, order that                   opinions not designated for publication by
        a “do not publish” notation be changed to                       the court of appeals under these or prior rules
        “publish.”                                                      have no precedential value but may be cited
                                                                        with the notation, “(not designated for
    (c) Civil Cases. Opinions and memorandum                            publication).”
        opinions in civil cases issued on or after
        January 1, 2003 shall not be designated “do                 (b) Civil Cases. Opinions and memorandum
        not publish.”                                                   opinions designated “do not publish” under
                                                                        these rules by the courts of appeals prior to
47.3. Distribution of Opinions                                          January 1, 2003 have no precedential value
                                                                        but may be cited with the notation, “(not
    All opinions of the courts of appeals are open to                   designated for publication).” If an opinion or
the public and must be made available to public                         memorandum opinion issued on or after that
reporting services, print or electronic.                                date is erroneously designated “do not
                                                                        publish,” the erroneous designation will not
47.4. Memorandum Opinions                                               affect the precedential value of the decision.

     If the issues are settled, the court should write a                        Notes and Comments
brief memorandum opinion no longer than necessary
to advise the parties of the court's decision and the                Comment to 1997 change: This is former Rule 90.
basic reasons for it. An opinion may not be designated          Subdivision 47.1 makes clear that a memorandum
a memorandum opinion if the author of a concurrence             opinion should not be any longer than necessary.
or dissent opposes that designation. An opinion must            Subdivision 47.5 is amended to make clear that only
be designated a memorandum opinion unless it does               justices who participated in the decision may file an
any of the following:                                           opinion in the case. Judges who are not on a panel
                                                                may file an opinion only in respect to a hearing or
    (a) establishes a new rule of law, alters or                rehearing en banc. Former Rule 90(h), regarding



                                                           59
publication of opinions after the Supreme Court grants
review, is repealed.                                             48.2. Additional Recipients in Criminal Cases

     Comment to 2002 change: The rule is                             In criminal cases, copies of the opinion and
substantively changed to discontinue the use of the "do          judgment will also be mailed or delivered to the State
not publish" designation in civil cases, to require that         Prosecuting Attorney.
all opinions of the court of appeals be made available
to public reporting services, and to remove                      48.3. Filing Opinion and Judgment
prospectively any prohibition against the citation of
opinions as authority in civil cases. The rule favors                 The trial court clerk must file a copy of the
the use of "memorandum opinions" designated as such              opinion and judgment among the papers of the case in
except in certain types of cases but does not change             that court.
other requirements, such as those in Pool v. Ford
Motor Co., 715 S.W.2d 629, 635-636 (Tex. 1986). An               48.4. Opinion Sent to Criminal Defendant
opinion previously designated "do not publish" has no
precedential value but may be cited. The citation must                 In criminal cases, the attorney representing the
include the notation, "(not designated for                       defendant on appeal shall, within five days after the
publication)." Of course, whenever an opinion not                opinion is handed down, send his client a copy of the
readily available is cited, copies should be furnished to        opinion and judgment, along with notification of the
the court and opposing counsel.                                  defendant's right to file a pro se petition for
                                                                 discretionary review under Rule 68. This notification
     Comment to 2008 change: Effective January 1,                shall be sent certified mail, return receipt requested, to
2003, Rule 47 was amended to prospectively                       the defendant at his last known address. The attorney
discontinue designating opinions in civil cases as               shall also send the court of appeals a letter certifying
either "published" or "unpublished." Subdivision 47.7            his compliance with this rule and attaching a copy of
is revised to clarify that, with respect to civil cases,         the return receipt within the time for filing a motion
only opinions issued prior to the 2003 amendment and             for rehearing. The court of appeals shall file this letter
affirmatively designated "do not publish" should be              in its record of the appeal.
considered "unpublished" cases lacking precedential
value. All opinions and memorandum opinions in civil                             Notes and Comments
cases issued after the 2003 amendment have
precedential value. The provisions governing citation                Comment to 1997 change: This is former Rule 91
of unpublished opinions in criminal cases are                    with changes.
substantively unchanged. Subdivisions 47.2 and 47.7
are amended to clarify that memorandum opinions are
subject to those rules.                                             Rule 49. Motion for Rehearing and En Banc
                                                                                 Reconsideration

    Rule 48. Copy of Opinion and Judgment to                     49.1. Motion for Rehearing
       Interested Parties and Other Courts
                                                                      A motion for rehearing may be filed within 15
48.1. Recipients of Opinion and Judgment in All                  days after the court of appeals’ judgment or order is
Cases                                                            rendered. The motion must clearly state the points
                                                                 relied on for the rehearing.
    On the date when an appellate court's opinion is
handed down, the appellate clerk must send or deliver            49.2. Response
copies of the opinion and judgment to the following
persons:                                                              No response to a motion for rehearing need be
                                                                 filed unless the court so requests. A motion will not
    (a) the trial judge;                                         be granted unless a response has been filed or
                                                                 requested by the court.
    (b) the trial court clerk;
                                                                 49.3. Decision on Motion
    (c) the regional administrative judge; and
                                                                     A motion for rehearing may be granted by a
    (d) all parties to the appeal.                               majority of the justices who participated in the



                                                            60
decision of the case. Otherwise, it must be denied. If           49.9. Not Required for Review
rehearing is granted, the court or panel may dispose of
the case with or without rebriefing and oral argument.                A motion for rehearing is not a prerequisite to
                                                                 filing a petition for review in the Supreme Court or a
49.4. Accelerated Appeals                                        petition for discretionary review in the Court of
                                                                 Criminal Appeals nor is it required to preserve error.
     In an accelerated appeal, the appellate court may
deny the right to file a motion for rehearing or shorten         49.10. Deleted
the time to file such a motion.
                                                                 49.11. Relationship to Petition for Review
49.5. Further Motion for Rehearing
                                                                      A party may not file a motion for rehearing or en
     After a motion for rehearing is decided, a further          banc reconsideration in the court of appeals after that
motion for rehearing may be filed within 15 days of              party has filed a petition for review in the Supreme
the court's action if the court:                                 Court unless the court of appeals modifies its opinion
                                                                 or judgment after the petition for review is filed. The
    (a) modifies its judgment;                                   filing of a petition for review does not preclude
                                                                 another party from filing a motion for rehearing or en
    (b) vacates its judgment and renders a new                   banc reconsideration or preclude the court of appeals
        judgment; or                                             from ruling on the motion. If a motion for rehearing
                                                                 or en banc reconsideration is timely filed after a
    (c) issues a different opinion.                              petition for review is filed, the petitioner must
                                                                 immediately notify the Supreme Court clerk of the
49.6. Amendments                                                 filing of the motion, and must notify the clerk when
                                                                 the last timely filed motion is overruled by the court of
    A motion for rehearing or en banc reconsideration            appeals.
may be amended as a matter of right anytime before
the 15-day period allowed for filing the motion                  49.12. Certificate of Conference Not Required
expires, and with leave of the court, anytime before the
court of appeals decides the motion.                                 A certificate of conference is not required for a
                                                                 motion for rehearing or en banc reconsideration of a
49.7. En Banc Reconsideration                                    panel's decision.

     A party may file a motion for en banc                                        Notes and Comments
reconsideration as a separate motion, with or without
filing a motion for rehearing. The motion must be filed              Comment to 1997 change: This is former Rule
within 15 days after the court of appeals' judgment or           100. Subdivision 49.4 is moved here from former Rule
order, or when permitted, within 15 days after the               43(h). Subdivisions 49.9 and 49.10 are added.
court of appeals' denial of the party's last timely filed
motion for rehearing or en banc reconsideration.                      Comment to 2008 change: Rule 49 is revised to
While the court has plenary power, a majority of the             treat a motion for en banc reconsideration as a motion
en banc court may, with or without a motion, order en            for rehearing and to include procedures governing the
banc reconsideration of a panel's decision. If a                 filing of a motion for en banc reconsideration.
majority orders reconsideration, the panel's judgment            Subdivision 49.5(c) is amended to clarify that a further
or order does not become final, and the case will be             motion for rehearing may be filed if the court issues a
resubmitted to the court for en banc review and                  different opinion, irrespective of whether the opinion
disposition.                                                     is issued in connection with the overruling of a prior
                                                                 motion for rehearing. Issuance of a new opinion that is
49.8. Extensions of Time                                         not substantially different should not occasion a
                                                                 further motion for rehearing, but a motion's lack of
     A court of appeals may extend the time for filing           merit does not affect appellate deadlines. The
a motion for rehearing or en banc reconsideration if a           provisions of former Rule 53.7(b) that address motions
party files a motion complying with Rule 10.5(b) no              for rehearing are moved to new subdivision 49.11
later than 15 days after the last date for filing the            without change, leaving the provisions of Rule 53.7(b)
motion.                                                          that address petitions for review undisturbed.
                                                                 Subdivision 49.12 mirrors Rule 10.1(a)(5) in



                                                            61
excepting motions for rehearing and motions for en                  When the trial court clerk receives the mandate,
banc reconsideration from the certificate-of-                  the appellate court’s judgment must be enforced as
conference requirement.                                        follows:

                                                                   (a) Clerk’s Duties. The trial court clerk must:
Rule 50. Abolished by Order of July 12, 2011, eff.
               September 1, 2011                                       (1) send an acknowledgment to the appellate
                                                                           clerk of the mandate's receipt; and
               Notes and Comments
                                                                       (2) immediately file the mandate.
   Comment to 2011 change: Rule 50 is abolished.
Motions for rehearing serve the same purpose.                      (b) Judgment of Affirmance; Defendant Not in
                                                                       Custody.

    Rule 51. Enforcement of Judgments after                            (1) Capias to Be Issued. If the judgment
                   Mandate                                                 contains a sentence of confinement or
                                                                           imprisonment that has not been
51.1. Civil Cases                                                          suspended, the trial court must promptly
                                                                           issue a capias for the defendant's arrest
    (a) Statement of Costs. The appellate clerk must                       so that the court's sentence can be
        prepare, and send to the trial court clerk with                    executed.
        the mandate, a statement of costs showing:
                                                                       (2) Contents of Capias. The capias may
        (1) the preparation costs for the appellate                        issue to any county of this state and must
            record, and any court of appeals filing                        be executed and returned as in felony
            fees, with a notation of those items that                      cases, except that no bail may be taken.
            have been paid and those that are owing;                       The capias must:
            and
                                                                            (A) recite the fact of conviction;
        (2) the party or parties against whom costs
            have been adjudged.                                             (B) set forth the offense and the
                                                                                court's judgment and sentence;
    (b) Enforcement of Judgment. When the trial
        court clerk receives the mandate, the                               (C) state that the judgment was
        appellate court’s judgment must be enforced.                            appealed from and affirmed, and
        Appellate court costs must be included with                             that the mandate has been filed; and
        the trial court costs in any process to enforce
        the judgment. If all or part of the costs are                       (D) command the sheriff to arrest and
        collected, the trial court clerk must                                   take the defendant into his custody,
        immediately remit to the appellate court clerk                          and to place and keep the defendant
        any amount due to that clerk. The trial court                           in custody until delivered to the
        need not make any further order in the case,                            proper authorities as directed by the
        and the appellate court’s judgment may be                               sentence.
        enforced as in other cases, when the appellate
        judgment:                                                      (3) Sheriff's Duties. The sheriff must
                                                                           promptly execute the capias as directed.
        (1) affirms the trial court's judgment;                            The sheriff must notify the trial court
                                                                           clerk and the appellate clerk when the
        (2) modifies the trial court's judgment and,                       mandate has been carried out and
            as so modified, affirms that judgment; or                      executed.

        (3) renders the judgment the trial court                   (c) Judgment of Reversal.
            should have rendered.
                                                                       (1) When New Trial Ordered. When the
51.2. Criminal Cases                                                       appellate court reverses the trial court's
                                                                           judgment and grants the defendant a new



                                                          62
              trial, the procedure is governed by Code           (a) Identity of Parties and Counsel. The petition
              of Criminal Procedure article 44.29. If                must give a complete list of all parties, and
              the defendant is in custody and entitled               the names, and addresses of all counsel.
              to bail, the defendant must be released
              upon giving bail.                                  (b) Table of Contents. The petition must include
                                                                     a table of contents with references to the
         (2) When Case Dismissed. When the                           pages of the petition. The table of contents
             appellate court reverses the trial court's              must indicate the subject matter of each issue
             judgment and orders the case to be                      or point, or group of issues or points.
             dismissed, the defendant — if in custody
             — must be discharged.                               (c) Index of Authorities. The petition must
                                                                     include an index of authorities arranged
    (d) Judgment of Acquittal. When the appellate                    alphabetically and indicating the pages of the
        court reverses a judgment and orders the                     petition where the authorities are cited.
        defendant's acquittal, the defendant — if in
        custody — must be discharged, and no                     (d) Statement of the Case. The petition must
        further order or judgment of the trial court is              contain a statement of the case that should
        necessary.                                                   seldom exceed one page and should not
                                                                     discuss the facts. The statement must contain
                Notes and Comments                                   the following:

    Comment to 1997 change: Former Rules 87 and                      (1) a concise description of the nature of
88 are merged. The reference to costs in tax suits is                    any underlying proceeding (e.g., a suit
deleted.                                                                 for damages, a contempt proceeding for
                                                                         failure to pay child support, or the
                                                                         certification of a candidate for inclusion
SECTION THREE: ORIGINAL PROCEEDINGS                                      on an election ballot);
   IN THE SUPREME COURT AND THE
         COURTS OF APPEALS                                           (2) if the respondent is a judge, the name of
                                                                         the judge, the designation of the court in
           Rule 52. Original Proceedings                                 which the judge was sitting, and the
                                                                         county in which the court is located; and
52.1. Commencement                                                       if the respondent is an official other than
                                                                         a judge, the designation and location of
     An original appellate proceeding seeking                            the office held by the respondent;
extraordinary relief — such as a writ of habeas corpus,
mandamus, prohibition, injunction, or quo warranto —                 (3) a concise description of the respondent’s
is commenced by filing a petition with the clerk of the                  action from which the relator seeks
appropriate appellate court. The petition must be                        relief;
captioned “In re [name of relator].”
                                                                     (4) if the relator seeks a writ of habeas
52.2. Designation of Parties                                             corpus, a statement describing how and
                                                                         where the relator is being deprived of
     The party seeking the relief is the relator. In                     liberty;
original proceedings other than habeas corpus, the
person against whom relief is sought — whether a                     (5) if the petition is filed in the Supreme
judge, court, tribunal, officer, or other person — is the                Court after a petition requesting the same
respondent. A person whose interest would be directly                    relief was filed in the court of appeals:
affected by the relief sought is a real party in interest
and a party to the case.                                                  (A) the date the petition was filed in the
                                                                              court of appeals;
52.3. Form and Contents of Petition
                                                                          (B) the district of the court of appeals
     The petition must, under appropriate headings and                        and the names of the justices who
in the order here indicated, contain the following:                           participated in the decision;




                                                            63
         (C) the author of any opinion for the
             court of appeals and the author of                           (A) a certified or sworn copy of any
             any separate opinion;                                            order complained of, or any other
                                                                              document showing the matter
         (D) the citation of the court’s opinion;                             complained of;

         (E) the disposition of the case by the                           (B) any order or opinion of the court
             court of appeals, and the date of the                            of appeals, if the petition is filed in
             court of appeals’ order.                                         the Supreme Court;

(e) Statement of Jurisdiction. The petition must                          (C) unless voluminous or impracticable,
    state, without argument, the basis of the                                 the text of any rule, regulation,
    court's jurisdiction. If the Supreme Court and                            ordinance, statute, constitutional
    the court of appeals have concurrent                                      provision, or other law (excluding
    jurisdiction, the petition must be presented                              case law) on which the argument is
    first to the court of appeals unless there is a                           based; and
    compelling reason not to do so. If the petition
    is filed in the Supreme Court without first                           (D) if a writ of habeas corpus is sought,
    being presented to the court of appeals, the                              proof that the relator is being
    petition must state the compelling reason                                 restrained.
    why the petition was not first presented to the
    court of appeals.                                                (2) Optional Contents. The appendix may
                                                                         contain any other item pertinent to the
(f) Issues Presented. The petition must state                            issues or points presented for review,
    concisely all issues or points presented for                         including copies or excerpts of relevant
    relief. The statement of an issue or point will                      court opinions, statutes, constitutional
    be treated as covering every subsidiary                              provisions, documents on which the suit
    question that is fairly included.                                    was based, pleadings, and similar
                                                                         material. Items should not be included
(g) Statement of Facts. The petition must state                          in the appendix to attempt to avoid the
    concisely and without argument the facts                             page limits for the petition. The
    pertinent to the issues or points presented.                         appendix should not contain any
    Every statement of fact in the petition must                         evidence or other item that is not
    be supported by citation to competent                                necessary for a decision.
    evidence included in the appendix or record.
                                                            52.4. Response
(h) Argument. The petition must contain a clear
    and concise argument for the contentions                      Any party may file a response to the petition, but
    made, with appropriate citations to                     it is not mandatory. The court must not grant relief —
    authorities and to the appendix or record.              other than temporary relief — before a response has
                                                            been filed or requested by the court. The response must
(i) Prayer. The petition must contain a short               conform to the requirements of 52.3, except that:
    conclusion that clearly states the nature of the
    relief sought.                                              (a) the list of parties and counsel is not required
                                                                    unless necessary to supplement or correct the
(j) Certification. The person filing the petition                   list contained in the petition;
    must certify that he or she has reviewed the
    petition and concluded that every factual                   (b) the response need not include a statement of
    statement in the petition is supported by                       the case, a statement of the issues presented,
    competent evidence included in the appendix                     or a statement of the facts unless the
    or record.                                                      responding party is dissatisfied with that
                                                                    portion of the petition;
(k) Appendix.
                                                                (c) a statement of jurisdiction should be omitted
    (1) Necessary Contents.        The    appendix                  unless the petition fails to assert valid
        must contain:                                               grounds for jurisdiction, in which case the



                                                       64
         reasons why the court lacks jurisdiction must
         be concisely stated;                                       (a) Relief Denied. If the court determines from
                                                                        the petition and any response and reply that
    (d) the argument must be confined to the issues                     the relator is not entitled to the relief sought,
        or points presented in the petition; and                        the court must deny the petition. If the
                                                                        relator in a habeas corpus proceeding has
    (e) the appendix to the response need not contain                   been released on bond, the court must remand
        any item already contained in an appendix                       the relator to custody and issue an order of
        filed by the relator.                                           commitment. If the relator is not returned to
                                                                        custody, the court may declare the bond to be
52.5. Relator’s Reply to Response                                       forfeited and render judgment against the
                                                                        surety.
     The relator may file a reply addressing any matter
in the response. However, the court may consider and                (b) Interim Action. If the court is of the tentative
decide the case before a reply brief is filed.                          opinion that relator is entitled to the relief
                                                                        sought or that a serious question concerning
52.6. Deleted                                                           the relief requires further consideration:

52.7. Record                                                             (1) the court must request a response if one
                                                                             has not been filed;
    (a) Filing by Relator Required. Relator must file
        with the petition:                                               (2) the Supreme Court may request full
                                                                             briefing under Rule 55;
         (1) a certified or sworn copy of every
             document that is material to the relator's                  (3) in a habeas corpus proceeding, the court
             claim for relief and that was filed in any                      may order that relator be discharged on
             underlying proceeding; and                                      execution and filing of a bond in an
                                                                             amount set by the court; and
         (2) a properly authenticated transcript of
             any relevant testimony from any                             (4) the court may set the case for oral
             underlying proceeding, including any                            argument.
             exhibits offered in evidence, or a
             statement that no testimony was adduced                (c) Relief Granted. If the court determines that
             in connection with the matter                              relator is entitled to relief, it must make an
             complained.                                                appropriate order. The court may grant relief
                                                                        without hearing oral argument.
    (b) Supplementation Permitted. After the record
        is filed, relator or any other party to the                 (d) Opinion. When denying relief, the court may
        proceeding may file additional materials for                    hand down an opinion but is not required to
        inclusion in the record.                                        do so. When granting relief, the court must
                                                                        hand down an opinion as in any other case.
    (c) Service of Record on All Parties. Relator and                   Rule 47 is applicable to an order or opinion
        any party who files materials for inclusion in                  by a court of appeals except that the court of
        the record must – at the same time – serve on                   appeals may not order an unpublished
        each party:                                                     opinion published after the Supreme Court or
                                                                        Court of Criminal Appeals has acted on any
         (1) those materials not previously served on                   party’s petition for extraordinary relief
             that party as part of the record in another                addressing the same issues.
             original appellate proceeding in the same
             or another court; and                              52.9. Motion for Rehearing

         (2) an index listing the materials filed                   Any party may file a motion for rehearing within
             and describing them in sufficient detail           15 days after the final order is rendered. The motion
             to identify them.                                  must clearly state the points relied on for the rehearing.
                                                                No response to a motion for rehearing need be filed
52.8. Action on Petition                                        unless the court so requests. The court will not grant



                                                           65
a motion for rehearing unless a response has been filed                        Notes and Comments
or requested.
                                                                    Comment to 1997 change: Former Rules 120,
52.10. Temporary Relief                                        121, and 122 are merged into this rule. The
                                                               requirement of a motion for leave in original
    (a) Motion for Temporary Relief; Certificate               proceedings is repealed. The form of the petition and
        of Compliance. The relator may file a motion           response, contents of the appendix and record, page
        to stay any underlying proceedings or for any          limits, and relief that may be granted are specifically
        other temporary relief pending the court’s             stated. Specific provision is now made for a motion
        action on the petition. The relator must notify        for rehearing. A provision for sanctions is added.
        or make a diligent effort to notify all parties
        by expedited means (such as by telephone or                 Comment to 2002 change: Subdivision 52.7(c) is
        fax) that a motion for temporary relief has            added to specify how record materials in original
        been or will be filed and must certify to the          proceedings are to be served. Ordinarily, a party must
        court that the relator has complied with this          serve record materials and an index of those materials
        paragraph before temporary relief will be              on all other parties. But when materials have already
        granted.                                               been served in related original proceedings, they need
                                                               not be served again. Examples are when original
    (b) Grant of Temporary Relief. The court — on              proceedings raising the same issues are brought in
        motion of any party or on its own initiative           both the court of appeals and the Supreme Court, or
        — may without notice grant any just relief             when separate original proceedings are filed arising
        pending the court’s action on the petition. As         out of the same underlying lawsuit. The purpose of this
        a condition of granting temporary relief, the          procedure is to ensure that all parties have record
        court may require a bond to protect the parties        materials readily available without requiring
        who will be affected by the relief. Unless             unnecessary duplication.
        vacated or modified, an order granting
        temporary relief is effective until the case is             Comment to 2008 change: The reference to
        finally decided.                                       “unpublished” opinions in Subdivision 52.3(d)(5)(D)
                                                               is deleted. The filer should provide the best cite
    (c) Motion to Reconsider. Any party may move               available for the court of appeals’ opinion, which may
        the court at any time to reconsider a grant of         be a LEXIS, Westlaw, or other citation to an electronic
        temporary relief.                                      medium. Subdivision 52.3 is further amended to
                                                               delete the requirement that all factual statements be
52.11. Groundless        Petition     or    Misleading         verified by affidavit. Instead, the filer — in the usual
Statement or Record                                            case of a party with legal representation, the lead
                                                               counsel — must include a statement certifying that all
     On motion of any party or on its own initiative,          factual statements are supported by competent
the court may — after notice and a reasonable                  evidence in the appendix or record to which the
opportunity to respond — impose just sanctions on a            petition has cited. The certification required by
party or attorney who is not acting in good faith as           subdivision 52.3(j) does not count against the page
indicated by any of the following:                             limitations.

    (a) filing a petition that is clearly groundless;
                                                                  SECTION FOUR: PROCEEDINGS IN THE
    (b) bringing the petition solely for delay of                          SUPREME COURT
        an underlying proceeding;
                                                                           Rule 53. Petition for Review
    (c) grossly misstating or omitting an
        obviously important and material fact in the           53.1. Method of Review
        petition or response; or
                                                                    The Supreme Court may review a court of
    (d) filing an appendix or record that is                   appeals' final judgment on a petition for review
        clearly misleading because of the omission of          addressed to “The Supreme Court of Texas.” A party
        obviously important and material evidence or           who seeks to alter the court of appeals’ judgment must
        documents.                                             file a petition for review. The petition for review
                                                               procedure replaces the writ of error procedure.



                                                          66
Statutes pertaining to the writ of error in the Supreme            (8) the citation for the court of appeals’
Court apply equally to the petition for review.                        opinion; and

53.2. Contents of Petition                                         (9) the disposition of the case by the court of
                                                                       appeals, including the disposition of any
     The petition for review must, under appropriate                   motions for rehearing or en banc
headings and in the order here indicated, contain the                  reconsideration, and whether any
following items:                                                       motions for rehearing or en banc
                                                                       reconsideration are pending in the court
    (a) Identity of Parties and Counsel. The petition                  of appeals at the time the petition for
        must give a complete list of all parties to the                review is filed.
        trial court's final judgment, and the names
        and addresses of all trial and appellate               (e) Statement of Jurisdiction. The petition must
        counsel.                                                   state, without argument, the basis of the
                                                                   Court’s jurisdiction.
    (b) Table of Contents. The petition must have a
        table of contents with references to the pages         (f) Issues Presented. The petition must state
        of the petition. The table of contents must                concisely all issues or points presented for
        indicate the subject matter of each issue or               review. The statement of an issue or point
        point, or group of issues or points.                       will be treated as covering every subsidiary
                                                                   question that is fairly included. If the matter
    (c) Index of Authorities. The petition must have               complained of originated in the trial court, it
        an     index    of    authorities     arranged             should have been preserved for appellate
        alphabetically and indicating the pages of the             review in the trial court and assigned as error
        petition where the authorities are cited.                  in the court of appeals.

    (d) Statement of the Case. The petition must               (g) Statement of Facts. The petition must affirm
        contain a statement of the case that should                that the court of appeals correctly stated the
        seldom exceed one page and should not                      nature of the case, except in any particulars
        discuss the facts. The statement must contain              pointed out. The petition must state concisely
        the following:                                             and without argument the facts and
                                                                   procedural background pertinent to the issues
         (1) a concise description of the nature of the            or points presented. The statement must be
             case (e.g., whether it is a suit for                  supported by record references.
             damages, on a note, or in trespass to try
             title);                                           (h) Summary of the Argument. The petition must
                                                                   contain a succinct, clear, and accurate
         (2) the name of the judge who signed the                  statement of the arguments made in the body
             order or judgment appealed from;                      of the petition. This summary must not
                                                                   merely repeat the issues or points presented
         (3) the designation of the trial court and the            for review.
             county in which it is located;
                                                               (i) Argument. The petition must contain a clear
         (4) the disposition of the case by the trial              and concise argument for the contentions
             court;                                                made, with appropriate citations to
                                                                   authorities and to the record. The argument
         (5) the parties in the court of appeals;                  need not address every issue or point
                                                                   included in the statement of issues or points.
         (6) the district of the court of appeals;                 Any issue or point not addressed may be
                                                                   addressed in the brief on the merits if one is
         (7) the names of the justices who                         requested by the Court. The argument should
             participated in the decision in the court             state the reasons why the Supreme Court
             of appeals, the author of the opinion for             should exercise jurisdiction to hear the case
             the court, and the author of any separate             with specific reference to the factors listed in
             opinion;                                              Rule 56.1(a). The petition need not quote at
                                                                   length from a matter included in the



                                                          67
         appendix; a reference to the appendix is                of 53.2, except that:
         sufficient. The Court will consider the court
         of appeals’ opinion along with the petition, so             (a) the list of parties and counsel is not required
         statements in that opinion need not be                          unless necessary to supplement or correct the
         repeated.                                                       list contained in the petition;

    (j) Prayer. The petition must contain a short                    (b) a statement of the case and a statement of the
        conclusion that clearly states the nature of the                 facts need not be made unless the respondent
        relief sought.                                                   is dissatisfied with that portion of the
                                                                         petition;
    (k) Appendix.
                                                                     (c) a statement of the issues presented need not
         (1) Necessary Contents. Unless voluminous                       be made unless:
             or impracticable, the appendix must
             contain a copy of:                                           (1) the respondent is dissatisfied with the
                                                                              statement made in the petition;
              (A) the judgment or other appealable
                  order of the trial court from which                     (2) the     respondent        is    asserting
                  relief in the court of appeals was                          independent grounds for affirmance of
                  sought;                                                     the court of appeals' judgment; or

              (B) the jury charge and verdict, if any,                    (3) the respondent is asserting grounds
                  or the trial court’s findings of fact                       that establish the respondent's right to a
                  and conclusions of law, if any;                             judgment that is less favorable to the
                                                                              respondent than the judgment rendered
              (C) the opinion and judgment of the                             by the court of appeals but more
                  court of appeals; and                                       favorable to the respondent than the
                                                                              judgment that might be awarded to the
              (D) the text of any rule, regulation,                           petitioner (e.g., a remand for a new trial
                  ordinance, statute, constitutional                          rather than a rendition of judgment in
                  provision, or other law on which the                        favor of the petitioner);
                  argument is based (excluding case
                  law), and the text of any contract or              (d) a statement of jurisdiction should be omitted
                  other document that is central to the                  unless the petition fails to assert valid
                  argument.                                              grounds for jurisdiction, in which case the
                                                                         reasons why the Supreme Court lacks
         (2) Optional Contents. The appendix may                         jurisdiction must be concisely stated;
             contain any other item pertinent to the
             issues or points presented for review,                  (e) the respondent's argument must be confined
             including copies or excerpts of relevant                    to the issues or points presented in the
             court opinions, statutes, constitutional                    petition or asserted by the respondent in the
             provisions, documents on which the suit                     respondent's statement of issues; and
             was based, pleadings, and similar
             material. Items should not be included                  (f) the appendix to the response need not contain
             in the appendix to attempt to avoid the                     any item already contained in an appendix
             page limits for the petition.                               filed by the petitioner.

53.3. Response to Petition for Review                            53.4. Points Not Considered in Court of Appeals

     Any other party to the appeal may file a response               To obtain a remand to the court of appeals for
to the petition for review, but it is not mandatory. If          consideration of issues or points briefed in that court
no response is timely filed, or if a party files a waiver        but not decided by that court, or to request that the
of response, the Court will consider the petition                Supreme Court consider such issues or points, a party
without a response. A petition will not be granted               may raise those issues or points in the petition, the
before a response has been filed or requested by the             response, the reply, any brief, or a motion for
Court. The response must conform to the requirements             rehearing.



                                                            68
                                                                    (f) Extension of Time. The Supreme Court may
53.5. Petitioner's Reply to Response                                    extend the time to file a petition for review if
                                                                        a party files a motion complying with Rule
     The petitioner may file a reply addressing any                     10.5(b) no later than 15 days after the last day
matter in the response. However, the Court may                          for filing the petition. The Supreme Court
consider and decide the case before a reply brief is                    may extend the time to file a response or
filed.                                                                  reply if a party files a motion complying with
                                                                        Rule 10.5(b) either before or after the
53.6. Deleted                                                           response or reply is due.

53.7. Time and Place of Filing                                      (g) Petition Filed in Court of Appeals. If a
                                                                        petition is mistakenly filed in the court of
    (a) Petition. Unless the Supreme Court orders an                    appeals, the petition is deemed to have been
        earlier filing deadline, the petition must be                   filed the same day with the Supreme Court
        filed with the Supreme Court clerk within 45                    clerk, and the court of appeals clerk must
        days after the following:                                       immediately send the petition to the Supreme
                                                                        Court clerk.
        (1) the date the court of appeals
            rendered judgment, if no motion for                 53.8. Amendment
            rehearing or en banc reconsideration is
            timely filed; or                                        On motion showing good cause, the Court may
                                                                allow the petition, response, or reply to be amended on
        (2) the date of the court of appeals’ last              such reasonable terms as the Court may prescribe.
            ruling on all timely filed motions for
            rehearing or en banc reconsideration.               53.9. Court May Require Revision

    (b) Premature Filing. A petition filed before the               If a petition, response, or reply does not conform
        last ruling on all timely filed motions for             with these rules, the Supreme Court may require the
        rehearing and en banc reconsideration is                document to be revised or may return the document to
        treated as having been filed on the date of, but        the party who filed it and consider the case without
        after, the last ruling on any such motion. If a         allowing the document to be revised.
        party files a petition for review while a
        motion for rehearing or en banc                                         Notes and Comments
        reconsideration is pending in the court of
        appeals, the party must include that                         Comment to 1997 change: Former Rules 130 and
        information in its petition for review.                 131 are merged. The 50-page application for writ of
                                                                error is replaced by a 15-page petition for review,
    (c) Petitions Filed by Other Parties. If a party            which is filed in the Supreme Court and should
        files a petition for review within the time             concentrate on the reasons the Court should exercise
        specified in 53.7(a) — or within the time               jurisdiction to hear the case. The contents of the
        specified by the Supreme Court in an order              petition and response, the length of the documents, the
        granting an extension of time to file a petition        time for filing are all specifically stated.
        — any other party required to file a petition
        may do so within 45 days after the last timely               Comment to 2008 change: Subdivision 53.7(a) is
        motion for rehearing is overruled or within 30          amended to clarify that the Supreme Court may
        days after any preceding petition is filed,             shorten the time for filing a petition for review and that
        whichever date is later.                                the timely filing of a motion for en banc
                                                                reconsideration tolls the commencement of the 45-day
    (d) Response. Any response must be filed with               period for filing a petition for review until the motion
        the Supreme Court clerk within 30 days after            is overruled. Subdivision 53.2(d)(8) is amended to
        the petition is filed.                                  delete the reference to unpublished opinions in civil
                                                                cases. Subdivision 53.2(d)(9) is amended to require a
    (e) Reply. Any reply must be filed with the                 party that prematurely files a petition for review to
        Supreme Court clerk within 15 days after the            notify the Supreme Court of any panel rehearing or en
        response is filed.                                      banc reconsideration motions still pending in the court
                                                                of appeals. Subdivision 53.7(b) is revised to reference



                                                           69
this new requirement and to relocate to new Rule              Supreme Court to request the filing of the record.
49.11 those provisions governing motions for                  Other changes are made.
rehearing.

                                                                          Rule 55. Brief on the Merits
             Rule 54. Filing the Record
                                                              55.1. Request by Court
54.1. Request for Record
                                                                   A brief on the merits must not be filed unless
    With or without granting the petition for review,         requested by the Court. With or without granting the
the Supreme Court may request that the record from            petition for review, the Court may request the parties
the court of appeals be filed with the clerk of the           to file briefs on the merits. In appropriate cases, the
Supreme Court.                                                Court may realign parties and direct that parties file
                                                              consolidated briefs.
54.2. Duty of Court of Appeals Clerk
                                                              55.2. Petitioner's Brief on the Merits
    (a) Request for Record. The court of appeals
        clerk must not send the record to the Supreme              The petitioner’s brief on the merits must be
        Court unless it is requested. Upon receiving          confined to the issues or points stated in the petition
        the Supreme Court clerk's request for the             for review and must, under appropriate headings and
        record, the court of appeals clerk must               in the order here indicated, contain the following
        promptly send to the Supreme Court clerk all          items:
        of the following:
                                                                  (a) Identity of Parties and Counsel. The brief
         (1) the original record;                                     must give a complete list of all parties to the
                                                                      trial court's final judgment, and the names
         (2) any motion filed in the court of appeals;                and addresses of all trial and appellate
                                                                      counsel.
         (3) copies of all orders of the court of
             appeals; and                                         (b) Table of Contents. The brief must have a
                                                                      table of contents with references to the pages
         (4) copies of all opinions and the judgment                  of the brief. The table of contents must
             of the court of appeals.                                 indicate the subject matter of each issue or
                                                                      point, or group of issues or points.
    (b) Nondocumentary Exhibits. The clerk should
        not send any nondocumentary exhibits unless               (c) Index of Authorities. The brief must have an
        the Supreme Court specifically requests.                      index of authorities arranged alphabetically
                                                                      and indicating the pages of the brief where
54.3. Expenses                                                        the authorities are cited.

     The petitioner must pay to the court of appeals              (d) Statement of the Case. The brief must contain
clerk a sum sufficient to pay the cost of mailing or                  a statement of the case that should seldom
shipping the record to and from the Supreme Court                     exceed one page and should not discuss the
clerk.                                                                facts. The statement must contain the
                                                                      following:
54.4. Duty of Supreme Court Clerk
                                                                       (1) a concise description of the nature of the
     Upon receiving the record, the Supreme Court                          case (e.g., whether it is a suit for
clerk must file it and enter the filing on the docket.                     damages, on a note, or in trespass to try
The clerk may refuse the record if the charges for                         title);
mailing or shipping have not been paid.
                                                                       (2) the name of the judge who signed the
               Notes and Comments                                          order or judgment appealed from;

    Comment to 1997 change: This is former Rule                        (3) the designation of the trial court and the
132. Subdivision 54.1 is new and provides for the                          county in which it is located;



                                                         70
                                                                     to the record.
    (4) the disposition of the case by the trial
        court;                                                  (j) Prayer. The brief must contain a short
                                                                    conclusion that clearly states the nature of the
    (5) the parties in the court of appeals;                        relief sought.

    (6) the district of the court of appeals;
                                                            55.3. Respondent's Brief
    (7) the names of the justices who
        participated in the decision in the court               If the petitioner files a brief on the merits, any
        of appeals, the author of the opinion for           other party to the appeal may file a brief in response,
        the court, and the author of any separate           which must conform to 55.2, except that:
        opinion;
                                                                (a) the list of parties and counsel is not required
    (8) the citation for the court of appeals’                      unless necessary to supplement or correct the
        opinion, if available, or a statement that                  list contained in the petitioner's brief;
        the opinion was unpublished; and
                                                                (b) a statement of the case and a statement of the
    (9) the disposition of the case by the court of                 facts need not be made unless the respondent
        appeals.                                                    is dissatisfied with that portion of the
                                                                    petitioner's brief; and
(e) Statement of Jurisdiction. The brief must
    state, without argument, the basis of the                   (c) a statement of the issues presented need not
    Court’s jurisdiction.                                           be made unless:

(f) Issues Presented. The brief must state                           (1) the respondent is dissatisfied with the
    concisely all issues or points presented for                         statement made in the petitioner's brief;
    review. The statement of an issue or point
    will be treated as covering every subsidiary                     (2) the     respondent        is    asserting
    question that is fairly included. The phrasing                       independent grounds for affirmance of
    of the issues or points need not be identical to                     the court of appeals' judgment; or
    the statement of issues or points in the
    petition for review, but the brief may not raise                 (3) the respondent is asserting grounds
    additional issues or points or change the                            that establish the respondent's right to a
    substance of the issues or points presented in                       judgment that is less favorable to the
    the petition.                                                        respondent than the judgment rendered
                                                                         by the court of appeals but more
(g) Statement of Facts. The brief must affirm that                       favorable to the respondent than the
    the court of appeals correctly stated the                            judgment that might be awarded to the
    nature of the case, except in any particulars                        petitioner (e.g., a remand for a new trial
    pointed out. The brief must state concisely                          rather than a rendition of judgment in
    and without argument the facts and                                   favor of the petitioner);
    procedural background pertinent to the issues
    or points presented. The statement must be                  (d) a statement of jurisdiction should be omitted
    supported by record references.                                 unless the petition fails to assert valid
                                                                    grounds for jurisdiction; and
(h) Summary of the Argument. The brief must
    contain a succinct, clear, and accurate                     (e) the respondent's argument must be confined
    statement of the arguments made in the body                     to the issues or points presented in the
    of the brief. This summary must not merely                      petitioner's brief or asserted by the
    repeat the issues or points presented for                       respondent in the respondent's statement of
    review.                                                         issues.

(i) Argument. The brief must contain a clear and            55.4. Petitioner's Brief in Reply
    concise argument for the contentions made,
    with appropriate citations to authorities and               The petitioner may file a reply brief addressing



                                                       71
any matter in the brief in response. However, the Court               Whether to grant review is a matter of
may consider and decide the case before a reply brief                 judicial discretion. Among the factors the
is filed.                                                             Supreme Court considers in deciding whether
                                                                      to grant a petition for review are the
55.5. Reliance on Prior Brief                                         following:

     As a brief on the merits or a brief in response, a               (1) whether the justices of the court of
party may file the brief that the party filed in the court                appeals disagree on an important point of
of appeals.                                                               law;

55.6. Deleted                                                         (2) whether there is a conflict between the
                                                                          courts of appeals on an important point
55.7. Time and Place of Filing; Extension of Time                         of law;

     Briefs must be filed with the Supreme Court clerk                (3) whether a case involves the construction
in accordance with the schedule stated in the clerk's                     or validity of a statute;
notice that the Court has requested briefs on the merits.
If no schedule is stated in the notice, petitioner must               (4) whether a case involves constitutional
file a brief on the merits within 30 days after the date                  issues;
of the notice, respondent must file a brief in response
within 20 days after receiving petitioner’s brief, and                (5) whether the court of appeals appears to
petitioner must file any reply brief within 15 days after                 have committed an error of law of such
receiving respondent’s brief. On motion complying                         importance to the state’s jurisprudence
with Rule 10.5(b) either before or after the brief is due,                that it should be corrected; and
the Supreme Court may extend the time to file a brief.
                                                                      (6) whether the court of appeals has decided
55.8. Amendment                                                           an important question of state law that
                                                                          should be, but has not been, resolved by
    On motion showing good cause, the Court may                           the Supreme Court.
allow a party to amend a brief on such reasonable
terms as the Court may prescribe.                                 (b) Petition Denied or Dismissed. When the
                                                                      petition has been on file in the Supreme Court
55.9. Court May Require Revision                                      for 30 days, the Court may deny or dismiss
                                                                      the petition — whether or not a response has
    If a brief does not conform with these rules, the                 been filed — with one of the following
Supreme Court may require the brief to be revised or                  notations:
may return it to the party who filed it and consider the
case without further briefing by that party.                          (1) “Denied.” If the Supreme Court is not
                                                                          satisfied that the opinion of the court of
                Notes and Comments                                        appeals has correctly declared the law in
                                                                          all respects, but determines that the
     Comment to 1997 change: The rule is new and                          petition presents no error that requires
provides for a 50 page brief on the merits if requested                   reversal or that is of such importance to
by the Supreme Court.                                                     the jurisprudence of the state as to
                                                                          require correction, the Court will deny
     Comment to 2002 change: Subdivision 55.1 is                          the petition with the notation “Denied.”
clarified to provide that the Court may realign parties
to require consolidated briefing for a clearer and more               (2) “Dismissed w.o.j.” If the Supreme Court
efficient presentation of the case.                                       lacks jurisdiction, the Court will dismiss
                                                                          the petition with the notation “Dismissed
                                                                          for Want of Jurisdiction.”
       Rule 56. Order on Petition for Review
                                                                  (c) Petition Refused. If the Supreme Court
56.1. Orders on Petition for Review                                   determines — after a response has been filed
                                                                      or requested — that the court of appeals'
    (a) Considerations       in    Granting      Review.              judgment is correct and that the legal



                                                             72
         principles announced in the opinion are                  petition, together with the record and accompanying
         likewise correct, the Court will refuse the              papers, for 30 days after the order is rendered. If no
         petition with the notation “Refused.” The                motion for rehearing has been filed by the end of that
         court of appeals’ opinion in the case has the            period or when any motion for rehearing of the order
         same precedential value as an opinion of the             has been overruled, the clerk must send a certified
         Supreme Court.                                           copy of its order to the court of appeals and return the
                                                                  record and all papers (except for documents filed in
    (d) Improvident Grant. If the Court has granted               the Supreme Court) to the court of appeals clerk.
        review but later decides that review should
        not have been granted, the Court may,                                     Notes and Comments
        without opinion, set aside the order granting
        review and dismiss the petition or deny or                    Comment to 1997 change: The rule is from former
        refuse review as though review had never                  Rule 133. Subdivision 56.3 regarding settled cases is
        been granted.                                             added.

56.2. Moot Cases                                                       Comment to 2002 change: Subdivision 56.3 is
                                                                  clarified to provide for partial settlements.
     If a case is moot, the Supreme Court may, after
notice to the parties, grant the petition and, without
hearing argument, dismiss the case or the appealable                Rule 57. Direct Appeals to the Supreme Court
portion of it without addressing the merits of the
appeal.                                                           57.1. Application

56.3. Settled Cases                                                    This rule governs direct appeals to the Supreme
                                                                  Court that are authorized by the Constitution and by
     If a case is settled by agreement of the parties and         statute. Except when inconsistent with a statute or this
the parties so move, the Supreme Court may grant the              rule, the rules governing appeals to courts of appeals
petition if it has not already been granted and, without          also apply to direct appeals to the Supreme Court.
hearing argument or considering the merits, render a
judgment to effectuate the agreement. The Supreme                 57.2. Jurisdiction
Court's action may include setting aside the judgment
of the court of appeals or the trial court without regard              The Supreme Court may not take jurisdiction over
to the merits and remanding the case to the trial court           a direct appeal from the decision of any court other
for rendition of a judgment in accordance with the                than a district court or county court, or over any
agreement. The Supreme Court may abate the case                   question of fact. The Supreme Court may decline to
until the lower court’s proceedings to effectuate the             exercise jurisdiction over a direct appeal of an
agreement are complete. A severable portion of the                interlocutory order if the record is not adequately
proceeding may be disposed of if it will not prejudice            developed, or if its decision would be advisory, or if
the remaining parties. In any event, the Supreme                  the case is not of such importance to the jurisprudence
Court's order does not vacate the court of appeals'               of the state that a direct appeal should be allowed.
opinion unless the order specifically provides
otherwise. An agreement or motion cannot be                       57.3. Statement of Jurisdiction
conditioned on vacating the court of appeals’ opinion.
                                                                       Appellant must file with the record a statement
56.4. Notice to Parties                                           fully but plainly setting out the basis asserted for
                                                                  exercise of the Supreme Court's jurisdiction. Appellee
     When the Supreme Court grants, denies, refuses,              may file a response to appellant's statement of
or dismisses a petition for review, the Supreme Court             jurisdiction within ten days after the statement is filed.
clerk must send a written notice of the disposition to
the court of appeals, the trial court, and all parties to         57.4. Preliminary Ruling on Jurisdiction
the appeal.
                                                                      If the Supreme Court notes probable jurisdiction
56.5. Return of Documents to Court of Appeals                     over a direct appeal, the parties must file briefs under
                                                                  Rule 38 as in any other case. If the Supreme Court
    When the Supreme Court denies, refuses, or                    does not note probable jurisdiction over a direct
dismisses a petition for review, the clerk will retain the        appeal, the appeal will be dismissed.



                                                             73
                                                                            represented by counsel; and
57.5. Direct Appeal Exclusive While Pending.
                                                                       (c) a list of the names, addresses, and
     If a direct appeal to the Supreme Court is filed, the                 telephone numbers of counsel for each party.
parties to the appeal must not, while that appeal is
pending, pursue an appeal to the court of appeals. But            58.4. Transmission of Record
if the direct appeal is dismissed, any party may pursue
any other appeal available at the time when the direct                      The certifying court should not send the
appeal was filed. The other appeal must be perfected              Supreme Court of Texas the record in the pending case
within ten days after dismissal of the direct appeal.             with the certification order. The Supreme Court may
                                                                  later require the original or copies of all or part of the
                Notes and Comments                                record before the certifying court to be filed with the
                                                                  Supreme Court clerk.
     Comment to 1997 change: This is former Rule
140. The rule is amended without substantive change               58.5. Fees and Costs
except subdivision 57.5 is amended to make clear that
no party to the direct appeal may pursue the appeal in                 Unless the certifying court orders otherwise in its
the court of appeals while the direct appeal is pending,          certification order, the parties must bear equally the
but allowing 10 days to perfect a subsequent appeal.              fees under Rule 5.

                                                                  58.6. Notice
   Rule 58. Certification of Questions of Law by
               United State Courts                                    If the Supreme Court agrees to answer the
                                                                  questions certified to it, the Court will notify all parties
58.1. Certification                                               and the certifying court. The Supreme Court clerk
                                                                  must also send a notice to the Attorney General of
    The Supreme Court of Texas may answer                         Texas if:
questions of law certified to it by any federal appellate
court if the certifying court is presented with                        (a) the constitutionality of a Texas statute is the
determinative questions of Texas law having no                             subject of a certified question that the
controlling Supreme Court precedent. The Supreme                           Supreme Court has agreed to answer; and
Court may decline to answer the questions certified to
it.                                                                    (b) the State of Texas or an officer, agency, or
                                                                           employee of the state is not a party to the
58.2. Contents of the Certification Order                                  proceeding in the certifying court.

    An order from the certifying court must set forth:            58.7. Briefs and Oral Argument

    (a) the questions of law to be answered; and                       (a) Briefs. The appealing party in the certifying
                                                                           court must file a brief with the Supreme Court
    (b) a stipulated statement of all facts relevant to                    clerk within 30 days after the date of the
        the questions certified, showing fully the                         notice. Opposing parties must file an
        nature of the controversy in which the                             answering brief within 20 days after
        questions arose.                                                   receiving the opening brief. Briefs must
                                                                           comply with Rule 55 to the extent its
58.3. Transmission of Certification Order                                  provisions apply. On motion complying with
                                                                           Rule 10.5(b), either before or after the brief is
     The clerk of the certifying court must send to the                    due, the Supreme Court may extend the time
clerk of the Supreme Court of Texas the following:                         to file a brief.

    (a) the certification order under the certifying                   (b) Oral Argument. Oral argument may be
        court’s official seal;                                             granted either on a party's request or on the
                                                                           Court's own initiative. Argument is governed
    (b) a list of the names of all parties to the pending                  by Rule 59.
        case, giving the address and telephone
        number, if known, of any party not                        58.8. Intervention by the State


                                                             74
                                                                      Each side is allowed only as much time as the
     If the constitutionality of a Texas statute is the          Court orders. Counsel is not required to use all the
subject of a certified question that the Supreme Court           allotted time. On motion filed before the day of
has agreed to answer the State of Texas may intervene            argument, the Court may extend the time for
at any reasonable time for briefing and oral argument            argument. The Court may also align the parties for
(if argument is allowed), on the question of                     purposes of presenting argument.
constitutionality.
                                                                 59.5. Number of Counsel
58.9. Opinion on Certified Questions
                                                                      Generally, only one counsel should argue for each
     If the Supreme Court has agreed to answer a                 side. Except on leave of court , no more than two
certified question, it will hand down an opinion as in           counsel on each side may argue. Only one counsel may
any other case.                                                  argue in rebuttal.

58.10. Answering Certified Questions                             59.6. Argument by Amicus Curiae

     After all motions for rehearing have been                        With leave of court obtained before the argument
overruled, the Supreme Court clerk must send to the              and with a party's consent, an amicus may share
certifying court the written opinion on the certified            allotted time with that party. Otherwise, counsel for
questions. The opinion must be under the Supreme                 amicus curiae may not argue.
Court's seal.
                                                                                Notes and Comments
                Notes and Comments
                                                                      Comment to 1997 change: Former Rules 170,
    Comment to 1997 change: This is former Rule                  171, and 172 are merged. Subdivisions 59.2 and 59.3
114. The rule is substantially revised, but no                   are new. Other changes are made.
substantive change in procedure is intended, except
subdivision 58.10 now allows a motion for rehearing.
                                                                     Rule 60. Judgments in the Supreme Court

        Rule 59. Submission and Argument                         60.1. Announcement of Judgments

59.1. Submission Without Argument                                     The Court's judgments will be announced by the
                                                                 clerk.
     If at least six members of the Court so vote, a
petition may be granted and an opinion handed down               60.2. Types of Judgment
without oral argument.
                                                                     The Supreme Court may:
59.2. Submission With Argument
                                                                     (a) affirm the lower court’s judgment in whole or
    If the Supreme Court decides that oral argument                      in part;
would aid the Court, the Court will set the case for
argument. The clerk will notify all parties of the                   (b) modify the lower court’s judgment and
submission date.                                                         affirm it as modified;

59.3. Purpose of Argument                                            (c) reverse the lower court’s judgment in whole
                                                                         or in part and render the judgment that the
     Oral argument should emphasize and clarify the                      lower court should have rendered;
written arguments in the briefs. Counsel should not
merely read from a prepared text. Counsel should                     (d) reverse the lower court’s judgment and
assume that all Justices have read the briefs before oral                remand the case for further proceedings;
argument and should be prepared to respond to the
Justices’ questions.                                                 (e) vacate the judgments of the lower courts and
                                                                         dismiss the case; or
59.4. Time for Argument
                                                                     (f) vacate the lower court’s judgment and



                                                            75
         remand the case for further proceedings in
         light of changes in the law.                                 (a) probably caused the          rendition    of    an
                                                                          improper judgment; or
60.3. Remand in the Interest of Justice
                                                                      (b) probably prevented the petitioner from
    When reversing the court of appeals' judgment,                        properly presenting the case to the appellate
the Supreme Court may, in the interest of justice,                        courts.
remand the case to the trial court even if a rendition of
judgment is otherwise appropriate.                               61.2. Error Affecting Only Part of the Case

60.4. Judgment for Costs                                              If the error affects a part, but not all, of the matter
                                                                 in controversy, and that part is separable without
     The Supreme Court’s judgment will award to the              unfairness to the parties, the judgment must be
prevailing party the costs incurred by that party in the         reversed and a new trial ordered only as to the part
Supreme Court. If appropriate, the judgment may also             affected by the error. The Court may not order a
award the prevailing party the costs — including                 separate trial solely on unliquidated damages if
preparation costs for the record — incurred by that              liability is contested.
party in the court of appeals and in the trial court. But
the Court may tax costs otherwise as required by law             61.3. Defects in Procedure
or for good cause.
                                                                     The Supreme Court will not affirm or reverse a
60.5. Judgment Against Sureties                                  judgment or dismiss a petition for review for formal
                                                                 defects or irregularities in appellate procedure without
     When affirming, modifying, or rendering a                   allowing a reasonable time to correct or amend the
judgment against the party who was the appellant in              defects or irregularities.
the court of appeals, the Supreme Court must render
judgment against the sureties on that party's                    61.4. Remediable Error of the Trial Court or
supersedeas bond, if any, for the performance of the             Court of Appeals
judgment. If the Supreme Court taxes costs against the
party who was the appellant in the court of appeals, the              (a) Generally. The Supreme Court will not
Court must render judgment for those costs against the                    affirm or reverse a judgment or dismiss a
sureties on that party's supersedeas bond, if any.                        petition for review if:

60.6. Other Orders                                                         (1) the trial court's or court of appeals'
                                                                               erroneous action or failure or refusal to
     The Supreme Court may make any other                                      act prevents the proper presentation of a
appropriate order required by the law and the nature of                        case to the Supreme Court; and
the case.
                                                                           (2) the trial court or court of appeals can
                Notes and Comments                                             correct its action or failure to act.

    Comment to 1997 change: Former Rules 180 and                      (b) Supreme Court Direction if Error
182(a) are merged. Subdivision 60.1 is from former                        Remediable. If the circumstances described
Rule 181. Paragraphs 60.2(b), (e), and (f) are new but                    in (a) exist, the Supreme Court will direct the
codify current practice. Subdivision 60.6 is new. Other                   trial court or court of appeals to correct the
changes are made.                                                         error. The Supreme Court will then proceed
                                                                          as if the error had not occurred.

              Rule 61. Reversible Error                                           Notes and Comments

61.1. Standard for Reversible Error                                  Comment to 1997 change: Former Rules 184 and
                                                                 185 are merged. The reversible error standard is
    No judgment may be reversed on appeal on the                 amended to omit the reference to an action
ground that the trial court made an error of law unless          “reasonably calculated to      cause” an improper
the Supreme Court concludes that the error                       judgment, but no substantive change is intended.
complained of:                                                   Subdivision 61.3 is amended to delete the reference to



                                                            76
defects of “substance.”                                          the rehearing.

                                                                 64.3. Response and Decision
     Rule 62. Damages for Frivolous Appeals
                                                                      No response to a motion for rehearing need be
     If the Supreme Court determines that a direct               filed unless the Court so requests. A motion will not
appeal or a petition for review is frivolous, it may —           be granted unless a response has been filed or
on motion of any party or on its own initiative, after           requested by the Court. But in exceptional cases, if
notice and a reasonable opportunity for response —               justice so requires, the Court may deny the right to file
award to each prevailing party just damages. In                  a response and act on a motion any time after it is filed.
determining whether to award damages, the Court
must not consider any matter that does not appear in             64.4. Second Motion
the record, briefs, or other papers filed in the court of
appeals or the Supreme Court.                                         The Court will not consider a second motion for
                                                                 rehearing unless the Court modifies its judgment,
                Notes and Comments                               vacates its judgment and renders a new judgment, or
                                                                 issues a different opinion.
     Comment to 1997 change: This is former Rule
182(b). The rule is changed from allowing a sanction             64.5. Extensions of Time
when an appeal “filed for delay and without sufficient
cause” to allowing a sanction when the appeal is                      The Court may extend the time to file a motion for
“frivolous.” A requirement for notice and an                     rehearing in the Supreme Court, if a motion complying
opportunity to respond is included.                              with Rule
                                                                 10.5(b) is filed with the Court no later than 15 days
                                                                 after the last date for filing a motion for rehearing.
    Rule 63. Opinions; Copy of Opinion and
Judgment to Interested Parties and Other Courts                  64.6. Deleted

     The Supreme Court will hand down a written
opinion in all cases in which it renders a judgment. The                          Notes and Comments
clerk will send a copy of the opinion and judgment to
the court of appeals clerk, the trial court clerk, the               Comment to 1997 change: This is former Rule
regional administrative judge, and all parties to the            190. The service and notice provisions of former
appeal.                                                          subdivisions (b) and (c) are deleted. See Rule 9.5.
                                                                 Other changes are made.
                Notes and Comments
                                                                      Comment to 2008 change: Subdivision 64.4 is
    Comment to 1997 change: This is former Rule                  amended to reflect the Court's practice of considering
181 with changes.                                                a second motion for rehearing after modifying its
                                                                 judgment or opinion in response to a prior motion for
                                                                 rehearing. When the Court modifies its opinion
           Rule 64. Motion for Rehearing                         without modifying its judgment, the Court will
                                                                 ordinarily deny a second motion for rehearing unless
64.1. Time for Filing                                            the new opinion is substantially different from the
                                                                 original opinion.
    A motion for rehearing may be filed with the
Supreme Court clerk within 15 days from the date
when the Court renders judgment or makes an order                Rule 65. Enforcement of Judgment after Mandate
disposing of a petition for review. In exceptional
cases, if justice requires, the Court may shorten the            65.1. Statement of Costs
time within which the motion may be filed or even
deny the right to file it altogether.                                 The Supreme Court clerk will prepare, and send
                                                                 to the clerk to whom the mandate is directed, a
64.2. Contents                                                   statement of costs showing:

    The motion must specify the points relied on for                 (a) the costs that were incurred in the Supreme



                                                            77
         Court, with a notation of those items that                    has not been, but should be, settled by the
         have been paid and those that are owing; and                  Court of Criminal Appeals;

    (b) the party or parties against whom costs have               (c) whether a court of appeals has decided an
        been adjudged.                                                 important question of state or federal law in a
                                                                       way that conflicts with the applicable
65.2. Enforcement of Judgment                                          decisions of the Court of Criminal Appeals or
                                                                       the Supreme Court of the United States;
     If the Supreme Court renders judgment, the trial
court need not make any further order. Upon receiving              (d) whether a court of appeals has declared a
the Supreme Court's mandate, the trial court clerk must                statute, rule, regulation, or ordinance
proceed to enforce the judgment of the Supreme                         unconstitutional, or appears to have
Court's as in any other case. Appellate court costs must               misconstrued a statute, rule, regulation, or
be included with the trial court costs in any process to               ordinance;
enforce the judgment. If all or part of the costs are
collected, the trial court clerk must immediately remit            (e) whether the justices of a court of appeals
to the appellate court clerk any amount due to that                    have disagreed on a material question of law
clerk.                                                                 necessary to the court's decision; and

                Notes and Comments                                 (f) whether a court of appeals has so far departed
                                                                       from the accepted and usual course of judicial
    Comment to 1997 change: Subdivision 65.1 is                        proceedings, or so far sanctioned such a
new. Subdivision 65.2 is from former Rule 183.                         departure by a lower court, as to call for an
                                                                       exercise of the Court of Criminal Appeals'
                                                                       power of supervision.
   SECTION FIVE: PROCEEDINGS IN THE
      COURT OF CRIMINAL APPEALS                                 66.4. Documents to Aid Decision

     Rule 66. Discretionary Review in General                      (a) Acquiring Documents. The Court of
                                                                       Criminal Appeals — or any judge of the
66.1. With or Without Petition                                         Court — may order the court of appeals clerk
                                                                       to promptly send the following items to the
     The Court of Criminal Appeals may review a                        Court in order to aid it in deciding whether to
court of appeals' decision in a criminal case on its own               grant discretionary review:
initiative under Rule 67 or on the petition of a party
under Rule 68.                                                         (1) the appellate record;

66.2. Not a Matter of Right                                            (2) a copy of the opinions of the court of
                                                                           appeals;
     Discretionary review by the Court of Criminal
Appeals is not a matter of right, but of the Court's                   (3) a copy of the motions filed in the court
discretion.                                                                of appeals; and

66.3. Reasons for Granting Review                                      (4) certified copies of any judgment or order
                                                                           of the court of appeals.
     While neither controlling nor fully measuring the
Court of Criminal Appeals' discretion, the following               (b) Return of Documents. If discretionary review
will be considered by the Court in deciding whether to                 is not granted, the clerk of the Court of
grant discretionary review:                                            Criminal Appeals will return the appellate
                                                                       record to the court of appeals clerk.
    (a) whether a court of appeals' decision conflicts
        with another court of appeals' decision on the                        Notes and Comments
        same issue;
                                                                    Comment to 1997 change: This is former Rule
    (b) whether a court of appeals has decided an               200. The former rule's reference to motions for
        important question of state or federal law that         rehearing now appears in Rule 49.9. The rule is



                                                           78
otherwise amended without substantive change.                        On petition by any party, the Court of Criminal
                                                                 Appeals may review a court of appeals' decision in a
                                                                 criminal case.
 Rule 67. Discretionary Review Without Petition
                                                                 68.2. Time to File Petition
67.1. Four Judges' Vote
                                                                     (a) First Petition. The petition must be filed
    By a vote of at least four judges, the Court of                      within 30 days after either the day the court
Criminal Appeals may grant review of a court of                          of appeals' judgment was rendered or the day
appeals' decision in a criminal case at any time before                  the last timely motion for rehearing or timely
the mandate of the court of appeals issues. An order                     motion for en banc reconsideration was
granting review will be filed with the clerk of the Court                overruled by the court of appeals.
of Criminal Appeals, who must send a copy to the
court of appeals clerk.                                              (b) Subsequent Petition. Even if the time
                                                                         specified in (a) has expired, a party who
67.2. Order Staying Mandate                                              otherwise may file a petition may do so
                                                                         within 10 days after the timely filing of
     To provide enough time for the Court of Criminal                    another party's petition.
Appeals to decide whether to grant discretionary
review under 67.1, the Court — or any judge of the                   (c) Extension of Time. The Court of Criminal
Court — may file with the clerk of the court of appeals                  Appeals may extend the time to file a petition
an order staying the court of appeals' mandate. The                      for discretionary review if a party files a
order must be signed by a judge of the Court of                          motion complying with Rule 10.5(b) no later
Criminal Appeals. The clerk of the Court of Criminal                     than 15 days after the last day for filing the
Appeals must immediately send a copy of the order to                     petition. The Court of Criminal Appeals may
the court of appeals clerk.                                              extend the time to file a response or reply if a
                                                                         party files a motion complying with Rule
67.3. Time to Issue Mandate Extended                                     10.5(b) either before or after the response or
                                                                         reply is due.
     Unless otherwise limited in the order itself, an
order staying the court of appeals' mandate under 67.2                           Notes and Comments
will extend for an additional 45 days the time before
issuance of the court of appeals' mandate. An order                   Comment to 2011 change: The amendment to
granting review prevents the issuance of the court of            Rule 68.2(a) resolves timely filing questions
appeals' mandate pending the further order of the                concerning motions for en banc reconsideration by
Court of Criminal Appeals. If four judges do not agree           including those motions in calculating time to file.
to grant review within that time the court of appeals
clerk must issue the mandate.                                    68.3. Where to File Petition

                Notes and Comments                                   (a) The petition and all copies of the petition
                                                                         must be filed with the clerk of the Court of
    Comment to 1997 change: This is former Rule                          Criminal Appeals.
201. The rule is amended without substantive change.
                                                                     (b) Petition Filed in Court of Appeals. If a
     Comment to 2000 change: Language which was                          petition is mistakenly filed in the court of
in the catchline of former Rule 201 has been deleted                     appeals, the petition is deemed to have been
from Rule 67.1, to restore the substance of the rule,                    filed the same day with the clerk of the Court
and to remove any implication that the court may not                     of Criminal Appeals, and the court of appeals
grant review on its own motion when a petition for                       clerk must immediately send the petition to
discretionary review has been filed.                                     the clerk of the Court of Criminal Appeals.

                                                                                 Notes and Comments
   Rule 68. Discretionary Review With Petition
                                                                      Comment to 2011 change: Rule 68.3 is changed
68.1. Generally                                                  to require petitions for discretionary review to be filed
                                                                 in the Court of Criminal Appeals rather than in the



                                                            79
court of appeals. With the deletion of Rule 50, there                          and
is no reason to file petitions in the court of appeals.
Rule 68.3(b) is added to address and prevent the                          (3) the date the motion for rehearing was
untimely filing of petitions for discretionary review                         overruled or otherwise disposed of.
that are incorrectly filed in the court of appeals rather
than in the Court of Criminal Appeals.                               (g) Grounds for Review. The petition must state
                                                                         briefly, without argument, the grounds on
68.4. Contents of Petition                                               which the petition is based. The grounds must
                                                                         be separately numbered. If the petitioner has
     A petition for discretionary review must be as                      access to the record, the petitioner must (after
brief as possible. It must be addressed to the “Court of                 each ground) refer to the page of the record
Criminal Appeals of Texas” and must state the name                       where the matter complained of is found.
of the party or parties applying for review. The petition                Instead of listing grounds for review, the
must contain the following items:                                        petition may contain the questions presented
                                                                         for review, expressed in the terms and
    (a) Identity of Judge, Parties, and Counsel. The                     circumstances of the case but without
        petition must list the trial court judge, all                    unnecessary detail. The statement of
        parties to the judgment or order appealed                        questions should be short and concise, not
        from, and the names and addresses of all trial                   argumentative or repetitious.
        and appellate counsel.
                                                                     (h) Argument. The petition must contain a direct
    (b) Table of Contents. The petition must include                     and concise argument, with supporting
        a table of contents with references to the                       authorities, amplifying the reasons for
        pages of the petition. The table of contents                     granting review. See Rule 66.3. The court of
        must indicate the subject matter of each                         appeals' opinions will be considered with the
        ground or question presented for review.                         petition, and statements in those opinions
                                                                         need not be repeated if counsel accepts them
    (c) Index of Authorities. The petition must                          as correct.
        include an index of authorities arranged
        alphabetically and indicating the pages of the               (i) Prayer for Relief. The petition must state
        petition where the authorities are cited.                        clearly the nature of the relief sought.

    (d) Statement Regarding Oral Argument. The                       (j) Appendix. The petition must contain a copy
        petition must include a short statement of                       of any opinion of the court of appeals.
        why oral argument would be helpful, or a
        statement that oral argument is waived. If a             68.5. Deleted
        reply or cross-petition is filed, it likewise
        must include a statement of why oral                     68.6. Nonconforming Petition
        argument should or should not be heard.
                                                                      The Court may strike, order redrawn, or
    (e) Statement of the Case. The petition must state           summarily refuse a petition for discretionary review
        briefly the nature of the case. This statement           that is unnecessarily lengthy or that does not conform
        should seldom exceed half a page. The details            to these rules.
        of the case should be reserved and stated with
        the pertinent grounds or questions.                      68.7. Court of Appeals Clerk's Duties

    (f) Statement of Procedural History. The                          Within 15 days of receiving notice of the filing of
        petition must state:                                     a petition for discretionary review from the clerk of the
                                                                 Court of Criminal Appeals, the clerk of the court of
         (1) the date any opinion of the court of                appeals must send to the clerk of the Court of Criminal
             appeals was handed down, or the date of             Appeals the record, any motions filed in the case, and
             any order of the court of appeals                   copies of any judgments, opinions, and orders of the
             disposing of the case without an opinion;           court of appeals. The clerk need not forward any
                                                                 nondocumentary exhibits unless ordered to do so by
         (2) the date any motion for rehearing was               the Court of Criminal Appeals.
             filed (or a statement that none was filed);



                                                            80
                 Notes and Comments                                on the State Prosecuting Attorney.

    Comment to 2011 change: Rule 68.7(a) and (b)                                   Notes and Comments
are deleted and (c) is amended to reflect changes
consistent with filing the petition and reply in the                    Comment to 1997 change: This is former Rule
Court of Criminal Appeals rather than in the court of              202. Subdivisions (k) and (l) of the former rule have
appeals, and to order the record to be sent to the Court           been relocated to Rule 69. The new rule limits the
of Criminal Appeals. Additionally, Rule 68.7(c) is                 length of a petition and reply. The time for amendment
amended to delete reference to Rule 50, which is                   of a petition or reply is increased to conform with the
abolished.                                                         amendment in Rule 50. The rule is otherwise amended
                                                                   without substantive change.
68.8. Court of Criminal Appeals Clerk’s Duties
                                                                       Comment to 2002 change: The original catchline
     Upon receipt of the record from the court of                  of subdivision 68.4(g) was "Reasons for Review,"
appeals, the clerk of the Court of Criminal Appeals                which caused confusion because of its similarity to the
will file the record and enter the filing on the docket.           catchline in subdivision 66.3 ("Reasons for Granting
                                                                   Review"). It is changed to "Argument."
                 Notes and Comments
                                                                        Comment to 2011 change: The address for the
     Comment to 2011 change: Rule 68.8 is amended                  State Prosecuting Attorney is deleted because it has
to reflect changes consistent with filing the petition in          changed and may change again.
the Court of Criminal Appeals.
                                                                        Rule 69. Action of Court on Petition for
68.9 Reply.                                                        Discretionary Review and After Granting Review

      The opposing party has 15 days after the timely              69.1. Granting or Refusal
filing of the petition in the Court of Criminal Appeals
to file a reply to the petition with the clerk of the Court             If four judges do not vote to grant a petition for
of Criminal Appeals.                                               discretionary review, the Court will enter a docket
                                                                   notation that the petition is refused. If four judges vote
                 Notes and Comments                                to grant a petition, the Court will enter a docket
                                                                   notation that discretionary review is granted.
     Comment to 2011 change. This Rule is added so
that any reply will be filed in the Court of Criminal              69.2. Setting Case for Submission
Appeals since the petition is also filed in the Court of
Criminal Appeals.                                                       If discretionary review is granted, either on the
                                                                   petition of a party or by the Court on its own initiative,
68.10. Amendment                                                   the case will be set for submission.

   Upon motion the petition or a reply may be                      69.3. Improvident Grant of Review
amended or supplemented at any time justice requires.
                                                                        If, after granting discretionary review, five judges
                 Notes and Comments                                are of the opinion that discretionary review should not
                                                                   have been granted, the case will be dismissed.
     Comment to 2011 change: This Rule is changed
to reflect the filing of the petition and any reply in the         69.4. Clerk's Duties
Court of Criminal Appeals. Thus, the rule is also
changed to require a motion and to delete a time frame                 (a) On Refusal or Dismissal. When the Court
because the petition will be filed in the Court of                         refuses or dismisses a petition, the clerk will
Criminal Appeals.                                                          send to the parties and the State Prosecuting
                                                                           Attorney a notice informing them that the
68.11. Service on State Prosecuting Attorney                               petition was refused or dismissed. The clerk
                                                                           will retain the petition and all other items
     In addition to the service required by Rule 9.5,                      filed in the case for at least 15 days from the
service of the petition, the reply, and any amendment                      date of the refusal or dismissal. At the end of
or supplementation of a petition or reply must be made                     that time, if no motion for rehearing has been



                                                              81
         timely filed, or upon the overruling or
         dismissal of such a motion, the clerk will                    Comment to 1997 change: This is former Rule
         send to the court of appeals clerk a certified            203. The rule is amended without substantive change.
         copy of the order refusing or dismissing the
         petition (as well as any order overruling a
         motion for rehearing). The clerk of the Court                            Rule 71. Direct Appeals
         of Criminal Appeals will return the appellate
         record to the court of appeals clerk but will             71.1. Direct Appeal
         retain the petition, and other documents filed
         in the Court of Criminal Appeals.                             Cases in which the death penalty has been
                                                                   assessed under Code of Criminal Procedure article
    (b) On Granting Review. If the Court grants                    37.071, and cases in which bail has been denied in
        discretionary review, the clerk will send to               non-capital cases under Article I, Section 11a of the
        the parties and the State Prosecuting Attorney             Constitution, are appealed directly to the Court of
        a notice informing them that discretionary                 Criminal Appeals.
        review was granted.
                                                                   71.2. Record
                Notes and Comments
     Comment to 1997 change: This is former                             The appellate record should be prepared and filed
subdivisions (k) and (l) of Rule 202. Internal                     in accordance with Rules 31, 32, 34, 35 and 37, except
procedures of the Court are deleted. Provisions are                that the record must be filed in the Court of Criminal
added in 69.4(a) and (b) for the clerk to send notice of           Appeals. After disposition of the appeal, the Court
the granting, refusal, or dismissal of a petition for              may discard copies of juror information cards or other
discretionary review. Other nonsubstantive changes                 portions of the clerk's record that are not relevant to an
are made.                                                          issue on appeal.

                                                                   71.3. Briefs
             Rule 70. Brief on the Merits
                                                                        Briefs in a direct appeal should be prepared and
70.1. Initial Brief                                                filed in accordance with Rule 38, except that the brief
                                                                   need not contain an appendix (Rule 38.1(k)). All
     If review is granted, the petitioner — or, if there           briefs must be filed in the Court of Criminal Appeals.
was no petition, the party who lost in the court of                The brief must include a short statement of why oral
appeals — must file a brief within 30 days after review            argument would be helpful, or a statement that oral
is granted.                                                        argument is waived.

70.2. Respondent’s Brief                                           71.4. Additional Briefs

    The opposing party must file a brief within 30                      Upon motion by a party the Court may permit the
days after the petitioner's brief is filed.                        filing of additional briefs other than those provided for
                                                                   in Rule 38.
70.3. Brief Contents and Form
                                                                                   Notes and Comments
     Briefs must comply with the requirements of
Rules 9 and 38, except that they need not contain                       Comment to 1997 change: This is former Rule
the appendix (Rule 38.1(k)). Copies must be served                 210. The rule is extended to all direct appeals. A page
as required by Rule 68.11.                                         limit is added for death penalty cases. Other
                                                                   nonsubstantive changes are made.
70.4. Other Briefs
                                                                        Comment to 2002 change: A requirement that
    The Court of Criminal Appeals may direct that a                briefs include a statement regarding oral argument is
party file a brief, or an additional brief, in a particular        added.
case. Additionally, upon motion by a party the Court
may permit the filing of additional briefs.
                                                                             Rule 72. Extraordinary Matters
                 Notes and Comments


                                                              82
72.1. Leave to File                                                    two pages provided for each ground in the
                                                                       form. The applicant or petitioner may file a
     A motion for leave to file must accompany an                      separate memorandum. This memorandum
original petition for writ of habeas corpus, mandamus,                 shall comply with these rules and shall not
procedendo, prohibition, certiorari, or other                          exceed 15,000 words if computer-generated
extraordinary writ, or any other motion not otherwise                  or 50 pages if not. If the total number of
provided for in these rules.                                           pages, including those in the original and any
                                                                       additional memoranda, exceed the word or
72.2. Disposition                                                      page limits, an application may be dismissed
                                                                       unless the convicting court for good cause
     If five judges tentatively believe that the case                  shown grants leave to exceed the prescribed
should be filed and set for submission, the motion for                 limits. The prescribed limits do not include
leave will be granted and the case will then be handled                appendices, exhibits, cover page, table of
and disposed of in accordance with Rule 52.7. If the                   contents, table of authorities, and certificate
motion for leave is denied, no motions for rehearing or                of compliance.
reconsideration will be entertained. But the Court may,
on its own initiative, reconsider a denial of a motion             (e) Typeface.        A       computer-generated
for leave.                                                             memorandum must be printed in a
                                                                       conventional typeface no smaller than 14-
               Notes and Comments                                      point except for footnotes, which must be no
                                                                       smaller than 12-point. A typewritten
     Comment to 1997 change: This is former Rule                       document must be printed in standard 10-
211. The rule is amended to include all the Court’s                    character-per-inch     (cpi)    monospaced
jurisdiction of extraordinary matters.      Internal                   typeface.
procedures of the Court are deleted. Other
nonsubstantive changes are made.                                   (f) Certificate of compliance. A computer-
                                                                       generated memorandum, including any
                                                                       additional memoranda, must include a
Rule 73. Postconviction Applications for Writs of                      certificate by the applicant or petitioner
                Habeas Corpus                                          stating the number of words in the document.
                                                                       The person certifying may rely on the word
73.1. Form for Application Filed Under Article                         count of the computer program used to
11.07 of the Code of Criminal Procedure                                prepare the document.

    (a) Prescribed Form. An application filed under                (g) Verification.    The application must be
        Article 11.07 must be on the form prescribed                   verified by either:
        by the Court of Criminal Appeals.
                                                                       (1) oath made before a notary public or
    (b) Availability of Form. The district clerk of the                    other officer authorized to administer
        county of conviction shall make the forms                          oaths; or
        available to applicants on request, without
        charge.                                                        (2) if the person making the application is
                                                                           an inmate in the Institutional Division
    (c) Contents. The applicant or petitioner must                         of the Department of Criminal Justice or
        provide all information required by the form.                      in a county jail, an unsworn declaration
        The form must include all grounds for relief                       in substantially the form required in
        and set forth in summary fashion the facts                         Civil Practice and Remedies Code
        supporting each ground. Any ground not                             chapter 132.
        raised on the form will not be considered.
        Legal citations and arguments may be made              73.2. Noncompliant Applications
        in a separate memorandum. The form must
        be computer-generated, typewritten, or                     The Court of Criminal Appeals may dismiss an
        legibly handwritten.                                   application that does not comply with these rules.

    (d) Length. Each ground for relief and supporting          73.3. State's Response
        facts raised on the form shall not exceed the



                                                          83
    Any response by the State must comply with
length, typeface, and certificate of compliance                             (D) whether a hearing was held on the
requirements set out in rule 73.1 (d),(e) and (f).                              application, whether findings of fact
                                                                                were made, any recommendation of
73.4. Filing and Transmission of Habeas Record                                  the convicting court, and the name
                                                                                of the judge who presided over the
    (a) The district clerk of the county of conviction                          application.
        shall accept and file all Code of Criminal
        Procedure article 11.07 applications.                               (E) the name of counsel if applicant is
                                                                                represented.
    (b) In addition to the duties set out in Article
        11.07, the clerk shall do the following:               The Court of Criminal Appeals may by order adopt a
                                                               form of summary sheet that the district clerks must
        (1) If the convicting court enters an                  use.
            order designating issues, the clerk shall
            immediately transmit to the Court of                        (4) The district clerk shall also include in
            Criminal Appeals a copy of that order                           the record transmitted to the Court of
            and proof of the date the district attorney                     Criminal Appeals, among any other
            received the habeas application.                                pertinent papers or supplements, the
                                                                            indictment or information, any plea
        (2) When any pleadings, objections,                                 papers, the court's docket sheet, the
            motions, affidavits, exhibits, proposed or                      court's charge and the jury's verdict, any
            entered findings of fact and conclusions                        proposed findings of fact and
            of law, or other orders are filed or made                       conclusions of law, the court's findings
            a part of the record, the district clerk                        of fact and conclusions of law, any
            shall immediately send a copy to all                            objections to the court's findings of fact
            parties in the case. A party has ten days                       and conclusions of law filed by either
            from the date he receives the trial court’s                     party, and the transcript of any hearings
            findings of fact and conclusions of law                         held.
            to file objections, but the trial court
            may, nevertheless, order the district                       (5) On the 181st day from the date of receipt
            clerk to transmit the record to the Court                       of the application by the State of a
            of Criminal Appeals before the                                  postconviction application for writ of
            expiration of the ten days.                                     habeas corpus under Article 11.07, the
                                                                            district clerk shall forward the writ
        (3) When a district clerk transmits the record                      record to this Court unless the district
            in a postconviction application for a writ                      court has received an extension of time
            of habeas corpus under Code of Criminal                         from the Court of Criminal Appeals
            Procedure articles 11.07 or 11.071, the                         pursuant to Rule 73.5.
            district clerk must prepare and transmit a
            summary sheet that includes the                    73.5. Time Frame for Resolution of Claims Raised
            following information:                             in Application

             (A) the convicting court’s name and                    Within 180 days from the date of receipt of the
                 county, and the name of the judge             application by the State, the convicting court shall
                 who tried the case;                           resolve any issues that the court has timely designated
                                                               for resolution. Any motion for extension of time must
             (B) the applicant’s name, the offense,            be filed in the Court of Criminal Appeals before the
                 the plea, the cause number, the               expiration of the 180-day period.
                 sentence, and the date of sentence,
                 as shown in the judgment of                   73.6. Action on Application
                 conviction;
                                                                    The Court may deny relief based upon its own
             (C) the cause number of any appeal                review of the application or may issue such other
                 from the conviction and the citation          instructions or orders as may be appropriate.
                 to any published report;



                                                          84
               Notes and Comments                              or part of the record before the certifying court to be
                                                               filed with the Court of Criminal Appeals clerk.
    Comment to 1997 change: This is former Rule 4
of the Appendix for Criminal Cases. The rule is                74.5. Notice
amended without substantive change.
                                                                    If the Court of Criminal Appeals agrees to answer
    Comment to 2000 change: Rules 73.1 and 73.2 are            the questions certified to it, the Court will notify all
added, and a form is added in an appendix.                     parties and the certifying court. The Court of Criminal
                                                               Appeals clerk must also send a notice to the Attorney
                                                               General of Texas if:
 Rule 74. Review of Certified State Criminal-Law
                    Questions                                      (a) the constitutionality of a Texas statute is the
                                                                       subject of a certified question that the Court
74.1. Certification                                                    of Criminal Appeals has agreed to answer;
                                                                       and
     The Court of Criminal Appeals may answer
questions of Texas criminal law certified to it by any             (b) the State of Texas or an officer, agency, or
federal appellate court if the certifying court is                     employee of the State is not a party to the
presented with determinative questions of Texas                        proceeding in the certifying court.
criminal law having no controlling Court of Criminal
Appeals precedent. The Court may decline to answer             74.6. Briefs and Oral Argument
the questions certified to it.
                                                                   (a) Briefs. The appealing party in the certifying
74.2. Contents of the Certification Order                              court must file a brief with the clerk of the
                                                                       Court of Criminal Appeals within 30 days
    An order from the certifying court must set forth:                 after the date of the notice. Opposing parties
                                                                       must file an answering brief within 15 days
    (a) the questions of law to be answered; and                       of receiving the opening brief. Briefs must
                                                                       comply with Rule 38 to the extent that its
    (b) a stipulated statement of all facts relevant to                provisions apply.
        the questions certified, showing fully the
        nature of the controversy in which the                     (b) Oral Argument. Oral argument may be
        questions arose.                                               granted either on a party's request or on the
                                                                       Court's own initiative. Argument is governed
74.3. Transmission of Certification Order                              by Rule 39.

     The clerk of the certifying court must send to the        74.7. Intervention by the State
clerk of the Court of Criminal Appeals the following:
                                                                    If the constitutionality of a Texas statute is the
    (a) the certification order under the certifying           subject of a certified question that the Court of
        court’s official seal;                                 Criminal Appeals has agreed to answer, the State of
                                                               Texas may intervene at any reasonable time for
    (b) a list of the names of each party to the               briefing and oral argument (if argument is allowed) on
        pending case, giving the address and                   the question of constitutionality.
        telephone number, if known, of any party not
        represented by counsel; and                            74.8. Opinion on Certified Question

    (c) a list of the names and addresses of counsel               If the Court of Criminal Appeals has agreed to
        for each party.                                        answer a certified question, it will hand down an
                                                               opinion as in any other case.
74.4. Transmission of Record
                                                               74.9. Motion for Rehearing
    The certifying court should not send to the Court
of Criminal Appeals the record in the pending case                 Any party may file a motion for rehearing within
with the certification order. The Court of Criminal            15 days after the opinion is handed down. The motion
Appeals may later require the original or copies of all        must clearly state the points relied on for the rehearing.



                                                          85
No reply to a motion for rehearing need be filed unless           220. The rule is amended without substantive change.
the Court so requests. The Court will not grant a
motion for rehearing unless a response has been filed
or requested.                                                     Rule 76. Submissions En Banc

74.10. Answering Certified Questions                                   The Court will sit en banc to consider the
                                                                  following types of cases:
     After all motions for rehearing have been
overruled, the clerk of the Court of Criminal Appeals                 (a) direct appeals;
must send to the certifying court the written opinion
on the certified questions. The opinion must be under                 (b) cases of discretionary review;
the Court of Criminal Appeals' seal.
                                                                      (c) cases in which leave to file was granted under
                Notes and Comments                                        Rule 72;

    Comment to 1997 change: This is former Rule                       (d) cases that were docketed under Code of
214. The rule is amended without substantive change.                      Criminal Procedure articles 11.07 or 11.071;

       Rule 75. Notification; Oral Argument                           (e) certified questions; and

75.1. Notification of Argument or Submission                          (f) rehearings under Rule 79.

     Oral argument will be permitted only in cases                               Notes and Comments
designated by the Court of Criminal Appeals. If the
Court permits argument in a case, the clerk will notify               Comment to 1997 change: This is former rule
the parties of the date set for argument. If a case will          222. The rule is expanded to include other kinds of
be submitted without argument, the clerk will notify              cases. Internal procedures of the Court are deleted.
the parties of the date of submission. The clerk must             Other nonsubstantive changes are made.
use all reasonable diligence to notify counsel of
settings, but counsel's failure to receive notice will not
necessarily prevent argument or submission of the                                   Rule 77. Opinions
case on the day it is set.
                                                                  77.1. Generally
75.2. Request for Argument
                                                                       In each case that is argued or submitted without
    If a case is not designated for oral argument but             argument to the Court of Criminal Appeals, the Court
counsel desires oral argument, counsel may — within               will hand down a written opinion setting forth the
30 days of the date of the clerk's notice — petition the          reasons for its decision and any germane precedent.
Court to allow oral argument. This petition must                  Any judge may file an opinion dissenting from or
contain specific reasons why oral argument is desired.            concurring in the Court's judgment.

75.3. Oral Argument                                               77.2. Signing; Publication

     Unless extended in a special case, the total                      A majority of the judges will determine whether
maximum time for oral argument is 20 minutes per                  an opinion will be signed by a judge or issued per
side. Counsel for the appellant or petitioner is entitled         curiam, and whether the opinion (or a portion of the
to open and conclude the argument. Counsel should                 opinion) will be published.
not read at length from the briefs, records, or
authorities. Counsel may orally correct a brief, but              77.3. Unpublished Opinions
multiple additional citations should not be given
orally; instead, these citations should be filed in                   Unpublished opinions have no precedential value
writing with the clerk.                                           and must not be cited as authority by counsel or by a
                                                                  court.
                Notes and Comments
                                                                  77.4. Copies
    Comment to 1997 change: This is former Rule



                                                             86
    On the date when an opinion is handed down or
an order rendered, the clerk of the Court of Criminal             The Court of Criminal Appeals may make any
Appeals must mail copies of the opinion or order to:          other appropriate order required by the law and the
                                                              nature of the case.
    (a) the parties;
                                                                              Notes and Comments
    (b) the State Prosecuting Attorney;
                                                                  Comment to 1997 change: The rule is new.
    (c) the trial court clerk; and

    (d) if the case is of discretionary review, the                            Rule 79. Rehearings
        court of appeals clerk.
                                                              79.1. Motion for Rehearing
               Notes and Comments
                                                                   A motion for rehearing may be filed with the
    Comment to 1997 change: This is former Rule               Court of Criminal Appeals clerk within 15 days from
223. The rule is amended without substantive change.          the date of the judgment or order. In exceptional cases,
                                                              if justice requires, the Court may shorten the time
                                                              within which the motion may be filed or even deny the
   Rule 78. Judgments in the Court of Criminal                right to file it altogether.
                   Appeals
                                                              79.2. Contents
78.1. Types of Judgment
                                                                  (a) The motion must briefly and distinctly state
    The Court of Criminal Appeals may:                                the grounds and arguments relied on for
                                                                      rehearing.
    (a) affirm the lower court’s judgment in whole or
        in part;                                                  (b) A motion for rehearing an order that grants
                                                                      discretionary review may not be filed.
    (b) modify the lower court’s judgment and
        affirm it as modified;                                    (c) A motion for rehearing an order that refuses
                                                                      a petition for discretionary review may be
    (c) reverse the court’s judgment in whole or in                   grounded only on substantial intervening
        part and render the judgment that the lower                   circumstances or on other significant
        court should have rendered;                                   circumstances which are specified in the
                                                                      motion. Counsel must certify that the motion
    (d) reverse the lower court’s judgment and                        is so grounded and that the motion is made in
        remand the case for further proceedings;                      good faith and not for delay.

    (e) vacate the judgments of the lower courts and              (d) A motion for rehearing an order that denies
        dismiss the case;                                             habeas corpus relief or dismisses a habeas
                                                                      corpus application under Code of Criminal
    (f) vacate the lower court’s judgment and                         Procedure, articles 11.07 or 11.071, may not
        remand the case for further proceedings in                    be filed. The Court may on its own initiative
        light of changes in the law; or                               reconsider the case.

    (g) dismiss the appeal.                                                   Notes and Comments

78.2. Remand in the Interests of Justice                           Comment to 2011 change: Rule 79.2(c) is
                                                              amended so that it applies only to petitions for
     When reversing the court of appeals' judgment,           discretionary review that are refused. Additionally,
the Court of Criminal Appeals may, in the interests of        the certification requirement is changed to encompass
justice, remand the case to the trial court even if a         a broader basis for rehearing.
rendition of judgment is otherwise appropriate.
                                                              79.3. Amendments
78.3. Other Orders


                                                         87
    A motion for rehearing may be amended anytime
before the period allowed for filing the motion expires,             The Court may extend the time for filing a motion
and with leave of the court, anytime before the Court           or a further motion for rehearing if a party files a
decides the motion.                                             motion complying with Rule 10.5(b) within the time
                                                                for filing a motion or further motion for rehearing.
79.4. Decision
                                                                79.7. Service
     If the Court grants rehearing, the case will be set
for submission. Oral argument may, but normally will                The requirements of Rule 68.11 apply.
not, be permitted.
                                                                                Notes and Comments
79.5. Further Motion for Rehearing
                                                                     Comment to 1997 change: This is former Rule
    The Court will not consider a second motion for             230, and the portion of former Rule 213 that prohibited
rehearing after rehearing is denied. If rehearing is            motions for rehearing. The Court may now permit oral
granted and the Court delivers an opinion on                    argument after granting rehearing, although it is
rehearing, a party may file a further motion for                disfavored. A further motion for rehearing may now
rehearing.                                                      be filed by any party, rather than only the losing party.
                                                                Other nonsubstantive changes are made.
79.6. Extension of Time




                                                           88
APPENDIX TO THE TEXAS RULES OF APPELLATE PROCEDURE

                                                  APPENDIX A

                             IN THE SUPREME COURT OF TEXAS
              ORDER REGARDING FEES CHARGED IN CIVIL CASES
                                       IN THE SUPREME COURT
                                  AND THE COURTS OF APPEALS
     AND BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

A. In the Supreme Court:
   1. The following fees have been set by statute (TEX. GOV’T CODE §§51.005, 51.0051, and
      51.941) and will be collected by the clerk except from parties who are exempt by statute:

      (a)   petition for review .................................................................................................... $155
      (b)   additional fee if petition for review is granted............................................................. $75
      (c)   original proceeding .................................................................................................... $155
      (d)   additional fee if original proceeding is granted ........................................................... $75
      (e)   certified question from a federal court of appeals ..................................................... $180
      (f)   direct appeals to the Supreme Court .......................................................................... $205
      (g)   any other proceeding filed in the Supreme Court ...................................................... $180
      (h)   administering an oath with sealed certificate of oath .................................................... $5
      (i)   certified copies of any papers of record in offices,
            including certificate and seal ........................................................................$.50 per page
                                                                                                                    $5 minimum

   2. The following fees have been set consistent with (TEX. GOV’T CODE §§552.262 and 1 TEX.
      ADMIN. CODE §70.3 (2007) (Tex. Atty. Gen.. Charges for Providing Copies of Public
      Information):

      (a)   standard paper copy of document
            without certificate or seal (single-sided) ....................................................$0.10 per page
                                                                                                           or part of page
      (b)   standard paper copy of document
            without certificate or seal (double-sided) ...................................................$0.10 per page
                                                                                               or part of side of page
      (c)   personnel, overhead, and document retrieval charges ................................ as provided by
                                                                           1 TEX. ADMIN. CODE §70.3
      (d)   audio tape of oral argument ............................................................................. $1 per tape
      (e)   digital video disc of oral argument ................................................................ $3 per DVD
Note: the fees listed above for audio tapes, DVDs, and paper copies do not include any personnel,
overhead, or document retrieval charges; those charges may be added to the fees listed above if
appropriate, as determined by the Court.

       3. Pursuant to TEX. GOV’T CODE § 51.005, the following additional fees are set:

           (a)   comparing and certifying copies of documents ..........................................$1.00 per page
                                                                                                          $5 minimum
           (b)   motions for rehearing................................................................................................... $15
           (c)   motions not otherwise listed ........................................................................................ $10
           (d)   exhibits tendered for oral argument ............................................................................. $25

   B. In the courts of appeals:

       1. The following fees have been set by statute (TEX. GOV’T CODE §§51.207, 51.208, and
          51.941) and will be collected by the clerk except from parties who are exempt by statute.

           (a)   appeals to the court of appeals from the district and county courts ........................... $205
           (b)   original proceeding .................................................................................................... $155
           (c)   administering an oath with sealed certificate of oath .................................................... $5
           (d)   certified copies of any papers of record in offices,
                 including certificate and seal certification ..................................................$1.00 per page
                                                                                                                  $5 minimum
           (e)   comparing and certifying copies of documents ..........................................$1.00 per page
                                                                                                          $5 minimum

       2. The following fees have been set consistent with TEX. GOV’T CODE §552.262 and 1 TEX.
          ADMIN. CODE §70.3 (2007) (Tex. Att’y Gen., Charges for Providing Copies of Public
          Information):

           (a)   standard paper copy of document
                 without certificate or seal (single-sided).....................................................$0.10 per page
                                                                                                                or part of page
           (b)   standard paper copy of document
                 without certification or seal (double-sided) .................................... $0.10 per side of page
                                                                                                   or part of side of page
           (c)   personnel, overhead, and document retrieval charges ................................ as provided by
                                                                                1 TEX. ADMIN. CODE §70.3
           (d)   audio tape or oral argument (if available)........................................................ $1 per tape
           (e)   VHS video tape of oral argument (if available) .......................................... $2.50 per tape
           (f)   digital video disc of oral argument (if available) ........................................... $3 per DVD



                                                          Page 2 of 3
Note: the fees listed above for audio tapes, videotapes, DVDs, and paper copies do not include any
personnel, overhead, or document retrieval charges; those charges may be added to the fees listed above if
appropriate, as determined by the court charging the fee.

        3. Pursuant to § 51.207(c)(4), TEX. GOV’T CODE, the following additional fees are set:

            (a)     motions not otherwise listed …………………………………………………………$10

            (b)     motion for rehearing or for en banc reconsideration ………………………………...$15

            (c)     exhibits tendered for oral argument ………………………………………………….$25

    C. Before the Judicial Panel on Multi-District Litigation:

        1. Pursuant to TEX. GOV’T CODE §51.005(c)(3) and §51.0051, and Rule of Judicial
           Administration 13.3(g), the following fees are set:

            (a)     motion to transfer to pretrial court under Rule of Judicial
                    Administration 13.3(a) or appeal of an order of a pretrial
                    court by motion for rehearing under Rule 13.5(e) ..................................................... $275

            (b)     any other motion or document filed under Rules of Judicial Administration 13......... $50


    D. Nothing in this order shall be construed as prohibiting a clerk from contracting with an entity or
       organization to provide copies of documents, audio and video tapes, and other organizational
       services at a reasonable rate which may exceed the fees provided herein.

    Adopted by order of August 15, 1997, eff. Sept. 1, 1997. Amended by orders of July 21, 1998, eff. Sept. 1, 1998;
    Sept. 10, 2003, eff. Sept. 10, 2003; Aug. 28, 2007, eff. Sept. 1, 2007; Aug. 16, 2013, eff. Sept. 1, 2013; Aug. 28,
    2015, eff. Sept. 1, 2015.




                                                       Page 3 of 3
                                             APPENDIX B

                               IN THE SUPREME COURT OF TEXAS

          ORDER REGARDING DISPOSITION OF COURT PAPERS IN CIVIL CASES

ORDERED that:

    A. Definitions.
        1. Court records or records means:
            (a) the clerk’s record;
            (b) the reporter’s record; and
             (c) any other documents or items filed, or presented for filing and received in an appellate
court in a particular case.
        2. Appellate record means the clerk’s record and the reporter’s record and any supplements.
B.      In the Courts of Appeals. The following paragraphs govern disposing of court records by the
courts of appeals:
        1.      Determination of permanent preservation. Before any court records are destroyed, the
court of appeals must—under Section 51.205 of the Government Code and State Archives guidelines—
determine whether the records should be permanently preserved.
        2.      Initial determination. Immediately after final disposition of an appeal or other
proceeding, the panel that decided the case must determine whether the case’s records should be
permanently preserved and must file with the records a statement declaring that the records should or
should not be permanently preserved.
        3.      Later determination. After its initial determination, but before any court records are
destroyed, the court of appeals may reexamine its initial determination under 2. and may change its
designation.
         4.      Original papers and exhibits in appeals. Whatever the court determines concerning
permanent preservation of a case’s records, any original documents or exhibits must, within 30 days after
final disposition of an appeal or other proceeding, be returned to the trial court in accordance with any
trial court order entered under Rules 34.5(f) and 34.6(g). The court of appeals may, but need not, copy
those documents and exhibits before returning them to the trial court. The court of appeals may dispose of
copies of nondocumentary exhibits after the case is final on appeal.
        5.       All other papers and exhibits. Subject to paragraph 4., the court of appeals must keep and
preserve all records of a case (except duplicates) until they are ultimately disposed of under this rule.
       6.       Ultimate disposition. After the period prescribed by Section 51.204 of the Government
Code or other applicable statute has expired, the court of appeals must:
            (a) destroy those records the court has determined need not be permanently preserved; and
            (b) turn over to the State Archives or other repository allowed by law those records the court
has determined should be permanently preserved.
   C. In the Supreme Court. The following paragraphs govern disposing of court records by the
Supreme Court:
        1.       If case reversed and remanded to court of appeals. If the Supreme Court grants review
and remands the case to the court of appeals, the Supreme Court will return the appellate record to the
court of appeals. The court of appeals will then dispose of the court records in accordance with
subdivision B. The Supreme Court will keep and preserve all remaining items (except duplicates) until
they are turned over to the State Archives as provided by law.
        2.       If case affirmed or reversed and remanded to trial court. If the Supreme Court grants
review and either affirms the court of appeals or reverses and remands to the trial court, the Supreme
Court will not return the appellate record but will keep and preserve all records of the case (except
duplicates) until those records are turned over to the State Archives as provided by law.
        3.       In all other cases. In all other cases, the Supreme court will return the appellate record to
the court of appeals and keep and preserve all remaining records of the case (except duplicates) until they
are turned over to the State Archives as provided by law.




                                                 Page 2 of 2
                                          APPENDIX C
                           IN THE SUPREME COURT OF TEXAS
                         IN THE COURT OF CRIMINAL APPEALS
                                      ORDER DIRECTING
                       THE FORM OF THE APPELLATE RECORD


RULE 1. CLERK’S RECORD


1.1. Preparation of Electronic or Paper Clerk’s Record.


        The trial court clerk must prepare and file the clerk’s record in accordance with Rules of
Appellate Procedure 34.5 and 35. Even if more than one notice of appeal or request for inclusion
of items is filed, the clerk should prepare only one consolidated record in a case. To prepare the
clerk’s record, the trial court clerk must:


       (a)    gather the documents required by Rule of Appellate Procedure 34.5(a) and those
       requested by a party under Rule of Appellate Procedure 34.5(b);


       (b)     start each document on a new page;


       (c)     include the date of filing on each document;


       (d)    arrange the documents in ascending chronological order, by date of filing or
       occurrence;


       (e)     start the page numbering on the front cover of the first volume of the clerk’s
       record and continue to number all pages consecutively – including the front and back
       covers, tables of contents, certification page, and separator pages, if any – until the final
       page of the clerk’s record, without regard for the number of volumes in the clerk’s
       record, and place each page number at the bottom of each page;


       (f)     prepare, label, and certify the clerk’s record as required by this rule;


       (g)   as far as practicable, include the date of signing by the judge on each order and
       judgment;
       (h)     include on the front cover of the first volume, and any subsequent volumes, of the
       clerk’s record, whether filed in paper or electronic form, the following information, in
       substantially the following form:


                                      CLERK’S RECORD
                                     VOLUME ____ of ____
                      Trial Court Cause No. _______________________
                              In the ______ (District or County) Court
                                  of ___________ County, Texas,
                        Honorable _______________, Judge Presiding
______________________________________________________________________________


                               ____________________, Plaintiff(s)
                                                vs.
                               ___________________, Defendant(s)
______________________________________________________________________________
                                          Appealed to the
                             (Supreme Court of Texas at Austin, Texas,
                    or Court of Criminal Appeals of Texas at Austin, Texas,
      or Court of Appeals for the _____ District of Texas, at ________________, Texas).
______________________________________________________________________________
Attorney for Appellant(s):
Name ________________________________________________________________________
Address
________________________________________________________________________
Telephone no.: ____________________________
Fax no.: __________________________________
E-mail address: ____________________________
SBOT no.: ________________________________
Attorney for: ______________________________, Appellant(s)
________________________________________


Name of clerk preparing the clerk’s record: ____________________________________



                                            Page 2 of 6
       (i)     prepare and include after the front cover of the clerk’s record a detailed table of
       contents identifying each document in the entire record (including sealed documents), the
       date each document was filed, and, except for sealed documents, the page on which each
       document begins. The table of contents must be double-spaced and conform to the order
       in which documents appear in the clerk’s record, rather than in alphabetical order. If the
       clerk’s record consists of multiple volumes, the table of contents must indicate the page
       on which each volume begins. If the clerk’s record is filed in electronic form, the clerk
       must use bookmarks to link each document description in the table of contents, except
       descriptions of sealed documents, to the page on which each document begins; and


               (j)   conclude the clerk’s record with a certificate in substantially the following
               form:


The State of Texas                     )
County of _____________        )
         I, ___________, Clerk of the ______ Court of _________ County, Texas do hereby
certify that the documents contained in this record to which this certification is attached are all of
the documents specified by Texas Rule of Appellate Procedure 34.5(a) and all other documents
timely requested by a party to this proceeding under Texas Rule of Appellate Procedure 34.5(b).


GIVEN UNDER MY HAND AND SEAL at my office in _________, County, Texas this ___
day of _____________.


                                                    signature of clerk _______________________
                                                    name of clerk __________________________
                                                    title __________________________________


If the clerk’s record is filed in electronic form, the trial court clerk must include either a scanned
image of the clerk’s signature or “/s/” and the clerk’s name typed in the space where the
signature would otherwise appear.


1.2. Filing an Electronic Clerk’s Record.


        Unless the clerk receives permission from the appellate court to file the record in paper
form, the clerk must file the record electronically. When filing a clerk’s record in electronic
form, the trial court clerk must:




                                             Page 3 of 6
       (a)    file each computer file in text-searchable Portable Document Format
       (PDF);


(b)     create electronic bookmarks to mark the first page of each document in the clerk’s
record;


(c)    limit the size of each computer file to 100 MB or less, if possible;


       (d)     directly convert, rather than scan, the record to PDF, if possible;


(e)    comply with the Technology Standards set by the Judicial Committee on
Information Technology;


(f)     include the following elements in the computer file name, exemplified as CR (01
of 02).pdf:


                        (1)    “CR”;


       (2)    the volume number, using at least two digits, with leading zeroes if
       needed; “of”; and the total number of volumes;


       (3)     a period; and


       (4)     “pdf”;


       (g)     file each sealed document separately from the remainder of the clerk’s
record and include the word “sealed” in the computer file name;


(h)    if filing a supplement to the clerk’s record, include the number of the supplement
and “Supp”;


(i)  submit each computer file to the Texas Appeals Management and E-filing System
(TAMES) web portal using the instructions provided on the appellate court’s website;
and


(j)    not lock any document that is part of the record.



                                    Page 4 of 6
1.3. Filing a Paper Clerk’s Record.


When filing a paper record with the appellate court, the trial court clerk must:


       (a)    bind the documents together in one or more volumes with a top bound, two-inch
       capacity, two-and-three-quarter-inch, center-to-center removable fastener and no other
       binding materials, like wax, ribbon, glue, staples, tape, etc.;


       (b)   include no more than 500 pages in each volume, or limit the thickness of each
       volume to a maximum of two inches;


       (c)     include only one-sided copies in the clerk’s record;


       (d)     number the first volume “1” and each succeeding volume sequentially;


       (e)    if practicable, make a legible copy of the documents on opaque, white, 8½ x 11
       inch paper; and


       (f)   place each sealed document in a securely sealed, manila envelope that is not
       bound with the other documents in the clerk’s record.


1.4. Non-Conforming Records and Supplements.


        In the event of a material violation of this rule in the preparation or filing of the clerk’s
record, on motion of a party or on its own initiative, the appellate court may require the trial
court clerk to amend the clerk’s record or to prepare a new clerk’s record in proper form – and
provide it to any party who has previously made a copy of the original, defective clerk’s record –
at the trial clerk’s expense. A supplement to a clerk’s record must also be prepared in
conformity with this rule.


RULE 2. ELECTRONIC REPORTER’S RECORD.


       (a)     The court reporter or court recorder must prepare and file the reporter’s record in
       accordance with Rules of Appellate Procedure 34.6 and 35 and the Uniform Format
       Manual for Texas Reporters’ Records, and the court’s local rules. Even if more than one
       notice of appeal or request for preparation of the record is filed, the court reporter or
       court recorder should prepare only one consolidated record in the case.




                                             Page 5 of 6
        (b)      If proceedings were recorded stenographically, the court reporter or recorder must
        file the reporter’s record in an electronic format via the Texas Appeals Management and
        E-filing System (TAMES) web portal and in accordance with Section 8 of the Uniform
        Format Manual for Texas Reporters’ Records, the court’s local rules, and any guidelines
        posted on the appellate court’s website.


        (c)    If the record is filed in electronic format, the court reporter or recorder must
        include either a scanned image of any required signature or “/s/” and name typed in the
        space where the signature would otherwise appear.


        (d)     A court reporter or recorder must not lock any document that is part of the record.


        (e)      In exhibit volumes, the court reporter or recorder must create bookmarks to mark
        the first page of each exhibit document.


        (f)     In the event of a material violation of this rule in the preparation of a reporter’s
        record, on motion of a party or on the court’s own initiative, the appellate court may
        require the court reporter or court recorder to amend the reporter’s record or to prepare a
        new reporter’s record in proper form – and provide it to any party who has previously
        made a copy of the original, defective reporter’s record – at the reporter’s or recorder’s
        expense. A court reporter who fails to comply with the requirements of the Uniform
        Format Manual for Texas Reporters’ Records is also subject to discipline by the Court
        Reporters Certification Board.

Amended April 8, 1999, effective May 1, 1999; Amended December 13, 2013, effective January 1, 2014.




                                                 Page 6 of 6
                                                APPENDIX D
                            Appendix: Certification of Defendant’s Right to Appeal

                                                No. __________________

The State of Texas                                                                   In the ___________ Court

v.                                                                                              of

_____________________________                                                    ________________ County, Texas
Defendant

                  TRIAL COURT’S CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL*

I, judge of the trial court, certify this criminal case:

[]   is not a plea-bargain case, and the defendant has the right of appeal. [ or ]
[]   is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not
     withdrawn or waived, and the defendant has the right of appeals. [ or ]
[]   is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of
     appeal. [ or ]
[]   is a plea-bargain case, and the defendant has NO right of appeal. [ or ]
[]   the defendant has waived the right of appeal.

_______________________________                                            _____________________
Judge                                                                             Date Signed

I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this
criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas
Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals’s
judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for
discretionary review in the court of appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I wish to appeal this case
and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change
in the address at which I am currently living or any change in my current prison unit. I understand that, because of
appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the
opportunity to file a pro se petition for discretionary review.


__________________________                                        __________________________
Defendant                                                         Defendant’s Counsel
Mailing address:                                                  State Bar of Texas ID number
Telephone number:                                                 Mailing address:
Fax number (if any):                                              Telephone number:
                                                                  Fax number (if any):

• “A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification
of the defendant’s right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a
plea bargain case -- that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did
not exceed the punishment recommended by the prosecutor and agreed to by the defendant -- a defendant may
appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting
the trial court’s permission to appeal.” TEXAS RULE OF APPELLATE PROCEDURE 25.2(a)(2).

Amended May 2, 2007 and Aug. 20, 2007, elf. Sept. 1, 2001.
                                             APPENDIX E
                           COURT OF CRIMINAL APPEALS OF TEXAS
                       APPLICATION FOR A WRIT OF HABEAS CORPUS
                    SEEKING RELIEF FROM FINAL FELONY CONVICTION
                  UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
                                           INSTRUCTIONS

1.      You must use the complete form, which begins on the following page, to file an application for a
writ of habeas corpus seeking relief from a final felony conviction under Article 11.07 of the Code of
Criminal Procedure. (This form is not for death-penalty cases, probated sentences which have not been
revoked, or misdemeanors.)
2.      The district clerk of the county in which you were convicted will make this form available to you,
on request, without charge.
3.      You must file the entire writ application form, including those sections that do not apply to you.
If any pages are missing from the form, or if the questions have been renumbered or omitted, your entire
application may be dismissed as non-compliant.
4.       You must make a separate application on a separate form for each judgment of conviction you
seek relief from. Even if the judgments were entered in the same court on the same day, you must make a
separate application for each one.
5.      Answer every item that applies to you on the form. Do not attach any additional pages for any
item.
6.       You must include all grounds for relief on the application form as provided by the instructions
under item 17. You must also briefly summarize the facts of your claim on the application form as
provided by the instructions under item 17. Each ground shall begin on a new page, and the recitation of
the facts supporting the ground shall be no longer than the two pages provided for the claim in the form.
7.      Legal citations and arguments may be made in a separate memorandum that complies with Texas
Rules of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if
not.
8.      You must verify the application by signing either the Oath Before Notary Public or the Inmate’s
Declaration, which are at the end of this form on pages 11 and 12. You may be prosecuted and convicted
for aggravated perjury if you make any false statement of a material fact in this application.
9.      When the application is fully completed, mail the original to the district clerk of the county of
conviction. Keep a copy of the application for your records.
10.      You must notify the district clerk of the county of conviction of any change in address after you
have filed your application.
                   Case No. ________________________________________
                     (The Clerk of the convicting court will fill this line in.)

                IN THE COURT OF CRIMINAL APPEALS OF TEXAS

               APPLICATION FOR A WRIT OF HABEAS CORPUS
             SEEKING RELIEF FROM FINAL FELONY CONVICTION
            UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07


NAME:

DATE OF BIRTH:

PLACE OF CONFINEMENT:

TDCJ-CID NUMBER:            ____________________         SID NUMBER:          __________________


(1)   This application concerns (check all that apply):

      □      a conviction                            □        parole

      □      a sentence                              □        mandatory supervision

      □      time credit                             □        out-of-time appeal or petition for
                                                              discretionary review


(2)   What district court entered the judgment of the conviction you want relief from?
      (Include the court number and county.)



(3)   What was the case number in the trial court?



(4)   What was the name of the trial judge?




                                                2
(5)    Were you represented by counsel? If yes, provide the attorney's name:




(6)    What was the date that the judgment was entered?




(7)    For what offense were you convicted and what was the sentence?



(8)    If you were sentenced on more than one count of an indictment in the same court at
       the same time, what counts were you convicted of and what was the sentence in each
       count?




(9)    What was the plea you entered? (Check one.)

       □ guilty-open plea            □ guilty-plea bargain
       □ not guilty                  □ nolo contendere/no contest

       If you entered different pleas to counts in a multi-count indictment, please explain:




(10)   What kind of trial did you have?

       □ no jury                            □ jury for guilt and punishment

       □ jury for guilt, judge for punishment

(11)   Did you testify at trial? If yes, at what phase of the trial did you testify?



(12)   Did you appeal from the judgment of conviction?

       □ yes                         □ no
       If you did appeal, answer the following questions:

       (A)     What court of appeals did you appeal to?

       (B)     What was the case number?

       (C)     Were you represented by counsel on appeal? If yes, provide the attorney's
               name:



       (D)     What was the decision and the date of the decision?

(13)   Did you file a petition for discretionary review in the Court of Criminal Appeals?

       □ yes                        □ no

       If you did file a petition for discretionary review, answer the following questions:

       (A)     What was the case number?

       (B)     What was the decision and the date of the decision?

(14)   Have you previously filed an application for a writ of habeas corpus under Article
       11.07 of the Texas Code of Criminal Procedure challenging this conviction?

       □ yes                        □ no

       If you answered yes, answer the following questions:

       (A)     What was the Court of Criminal Appeals’ writ number?

       (B)     What was the decision and the date of the decision?

       (C)     Please identify the reason that the current claims were not presented and
               could not have been presented on your previous application.
(15)   Do you currently have any petition or appeal pending in any other state or federal
       court?

       □ yes                        □ no

       If you answered yes, please provide the name of the court and the case number:




(16)   If you are presenting a claim for time credit, have you exhausted your
       administrative remedies by presenting your claim to the time credit resolution
       system of the Texas Department of Criminal Justice? (This requirement applies to
       any final felony conviction, including state jail felonies)

       □ yes                        □ no

       If you answered yes, answer the following questions:

       (A)     What date did you present the claim?

       (B)     Did you receive a decision and, if yes, what was the date of the decision?



       If you answered no, please explain why you have not submitted your claim:




(17)   Beginning on page 6, state concisely every legal ground for your claim that you are
       being unlawfully restrained, and then briefly summarize the facts supporting each
       ground. You must present each ground on the form application and a brief
       summary of the facts. If your grounds and brief summary of the facts have not been
       presented on the form application, the Court will not consider your grounds.

       If you have more than four grounds, use pages 14 and 15 of the form, which you may copy
       as many times a needed to give you a separate page for each ground, with each ground
numbered in sequence. The recitation of the facts supporting each ground must be no
longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of the law if you want to present legal
authorities, but the court will not consider grounds for relief set out in a memorandum of
law that were not raised on the form. The citations and argument must be in a
memorandum that complies with Texas Rules of Appellate Procedure 73 and does not
exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the
validity of your conviction, please include a summary of the facts pertaining to your offense
and trial in your memorandum.
GROUND ONE:


FACTS SUPPORTING GROUND ONE:
GROUND TWO:




FACTS SUPPORTING GROUND TWO:
GROUND THREE:




FACTS SUPPORTING GROUND THREE:
GROUND FOUR:




FACTS SUPPORTING GROUND FOUR:
GROUND:



FACTS SUPPORTING GROUND:
WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
    RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

                                    VERIFICATION

This application must be verified or it will be dismissed for non-compliance. For verification
purposes, an applicant is a person filing the application on his or her own behalf. A petitioner is
a person filing the application on behalf of an applicant, for example, an applicant’s attorney.
An inmate is a person who is in custody.

The inmate applicant must sign either the “Oath Before a Notary Public” before a notary public
or the “Inmate’s Declaration” without a notary public. If the inmate is represented by a licensed
attorney, the attorney may sign the “Oath Before a Notary Public” as petitioner and then
complete “Petitioner’s Information.” A non-inmate applicant must sign the “Oath Before a
Notary Public” before a notary public unless he is represented by a licensed attorney, in which
case the attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the “Oath Before a Notary Public” before a
notary public and must also complete “Petitioner’s Information.” An inmate petitioner must sign
either the “Oath Before a Notary Public” before a notary public or the “Inmate’s Declaration”
without a notary public and must also complete the appropriate “Petitioner’s Information.”


                        OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY OF _______________

________________________________, being duly sworn, under oath says: “I am the applicant /

petitioner (circle one) in this action and know the contents of the above application for a writ of

habeas corpus and, according to my belief, the facts stated in the application are true.”


                                      _________________________________
                                      Signature of Applicant / Petitioner (circle one)


SUBSCRIBED AND SWORN TO BEFORE ME THIS _____ DAY OF __________, 20___.
                              _________________________________
                              Signature of Notary Public

                           PETITIONER’S INFORMATION
Petitioner’s printed name:__________________________________

State bar number, if applicable: _____________________________

Address: _______________________________________________

                 _______________________________________________

                 _______________________________________________

Telephone: _____________________________________________

Fax: __________________________________________________


                              INMATE’S DECLARATION


I, _______________________________, am the applicant / petitioner (circle one) and being

presently incarcerated in _______________________________, declare under penalty of perjury

that, according to my belief, the facts stated in the above application are true and correct.


                                       Signed on ____________________, 20_____.


                                       _______________________________________
                                       Signature of Applicant / Petitioner (circle one)


                           PETITIONER’S INFORMATION

Petitioner’s printed name:__________________________________

Address: _______________________________________________

         _______________________________________________

                 _______________________________________________

Telephone: _____________________________________________

Fax:     _______________________________________________
                                              Signed on ____________________, 20_____.



                                              _______________________________________
                                              Signature of Petitioner
Amended March 5, 2007, effective March 5, 2007; Amended December 13, 2013, effective January 1, 2014.
                                          APPENDIX F
                     IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                             ORDER ADOPTING SUMMARY SHEET
                        FOR POSTCONVICTION APPLICATIONS FOR
                                  WRIT OF HABEAS CORPUS


Application for Writ of Habeas Corpus
Ex Parte__________________                    from_______________________County
(Name of Applicant)                           ____________________________Court


                              TRIAL COURT WRIT NO.__________________

                              CLERK’S SUMMARY SHEET
APPLICANT’S NAME:______________________________________

(As reflected in judgment)

OFFENSE:________________________________________________
(As reflected in judgment)

CAUSE NO:______________________________________________
(As reflected in judgment)

PLEA:______GUILTY______NOT GUILTY

SENTENCE:_________________DATE:_______________________
(Terms of years reflected in judgment)

TRIAL DATE:___________________________

JUDGE’S NAME:________________________________________
(Judge presiding at trial)

APPEAL NO:___________________________________________
(If applicable)

CITATION TO OPINION:______S.W.3d______
(If applicable)

HEARING HELD:______YES______NO
(Pertaining to the application for writ of habeas corpus)
FINDINGS & CONCLUSIONS FILED:______YES______NO
(Pertaining to the application for writ of habeas corpus)

RECOMMENDATION: _____GRANT______DENY_____NONE
(Trial court’s recommendation regarding application for writ of habeas corpus)

JUDGE’S NAME:
(Judge presiding over habeas corpus proceeding)

                             NAME OF COUNSEL IF APPLICANT IS
                             REPRESENTED:_______________________
                           TEXAS RULES OF EVIDENCE
                              Effective June 14, 2016

ARTICLE I.     GENERAL PROVISIONS
Rule 101.      Title, Scope, and Applicability of the Rules; Definitions
Rule 102.      Purpose
Rule 103.      Rulings on Evidence
Rule 104.      Preliminary Questions
Rule 105.      Evidence That Is Not Admissible Against Other Parties or for Other Purposes
Rule 106.      Remainder of or Related Writings or Recorded Statements
Rule 107.      Rule of Optional Completeness

ARTICLE II.    JUDICIAL NOTICE
Rule 201.      Judicial Notice of Adjudicative Facts
Rule 202.      Judicial Notice of Other States’ Law
Rule 203.      Determining Foreign Law
Rule 204.      Judicial Notice of Texas Municipal and County Ordinances, Texas Register
               Contents, and Published Agency Rules

ARTICLE III.   PRESUMPTIONS
Rule 301.      [No Rules Adopted at This Time]

ARTICLE IV.    RELEVANCE AND ITS LIMITS
Rule 401.      Test for Relevant Evidence
Rule 402.      General Admissibility of Relevant Evidence
Rule 403.      Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons
Rule 404.      Character Evidence; Crimes or Other Acts
Rule 405.      Methods of Proving Character
Rule 406.      Habit; Routine Practice
Rule 407.      Subsequent Remedial Measures; Notification of Defect
Rule 408.      Compromise Offers and Negotiations
Rule 409.      Offers to Pay Medical and Similar Expenses
Rule 410.      Pleas, Plea Discussions, and Related Statements
Rule 411.      Liability Insurance
Rule 412.      Evidence of Previous Sexual Conduct in Criminal Cases

ARTICLE V.     PRIVILEGES
Rule 501.      Privileges in General
Rule 502.      Required Reports Privileged By Statute
Rule 503.      Lawyer–Client Privilege
Rule 504.      Spousal Privileges
Rule 505.      Privilege For Communications to a Clergy Member
Rule 506.      Political Vote Privilege
Rule 507.      Trade Secrets Privilege
Rule 508.      Informer’s Identity Privilege
Rule 509.      Physician–Patient Privilege
Rule 510.       Mental Health Information Privilege in Civil Cases
Rule 511.       Waiver by Voluntary Disclosure
Rule 512.       Privileged Matter Disclosed Under Compulsion or Without Opportunity to
                Claim Privilege
Rule 513.       Comment On or Inference From a Privilege Claim; Instruction

ARTICLE VI.     WITNESSES
Rule 601.       Competency to Testify in General; “Dead Man’s Rule”
Rule 602.       Need for Personal Knowledge
Rule 603.       Oath or Affirmation to Testify Truthfully
Rule 604.       Interpreter
Rule 605.       Judge’s Competency as a Witness
Rule 606.       Juror’s Competency as a Witness
Rule 607.       Who May Impeach a Witness
Rule 608.       A Witness’s Character for Truthfulness or Untruthfulness
Rule 609.       Impeachment by Evidence of a Criminal Conviction
Rule 610.       Religious Beliefs or Opinions
Rule 611.       Mode and Order of Examining Witnesses and Presenting Evidence
Rule 612.       Writing Used to Refresh a Witness’s Memory
Rule 613.       Witness’s Prior Statement and Bias or Interest
Rule 614.       Excluding Witnesses
Rule 615.       Producing a Witness’s Statement in Criminal Cases

ARTICLE VII.    OPINIONS AND EXPERT TESTIMONY
Rule 701.       Opinion Testimony by Lay Witnesses
Rule 702.       Testimony by Expert Witnesses
Rule 703.       Bases of an Expert’s Opinion Testimony
Rule 704.       Opinion on an Ultimate Issue
Rule 705.       Disclosing the Underlying Facts or Data and Examining an Expert About
                Them
Rule 706.       Audit in Civil Cases

ARTICLE VIII.   HEARSAY
Rule 801.       Definitions That Apply to This Article; Exclusions from Hearsay
Rule 802.       The Rule Against Hearsay
Rule 803.       Exceptions to the Rule Against Hearsay—Regardless of Whether the
                Declarant Is Available as a Witness
Rule 804.       Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
                as a Witness
Rule 805.       Hearsay Within Hearsay
Rule 806.       Attacking and Supporting the Declarant’s Credibility

ARTICLE IX.     AUTHENTICATION AND IDENTIFICATION
Rule 901.       Authenticating or Identifying Evidence
Rule 902.       Evidence That Is Self-Authenticating
Rule 903.       Subscribing Witness’s Testimony



                                            2
ARTICLE X.   CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001.   Definitions That Apply to This Article
Rule 1002.   Requirement of the Original
Rule 1003.   Admissibility of Duplicates
Rule 1004.   Admissibility of Other Evidence of Content
Rule 1005.   Copies of Public Records to Prove Content
Rule 1006.   Summaries to Prove Content
Rule 1007.   Testimony or Statement of a Party to Prove Content
Rule 1008.   Functions of the Court and Jury
Rule 1009.   Translating a Foreign Language Document




                                 3
                                      ARTICLE I.
                                  GENERAL PROVISIONS


Rule 101.    Title, Scope, and Applicability of the Rules; Definitions

(a)   Title. These rules may be cited as the Texas Rules of Evidence.

(b)   Scope. These rules apply to proceedings in Texas courts except as otherwise provided in
      subdivisions (d)-(f).

(c)   Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.

(d)   Exception for Constitutional or Statutory Provisions or Other Rules. Despite these
      rules, a court must admit or exclude evidence if required to do so by the United States or
      Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or
      Texas Supreme Court or the Texas Court of Criminal Appeals. If possible, a court should
      resolve by reasonable construction any inconsistency between these rules and applicable
      constitutional or statutory provisions or other rules.

(e)   Exceptions. These rules—except for those on privilege—do not apply to:

      (1)    the court’s determination, under Rule 104(a), on a preliminary question of fact
             governing admissibility;

      (2)    grand jury proceedings; and

      (3)    the following miscellaneous proceedings:

             (A)     an application for habeas corpus in extradition, rendition, or interstate
                     detainer proceedings;

             (B)     an inquiry by the court under Code of Criminal Procedure article 46B.004
                     to determine whether evidence exists that would support a finding that the
                     defendant may be incompetent to stand trial;

             (C)     bail proceedings other than hearings to deny, revoke, or increase bail;

             (D)     hearings on justification for pretrial detention not involving bail;

             (E)     proceedings to issue a search or arrest warrant; and

             (F)     direct contempt determination proceedings.

(f)   Exception for Justice Court Cases. These rules do not apply to justice court cases except
      as authorized by Texas Rule of Civil Procedure 500.3.



                                                4
(g)    Exception for Military Justice Hearings. The Texas Code of Military Justice, Tex. Gov’t
       Code §§ 432.001-432.195, governs the admissibility of evidence in hearings held under
       that Code.

(h)    Definitions. In these rules:

       (1)    “civil case” means a civil action or proceeding;

       (2)    “criminal case” means a criminal action or proceeding, including an examining
              trial;

       (3)    “public office” includes a public agency;

       (4)    “record” includes a memorandum, report, or data compilation;

       (5)    a “rule prescribed by the United States or Texas Supreme Court or the Texas Court
              of Criminal Appeals” means a rule adopted by any of those courts under statutory
              authority;

       (6)    “unsworn declaration” means an unsworn declaration made in accordance with
              Tex. Civ. Prac. & Rem. Code § 132.001; and

       (7)    a reference to any kind of written material or any other medium includes
              electronically stored information.

Comment to 2015 Restyling: The reference to “hierarchical governance” in former Rule 101(c)
has been deleted as unnecessary. The textual limitation of former Rule 101(c) to criminal cases
has been eliminated. Courts in civil cases must also admit or exclude evidence when required to
do so by constitutional or statutory provisions or other rules that take precedence over these
rules. Likewise, the title to former Rule 101(d) has been changed to more accurately indicate the
purpose and scope of the subdivision.


Rule 102.     Purpose

These rules should be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to the end of
ascertaining the truth and securing a just determination.


Rule 103.     Rulings on Evidence

(a)    Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude
       evidence only if the error affects a substantial right of the party and:

       (1)    if the ruling admits evidence, a party, on the record:



                                                5
             (A)     timely objects or moves to strike; and

             (B)     states the specific ground, unless it was apparent from the context; or

      (2)    if the ruling excludes evidence, a party informs the court of its substance by an
             offer of proof, unless the substance was apparent from the context.

(b)   Not Needing to Renew an Objection. When the court hears a party’s objections outside
      the presence of the jury and rules that evidence is admissible, a party need not renew an
      objection to preserve a claim of error for appeal.

(c)   Court’s Statement About the Ruling; Directing an Offer of Proof. The court must
      allow a party to make an offer of proof outside the jury’s presence as soon as
      practicable—and before the court reads its charge to the jury. The court may make any
      statement about the character or form of the evidence, the objection made, and the ruling.
      At a party’s request, the court must direct that an offer of proof be made in question-and-
      answer form. Or the court may do so on its own.

(d)   Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable,
      the court must conduct a jury trial so that inadmissible evidence is not suggested to the
      jury by any means.

(e)   Taking Notice of Fundamental Error in Criminal Cases. In criminal cases, a court
      may take notice of a fundamental error affecting a substantial right, even if the claim of
      error was not properly preserved.


Rule 104.    Preliminary Questions

(a)   In General. The court must decide any preliminary question about whether a witness is
      qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not
      bound by evidence rules, except those on privilege.

(b)   Relevance That Depends on a Fact. When the relevance of evidence depends on
      whether a fact exists, proof must be introduced sufficient to support a finding that the fact
      does exist. The court may admit the proposed evidence on the condition that the proof be
      introduced later.

(c)   Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any
      hearing on a preliminary question so that the jury cannot hear it if:

      (1)    the hearing involves the admissibility of a confession in a criminal case;

      (2)    a defendant in a criminal case is a witness and so requests; or

      (3)    justice so requires.



                                                6
(d)    Cross-Examining a Defendant in a Criminal Case. By testifying outside the jury’s
       hearing on a preliminary question, a defendant in a criminal case does not become subject
       to cross-examination on other issues in the case.

(e)    Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to
       introduce before the jury evidence that is relevant to the weight or credibility of other
       evidence.


Rule 105.      Evidence That Is Not Admissible Against Other Parties or for Other
               Purposes

(a)    Limiting Admitted Evidence. If the court admits evidence that is admissible against a
       party or for a purpose—but not against another party or for another purpose—the court,
       on request, must restrict the evidence to its proper scope and instruct the jury accordingly.

(b)    Preserving a Claim of Error.

       (1)     Court Admits the Evidence Without Restriction. A party may claim error in a
               ruling to admit evidence that is admissible against a party or for a purpose—but
               not against another party or for another purpose—only if the party requests the
               court to restrict the evidence to its proper scope and instruct the jury accordingly.

       (2)     Court Excludes the Evidence. A party may claim error in a ruling to exclude
               evidence that is admissible against a party or for a purpose—but not against
               another party or for another purpose—only if the party limits its offer to the party
               against whom or the purpose for which the evidence is admissible.


Rule 106.      Remainder of or Related Writings or Recorded Statements

If a party introduces all or part of a writing or recorded statement, an adverse party may
introduce, at that time, any other part—or any other writing or recorded statement—that in
fairness ought to be considered at the same time. “Writing or recorded statement” includes
depositions.


Rule 107.      Rule of Optional Completeness

If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an
adverse party may inquire into any other part on the same subject. An adverse party may also
introduce any other act, declaration, conversation, writing, or recorded statement that is necessary
to explain or allow the trier of fact to fully understand the part offered by the opponent. “Writing or
recorded statement” includes a deposition.




                                                   7
                                          ARTICLE II.
                                       JUDICIAL NOTICE


Rule 201.       Judicial Notice of Adjudicative Facts

(a)   Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b)   Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact
      that is not subject to reasonable dispute because it:

      (1)       is generally known within the trial court’s territorial jurisdiction; or

      (2)       can be accurately and readily determined from sources whose accuracy cannot
                reasonably be questioned.

(c)   Taking Notice. The court:

      (1)       may take judicial notice on its own; or

      (2)       must take judicial notice if a party requests it and the court is supplied with the
                necessary information.

(d)   Timing. The court may take judicial notice at any stage of the proceeding.

(e)   Opportunity to Be Heard. On timely request, a party is entitled to be heard on the
      propriety of taking judicial notice and the nature of the fact to be noticed. If the court
      takes judicial notice before notifying a party, the party, on request, is still entitled to be
      heard.

(f)   Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed
      fact as conclusive. In a criminal case, the court must instruct the jury that it may or may
      not accept the noticed fact as conclusive.


Rule 202.       Judicial Notice of Other States’ Law

(a)   Scope. This rule governs judicial notice of another state’s, territory’s, or federal
      jurisdiction’s:

            •   Constitution;
            •   public statutes;
            •   rules;
            •   regulations;
            •   ordinances;
            •   court decisions; and


                                                   8
            •   common law.

(b)   Taking Notice. The court:

      (1)       may take judicial notice on its own; or

      (2)       must take judicial notice if a party requests it and the court is supplied with the
                necessary information.

(c)   Notice and Opportunity to Be Heard.

      (1)       Notice. The court may require a party requesting judicial notice to notify all other
                parties of the request so they may respond to it.

      (2)       Opportunity to Be Heard. On timely request, a party is entitled to be heard on the
                propriety of taking judicial notice and the nature of the matter to be noticed. If the
                court takes judicial notice before a party has been notified, the party, on request, is
                still entitled to be heard.

(d)   Timing. The court may take judicial notice at any stage of the proceeding.

(e)   Determination and Review. The court—not the jury—must determine the law of another
      state, territory, or federal jurisdiction. The court’s determination must be treated as a ruling
      on a question of law.


Rule 203.       Determining Foreign Law

(a)   Raising a Foreign Law Issue. A party who intends to raise an issue about a foreign
      country’s law must:

      (1)       give reasonable notice by a pleading or other writing; and

      (2)       at least 30 days before trial, supply all parties a copy of any written materials or
                sources the party intends to use to prove the foreign law.

(b)   Translations. If the materials or sources were originally written in a language other than
      English, the party intending to rely on them must, at least 30 days before trial, supply all
      parties both a copy of the foreign language text and an English translation.

(c)   Materials the Court May Consider; Notice. In determining foreign law, the court may
      consider any material or source, whether or not admissible. If the court considers any
      material or source not submitted by a party, it must give all parties notice and a reasonable
      opportunity to comment and submit additional materials.




                                                   9
(d)    Determination and Review. The court—not the jury—must determine foreign law. The
       court’s determination must be treated as a ruling on a question of law.


Rule 204.      Judicial Notice of Texas Municipal and County Ordinances, Texas Register
               Contents, and Published Agency Rules

(a)    Scope. This rule governs judicial notice of Texas municipal and county ordinances, the
       contents of the Texas Register, and agency rules published in the Texas Administrative
       Code.

(b)    Taking Notice. The court:

       (1)     may take judicial notice on its own; or

       (2)     must take judicial notice if a party requests it and the court is supplied with the
               necessary information.

(c)    Notice and Opportunity to Be Heard.

       (1)     Notice. The court may require a party requesting judicial notice to notify all other
               parties of the request so they may respond to it.

       (2)     Opportunity to Be Heard. On timely request, a party is entitled to be heard on the
               propriety of taking judicial notice and the nature of the matter to be noticed. If the
               court takes judicial notice before a party has been notified, the party, on request, is
               still entitled to be heard.

(d)    Determination and Review. The court—not the jury—must determine municipal and
       county ordinances, the contents of the Texas Register, and published agency rules. The
       court’s determination must be treated as a ruling on a question of law.


                                         ARTICLE III.
                                        PRESUMPTIONS

[No rules adopted at this time.]


                                         ARTICLE IV.
                                   RELEVANCE AND ITS LIMITS


Rule 401.      Test for Relevant Evidence

Evidence is relevant if:



                                                 10
(a)       it has any tendency to make a fact more or less probable than it would be without the
          evidence; and

(b)       the fact is of consequence in determining the action.


Rule 402.        General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

      •   the United States or Texas Constitution;
      •   a statute;
      •   these rules; or
      •   other rules prescribed under statutory authority.

Irrelevant evidence is not admissible.


Rule 403.        Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.


Rule 404.        Character Evidence; Crimes or Other Acts

(a)       Character Evidence.

          (1)    Prohibited Uses. Evidence of a person’s character or character trait is not
                 admissible to prove that on a particular occasion the person acted in accordance
                 with the character or trait.

          (2)    Exceptions for an Accused.

                 (A)     In a criminal case, a defendant may offer evidence of the defendant’s
                         pertinent trait, and if the evidence is admitted, the prosecutor may offer
                         evidence to rebut it.

                 (B)     In a civil case, a party accused of conduct involving moral turpitude may
                         offer evidence of the party’s pertinent trait, and if the evidence is admitted,
                         the accusing party may offer evidence to rebut it.

          (3)    Exceptions for a Victim.




                                                   11
            (A)    In a criminal case, subject to the limitations in Rule 412, a defendant may
                   offer evidence of a victim’s pertinent trait, and if the evidence is admitted,
                   the prosecutor may offer evidence to rebut it.

            (B)    In a homicide case, the prosecutor may offer evidence of the victim’s trait
                   of peacefulness to rebut evidence that the victim was the first aggressor.

            (C)    In a civil case, a party accused of assaultive conduct may offer evidence of
                   the victim’s trait of violence to prove self-defense, and if the evidence is
                   admitted, the accusing party may offer evidence of the victim’s trait of
                   peacefulness.

      (4)   Exceptions for a Witness. Evidence of a witness’s character may be admitted
            under Rules 607, 608, and 609.

      (5)   Definition of “Victim.” In this rule, “victim” includes an alleged victim.

(b)   Crimes, Wrongs, or Other Acts.

      (1)   Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
            prove a person’s character in order to show that on a particular occasion the
            person acted in accordance with the character.

      (2)   Permitted Uses; Notice in Criminal Case. This evidence may be admissible for
            another purpose, such as proving motive, opportunity, intent, preparation, plan,
            knowledge, identity, absence of mistake, or lack of accident. On timely request by
            a defendant in a criminal case, the prosecutor must provide reasonable notice
            before trial that the prosecution intends to introduce such evidence—other than
            that arising in the same transaction—in its case-in-chief.


Rule 405.   Methods of Proving Character

(a)   By Reputation or Opinion.

      (1)   In General. When evidence of a person’s character or character trait is
            admissible, it may be proved by testimony about the person’s reputation or by
            testimony in the form of an opinion. On cross-examination of the character
            witness, inquiry may be made into relevant specific instances of the person’s
            conduct.

      (2)   Accused’s Character in a Criminal Case. In the guilt stage of a criminal case, a
            witness may testify to the defendant’s character or character trait only if, before
            the day of the offense, the witness was familiar with the defendant’s reputation or
            the facts or information that form the basis of the witness’s opinion.




                                             12
(b)    By Specific Instances of Conduct. When a person’s character or character trait is an
       essential element of a charge, claim, or defense, the character or trait may also be proved
       by relevant specific instances of the person’s conduct.


Rule 406.       Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that
on a particular occasion the person or organization acted in accordance with the habit or routine
practice. The court may admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness.


Rule 407.       Subsequent Remedial Measures; Notification of Defect

(a)    Subsequent Remedial Measures. When measures are taken that would have made an
       earlier injury or harm less likely to occur, evidence of the subsequent measures is not
       admissible to prove:

            •   negligence;
            •   culpable conduct;
            •   a defect in a product or its design; or
            •   a need for a warning or instruction.

       But the court may admit this evidence for another purpose, such as impeachment or—if
       disputed—proving ownership, control, or the feasibility of precautionary measures.

(b)    Notification of Defect. A manufacturer’s written notification to a purchaser of a defect
       in one of its products is admissible against the manufacturer to prove the defect.

Comment to 2015 Restyling: Rule 407 previously provided that evidence was not excluded if
offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule,
it now provides that the court may admit evidence if offered for a permissible purpose. There is
no intent to change the process for admitting evidence covered by the Rule. It remains the case
that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not
barred by the Rule, its admissibility remains governed by the general principles of Rules 402,
403, 801, etc.


Rule 408.       Compromise Offers and Negotiations

(a)    Prohibited Uses. Evidence of the following is not admissible either to prove or disprove
       the validity or amount of a disputed claim:




                                                   13
       (1)     furnishing, promising, or offering—or accepting, promising to accept, or offering
               to accept—a valuable consideration in compromising or attempting to
               compromise the claim; and

       (2)     conduct or statements made during compromise negotiations about the claim.

(b)    Permissible Uses. The court may admit this evidence for another purpose, such as
       proving a party’s or witness’s bias, prejudice, or interest, negating a contention of undue
       delay, or proving an effort to obstruct a criminal investigation or prosecution.

Comment to 2015 Restyling: Rule 408 previously provided that evidence was not excluded if
offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule,
it now provides that the court may admit evidence if offered for a permissible purpose. There is
no intent to change the process for admitting evidence covered by the Rule. It remains the case
that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not
barred by the Rule, its admissibility remains governed by the general principles of Rules 402,
403, 801, etc.

The reference to “liability” has been deleted on the ground that the deletion makes the Rule flow
better and easier to read, and because “liability” is covered by the broader term “validity.”
Courts have not made substantive decisions on the basis of any distinction between validity and
liability. No change in current practice or in the coverage of the Rule is intended.

Finally, the sentence of the Rule referring to evidence “otherwise discoverable” has been deleted
as superfluous. The intent of the sentence was to prevent a party from trying to immunize
admissible information, such as a pre-existing document, through the pretense of disclosing it
during compromise negotiations. But even without the sentence, the Rule cannot be read to
protect pre-existing information simply because it was presented to the adversary in compromise
negotiations.


Rule 409.      Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury.


Rule 410.      Pleas, Plea Discussions, and Related Statements

(a)    Prohibited Uses in Civil Cases. In a civil case, evidence of the following is not
       admissible against the defendant who made the plea or was a participant in the plea
       discussions:

       (1)     a guilty plea that was later withdrawn;

       (2)     a nolo contendere plea;



                                                14
       (3)     a statement made during a proceeding on either of those pleas under Federal Rule
               of Criminal Procedure 11 or a comparable state procedure; or

       (4)     a statement made during plea discussions with an attorney for the prosecuting
               authority if the discussions did not result in a guilty plea or they resulted in a
               later-withdrawn guilty plea.

(b)    Prohibited Uses in Criminal Cases. In a criminal case, evidence of the following is not
       admissible against the defendant who made the plea or was a participant in the plea
       discussions:

       (1)     a guilty plea that was later withdrawn;

       (2)     a nolo contendere plea that was later withdrawn;

       (3)     a statement made during a proceeding on either of those pleas under Federal Rule
               of Criminal Procedure 11 or a comparable state procedure; or

       (4)     a statement made during plea discussions with an attorney for the prosecuting
               authority if the discussions did not result in a guilty or nolo contendere plea or
               they resulted in a later-withdrawn guilty or nolo contendere plea.

(c)    Exception. In a civil case, the court may admit a statement described in paragraph (a)(3)
       or (4) and in a criminal case, the court may admit a statement described in paragraph
       (b)(3) or (4), when another statement made during the same plea or plea discussions has
       been introduced and in fairness the statements ought to be considered together.


Rule 411.      Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether
the person acted negligently or otherwise wrongfully. But the court may admit this evidence for
another purpose, such as proving a witness’s bias or prejudice or, if disputed, proving agency,
ownership, or control.


Rule 412.      Evidence of Previous Sexual Conduct in Criminal Cases

(a)    In General. The following evidence is not admissible in a prosecution for sexual assault,
       aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual
       assault:

       (1)     reputation or opinion evidence of a victim’s past sexual behavior; or

       (2)     specific instances of a victim’s past sexual behavior.




                                                15
(b)    Exceptions for Specific Instances. Evidence of specific instances of a victim’s past
       sexual behavior is admissible if:

       (1)    the court admits the evidence in accordance with subdivisions (c) and (d);

       (2)    the evidence:

              (A)     is necessary to rebut or explain scientific or medical evidence offered by
                      the prosecutor;

              (B)     concerns past sexual behavior with the defendant and is offered by the
                      defendant to prove consent;

              (C)     relates to the victim’s motive or bias;

              (D)     is admissible under Rule 609; or

              (E)     is constitutionally required to be admitted; and

       (3)    the probative value of the evidence outweighs the danger of unfair prejudice.

(c)    Procedure for Offering Evidence. Before offering any evidence of the victim’s past
       sexual behavior, the defendant must inform the court outside the jury’s presence. The
       court must then conduct an in camera hearing, recorded by a court reporter, and
       determine whether the proposed evidence is admissible. The defendant may not refer to
       any evidence ruled inadmissible without first requesting and gaining the court’s approval
       outside the jury’s presence.

(d)    Record Sealed. The court must preserve the record of the in camera hearing, under seal,
       as part of the record.

(e)    Definition of “Victim.” In this rule, “victim” includes an alleged victim.


                                         ARTICLE V.
                                         PRIVILEGES


Rule 501.     Privileges in General

Unless a Constitution, a statute, or these or other rules prescribed under statutory authority
provide otherwise, no person has a privilege to:

(a)    refuse to be a witness;

(b)    refuse to disclose any matter;



                                                16
(c)   refuse to produce any object or writing; or

(d)   prevent another from being a witness, disclosing any matter, or producing any object or
      writing.


Rule 502.     Required Reports Privileged By Statute

(a)   In General. If a law requiring a return or report to be made so provides:

      (1)     a person, corporation, association, or other organization or entity—whether public
              or private—that makes the required return or report has a privilege to refuse to
              disclose it and to prevent any other person from disclosing it; and

      (2)     a public officer or agency to whom the return or report must be made has a
              privilege to refuse to disclose it.

(b)   Exceptions. This privilege does not apply in an action involving perjury, false statements,
      fraud in the return or report, or other failure to comply with the law in question.


Rule 503.     Lawyer–Client Privilege

(a)   Definitions. In this rule:

      (1)     A “client” is a person, public officer, or corporation, association, or other
              organization or entity—whether public or private—that:

              (A)     is rendered professional legal services by a lawyer; or

              (B)     consults a lawyer with a view to obtaining professional legal services from
                      the lawyer.

      (2)     A “client’s representative” is:

              (A)     a person who has authority to obtain professional legal services for the
                      client or to act for the client on the legal advice rendered; or

              (B)     any other person who, to facilitate the rendition of professional legal
                      services to the client, makes or receives a confidential communication while
                      acting in the scope of employment for the client.

      (3)     A “lawyer” is a person authorized, or who the client reasonably believes is
              authorized, to practice law in any state or nation.




                                                17
      (4)    A “lawyer’s representative” is:

             (A)     one employed by the lawyer to assist in the rendition of professional legal
                     services; or

             (B)     an accountant who is reasonably necessary for the lawyer’s rendition of
                     professional legal services.

      (5)    A communication is “confidential” if not intended to be disclosed to third persons
             other than those:

             (A)     to whom disclosure is made to further the rendition of professional legal
                     services to the client; or

             (B)     reasonably necessary to transmit the communication.

(b)   Rules of Privilege.

      (1)    General Rule. A client has a privilege to refuse to disclose and to prevent any other
             person from disclosing confidential communications made to facilitate the rendition
             of professional legal services to the client:

             (A)     between the client or the client’s representative and the client’s lawyer or
                     the lawyer’s representative;

             (B)     between the client’s lawyer and the lawyer’s representative;

             (C)     by the client, the client’s representative, the client’s lawyer, or the lawyer’s
                     representative to a lawyer representing another party in a pending action or
                     that lawyer’s representative, if the communications concern a matter of
                     common interest in the pending action;

             (D)     between the client’s representatives or between the client and the client’s
                     representative; or

             (E)     among lawyers and their representatives representing the same client.

      (2)    Special Rule in a Criminal Case. In a criminal case, a client has a privilege to
             prevent a lawyer or lawyer’s representative from disclosing any other fact that came
             to the knowledge of the lawyer or the lawyer’s representative by reason of the
             attorney–client relationship.

(c)   Who May Claim. The privilege may be claimed by:

      (1)    the client;




                                                18
      (2)    the client’s guardian or conservator;

      (3)    a deceased client’s personal representative; or

      (4)    the successor, trustee, or similar representative of a corporation, association, or
             other organization or entity—whether or not in existence.

      The person who was the client’s lawyer or the lawyer’s representative when the
      communication was made may claim the privilege on the client’s behalf—and is presumed
      to have authority to do so.

(d)   Exceptions. This privilege does not apply:

      (1)    Furtherance of Crime or Fraud. If the lawyer’s services were sought or obtained
             to enable or aid anyone to commit or plan to commit what the client knew or
             reasonably should have known to be a crime or fraud.

      (2)    Claimants Through Same Deceased Client. If the communication is relevant to an
             issue between parties claiming through the same deceased client.

      (3)    Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue
             of breach of duty by a lawyer to the client or by a client to the lawyer.

      (4)    Document Attested By a Lawyer. If the communication is relevant to an issue
             concerning an attested document to which the lawyer is an attesting witness.

      (5)    Joint Clients. If the communication:

             (A)     is offered in an action between clients who retained or consulted a lawyer in
                     common;

             (B)     was made by any of the clients to the lawyer; and

             (C)     is relevant to a matter of common interest between the clients.


Rule 504.    Spousal Privileges

(a)   Confidential Communication Privilege.

      (1)    Definition. A communication is “confidential” if a person makes it privately to the
             person’s spouse and does not intend its disclosure to any other person.

      (2)    General Rule. A person has a privilege to refuse to disclose and to prevent any
             other person from disclosing a confidential communication made to the person’s




                                               19
      spouse while they were married. This privilege survives termination of the
      marriage.

(3)   Who May Claim. The privilege may be claimed by:

      (A)    the communicating spouse;

      (B)    the guardian of a communicating spouse who is incompetent; or

      (C)    the personal representative of a communicating spouse who is deceased.

      The other spouse may claim the privilege on the communicating spouse’s behalf—
      and is presumed to have authority to do so.

(4)   Exceptions. This privilege does not apply:

      (A)    Furtherance of Crime or Fraud. If the communication is made—wholly or
             partially—to enable or aid anyone to commit or plan to commit a crime or
             fraud.

      (B)    Proceeding Between Spouse and Other Spouse or Claimant Through
             Deceased Spouse. In a civil proceeding:

             (i)     brought by or on behalf of one spouse against the other; or

             (ii)    between a surviving spouse and a person claiming through the
                     deceased spouse.

      (C)    Crime Against Family, Spouse, Household Member, or Minor Child. In a:

             (i)     proceeding in which a party is accused of conduct that, if proved, is
                     a crime against the person of the other spouse, any member of the
                     household of either spouse, or any minor child; or

             (ii)    criminal proceeding involving a charge of bigamy under Section
                     25.01 of the Penal Code.

      (D)    Commitment or Similar Proceeding. In a proceeding to commit either
             spouse or otherwise to place the spouse or the spouse’s property under
             another’s control because of a mental or physical condition.

      (E)    Proceeding to Establish Competence. In a proceeding brought by or on
             behalf of either spouse to establish competence.




                                       20
(b)    Privilege Not to Testify in a Criminal Case.

       (1)     General Rule. In a criminal case, an accused’s spouse has a privilege not to be
               called to testify for the state. But this rule neither prohibits a spouse from testifying
               voluntarily for the state nor gives a spouse a privilege to refuse to be called to
               testify for the accused.

       (2)     Failure to Call Spouse. If other evidence indicates that the accused’s spouse could
               testify to relevant matters, an accused’s failure to call the spouse to testify is a
               proper subject of comment by counsel.

       (3)     Who May Claim. The privilege not to testify may be claimed by the accused’s
               spouse or the spouse’s guardian or representative, but not by the accused.

       (4)     Exceptions. This privilege does not apply:

               (A)     Certain Criminal Proceedings. In a criminal proceeding in which a spouse
                       is charged with:

                       (i)     a crime against the other spouse, any member of the household of
                               either spouse, or any minor child; or

                       (ii)    bigamy under Section 25.01 of the Penal Code.

               (B)     Matters That Occurred Before the Marriage. If the spouse is called to
                       testify about matters that occurred before the marriage.

Comment to 2015 Restyling: Previously, Rule 504(b)(1) provided that, “A spouse who testifies
on behalf of an accused is subject to cross-examination as provided in Rule 611(b).” That sentence
was included in the original version of Rule 504 when the Texas Rules of Criminal Evidence were
promulgated in 1986 and changed the rule to a testimonial privilege held by the witness spouse.
Until then, a spouse was deemed incompetent to testify against his or her defendant spouse, and
when a spouse testified on behalf of a defendant spouse, the state was limited to cross-examining
the spouse about matters relating to the spouse’s direct testimony. The quoted sentence from the
original Criminal Rule 504(b) was designed to overturn this limitation and allow the state to cross-
examine a testifying spouse in the same manner as any other witness. More than twenty-five years
later, it is clear that a spouse who testifies either for or against a defendant spouse may be cross-
examined in the same manner as any other witness. Therefore, the continued inclusion in the rule
of a provision that refers only to the cross-examination of a spouse who testifies on behalf of the
accused is more confusing than helpful. Its deletion is designed to clarify the rule and does not
change existing law.


Rule 505.      Privilege For Communications to a Clergy Member

(a)    Definitions. In this rule:



                                                  21
       (1)     A “clergy member” is a minister, priest, rabbi, accredited Christian Science
               Practitioner, or other similar functionary of a religious organization or someone
               whom a communicant reasonably believes is a clergy member.

       (2)     A “communicant” is a person who consults a clergy member in the clergy
               member’s professional capacity as a spiritual adviser.

       (3)     A communication is “confidential” if made privately and not intended for further
               disclosure except to other persons present to further the purpose of the
               communication.

(b)    General Rule. A communicant has a privilege to refuse to disclose and to prevent any
       other person from disclosing a confidential communication by the communicant to a clergy
       member in the clergy member’s professional capacity as spiritual adviser.

(c)    Who May Claim. The privilege may be claimed by:

       (1)     the communicant;

       (2)     the communicant’s guardian or conservator; or

       (3)     a deceased communicant’s personal representative.

       The clergy member to whom the communication was made may claim the privilege on the
       communicant’s behalf—and is presumed to have authority to do so.


Rule 506.      Political Vote Privilege

A person has a privilege to refuse to disclose the person’s vote at a political election conducted by
secret ballot unless the vote was cast illegally.


Rule 507.      Trade Secrets Privilege

(a)    General Rule. A person has a privilege to refuse to disclose and to prevent other persons
       from disclosing a trade secret owned by the person, unless the court finds that
       nondisclosure will tend to conceal fraud or otherwise work injustice.

(b)    Who May Claim. The privilege may be claimed by the person who owns the trade secret
       or the person’s agent or employee.

(c)    Protective Measure. If a court orders a person to disclose a trade secret, it must take any
       protective measure required by the interests of the privilege holder and the parties and to
       further justice.



                                                 22
Rule 508.    Informer’s Identity Privilege

(a)   General Rule. The United States, a state, or a subdivision of either has a privilege to refuse
      to disclose a person’s identity if:

      (1)    the person has furnished information to a law enforcement officer or a member of a
             legislative committee or its staff conducting an investigation of a possible violation
             of law; and

      (2)    the information relates to or assists in the investigation.

(b)   Who May Claim. The privilege may be claimed by an appropriate representative of the
      public entity to which the informer furnished the information. The court in a criminal case
      must reject the privilege claim if the state objects.

(c)   Exceptions.

      (1)    Voluntary Disclosure; Informer a Witness. This privilege does not apply if:

             (A)     the informer’s identity or the informer’s interest in the communication’s
                     subject matter has been disclosed—by a privilege holder or the informer’s
                     own action—to a person who would have cause to resent the
                     communication; or

             (B)     the informer appears as a witness for the public entity.

      (2)    Testimony About the Merits.

             (A)     Criminal Case. In a criminal case, this privilege does not apply if the court
                     finds a reasonable probability exists that the informer can give testimony
                     necessary to a fair determination of guilt or innocence. If the court so finds
                     and the public entity elects not to disclose the informer’s identity:

                     (i)     on the defendant’s motion, the court must dismiss the charges to
                             which the testimony would relate; or

                     (ii)    on its own motion, the court may dismiss the charges to which the
                             testimony would relate.

             (B)     Certain Civil Cases. In a civil case in which the public entity is a party, this
                     privilege does not apply if the court finds a reasonable probability exists that
                     the informer can give testimony necessary to a fair determination of a
                     material issue on the merits. If the court so finds and the public entity elects
                     not to disclose the informer’s identity, the court may make any order that
                     justice requires.




                                                23
              (C)     Procedures.

                      (i)     If it appears that an informer may be able to give the testimony
                              required to invoke this exception and the public entity claims the
                              privilege, the court must give the public entity an opportunity to
                              show in camera facts relevant to determining whether this exception
                              is met. The showing should ordinarily be made by affidavits, but the
                              court may take testimony if it finds the matter cannot be
                              satisfactorily resolved by affidavits.

                      (ii)    No counsel or party may attend the in camera showing.

                      (iii)   The court must seal and preserve for appeal evidence submitted
                              under this subparagraph (2)(C). The evidence must not otherwise be
                              revealed without the public entity’s consent.

      (3)     Legality of Obtaining Evidence.

              (A)     Court May Order Disclosure. The court may order the public entity to
                      disclose an informer’s identity if:

                      (i)     information from an informer is relied on to establish the legality of
                              the means by which evidence was obtained; and

                      (ii)    the court is not satisfied that the information was received from an
                              informer reasonably believed to be reliable or credible.

              (B)     Procedures.

                      (i)     On the public entity’s request, the court must order the disclosure be
                              made in camera.

                      (ii)    No counsel or party may attend the in camera disclosure.

                      (iii)   If the informer’s identity is disclosed in camera, the court must seal
                              and preserve for appeal the record of the in camera proceeding. The
                              record of the in camera proceeding must not otherwise be revealed
                              without the public entity’s consent.


Rule 509.     Physician–Patient Privilege

(a)   Definitions. In this rule:

      (1)     A “patient” is a person who consults or is seen by a physician for medical care.




                                                24
      (2)    A “physician” is a person licensed, or who the patient reasonably believes is
             licensed, to practice medicine in any state or nation.

      (3)    A communication is “confidential” if not intended to be disclosed to third persons
             other than those:

             (A)     present to further the patient’s interest in the consultation, examination, or
                     interview;

             (B)     reasonably necessary to transmit the communication; or

             (C)     participating in the diagnosis and treatment under the physician’s direction,
                     including members of the patient’s family.

(b)   Limited Privilege in a Criminal Case. There is no physician–patient privilege in a
      criminal case. But a confidential communication is not admissible in a criminal case if
      made:

      (1)    to a person involved in the treatment of or examination for alcohol or drug abuse;
             and

      (2)    by a person being treated voluntarily or being examined for admission to treatment
             for alcohol or drug abuse.

(c)   General Rule in a Civil Case. In a civil case, a patient has a privilege to refuse to disclose
      and to prevent any other person from disclosing:

      (1)    a confidential communication between a physician and the patient that relates to or
             was made in connection with any professional services the physician rendered the
             patient; and

      (2)    a record of the patient’s identity, diagnosis, evaluation, or treatment created or
             maintained by a physician.

(d)   Who May Claim in a Civil Case. The privilege may be claimed by:

      (1)    the patient; or

      (2)    the patient’s representative on the patient’s behalf.

      The physician may claim the privilege on the patient’s behalf—and is presumed to have
      authority to do so.

(e)   Exceptions in a Civil Case. This privilege does not apply:




                                                25
(1)   Proceeding Against Physician. If the communication or record is relevant to a
      claim or defense in:

      (A)    a proceeding the patient brings against a physician; or

      (B)    a license revocation proceeding in which the patient is a complaining
             witness.

(2)   Consent. If the patient or a person authorized to act on the patient’s behalf consents
      in writing to the release of any privileged information, as provided in subdivision
      (f).

(3)   Action to Collect. In an action to collect a claim for medical services rendered to
      the patient.

(4)   Party Relies on Patient’s Condition. If any party relies on the patient’s physical,
      mental, or emotional condition as a part of the party’s claim or defense and the
      communication or record is relevant to that condition.

(5)   Disciplinary Investigation or Proceeding. In a disciplinary investigation of or
      proceeding against a physician under the Medical Practice Act, Tex. Occ. Code §
      164.001 et seq., or a registered nurse under Tex. Occ. Code § 301.451 et seq. But
      the board conducting the investigation or proceeding must protect the identity of
      any patient whose medical records are examined unless:

      (A)    the patient’s records would be subject to disclosure under paragraph (e)(1);
             or

      (B)    the patient has consented in writing to the release of medical records, as
             provided in subdivision (f).

(6)   Involuntary Civil Commitment or Similar Proceeding. In a proceeding for
      involuntary civil commitment or court-ordered treatment, or a probable cause
      hearing under Tex. Health & Safety Code:

      (A)    chapter 462 (Treatment of Persons With Chemical Dependencies);

      (B)    title 7, subtitle C (Texas Mental Health Code); or

      (C)    title 7, subtitle D (Persons With an Intellectual Disability Act).

(7)   Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or
      neglect, or the cause of any abuse or neglect, of a resident of an “institution” as
      defined in Tex. Health & Safety Code § 242.002.




                                        26
(f)    Consent For Release of Privileged Information.

       (1)     Consent for the release of privileged information must be in writing and signed by:

               (A)     the patient;

               (B)     a parent or legal guardian if the patient is a minor;

               (C)     a legal guardian if the patient has been adjudicated incompetent to manage
                       personal affairs;

               (D)     an attorney appointed for the patient under Tex. Health & Safety Code title
                       7, subtitles C and D;

               (E)     an attorney ad litem appointed for the patient under Tex. Estates Code title
                       3, subtitle C;

               (F)     an attorney ad litem or guardian ad litem appointed for a minor under Tex.
                       Fam. Code chapter 107, subchapter B; or

               (G)     a personal representative if the patient is deceased.

       (2)     The consent must specify:

               (A)     the information or medical records covered by the release;

               (B)     the reasons or purposes for the release; and

               (C)     the person to whom the information is to be released.

       (3)     The patient, or other person authorized to consent, may withdraw consent to the
               release of any information. But a withdrawal of consent does not affect any
               information disclosed before the patient or authorized person gave written notice of
               the withdrawal.

       (4)     Any person who receives information privileged under this rule may disclose the
               information only to the extent consistent with the purposes specified in the consent.

Comment to 2015 Restyling: The physician–patient privilege in a civil case was first enacted in
Texas in 1981 as part of the Medical Practice Act, formerly codified in Tex. Rev. Civ. Stat. art.
4495b. That statute provided that the privilege applied even if a patient had received a physician’s
services before the statute’s enactment. Because more than thirty years have now passed, it is no
longer necessary to burden the text of the rule with a statement regarding the privilege’s retroactive
application. But deleting this statement from the rule’s text is not intended as a substantive change
in the law.




                                                  27
The former rule’s reference to “confidentiality or” and “administrative proceedings” in
subdivision (e) [Exceptions in a Civil Case] has been deleted. First, this rule is a privilege rule
only. Tex. Occ. Code § 159.004 sets forth exceptions to a physician’s duty to maintain
confidentiality of patient information outside court and administrative proceedings. Second, by
their own terms the rules of evidence govern only proceedings in Texas courts. See Rule 101(b).
To the extent the rules apply in administrative proceedings, it is because the Administrative
Procedure Act mandates their applicability. Tex. Gov’t Code § 2001.083 provides that “[i]n a
contested case, a state agency shall give effect to the rules of privilege recognized by law.”
Section 2001.091 excludes privileged material from discovery in contested administrative cases.

Statutory references in the former rule that are no longer up-to-date have been revised. Finally,
reconciling the provisions of Rule 509 with the parts of Tex. Occ. Code ch. 159 that address a
physician-patient privilege applicable to court proceedings is beyond the scope of the restyling
project.


Rule 510.      Mental Health Information Privilege in Civil Cases

(a)    Definitions. In this rule:

       (1)     A “professional” is a person:

               (A)     authorized to practice medicine in any state or nation;

               (B)     licensed or certified by the State of Texas in the diagnosis, evaluation, or
                       treatment of any mental or emotional disorder;

               (C)     involved in the treatment or examination of drug abusers; or

               (D)     who the patient reasonably believes to be a professional under this rule.

       (2)     A “patient” is a person who:

               (A)     consults or is interviewed by a professional for diagnosis, evaluation, or
                       treatment of any mental or emotional condition or disorder, including
                       alcoholism and drug addiction; or

               (B)     is being treated voluntarily or being examined for admission to voluntary
                       treatment for drug abuse.

       (3)     A “patient’s representative” is:

               (A)     any person who has the patient’s written consent;

               (B)     the parent of a minor patient;




                                                  28
             (C)     the guardian of a patient who has been adjudicated incompetent to manage
                     personal affairs; or

             (D)     the personal representative of a deceased patient.

      (4)    A communication is “confidential” if not intended to be disclosed to third persons
             other than those:

             (A)     present to further the patient’s interest in the diagnosis, examination,
                     evaluation, or treatment;

             (B)     reasonably necessary to transmit the communication; or

             (C)     participating in the diagnosis, examination, evaluation, or treatment under
                     the professional’s direction, including members of the patient’s family.

(b)   General Rule; Disclosure.

      (1)    In a civil case, a patient has a privilege to refuse to disclose and to prevent any other
             person from disclosing:

             (A)     a confidential communication between the patient and a professional; and

             (B)     a record of the patient’s identity, diagnosis, evaluation, or treatment that is
                     created or maintained by a professional.

      (2)    In a civil case, any person—other than a patient’s representative acting on the
             patient’s behalf—who receives information privileged under this rule may disclose
             the information only to the extent consistent with the purposes for which it was
             obtained.

(c)   Who May Claim. The privilege may be claimed by:

      (1)    the patient; or

      (2)    the patient’s representative on the patient’s behalf.

      The professional may claim the privilege on the patient’s behalf—and is presumed to have
      authority to do so.

(d)   Exceptions. This privilege does not apply:

      (1)    Proceeding Against Professional. If the communication or record is relevant to a
             claim or defense in:

             (A)     a proceeding the patient brings against a professional; or



                                                29
               (B)    a license revocation proceeding in which the patient is a complaining
                      witness.
       (2)     Written Waiver. If the patient or a person authorized to act on the patient’s behalf
               waives the privilege in writing.

       (3)     Action to Collect. In an action to collect a claim for mental or emotional health
               services rendered to the patient.

       (4)     Communication Made in Court-Ordered Examination. To a communication the
               patient made to a professional during a court-ordered examination relating to the
               patient’s mental or emotional condition or disorder if:

               (A)     the patient made the communication after being informed that it would not
                       be privileged;

               (B)     the communication is offered to prove an issue involving the patient’s
                       mental or emotional health; and

               (C)     the court imposes appropriate safeguards against unauthorized disclosure.

       (5)     Party Relies on Patient’s Condition. If any party relies on the patient’s physical,
               mental, or emotional condition as a part of the party’s claim or defense and the
               communication or record is relevant to that condition.

       (6)     Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or
               neglect, or the cause of any abuse or neglect, of a resident of an “institution” as
               defined in Tex. Health & Safety Code § 242.002.

Comment to 2015 Restyling: The mental-health-information privilege in civil cases was enacted
in Texas in 1979. Tex. Rev. Civ. Stat. art. 5561h (later codified at Tex. Health & Safety Code §
611.001 et seq.) provided that the privilege applied even if the patient had received the
professional’s services before the statute’s enactment. Because more than thirty years have now
passed, it is no longer necessary to burden the text of the rule with a statement regarding the
privilege’s retroactive application. But deleting this statement from the rule’s text is not intended as
a substantive change in the law.

Tex. Health & Safety Code ch. 611 addresses confidentiality rules for communications between a
patient and a mental-health professional and for the professional’s treatment records. Many of
these provisions apply in contexts other than court proceedings. Reconciling the provisions of Rule
510 with the parts of chapter 611 that address a mental-health-information privilege applicable to
court proceedings is beyond the scope of the restyling project.


Rule 511.      Waiver by Voluntary Disclosure




                                                   30
(a)   General Rule.

      A person upon whom these rules confer a privilege against disclosure waives the
      privilege if:

      (1)    the person or a predecessor of the person while holder of the privilege voluntarily
             discloses or consents to disclosure of any significant part of the privileged matter
             unless such disclosure itself is privileged; or

      (2)    the person or a representative of the person calls a person to whom privileged
             communications have been made to testify as to the person’s character or
             character trait insofar as such communications are relevant to such character or
             character trait.

(b)   Lawyer-Client Privilege and Work Product; Limitations on Waiver.

      Notwithstanding paragraph (a), the following provisions apply, in the
      circumstances set out, to disclosure of a communication or information covered
      by the lawyer-client privilege or work-product protection.

      (1)    Disclosure Made in a Federal or State Proceeding or to a Federal or
             State Office or Agency; Scope of a Waiver. When the disclosure is made
             in a federal proceeding or state proceeding of any state or to a federal
             office or agency or state office or agency of any state and waives the
             lawyer-client privilege or work-product protection, the waiver extends to
             an undisclosed communication or information only if:

             (A)      the waiver is intentional;

             (B)      the disclosed and undisclosed communications              or
                      information concern the same subject matter; and

             (C)      they ought in fairness to be considered together.

      (2)    Inadvertent Disclosure in State Civil Proceedings. When made in a Texas
             state proceeding, an inadvertent disclosure does not operate as a waiver if
             the holder followed the procedures of Rule of Civil Procedure 193.3(d).

      (3)    Controlling Effect of a Court Order. A disclosure made in litigation
             pending before a federal court or a state court of any state that has entered
             an order that the privilege or protection is not waived by disclosure
             connected with the litigation pending before that court is also not a waiver
             in a Texas state proceeding.




                                                   31
       (4)     Controlling Effect of a Party Agreement. An agreement on the effect of
               disclosure in a state proceeding of any state is binding only on the parties
               to the agreement, unless it is incorporated into a court order.

Comment to 2015 Restyling: The amendments to Rule 511 are designed to align Texas law with
federal law on waiver of privilege by voluntary disclosure. Subsection (a) sets forth the general
rule. Subsection (b) incorporates the provisions of Federal Rule of Evidence 502. Like the
federal rule, subsection (b) only addresses disclosure of communications or information covered
by the lawyer-client privilege or work-product protection. These amendments do not affect the
law governing waiver of other privileges or protections.

Rule 512.      Privileged Matter Disclosed Under Compulsion or Without Opportunity to
               Claim Privilege

A privilege claim is not defeated by a disclosure that was:

(a)    compelled erroneously; or

(b)    made without opportunity to claim the privilege.


Rule 513.      Comment On or Inference From a Privilege Claim; Instruction

(a)    Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), neither the
       court nor counsel may comment on a privilege claim—whether made in the present
       proceeding or previously—and the factfinder may not draw an inference from the claim.

(b)    Claiming Privilege Without the Jury’s Knowledge. To the extent practicable, the court
       must conduct a jury trial so that the making of a privilege claim is not suggested to the jury
       by any means.

(c)    Claim of Privilege Against Self-Incrimination in a Civil Case. Subdivisions (a) and (b)
       do not apply to a party’s claim, in the present civil case, of the privilege against
       self-incrimination.

(d)    Jury Instruction. When this rule forbids a jury from drawing an inference from a privilege
       claim, the court must, on request of a party against whom the jury might draw the
       inference, instruct the jury accordingly.


                                          ARTICLE VI.
                                          WITNESSES


Rule 601.      Competency to Testify in General; “Dead Man’s Rule”




                                                 32
(a)    In General. Every person is competent to be a witness unless these rules provide
       otherwise. The following witnesses are incompetent:

       (1)     Insane Persons. A person who is now insane or was insane at the time of the
               events about which the person is called to testify.

       (2)     Persons Lacking Sufficient Intellect. A child—or any other person—whom the
               court examines and finds lacks sufficient intellect to testify concerning the matters
               in issue.

(b)    The “Dead Man’s Rule.”

       (1)     Applicability. The “Dead Man’s Rule” applies only in a civil case:

               (A)    by or against a party in the party’s capacity as an executor, administrator, or
                      guardian; or

               (B)    by or against a decedent’s heirs or legal representatives and based in whole
                      or in part on the decedent’s oral statement.

       (2)     General Rule. In cases described in subparagraph (b)(1)(A), a party may not testify
               against another party about an oral statement by the testator, intestate, or ward. In
               cases described in subparagraph (b)(1)(B), a party may not testify against another
               party about an oral statement by the decedent.

       (3)     Exceptions. A party may testify against another party about an oral statement by
               the testator, intestate, ward, or decedent if:

               (A)    the party’s testimony about the statement is corroborated; or

               (B)    the opposing party calls the party to testify at the trial about the statement.

       (4)     Instructions. If a court excludes evidence under paragraph (b)(2), the court must
               instruct the jury that the law prohibits a party from testifying about an oral
               statement by the testator, intestate, ward, or decedent unless the oral statement is
               corroborated or the opposing party calls the party to testify at the trial about the
               statement.

Comment to 2015 Restyling: The text of the “Dead Man’s Rule” has been streamlined to clarify
its meaning without making any substantive changes. The text of former Rule 601(b) (as well as
its statutory predecessor, Vernon’s Ann. Civ. St. art. 3716) prohibits only a “party” from
testifying about the dead man’s statements. Despite this, the last sentence of former Rule 601(b)
requires the court to instruct the jury when the rule “prohibits an interested party or witness”
from testifying. Because the rule prohibits only a “party” from testifying, restyled Rule 601(b)(4)
references only “a party,” and not “an interested party or witness.” To be sure, courts have
indicated that the rule (or its statutory predecessor) may be applicable to a witness who is not



                                                 33
nominally a party and inapplicable to a witness who is only nominally a party. See, e.g.,
Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 809 (1956); Ragsdale v. Ragsdale, 142
Tex. 476, 179 S.W.2d 291, 295 (1944). But these decisions are based on an interpretation of the
meaning of “party.” Therefore, limiting the court’s instruction under restyled Rule 601(b)(4) to
“a party” does not change Texas practice. In addition, restyled Rule 601(b) deletes the sentence
in former Rule 601(b) that states “[e]xcept for the foregoing, a witness is not precluded from
giving evidence . . . because the witness is a party to the action . . .” This sentence is surplusage.
Rule 601(b) is a rule of exclusion. If the testimony falls outside the rule of exclusion, its
admissibility will be determined by other applicable rules of evidence.


Rule 602.      Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness’s own testimony. This rule does not apply to a witness’s expert
testimony under Rule 703.


Rule 603.      Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a
form designed to impress that duty on the witness’s conscience.


Rule 604.      Interpreter

An interpreter must be qualified and must give an oath or affirmation to make a true translation.


Rule 605.      Judge’s Competency as a Witness

The presiding judge may not testify as a witness at the trial. A party need not object to preserve
the issue.


Rule 606.      Juror’s Competency as a Witness

(a)    At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a
       juror is called to testify, the court must give a party an opportunity to object outside the
       jury’s presence.

(b)    During an Inquiry into the Validity of a Verdict or Indictment.

       (1)     Prohibited Testimony or Other Evidence. During an inquiry into the validity of a
               verdict or indictment, a juror may not testify about any statement made or incident



                                                  34
               that occurred during the jury’s deliberations; the effect of anything on that juror’s
               or another juror’s vote; or any juror’s mental processes concerning the verdict or
               indictment. The court may not receive a juror’s affidavit or evidence of a juror’s
               statement on these matters.

       (2)     Exceptions. A juror may testify:

               (A)     about whether an outside influence was improperly brought to bear on any
                       juror; or

               (B)  to rebut a claim that the juror was not qualified to serve.
Rule 607.      Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness’s credibility.


Rule 608.      A Witness’s Character for Truthfulness or Untruthfulness

(a)    Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported
       by testimony about the witness’s reputation for having a character for truthfulness or
       untruthfulness, or by testimony in the form of an opinion about that character. But
       evidence of truthful character is admissible only after the witness’s character for
       truthfulness has been attacked.

(b)    Specific Instances of Conduct. Except for a criminal conviction under Rule 609, a party
       may not inquire into or offer extrinsic evidence to prove specific instances of the
       witness’s conduct in order to attack or support the witness’s character for truthfulness.


Rule 609.      Impeachment by Evidence of a Criminal Conviction

(a)    In General. Evidence of a criminal conviction offered to attack a witness’s character for
       truthfulness must be admitted if:

       (1)     the crime was a felony or involved moral turpitude, regardless of punishment;

       (2)     the probative value of the evidence outweighs its prejudicial effect to a party; and

       (3)     it is elicited from the witness or established by public record.

(b)    Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than
       10 years have passed since the witness’s conviction or release from confinement for it,
       whichever is later. Evidence of the conviction is admissible only if its probative value,
       supported by specific facts and circumstances, substantially outweighs its prejudicial
       effect.




                                                  35
(c)    Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a
       conviction is not admissible if:

       (1)    the conviction has been the subject of a pardon, annulment, certificate of
              rehabilitation, or other equivalent procedure based on a finding that the person has
              been rehabilitated, and the person has not been convicted of a later crime that was
              classified as a felony or involved moral turpitude, regardless of punishment;

       (2)    probation has been satisfactorily completed for the conviction, and the person has
              not been convicted of a later crime that was classified as a felony or involved
              moral turpitude, regardless of punishment; or
       (3)    the conviction has been the subject of a pardon, annulment, or other equivalent
              procedure based on a finding of innocence.

(d)    Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule
       only if:

       (1)    the witness is a party in a proceeding conducted under title 3 of the Texas Family
              Code; or

       (2)    the United States or Texas Constitution requires that it be admitted.

(e)    Pendency of an Appeal. A conviction for which an appeal is pending is not admissible
       under this rule.

(f)    Notice. Evidence of a witness’s conviction is not admissible under this rule if, after
       receiving from the adverse party a timely written request specifying the witness, the
       proponent of the conviction fails to provide sufficient written notice of intent to use the
       conviction. Notice is sufficient if it provides a fair opportunity to contest the use of such
       evidence.


Rule 610.     Religious Beliefs or Opinions

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the
witness’s credibility.


Rule 611.     Mode and Order of Examining Witnesses and Presenting Evidence

(a)    Control by the Court; Purposes. The court should exercise reasonable control over the
       mode and order of examining witnesses and presenting evidence so as to:

       (1)    make those procedures effective for determining the truth;

       (2)    avoid wasting time; and



                                                36
      (3)    protect witnesses from harassment or undue embarrassment.

(b)   Scope of Cross-Examination. A witness may be cross-examined on any relevant matter,
      including credibility.

(c)   Leading Questions. Leading questions should not be used on direct examination except
      as necessary to develop the witness’s testimony. Ordinarily, the court should allow
      leading questions:

      (1)    on cross-examination; and
      (2)    when a party calls a hostile witness, an adverse party, or a witness identified with
             an adverse party.


Rule 612.    Writing Used to Refresh a Witness’s Memory

(a)   Scope. This rule gives an adverse party certain options when a witness uses a writing to
      refresh memory:

      (1)    while testifying;

      (2)    before testifying, in civil cases, if the court decides that justice requires the party
             to have those options; or

      (3)    before testifying, in criminal cases.

(b)   Adverse Party’s Options; Deleting Unrelated Matter. An adverse party is entitled to
      have the writing produced at the hearing, to inspect it, to cross-examine the witness about
      it, and to introduce in evidence any portion that relates to the witness’s testimony. If the
      producing party claims that the writing includes unrelated matter, the court must examine
      the writing in camera, delete any unrelated portion, and order that the rest be delivered to
      the adverse party. Any portion deleted over objection must be preserved for the record.

(c)   Failure to Produce or Deliver the Writing. If a writing is not produced or is not
      delivered as ordered, the court may issue any appropriate order. But if the prosecution
      does not comply in a criminal case, the court must strike the witness’s testimony or—if
      justice so requires—declare a mistrial.


Rule 613.    Witness’s Prior Statement and Bias or Interest

(a)   Witness’s Prior Inconsistent Statement.

      (1)    Foundation Requirement. When examining a witness about the witness’s prior
             inconsistent statement—whether oral or written—a party must first tell the witness:



                                               37
             (A)    the contents of the statement;

             (B)    the time and place of the statement; and

             (C)    the person to whom the witness made the statement.

      (2)    Need Not Show Written Statement. If the witness’s prior inconsistent statement is
             written, a party need not show it to the witness before inquiring about it, but must,
             upon request, show it to opposing counsel.
      (3)    Opportunity to Explain or Deny. A witness must be given the opportunity to
             explain or deny the prior inconsistent statement.

      (4)    Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is
             not admissible unless the witness is first examined about the statement and fails to
             unequivocally admit making the statement.

      (5)    Opposing Party’s Statement. This subdivision (a) does not apply to an opposing
             party’s statement under Rule 801(e)(2).

(b)   Witness’s Bias or Interest.

      (1)    Foundation Requirement. When examining a witness about the witness’s bias or
             interest, a party must first tell the witness the circumstances or statements that tend
             to show the witness’s bias or interest. If examining a witness about a statement—
             whether oral or written—to prove the witness’s bias or interest, a party must tell the
             witness:

             (A)    the contents of the statement;

             (B)    the time and place of the statement; and

             (C)    the person to whom the statement was made.

      (2)    Need Not Show Written Statement. If a party uses a written statement to prove the
             witness’s bias or interest, a party need not show the statement to the witness before
             inquiring about it, but must, upon request, show it to opposing counsel.

      (3)    Opportunity to Explain or Deny. A witness must be given the opportunity to
             explain or deny the circumstances or statements that tend to show the witness’s bias
             or interest. And the witness’s proponent may present evidence to rebut the charge
             of bias or interest.

      (4)    Extrinsic Evidence. Extrinsic evidence of a witness’s bias or interest is not
             admissible unless the witness is first examined about the bias or interest and fails to
             unequivocally admit it.



                                               38
(c)    Witness’s Prior Consistent Statement. Unless Rule 801(e)(1)(B) provides otherwise, a
       witness’s prior consistent statement is not admissible if offered solely to enhance the
       witness’s credibility.

Comment to 2015 Restyling: The amended rule retains the requirement that a witness be given
an opportunity to explain or deny (a) a prior inconsistent statement or (b) the circumstances or a
statement showing the witness’s bias or interest, but this requirement is not imposed on the
examining attorney. A witness may have to wait until redirect examination to explain a prior
inconsistent statement or the circumstances or a statement that shows bias. But the impeaching
attorney still is not permitted to introduce extrinsic evidence of the witness’s prior inconsistent
statement or bias unless the witness has first been examined about the statement or bias and has
failed to unequivocally admit it. All other changes to the rule are intended to be stylistic only.


Rule 614.      Excluding Witnesses

At a party’s request, the court must order witnesses excluded so that they cannot hear other
witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize
excluding:

(a)    a party who is a natural person and, in civil cases, that person’s spouse;

(b)    after being designated as the party’s representative by its attorney:

       (1)     in a civil case, an officer or employee of a party that is not a natural person; or

       (2)     in a criminal case, a defendant that is not a natural person;

(c)    a person whose presence a party shows to be essential to presenting the party’s claim or
       defense; or

(d)    the victim in a criminal case, unless the court determines that the victim’s testimony would
       be materially affected by hearing other testimony at the trial.


Rule 615.      Producing a Witness’s Statement in Criminal Cases

(a)    Motion to Produce. After a witness other than the defendant testifies on direct
       examination, the court, on motion of a party who did not call the witness, must order an
       attorney for the state or the defendant and the defendant’s attorney to produce, for the
       examination and use of the moving party, any statement of the witness that:

       (1)     is in their possession;
       (2)     relates to the subject matter of the witness’s testimony; and
       (3)     has not previously been produced.



                                                 39
(b)    Producing the Entire Statement. If the entire statement relates to the subject matter of
       the witness’s testimony, the court must order that the statement be delivered to the
       moving party.

(c)    Producing a Redacted Statement. If the party who called the witness claims that the
       statement contains information that does not relate to the subject matter of the witness’s
       testimony, the court must inspect the statement in camera. After excising any unrelated
       portions, the court must order delivery of the redacted statement to the moving party. If a
       party objects to an excision, the court must preserve the entire statement with the excised
       portion indicated, under seal, as part of the record.

(d)    Recess to Examine a Statement. If the court orders production of a witness’s statement,
       the court, on request, must recess the proceedings to allow the moving party time to
       examine the statement and prepare for its use.

(e)    Sanction for Failure to Produce or Deliver a Statement. If the party who called the
       witness disobeys an order to produce or deliver a statement, the court must strike the
       witness’s testimony from the record. If an attorney for the state disobeys the order, the
       court must declare a mistrial if justice so requires.

(f)    “Statement” Defined. As used in this rule, a witness’s “statement’’ means:

       (1)     a written statement that the witness makes and signs, or otherwise adopts or
               approves;

       (2)     a substantially verbatim, contemporaneously recorded recital of the witness’s oral
               statement that is contained in any recording or any transcription of a recording; or

       (3)     the witness’s statement to a grand jury, however taken or recorded, or a
               transcription of such a statement.

Comment to 2015 Amendment: The Michael Morton Act, codified at Texas Code of Criminal
Procedure art. 39.14, affords defendants substantial pre-trial discovery, requiring the state, upon
request from the defendant, to produce and permit the defendant to inspect and copy various
items, including witness statements. In many instances, therefore, art. 39.14 eliminates the need,
after the witness testifies on direct examination, for a defendant to request, and the court to order,
production of a witness’s statement.

But art. 39.14 does not entirely eliminate the need for in-trial discovery of witness statements.
Art. 39.14 does not extend equivalent discovery rights to the prosecution, and so prosecutors will
still need to use Rule 615 to obtain witness statements of defense witnesses. Moreover, some
defendants may fail to exercise their discovery rights under art. 39.14 and so may wish to obtain
a witness statement under Rule 615. In addition, the Michael Morton Act applies only to the
prosecution of offenses committed after December 31, 2013. Defendants on trial for offenses




                                                  40
committed before then have no right to pre-trial discovery of the witness statements of
prosecution witnesses.

Consequently, Rule 615(a) has been amended to account for the changed pre-trial discovery
regime introduced by the Michael Morton Act. If a party’s adversary has already produced a
witness’s statement – whether through formal discovery under art. 39.14 or through more
informal means – Rule 615(a) no longer gives a party the right to obtain, after the witness
testifies on direct examination, a court order for production of the witness’s statement. But if a
party’s adversary has not already produced a witness’s statement, the party may still use Rule
615(a) to request and obtain a court order requiring production of the witness’s statement after
the witness finishes testifying on direct examination.


                                    ARTICLE VII.
                          OPINIONS AND EXPERT TESTIMONY


Rule 701.      Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one
that is:

(a)    rationally based on the witness’s perception; and

(b)    helpful to clearly understanding the witness’s testimony or to determining a fact in issue.

Comment to 2015 Restyling: All references to an “inference” have been deleted because this
makes the Rule flow better and easier to read, and because any “inference” is covered by the
broader term “opinion.” Courts have not made substantive decisions on the basis of any
distinction between an opinion and an inference. No change in current practice is intended.


Rule 702.      Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine a fact
in issue.


Rule 703.      Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware
of, reviewed, or personally observed. If experts in the particular field would reasonably rely on
those kinds of facts or data in forming an opinion on the subject, they need not be admissible for
the opinion to be admitted.



                                                41
Comment to 2015 Restyling: All references to an “inference” have been deleted because this
makes the Rule flow better and easier to read, and because any “inference” is covered by the
broader term “opinion.” Courts have not made substantive decisions on the basis of any
distinction between an opinion and an inference. No change in current practice is intended.


Rule 704.      Opinion on an Ultimate Issue

An opinion is not objectionable just because it embraces an ultimate issue.


Rule 705.      Disclosing the Underlying Facts or Data and Examining an Expert About
               Them

(a)    Stating an Opinion Without Disclosing the Underlying Facts or Data. Unless the
       court orders otherwise, an expert may state an opinion—and give the reasons for it—
       without first testifying to the underlying facts or data. But the expert may be required to
       disclose those facts or data on cross-examination.

(b)    Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an
       expert states an opinion or discloses the underlying facts or data, an adverse party in a civil
       case may—or in a criminal case must—be permitted to examine the expert about the
       underlying facts or data. This examination must take place outside the jury’s hearing.

(c)    Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or
       data do not provide a sufficient basis for the opinion.

(d)    When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed;
       Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the
       proponent of the opinion may not disclose them to the jury if their probative value in
       helping the jury evaluate the opinion is outweighed by their prejudicial effect. If the court
       allows the proponent to disclose those facts or data the court must, upon timely request,
       restrict the evidence to its proper scope and instruct the jury accordingly.

Comment to 2015 Restyling: All references to an “inference” have been deleted because this
makes the Rule flow better and easier to read, and because any “inference” is covered by the
broader term “opinion.” Courts have not made substantive decisions on the basis of any
distinction between an opinion and an inference. No change in current practice is intended.




Rule 706.      Audit in Civil Cases




                                                 42
Notwithstanding any other evidence rule, the court must admit an auditor’s verified report
prepared under Rule of Civil Procedure 172 and offered by a party. If a party files exceptions to
the report, a party may offer evidence supporting the exceptions to contradict the report.


                                        ARTICLE VIII.
                                         HEARSAY


Rule 801.     Definitions That Apply to This Article; Exclusions from Hearsay

(a)    Statement. “Statement” means a person’s oral or written verbal expression, or nonverbal
       conduct that a person intended as a substitute for verbal expression.

(b)    Declarant. “Declarant” means the person who made the statement.

(c)    Matter Asserted. “Matter asserted” means:

       (1)    any matter a declarant explicitly asserts; and

       (2)    any matter implied by a statement, if the probative value of the statement as
              offered flows from the declarant’s belief about the matter.

(d)    Hearsay. “Hearsay” means a statement that:

       (1)    the declarant does not make while testifying at the current trial or hearing; and

       (2)    a party offers in evidence to prove the truth of the matter asserted in the statement.

(e)    Statements That Are Not Hearsay. A statement that meets the following conditions is
       not hearsay:

       (1)    A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to
              cross-examination about a prior statement, and the statement:

              (A)     is inconsistent with the declarant’s testimony and:

                      (i)    when offered in a civil case, was given under penalty of perjury at
                             a trial, hearing, or other proceeding or in a deposition; or

                      (ii)   when offered in a criminal case, was given under penalty of
                             perjury at a trial, hearing, or other proceeding—except a grand jury
                             proceeding—or in a deposition;




                                                43
               (B)     is consistent with the declarant’s testimony and is offered to rebut an
                       express or implied charge that the declarant recently fabricated it or acted
                       from a recent improper influence or motive in so testifying; or

               (C)     identifies a person as someone the declarant perceived earlier.

       (2)     An Opposing Party’s Statement. The statement is offered against an opposing
               party and:

               (A)     was made by the party in an individual or representative capacity;

               (B)     is one the party manifested that it adopted or believed to be true;

               (C)     was made by a person whom the party authorized to make a statement on
                       the subject;

               (D)     was made by the party’s agent or employee on a matter within the scope of
                       that relationship and while it existed; or

               (E)     was made by the party’s coconspirator during and in furtherance of the
                       conspiracy.

       (3)     A Deponent’s Statement. In a civil case, the statement was made in a deposition
               taken in the same proceeding. “Same proceeding” is defined in Rule of Civil
               Procedure 203.6(b). The deponent’s unavailability as a witness is not a requirement
               for admissibility.

Comment to 2015 Restyling: Statements falling under the hearsay exclusion provided by Rule
801(e)(2) are no longer referred to as “admissions” in the title to the subdivision. The term
“admissions” is confusing because not all statements covered by the exclusion are admissions in
the colloquial sense—a statement can be within the exclusion even if it “admitted” nothing and
was not against the party’s interest when made. The term “admissions” also raises confusion in
comparison with the Rule 803(24) exception for declarations against interest. No change in
application of the exclusion is intended.

The deletion of former Rule 801(e)(1)(D), which cross-references Code of Criminal Procedure
art. 38.071, is not intended as a substantive change. Including this cross-reference made sense
when the Texas Rules of Criminal Evidence were first promulgated, but with subsequent changes
to the statutory provision, its inclusion is no longer appropriate. The version of article 38.071 that
was initially cross-referenced in the Rules of Criminal Evidence required the declarant-victim to
be available to testify at the trial. That requirement has since been deleted from the statute, and
the statute no longer requires either the availability or testimony of the declarant-victim. Thus,
cross-referencing the statute in Rule 801(e)(1), which applies only when the declarant testifies at
trial about the prior statement, no longer makes sense. Moreover, article 38.071 is but one of a
number of statutes that mandate the admission of certain hearsay statements in particular
circumstances. See, e.g., Code of Criminal Procedure art. 38.072; Family Code §§ 54.031,



                                                  44
104.002, 104.006. These statutory provisions take precedence over the general rule excluding
hearsay, see Rules 101(c) and 802, and there is no apparent justification for cross-referencing
article 38.071 and not all other such provisions.


Rule 802.      The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

   •   a statute;
   •   these rules; or
   •   other rules prescribed under statutory authority.

Inadmissible hearsay admitted without objection may not be denied probative value merely
because it is hearsay.


Rule 803.      Exceptions to the Rule Against Hearsay—Regardless of Whether the
               Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:

       (1)     Present Sense Impression. A statement describing or explaining an event or
               condition, made while or immediately after the declarant perceived it.

       (2)     Excited Utterance. A statement relating to a startling event or condition, made
               while the declarant was under the stress of excitement that it caused.

       (3)     Then-Existing Mental, Emotional, or Physical Condition. A statement of the
               declarant’s then-existing state of mind (such as motive, intent, or plan) or
               emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
               health), but not including a statement of memory or belief to prove the fact
               remembered or believed unless it relates to the validity or terms of the declarant’s
               will.

       (4)     Statement Made for Medical Diagnosis or Treatment. A statement that:

               (A)    is made for—and is reasonably pertinent to—medical diagnosis or
                      treatment; and

               (B)    describes medical history; past or present symptoms or sensations; their
                      inception; or their general cause.

       (5)     Recorded Recollection. A record that:




                                                45
      (A)    is on a matter the witness once knew about but now cannot recall well
             enough to testify fully and accurately;

      (B)    was made or adopted by the witness when the matter was fresh in the
             witness’s memory; and

      (C)    accurately reflects the witness’s knowledge, unless the circumstances of
             the record’s preparation cast doubt on its trustworthiness.

      If admitted, the record may be read into evidence but may be received as an
      exhibit only if offered by an adverse party.

(6)   Records of a Regularly Conducted Activity. A record of an act, event, condition,
      opinion, or diagnosis if:

      (A)    the record was made at or near the time by—or from information
             transmitted by—someone with knowledge;

      (B)    the record was kept in the course of a regularly conducted business
             activity;

      (C)    making the record was a regular practice of that activity;

      (D)    all these conditions are shown by the testimony of the custodian or another
             qualified witness, or by an affidavit or unsworn declaration that complies
             with Rule 902(10); and

      (E)    the opponent fails to demonstrate that the source of information or the
             method or circumstances of preparation indicate a lack of trustworthiness.

      “Business” as used in this paragraph includes every kind of regular organized
      activity whether conducted for profit or not.

(7)   Absence of a Record of a Regularly Conducted Activity. Evidence that a matter
      is not included in a record described in paragraph (6) if:

      (A)    the evidence is admitted to prove that the matter did not occur or exist;

      (B)    a record was regularly kept for a matter of that kind; and

      (C)    the opponent fails to show that the possible source of the information or
             other circumstances indicate a lack of trustworthiness.

(8)   Public Records. A record or statement of a public office if:

      (A)    it sets out:



                                       46
              (i)     the office’s activities;

              (ii)    a matter observed while under a legal duty to report, but not
                      including, in a criminal case, a matter observed by law-
                      enforcement personnel; or

              (iii)   in a civil case or against the government in a criminal case, factual
                      findings from a legally authorized investigation; and

       (B)    the opponent fails to demonstrate that the source of information or other
              circumstances indicate a lack of trustworthiness.

(9)    Public Records of Vital Statistics. A record of a birth, death, or marriage, if
       reported to a public office in accordance with a legal duty.

(10)   Absence of a Public Record. Testimony—or a certification under Rule 902—that
       a diligent search failed to disclose a public record or statement if the testimony or
       certification is admitted to prove that:

       (A)    the record or statement does not exist; or

       (B)    a matter did not occur or exist, if a public office regularly kept a record or
              statement for a matter of that kind.

(11)   Records of Religious Organizations Concerning Personal or Family History. A
       statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by
       blood or marriage, or similar facts of personal or family history, contained in a
       regularly kept record of a religious organization.

(12)   Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact
       contained in a certificate:

       (A)    made by a person who is authorized by a religious organization or by law
              to perform the act certified;

       (B)    attesting that the person performed a marriage or similar ceremony or
              administered a sacrament; and

       (C)    purporting to have been issued at the time of the act or within a reasonable
              time after it.

(13)   Family Records. A statement of fact about personal or family history contained in
       a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription
       on a portrait, or engraving on an urn or burial marker.




                                         47
(14)   Records of Documents That Affect an Interest in Property. The record of a
       document that purports to establish or affect an interest in property if:

       (A)    the record is admitted to prove the content of the original recorded
              document, along with its signing and its delivery by each person who
              purports to have signed it;

       (B)    the record is kept in a public office; and

       (C)    a statute authorizes recording documents of that kind in that office.

(15)   Statements in Documents That Affect an Interest in Property. A statement
       contained in a document that purports to establish or affect an interest in property
       if the matter stated was relevant to the document’s purpose—unless later dealings
       with the property are inconsistent with the truth of the statement or the purport of
       the document.

(16)   Statements in Ancient Documents. A statement in a document that is at least 20
       years old and whose authenticity is established.

(17)   Market Reports and Similar Commercial Publications. Market quotations, lists,
       directories, or other compilations that are generally relied on by the public or by
       persons in particular occupations.

(18)   Statements in Learned Treatises, Periodicals, or Pamphlets. A statement
       contained in a treatise, periodical, or pamphlet if:

       (A)    the statement is called to the attention of an expert witness on cross-
              examination or relied on by the expert on direct examination; and

       (B)    the publication is established as a reliable authority by the expert’s
              admission or testimony, by another expert’s testimony, or by judicial
              notice.

       If admitted, the statement may be read into evidence but not received as an
       exhibit.

(19)   Reputation Concerning Personal or Family History. A reputation among a
       person’s family by blood, adoption, or marriage—or among a person’s associates
       or in the community—concerning the person’s birth, adoption, legitimacy,
       ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage,
       or similar facts of personal or family history.

(20)   Reputation Concerning Boundaries or General History. A reputation in a
       community—arising before the controversy—concerning boundaries of land in




                                        48
       the community or customs that affect the land, or concerning general historical
       events important to that community, state, or nation.

(21)   Reputation Concerning Character. A reputation among a person’s associates or
       in the community concerning the person’s character.

(22)   Judgment of a Previous Conviction. Evidence of a final judgment of conviction
       if:

       (A)    it is offered in a civil case and:

              (i)     the judgment was entered after a trial or guilty plea, but not a nolo
                      contendere plea;

              (ii)    the conviction was for a felony;

              (iii)   the evidence is admitted to prove any fact essential to the
                      judgment; and

              (iv)    an appeal of the conviction is not pending; or

       (B)    it is offered in a criminal case and:

              (i)     the judgment was entered after a trial or a guilty or nolo contendere
                      plea;

              (ii)    the conviction was for a criminal offense;

              (iii)   the evidence is admitted to prove any fact essential to the
                      judgment;

              (iv)    when offered by the prosecutor for a purpose other than
                      impeachment, the judgment was against the defendant; and

              (v)     an appeal of the conviction is not pending.

(23)   Judgments Involving Personal, Family, or General History or a Boundary. A
       judgment that is admitted to prove a matter of personal, family, or general history,
       or boundaries, if the matter:

       (A)    was essential to the judgment; and

       (B)    could be proved by evidence of reputation.




                                          49
      (24)   Statement Against Interest. A statement that:

             (A)    a reasonable person in the declarant’s position would have made only if
                    the person believed it to be true because, when made, it was so contrary to
                    the declarant’s proprietary or pecuniary interest or had so great a tendency
                    to invalidate the declarant’s claim against someone else or to expose the
                    declarant to civil or criminal liability or to make the declarant an object of
                    hatred, ridicule, or disgrace; and

             (B)    is supported by corroborating circumstances that clearly indicate its
                    trustworthiness, if it is offered in a criminal case as one that tends to
                    expose the declarant to criminal liability.


Rule 804.    Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
             as a Witness

(a)   Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness
      if the declarant:

      (1)    is exempted from testifying about the subject matter of the declarant’s statement
             because the court rules that a privilege applies;

      (2)    refuses to testify about the subject matter despite a court order to do so;

      (3)    testifies to not remembering the subject matter;

      (4)    cannot be present or testify at the trial or hearing because of death or a then-
             existing infirmity, physical illness, or mental illness; or

      (5)    is absent from the trial or hearing and the statement’s proponent has not been
             able, by process or other reasonable means, to procure the declarant’s attendance
             or testimony.

      But this subdivision (a) does not apply if the statement’s proponent procured or
      wrongfully caused the declarant’s unavailability as a witness in order to prevent the
      declarant from attending or testifying.

(b)   The Exceptions. The following are not excluded by the rule against hearsay if the
      declarant is unavailable as a witness:

      (1)    Former Testimony. Testimony that:

             (A)    when offered in a civil case:




                                               50
                     (i)     was given as a witness at a trial or hearing of the current or a
                             different proceeding or in a deposition in a different proceeding;
                             and

                     (ii)    is now offered against a party and the party—or a person with
                             similar interest—had an opportunity and similar motive to develop
                             the testimony by direct, cross-, or redirect examination.

              (B)    when offered in a criminal case:

                     (i)     was given as a witness at a trial or hearing of the current or a
                             different proceeding; and

                     (ii)    is now offered against a party who had an opportunity and similar
                             motive to develop it by direct, cross-, or redirect examination; or

                     (iii)   was taken in a deposition under—and is now offered in accordance
                             with—chapter 39 of the Code of Criminal Procedure.

       (2)    Statement Under the Belief of Imminent Death. A statement that the declarant,
              while believing the declarant’s death to be imminent, made about its cause or
              circumstances.

       (3)    Statement of Personal or Family History. A statement about:

              (A)    the declarant’s own birth, adoption, legitimacy, ancestry, marriage,
                     divorce, relationship by blood, adoption or marriage, or similar facts of
                     personal or family history, even though the declarant had no way of
                     acquiring personal knowledge about that fact; or

              (B)    another person concerning any of these facts, as well as death, if the
                     declarant was related to the person by blood, adoption, or marriage or was
                     so intimately associated with the person’s family that the declarant’s
                     information is likely to be accurate.


Rule 805.     Hearsay Within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.


Rule 806.     Attacking and Supporting the Declarant’s Credibility

When a hearsay statement—or a statement described in Rule 801(e)(2)(C), (D), or (E), or, in a
civil case, a statement described in Rule 801(e)(3)—has been admitted in evidence, the



                                              51
declarant’s credibility may be attacked, and then supported, by any evidence that would be
admissible for those purposes if the declarant had testified as a witness. The court may admit
evidence of the declarant’s statement or conduct, offered to impeach the declarant, regardless of
when it occurred or whether the declarant had an opportunity to explain or deny it. If the party
against whom the statement was admitted calls the declarant as a witness, the party may examine
the declarant on the statement as if on cross-examination.


                                  ARTICLE IX.
                       AUTHENTICATION AND IDENTIFICATION


Rule 901.     Authenticating or Identifying Evidence

(a)    In General. To satisfy the requirement of authenticating or identifying an item of
       evidence, the proponent must produce evidence sufficient to support a finding that the
       item is what the proponent claims it is.

(b)    Examples. The following are examples only—not a complete list—of evidence that
       satisfies the requirement:

       (1)    Testimony of a Witness with Knowledge. Testimony that an item is what it is
              claimed to be.

       (2)    Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting
              is genuine, based on a familiarity with it that was not acquired for the current
              litigation.

       (3)    Comparison by an Expert Witness or the Trier of Fact. A comparison by an
              expert witness or the trier of fact with a specimen that the court has found is
              genuine.

       (4)    Distinctive Characteristics and the Like. The appearance, contents, substance,
              internal patterns, or other distinctive characteristics of the item, taken together
              with all the circumstances.

       (5)    Opinion About a Voice. An opinion identifying a person’s voice—whether heard
              firsthand or through mechanical or electronic transmission or recording—based
              on hearing the voice at any time under circumstances that connect it with the
              alleged speaker.

       (6)    Evidence About a Telephone Conversation. For a telephone conversation,
              evidence that a call was made to the number assigned at the time to:

              (A)     a particular person, if circumstances, including self-identification, show
                      that the person answering was the one called; or



                                               52
              (B)    a particular business, if the call was made to a business and the call related
                     to business reasonably transacted over the telephone.

       (7)    Evidence About Public Records. Evidence that:

              (A)    a document was recorded or filed in a public office as authorized by law;
                     or

              (B)    a purported public record or statement is from the office where items of
                     this kind are kept.

       (8)    Evidence About Ancient Documents or Data Compilations. For a document or
              data compilation, evidence that it:

              (A)    is in a condition that creates no suspicion about its authenticity;

              (B)    was in a place where, if authentic, it would likely be; and

              (C)    is at least 20 years old when offered.

       (9)    Evidence About a Process or System. Evidence describing a process or system
              and showing that it produces an accurate result.

       (10)   Methods Provided by a Statute or Rule. Any method of authentication or
              identification allowed by a statute or other rule prescribed under statutory
              authority.


Rule 902.     Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted:

       (1)    Domestic Public Documents That Are Sealed and Signed. A document that
              bears:

              (A)    a seal purporting to be that of the United States; any state, district,
                     commonwealth, territory, or insular possession of the United States; the
                     former Panama Canal Zone; the Trust Territory of the Pacific Islands; a
                     political subdivision of any of these entities; or a department, agency, or
                     officer of any entity named above; and

              (B)    a signature purporting to be an execution or attestation.

       (2)    Domestic Public Documents That Are Not Sealed But Are Signed and Certified.
              A document that bears no seal if:



                                               53
      (A)    it bears the signature of an officer or employee of an entity named in Rule
             902(1)(A); and

      (B)    another public officer who has a seal and official duties within that same
             entity certifies under seal—or its equivalent—that the signer has the
             official capacity and that the signature is genuine.

(3)   Foreign Public Documents. A document that purports to be signed or attested by
      a person who is authorized by a foreign country’s law to do so.

      (A)    In General. The document must be accompanied by a final certification
             that certifies the genuineness of the signature and official position of the
             signer or attester—or of any foreign official whose certificate of
             genuineness relates to the signature or attestation or is in a chain of
             certificates of genuineness relating to the signature or attestation. The
             certification may be made by a secretary of a United States embassy or
             legation; by a consul general, vice consul, or consular agent of the United
             States; or by a diplomatic or consular official of the foreign country
             assigned or accredited to the United States.

      (B)    If Parties Have Reasonable Opportunity to Investigate. If all parties have
             been given a reasonable opportunity to investigate the document’s
             authenticity and accuracy, the court may, for good cause, either:

             (i)    order that it be treated as presumptively authentic without final
                    certification; or

             (ii)   allow it to be evidenced by an attested summary with or without
                    final certification.

      (C)    If a Treaty Abolishes or Displaces the Final Certification Requirement.
             If the United States and the foreign country in which the official record is
             located are parties to a treaty or convention that abolishes or displaces the
             final certification requirement, the record and attestation must be certified
             under the terms of the treaty or convention.

(4)   Certified Copies of Public Records. A copy of an official record—or a copy of a
      document that was recorded or filed in a public office as authorized by law—if
      the copy is certified as correct by:

      (A)    the custodian or another person authorized to make the certification; or

      (B)    a certificate that complies with Rule 902(1), (2), or (3), a statute, or a rule
             prescribed under statutory authority.




                                       54
(5)    Official Publications. A book, pamphlet, or other publication purporting to be
       issued by a public authority.

(6)    Newspapers and Periodicals. Printed material purporting to be a newspaper or
       periodical.

(7)    Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to
       have been affixed in the course of business and indicating origin, ownership, or
       control.

(8)    Acknowledged Documents. A document accompanied by a certificate of
       acknowledgment that is lawfully executed by a notary public or another officer
       who is authorized to take acknowledgments.

(9)    Commercial Paper and Related Documents. Commercial paper, a signature on it,
       and related documents, to the extent allowed by general commercial law.

(10)   Business Records Accompanied by Affidavit. The original or a copy of a record
       that meets the requirements of Rule 803(6) or (7), if the record is accompanied by
       an affidavit that complies with subparagraph (B) of this rule and any other
       requirements of law, and the record and affidavit are served in accordance with
       subparagraph (A). For good cause shown, the court may order that a business
       record be treated as presumptively authentic even if the proponent fails to comply
       with subparagraph (A).

       (A)    Service Requirement. The proponent of a record must serve the record
              and the accompanying affidavit on each other party to the case at least 14
              days before trial. The record and affidavit may be served by any method
              permitted by Rule of Civil Procedure 21a.

       (B)    Form of Affidavit. An affidavit is sufficient if it includes the following
              language, but this form is not exclusive. The proponent may use an
              unsworn declaration made under penalty of perjury in place of an
              affidavit.

              1.     I am the custodian of records [or I am an employee or owner] of
                     __________ and am familiar with the manner in which its records
                     are created and maintained by virtue of my duties and
                     responsibilities.

              2.     Attached are ____ pages of records. These are the original records
                     or exact duplicates of the original records.

              3.     The records were made at or near the time of each act, event,
                     condition, opinion, or diagnosis set forth. [or It is the regular
                     practice of __________ to make this type of record at or near the



                                       55
                                 time of each act, event, condition, opinion, or diagnosis set forth in
                                 the record.]
                          4.     The records were made by, or from information transmitted by,
                                 persons with knowledge of the matters set forth. [or It is the
                                 regular practice of __________ for this type of record to be made
                                 by, or from information transmitted by, persons with knowledge of
                                 the matters set forth in them.]

                          5.     The records were kept in the course of regularly conducted
                                 business activity. [or It is the regular practice of __________ to
                                 keep this type of record in the course of regularly conducted
                                 business activity.]

                          6.     It is the regular practice of the business activity to make the
                                 records.

        (11)       Presumptions Under a Statute or Rule. A signature, document, or anything else
                   that a statute or rule prescribed under statutory authority declares to be
                   presumptively or prima facie genuine or authentic.


Rule 903.          Subscribing Witness’s Testimony

A subscribing witness’s testimony is necessary to authenticate a writing only if required by the
law of the jurisdiction that governs its validity.


                                 ARTICLE X.
             CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS


Rule 1001.         Definitions That Apply to This Article

In this article:

(a)     A “writing” consists of letters, words, numbers, or their equivalent set down in any form.

(b)     A “recording” consists of letters, words, numbers, or their equivalent recorded in any
        manner.

(c)     A “photograph” means a photographic image or its equivalent stored in any form.

(d)     An “original” of a writing or recording means the writing or recording itself or any
        counterpart intended to have the same effect by the person who executed or issued it. For
        electronically stored information, “original” means any printout—or other output




                                                   56
       readable by sight—if it accurately reflects the information. An “original” of a photograph
       includes the negative or a print from it.
(e)    A “duplicate” means a counterpart produced by a mechanical, photographic, chemical,
       electronic, or other equivalent process or technique that accurately reproduces the
       original.


Rule 1002.     Requirement of the Original

An original writing, recording, or photograph is required in order to prove its content unless
these rules or other law provides otherwise.


Rule 1003.     Admissibility of Duplicates

A duplicate is admissible to the same extent as the original unless a question is raised about the
original’s authenticity or the circumstances make it unfair to admit the duplicate.


Rule 1004.     Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:

(a)    all the originals are lost or destroyed, unless the proponent lost or destroyed them in bad
       faith;

(b)    an original cannot be obtained by any available judicial process;

(c)    an original is not located in Texas;

(d)    the party against whom the original would be offered had control of the original; was at
       that time put on notice, by pleadings or otherwise, that the original would be a subject of
       proof at the trial or hearing; and fails to produce it at the trial or hearing; or

(e)    the writing, recording, or photograph is not closely related to a controlling issue.


Rule 1005.     Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record—or of a document that
was recorded or filed in a public office as authorized by law—if these conditions are met: the
record or document is otherwise admissible; and the copy is certified as correct in accordance
with Rule 902(4) or is testified to be correct by a witness who has compared it with the original.
If no such copy can be obtained by reasonable diligence, then the proponent may use other
evidence to prove the content.



                                                 57
Rule 1006.     Summaries to Prove Content

The proponent may use a summary, chart, or calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be conveniently examined in court. The
proponent must make the originals or duplicates available for examination or copying, or both,
by other parties at a reasonable time and place. And the court may order the proponent to
produce them in court.


Rule 1007.     Testimony or Statement of a Party to Prove Content

The proponent may prove the content of a writing, recording, or photograph by the testimony,
deposition, or written statement of the party against whom the evidence is offered. The
proponent need not account for the original.


Rule 1008.     Functions of the Court and Jury

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for
admitting other evidence of the content of a writing, recording, or photograph under Rule 1004
or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue
about whether:

(a)    an asserted writing, recording, or photograph ever existed;

(b)    another one produced at the trial or hearing is the original; or

(c)    other evidence of content accurately reflects the content.


Rule 1009.     Translating a Foreign Language Document

(a)    Submitting a Translation. A translation of a foreign language document is admissible if,
       at least 45 days before trial, the proponent serves on all parties:

       (1)     the translation and the underlying foreign language document; and

       (2)     a qualified translator’s affidavit or unsworn declaration that sets forth the
               translator’s qualifications and certifies that the translation is accurate.

(b)    Objection. When objecting to a translation’s accuracy, a party should specifically indicate
       its inaccuracies and offer an accurate translation. A party must serve the objection on all
       parties at least 15 days before trial.




                                                 58
(c)   Effect of Failing to Object or Submit a Conflicting Translation. If the underlying
      foreign language document is otherwise admissible, the court must admit—and may not
      allow a party to attack the accuracy of—a translation submitted under subdivision (a) unless
      the party has:

      (1)    submitted a conflicting translation under subdivision (a); or

      (2)    objected to the translation under subdivision (b).

(d)   Effect of Objecting or Submitting a Conflicting Translation. If conflicting translations
      are submitted under subdivision (a) or an objection is made under subdivision (b), the court
      must determine whether there is a genuine issue about the accuracy of a material part of the
      translation. If so, the trier of fact must resolve the issue.

(e)   Qualified Translator May Testify. Except for subdivision (c), this rule does not preclude
      a party from offering the testimony of a qualified translator to translate a foreign language
      document.

(f)   Time Limits. On a party’s motion and for good cause, the court may alter this rule’s time
      limits.

(g)   Court-Appointed Translator. If necessary, the court may appoint a qualified translator.
      The reasonable value of the translator’s services must be taxed as court costs.




                                               59
1 S T C O U R T O F AP P E AL S L O C AL R U L E S


RULE 1. Assignment of Related Cases to and Transfers of Related Cases between the First and
Fourteenth Courts of Appeals.

Rule 1.1. Definitions.

(a)   "Underlying case" means a trial court case number that is filed in one of the counties that comprise
the jurisdiction of the First and Fourteenth Courts of Appeals and is subsequently the subject of either an
appeal or original proceeding in the First or Fourteenth Court of Appeals.

(b)   "Related" means arising from the same underlying case or a case that has been remanded by either
the First or Fourteenth Court of Appeals and includes cases severed from the main case.

(c)   "Previously filed" means that a case has been opened at either the First or Fourteenth Court of Appeals
and that an appellate case number has been assigned to the underlying case.

Rule 1.2. Assignment of Original Proceedings to either the First or Fourteenth Court of Appeals.

(a)   Except as noted below, assignment of original proceedings must be alternated between the First and
Fourteenth Courts of Appeals.

(b)   During the first six months of a calendar year, relators must first present any original proceeding to
the clerk of the First Court of Appeals. During the last six months of a calendar year, relators must first
present any original proceeding to the clerk of the Fourteenth Court of Appeals. Hereinafter, the "intake
clerk" means the clerk receiving the original proceeding.

(c)   The intake clerk must log in each original proceeding sequentially, assigning original proceedings
between the First and Fourteenth Courts of Appeals on an alternating basis.

(d)   If a related appeal or original proceeding has been previously filed in one of the courts, the intake clerk
must assign the original proceeding in the manner provided for in Rule 1.3(a)-(b) below.

Rule 1.3. Notice of and Assignment of Related Cases in Original Proceedings.

(a)   At the time an original proceeding is filed in either the First or Fourteenth Court of Appeals, the relator
must file a notice indicating whether any related appeal or original proceeding has been previously filed in
either the First or Fourteenth Court of Appeals. The notice must include the caption, trial court case number,
and appellate court case number of the related appeal or original proceeding.

(b)   If any related appeal or original proceeding has been previously filed in or assigned to either the First
or Fourteenth Court of Appeals, the clerk of the appellate court receiving the original proceeding must
assign it to the court of appeals in which the related appeal or original proceeding was previously filed.
(c)   If related appeals or original proceedings have been filed in both the First and Fourteenth Courts of
Appeals, the clerk of the appellate court receiving the original proceeding must assign it to the court of
appeals in which the most recent related appeal or original proceeding was previously filed or assigned.

Rule 1.4. Notice of and Assignment of Related Cases in Appeals.

(a)   At the time the notice of appeal is filed in the trial court, the notice of appeal must contain a statement
indicating whether a related appeal or original proceeding has been previously filed in either the First or
Fourteenth Court of Appeals and must include the caption, trial court case number, and appellate court
case number of the related appeal or original proceeding.

(b)   If a related appeal or original proceeding has been previously filed in or assigned to either the First or
Fourteenth Court of Appeals, the trial court clerk must assign the appeal to the court of appeals in which
the related appeal or original proceeding was previously filed, pursuant to TEX. GOV'T CODE ANN. §
22.202(h) (Vernon 2004), which provides for companion cases to be assigned to the same court of appeals

(c)   If related appeals or original proceedings have been previously filed in both the First and Fourteenth
Courts of Appeals, the trial court clerk must assign the appeal to the court of appeals in which the most
recent related appeal or original proceeding was previously filed or assigned, pursuant to TEX. GOV'T
CODE ANN. § 22.202(h) (Vernon 2004), which provides for companion cases to be assigned to the same
court of appeals.

Rule 1.5. Transfers of Related Cases Between the First and Fourteenth Courts of Appeals.

(a)   The First or Fourteenth Court of Appeals may, either sua sponte or on motion of a party, transfer an
appeal or an original proceeding to the other Houston court of appeals when a related appeal or original
proceeding has been previously filed.

(b)   The transferring court must forward the case file, together with a transfer order, to the clerk of the
transferee court. The clerk of the transferee court must docket the transferred appeal or original proceeding
and must assign it a new appellate case number pursuant to TEX. R. APP. P. 12.1 and 12.2.

Rule 1.6. Assignment of Permissive Appeals to either the First or Fourteenth Court of Appeals.

(a)   Except as noted below, assignment of permissive appeals must be alternated between the First and
Fourteenth Courts of Appeals.

(b)   During the first six months of a calendar year appellants must first present any petition for permission
to appeal to the clerk of the First Court of Appeals. During the last six months of a calendar year, appellants
must first present any petition for permission to appeal to the clerk of the Fourteenth Court of Appeals.
Hereinafter, the "intake clerk" means the clerk receiving the petition for permission to appeal.
(c)   The intake clerk must log in each petition for permission to appeal sequentially, assigning petitions
between the First and Fourteenth Courts of Appeals on an alternating basis.

(d)   At the time a petition for permission to appeal is filed, it must contain a statement indicating whether
a related appeal or original proceeding has been previously filed in or assigned to either the First or
Fourteenth Court of Appeals. If a related appeal or original proceeding has been previously filed in one of
the courts, the intake clerk must assign the petition for permission to the court of appeals in which the
related appeal or original proceeding was previously filed.
