not be posted on the Internet.

37.3._ If No Record Filed

(a)

(b)

(C)

Notice ofLate Record.

(1) Civil Cases. If the clerk’s record or
reporter’s record has not been timely
filed, the appellate clerk must send
notice to the official responsible for
filing it, stating that the record is late and
requesting that the record be filed within
30 days if an ordinary or restricted
appeal, or 10 days if an accelerated
appeal. The appellate clerk must send a
copy of this notice to the parties and the

. trial court. If the clerk does not receive
the record within the stated period, the
clerk must refer the matter to the
appellate court. The court must make
whatever order is appropriate to avoid
further delay and to preserve the parties'
rights.

Criminal Cases. If the clerk’s record or
reporter’s record has not been timely
filed, the appellate court clerk must refer
the matter to the appellate court. The
court must make whatever order is
appropriate to avoid further delay and to
preserve the parties’ rights.

(2)

IfNo Clerk 's RecordFiledDue to Appellant's
Fault. If the trial court clerk failed to tile the
clerk’s record because the appellant failed
to pay or make arrangements to pay the
clerk’s fee for preparing the clerk’s record,
the appellate court may _ on a party’s
motion or its own initiative _ dismiss the
appeal for want of prosecution unless.the
appellant was entitled to proceed without
payment of costs. The court must give the
appellant a reasonable opportunity to cure
before dismissal.

ff No Reporter's Reco.rd Ffled Due to
Appellant's Fault. Under the following
circumstances, and if the clerk’s record has
been tiled, the appellate court may _ after
first giving the appellant notice and a
reasonable opportunity to cure - consider

_ and decide those issues or points that do not

require a reporter’s record for a decision. The
court may do this if no reporter’s record has
been filed because: -

48

(1) the appellant failed to request a
reporter’s record; or '
(2) (A) appellant failed to pay or

make arrangements to pay the
reporter‘s fee to prepare the
reporter’s record; and
(B) the appellant is not entitled to
proceed without payment of costs.

Notes and Comments

Comment to 1997 change: Former Rules 56 and
57(a) are merged. Subdivisions 37.2 and 373 are new.

Rule 38. Requisites of Briefs

38.1. Appellant's Brief

The appellant’s brief must, under appropriate
headings and in the order here indicated, contain the
following:

(a)

(b)

(G)

(d)

(€)

ldenlity of Par!ies and Counsel. The brief
must give a complete list of all parties to the
trial court's judgment or order appealed from,
and the names and addresses of all trial and
appellate counsel, except as otherwise
provided in Rule 9.8.

Table of Contenls. The brief must have a
table of contents with references to the pages
of the brief. The table of contents must
indicate the subject matter of each issue or
point, or group of issues or points.

ladex anuthorfties. Thel brief must have an
index of authorities arranged aiphabetically
and indicating the pages of the brief where
the authorities are cited.

Smtement of the Case. The brief must state
concisely the nature of the case (e.g., whether
it is a suit for damages, on a note, or involving
a murder prosecution), the course of
proceedings, and the trial court's disposition
of the case. The statement should be
Supported by record references, should
seldom exceed one-half page, and should not
discuss the facts. `

Any Statemen! Regardz'ng Ora! Argumem.
The brief may include a statement explaining
why oral argument should or should not be

(f)

(s)

(h)

permitted. Any such statement must not
exceed one page and should address how the
coult’s decisional process would, or would
not, be aided by oral argument As required
by Rule 39.7, any party requesting oral
argument must note that request on the front
cover of the party’s brief.

Issues Presented. The brief must state
concisely all issues or points presented for
review. The statement of an issue or point
will be treated as covering every subsidiary
question that is fairly included.

Statement of Facts. The brief must state
concisely and without argument the facts
pertinent to the issues or points presented. In
a civil case, the court will accept as true the
facts stated unless another party contradicts
them. The statement must be supported by_
record references

Summary of the Argument. The brief must
contain a succinct, clear, and accurate
statement of the arguments made in the body
of the brief. This summary must not merely
repeat the issues or points presented for
review.

(i) Argument. The brief must contain a clear and

U)

(k)

concise argument for the contentions made,
with appropriate citations to authorities and
to the record.

Prayer. The brief must contain a short
conclusion that clearly states the nature of the
relief sought.

Appendix fn Cr'vif Cases.

(1) Necessary Contents. Unless voluminous
or impracticable, the appendix must
contain a copy of:

(A) the trial court’s judgment or
other appealable order from which
relief is sought;

(B) the jury charge and verdict, if any,
or the trial court’s findings of fact
and conclusions of law, if any; and

(C) the text of any rule, regulation,

ordinance, statute, constitutional

provision, or other law (excluding
case law) on which the argument is

49

based, and the text of any contract or
other document that is central to the
argument.

(2) Optional Contents. The appendix may
contain any other item pertinent to the
issues or points presented for review,
including copies or excerpts of relevant
court opinions, laws, documents on
which the suit was based, pleadings,'
excerpts from the reporter’s record, and
similar material. Items should not be
included in the appendix to attempt to
avoid the page limits for the brief.

38.2. Appellee‘s Brief

(a) Form ofBrfef.

(1) An appellee's brief must conform to the
requirements of Rule 38. l , except that:

(A) the list of parties and counsel is not
required unless necessary to
supplement or correct the
appellant's iist;

(B) the appellee‘s brief need not include
a statement of the case, a statement
of the issues presented, or a
statement of facts, unless the
appellee is dissatisfied with that
portion of the appellant's brief; and

(C) the appendix to the appellee’s brief
need not contain any item already
contained in an appendix filed by
the appellant

(2) When practicable, the appellee's brief
should respond to the appellant's issues
or points in the order the appellant
presented those issues or points.

(b) Cross-Points.

(1) Judgment Notwithstanding the Verdict.
When the trial court renders judgment
notwithstanding the verdict on one or
more questions, the appellee must bring
forward by cross-point any issue or point
that would have vitiated the verdict or
that would have prevented an affirmance
of the judgment if the trial court had
rendered judgment on the verdict.
Failure to bring forward by cross-point

an issue or point that would vitiate the
verdict or prevent an affirmance of the
judgment waives that complaint
Included in this requirement is a point
that:

(A) the verdict or one or more jury
findings have insufficient
evidentiary support or are against
the overwhelming preponderance of
the evidence as a matter of fact; or

(B) the verdict should be set aside
because of improper argument of
counsel.

(2) When Evidentiary Hearing Needed.
The appellate court must remand a case
to the trial court to take evidence if:

(A) the appellate court has sustained a
point raised by the appellant; and

(B) the appellee raised a cross-point that
requires the taking of additional
evidence.

38.3. Reply Brief

The appellant may file a reply brief addressing
any matter in the appellee’s brief. However, the
appellate court may consider and decide the case
before a reply brief is filed.

38.4. Deleted
38.5. Appendix for Cases Recorded Electronically

In cases where the proceedings were
electronically recorded, the following rules apply:

(a) Appendix.

(1) In Genera|. At or before the time a
party's brief is due, the party must file
one copy of an appendix containing a
transcription of all portions of the
recording that the party considers
relevant to the appellate issues or points.
Unless another party objects, the
transcription will be presumed accurate.

(2) Repetition Not Required. A party's
appendix need not repeat evidence
included in any previously filed
appendix.

50

(b)

(¢>)

(d)

(¢)

(3) Form. The form of the appendix and
transcription must conform to any
specifications of the Supreme Court and
Court of Crimina| Appeals concerning
the form of the reporter’s record except
that it need not have the reporter’s
certificatel

(4) Notice. At the time the appendix is filed,
the party must give written notice of the
filing to all parties to the trial court's
judgment or order. The notice must
Specify, by referring to the index
numbers in the court recorder's logs,
those parts of the recording that are
included in the appendix. The filing
party need not serve a copy of the
appendix but must make a copy available
to all parties for inspection and copying.

Presumprions. The same presumptions that
apply to a partial reporter’s record under Rule
34.6(c)(4) apply to the parties' appendixes.
The appellate court need not review any part
of the electronic recording

Supplememal Appendix. The appellate court
may direct or allow a party to tile a
supplemental appendix containing a
transcription of additional portions of the
recording

Inabr'l:`ty to Pay. A party who cannot pay the
cost of an appendix must file the affidavit
provided for by Rule 20. The party must also
state in the affidavit or a supplemental
affidavit that the party has neither the access
to the equipment necessary nor the skill
necessary to prepare the appendix If a
contest to the affidavit is not sustained by
written order, the court recorder must
transcribe or have transcribed those portions
of the recording that the party designates and
must file the transcription as that party's
appendix, along with all exhibits.

Inaccumcr'es.

(1) Correction by Agreement. The parties
may agree to correct an inaccuracy in the
transcription of the recording.

(2) Correction by Appe|late or Trial Court.
If the parties dispute whether an
electronic recording or transcription

(f)

accurately discloses what occurred in the
trial court but cannot agree on
corrections, the appellate court may:

(A) settle the dispute by reviewing
the recording; or

(B) submit the dispute to the trial
court, which must _ after notice
and hearing _ settle the dispute and
ensure that the recording or
transcription is made to conform to
what occurred in the trial court.

Costs. The actual expense of preparing the
appendixes or the amount prescribed for
Official reporters, whichever is less, is taxed
as costs. The appellate court may disallow the
cost of` any portion of the appendixes that it
considers surplusage or that does not
conform to any specifications prescribed by
the Supreme Court or Court of Criminal
Appeals.

38.6. Time to File Briefs

(a)

(b)

(C)

(d)

Appe!lant'.s Filng Date. Except in a habeas
corpus or bail appeal, which is governed by
Rule 31, an appellant must file a brief within
30 days _ 20 days in an accelerated appeal
_ after the later of:

(1) the date the clerk’s record was filed; or
(2) the date the reporter’s record was filed.

Appel'lee'.s Fifing Da!e. The appellee‘s brief
must be filed within 30 days -- 20 days in an
accelerated appeal - after the date the
appellant's brief was filed. In a civil case, if
the appellant has not filed a brief as provided
in this rule, an appellee may file a brief within
30 days - 20 days in an accelerated appeal
_ after the date the appellant's brief Was due.

Fr'h'ng Date for Reply Brief A reply brief, if
any, must be filed within 20 days after the
date the appellee‘s brief was filed,

Modijz`cations of Filing Time. On motion
complying with Rule 10.5(b), the appellate
court may extend the time for filing a brief
and may postpone submission of the case. A
motion to extend the'time to file a brief may
be filed before or alter the date the brief is
due. The court may also, in the interests of

51

justice, shorten the time for filing briefs and
for submission of the case.

38.7. Amendment or Supplementation

A brief may be amended or supplemented
whenever justice requires, on whatever reasonable
terms the court may prescribe.

38.8. Failure of Appellant to File Brief

(a) Civfl Cases. If an appellant fails to timely file
a brief, the appellate court may:

(1) dismiss the appeal for want of
prosecution, unless the appellant
reasonably explains the failure and the
appellee is not significantly injured by
the appellant's failure to timely file a
brief;

(2) decline to dismiss the appeal and give
further direction to the case as it
considers proper; or

(3) if an appellee’s brief is filed, the court
may regard that brief as correctly
presenting the case and may affirm the
trial court's judgment upon that brief
without examining the record.

(b) Criminal Cases.

(1) Effect. An appellant's failure to timely
file a brief does not authorize either
dismissal of the appeal or, except as
provided in (4), consideration of the
appeal without briefs.

(2) Notice. If the appellant's brief is not
timely filed, the appellate clerk must
notify counsel for the parties and the trial
court of that fact. If the appellate court
does not receive a satisfactory response
within ten days, the court must order the
trial court to immediately conduct a
hearing to determine whether the
appellant desires to prosecute his appeal,
whether the appellant is indigent, or, if
not indigent, whether retained counsel
has abandoned the appeal, and to make
appropriate findings and
recommendations

(3) Hearing. In accordance with (2), the trial
court must conduct any necessary

hearings, make appropriate findings and
recommendations, and have a record of
the proceedings prepared, which record
_ including any order and findings _
must be sent to the appellate court,

(4) Appellate Court Action. Based on the
trial court's record, the appellate court
may actappropriately to ensure that the
appellant's rights are protected,
including initiating contempt
proceedings against appellant's counsel.
If the trial court has found that the
appellant no longer desires to prosecute
the appeal, or that the appellant is not
indigent but has not made the necessary
arrangements for filing a brief, the
appellate court may consider the appeal
without briefs, as justice may require.

38.9. Briefing Rules to be Construed Liberally

Becaus_e briefs are meant to acquaint the court
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
following

(a) Fc)rma! Defects. If the court determines that
this rule has been flagrantly violated, it may
- require a brief to be amended, supplemented,
or redrawn. If another brief that does not
comply with this rule is filed, the court may
strike the brief, prohibit the party from filing
another, and proceed as if the party had failed

to file a brief,

(b) Sabstanrfve Defecls. If the court determines,
either before or after submission, that the case
has not been properly presented in the briefs,
or that the law and authorities have not been
properly cited in the briefs, the court may
postpone submission, require additional
briefing,` and make any other order necessary
for a satisfactory submission of the case.

Notes and Comments

Comment to 1997 change: This is former Rule 74.
The rule is substantially rewritten. Paragraph 38.l(e)
now specifically allows a party to either present issues
or points of error. Paragraphs 38.1(f) and (g) are new
and require a brief to include a statement of facts and
summary of the argument Paragraph 38.2(b) is new.
and gives specific requirements for cross-points. See
also TEX. R. CIV. P. 324(c). Subdivision 38-.3 is new

52

and provides for a reply brief, Subdivision 38.4
imposes a total brief limit of 90 pages on each party.
Thus, if more than one party has filed a notice of
appeal, there will be multiple appellant’s, appellee’s,
and reply briefs, but each party is limited to a total of`
90 pages. Subdivision 38.5 is new and provides for an
appendix in cases recorded electronically in the trial
court Paragraph 38.6(b) now provides that the
appellee has 30_rather than 25 ~ days to file a brief.
The provisions of former Rules 74(1) (Number of
Copies), (j) (Briefs Typewritten or Printed), and (q)
(Service of Briefs) are omitted as unnecessary. See
Rule 9.

Comment to 2002 change: Rule 38.6(d) is
amended to clarify that an appellate court may
postpone the filing of any brief, not just the appellant's
brief.

Comment to 2008 change: A party may choose to
include a statement in the brief regarding oral
argument The optional statement does not count
toward the briefing page limit.

Rule 39. Oral Argument; Decision Without
Argument

39.1. Right to Oral Argument

A party who has filed a brief and who has timely
requested oral argument may argue the case to the
court unless the court, after examining the briefs,
decides that oral argument is unnecessary for any of
the following reasons:

(a) the appeal is frivolous;

(b) the dispositive issue or issues have been
authoritatively decided;

(c) the facts and legal arguments are adequately
presented in the briefs and record; or

(d) the decisional process would not be
significantly aided by oral argument

39.2. Purpose of Argument

Oral argument should emphasize and clarify the
written arguments in the briefs. Counse| should not
merely read fiorn prepared text. Counsel should
assume that all members of the court have read the
briefs before oral argument and counsel should be
prepared to respond to questions A party should not
refer to or comment on matters not involved in or

