Fourth Court Update

Recent Procedural Rule Changes Affecting Fourth Court Practices

By Justice Lori I. Valenzuela and Staff Attorney Benjamin Robertson

A host of laws passed in last year’s legislative session resulted in the Supreme Court of Texas drafting or amending rules affecting practice and procedure in the Fourth Court. We accordingly discuss some of the major changes affecting practitioners before the court.

Agreed and Permissive Interlocutory Appeals

In 2011, the Legislature originally enacted permissive interlocutory appeals, modeled after the federal system, “for the efficient resolution of certain civil matters in certain Texas courts” and to “make the civil justice system more accessible, more efficient, and less costly to all Texans while reducing the overall costs of the civil justice system to all taxpayers.”1 However, courts of appeals perhaps exercised their broad discretion2 to deny permissive appeals more frequently than some legislators (and members of the supreme court3) would have liked. In response,4 the Legislature passed Tex. Civ. Prac. & Rem. Code § 51.014(g), requiring a court of appeals that does not accept a permissive interlocutory appeal to “state in its decision the specific reason for finding that” a such appeal “is not warranted.”5 Further, Tex. Civ. Prac. & Rem. Code § 51.014(h) authorizes the supreme court to review de novo courts of appeals’ decisions denying permissive interlocutory review and—if the supreme court determines the requirements for such review are satisfied—direct the court of appeals to accept the appeal.6

On November 17, 2023, the supreme court issued final approval for repealing Tex. R. App. P. 28.27 and amending Tex. R. App. P. 28.3 to implement Tex. Civ. Prac. & Rem. Code §§ 51.014(g) and (h). Tex. R. App. P. 28.3 governs the procedure for all permissive appeals filed after September 1, 2023. Parties are now required to attach the following items to their petition for permissive interlocutory appeal: (1) “a copy of the order from which the appeal is sought”; (2) “a copy of every file-marked document that is material to the order from which appeal is sought and that was filed in the trial court”; and (3) “a properly authenticated transcript of any relevant testimony from the underlying proceeding, including any relevant exhibits offered in evidence relating to the order from which appeal is sought; a statement that the transcript has been ordered and will be filed when it is received; or a statement that no evidence was adduced in connection with such order.”8 Consistent with Tex. Civ. Prac. & Rem. Code § 51.014(g), Tex. R. App. P. 28.3 requires a court of appeals to “explain in [its] decision the specific reasons for finding that” a permissive interlocutory “appeal is not warranted.”9

While the statutory mandate to specify reasons for denial is new, members of the Fourth Court have endeavored to adhere to the prior best practice by issuing explanatory decisions,10 and given the small number of petitions seeking permissive interlocutory review filed in the Fourth Court, we do not expect the new rule to materially affect court operations. Practitioners, however, should ensure that their petitions for permissive interlocutory appeal comply with the requirements for such petitions, as set forth in Tex. R. App. P. 28.3(e)(2).

Appendix in Lieu of Clerk’s Record

Perhaps the most impactful change to practice in the Fourth Court is the authorization to file appendices in lieu of clerk’s records.11 Introduced as part of an omnibus bill, the appendix authorization received little attention in the legislative history and went unmentioned in bill analyses.12 Given the potentially cost-prohibitive nature of clerk’s records in smaller appeals, however, it is generally understood that the rationale behind the law is to minimize appellate costs in appropriate cases. On December 18, 2023, the supreme court issued preliminary approval of Tex. R. App. P. 34.5a, 35.3, and 38.6.13

Although a discussion of the entirety of these proposed rules is beyond the scope of this article, practitioners should be aware of issues stemming from the new appendices. Appellants have a ten-day election period to notify both the trial and appellate courts that they intend to file an appendix in lieu of a clerk’s record.14 The timing of the notice of election potentially affects the appellant’s brief deadline because the briefing deadline is calculated from the later of the filing of (1) the notice or (2) the reporter’s record, if any.15 Appendices that fail to establish the jurisdiction of the Fourth Court may subject a case to dismissal.16

Practitioners should also be aware that the court of appeals may, as a substantive matter, presume missing items support a trial court’s judgment. Therefore, appellants should carefully examine the items included in the appendix because the failure to include items contrary to a judgment may prejudice an appellant.17 Unlike brief appendices, appendices in lieu of a clerk’s record must be filed separately and the pages must be consecutively numbered.18 Given the numerous pitfalls associated with poorly compiled appendices, practitioners should be careful when using them in lieu of clerk’s records.

Notices of Appeal

On February 6, 2024, the supreme court issued preliminary approval of amendments related to the Fifteenth Court of Appeals.19 The proposed rule requires notices of appeal to state whether the appeal involves matters that are subject to the jurisdiction of the new Fifteenth Court of Appeals. Under the proposed language, notices of appeal in cases appropriately filed in the Fourth Court should presumably expressly state the appeal does not involve a matter subject to the jurisdiction of the Fifteenth Court.20 In light of the jurisdictional issues stemming from the creation of the Fifteenth Court, express disclaimer of Fifteenth Court jurisdiction statements may assist the Fourth Court in assessing its jurisdiction, potentially avoiding the issuance of an unnecessary jurisdictional show cause order that increases appellate costs.

Service of Orders and Notices

On September 8, 2023, the supreme court preliminarily approved an amendment to Tex. R. App. P. 9.2, requiring appellate clerks to send all orders, notices, and documents to parties electronically in civil cases, except when sealed, when access is restricted by law, or when an unrepresented party has not provided an email address.21 Because the Fourth Court already issues such documents electronically, the amendment is not expected to affect practice before the court.

Similarly, on February 6, 2024, the supreme court preliminarily approved an amendment to Tex. R. App. P. 39.8, requiring appellate court clerk notices to contain information about the location of the argument or instructions to join electronically, the court’s designated contact information, and instructions for submitting exhibits.22 Because the Fourth Court’s oral argument notices already contain this information, this amendment is not expected to affect practice before the court.

Having reviewed the changes to the Texas Rules of Appellate Procedure, practitioners should remain mindful that some rules are subject to timelines while others remain preliminary. As you navigate your next appeal, consider the options available under the new rules.

Justice Lori I. Valenzuela has been on the Fourth Court of Appeals since 2021. From 2009 to 2021, she presided over the 437th Criminal District Court. Prior to her tenure on the bench, Justice Valenzuela served as a Bexar County Assistant District Attorney, established a law practice concentrating in criminal defense, and worked as a county magistrate. Justice Valenzuela is an adjunct professor at the University of Texas at San Antonio. Justice Valenzuela received her Bachelor of Arts in Government from the University of Texas at Austin and her Juris Doctor degree from St. Mary’s University School of Law.

Benjamin Robertson has been a staff attorney for Justice Lori I. Valenzuela since 2021. He previously worked as an energy litigator for Cox Smith Matthews Incorporated and Santoyo Wehmeyer P.C.

ENDNOTES

1Senate Comm. on State Affairs, Engrossed Bill Analysis, Tex. H.B. 274, 82d Leg., R.S. (2011); see also Renée Forinash McElhaney [Yanta], Toward Permissive Appeal in Texas, 29 St. Mary’s L.J. 729, 747-49 (1998) (advocating that Texas adopt permissive appellate model akin to federal system).

2See Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 732-33 (Tex. 2019)(discussing courts of appeals’ broad discretion to deny review but nevertheless encouraging courts of appeals to accept review in appropriate cases).

3See Duke Inc. v. Fuentes, 672 S.W.3d 128, 129 (Tex. 2023)(Busby, J., concurring)(criticizing court of appeals’ conclusory opinion denying permissive appeal).

4Legislative action was likely spurred by the supreme court’s determination in Indus. Specialists, LLC v. Blanchard Ref. Co. LLC, 652 S.W.3d 11, 15 (Tex. 2022), that the court of appeals did not abuse its discretion in denying a permissive appeal.

5Tex. Civ. Prac. & Rem. Code §51.014(g).

6Id. §51.014(h).

7Former Rule 28.2 governed agreed interlocutory appeals.

8Tex. R. App. P. 28.3(e)(2) (effective Sept. 1, 2023).

9Tex. R. App. P. 28.3(l) (effective Sept. 1, 2023).

10E.g., JAJ Equip., Inc. v. Ramos, No. 04-21-00459-CV, 2021 WL 6127925 (Tex. App.—San Antonio Dec. 29, 2021, no pet.).

11See Tex. Civ. Prac. & Rem. Code §51.018 (effective Jan. 1, 2024).

12See, e.g., Senate Comm. on Jurisprudence, Engrossed Bill Analysis, Tex. H.B. 3474, 88th Leg., R.S. (2023).

13Order of December 18, 2023, Misc. Docket No. 239106 (effective Jan. 1, 2024). Public comments are due April 1, 2024.

14Tex. R. App. P. 34.5a(a).

15Tex. R. App. P. 34.5a(b).

16Tex. R. App. P.34.5a(d).

17See id.

18Tex. R. App. P. 34.5a(g).

19Order of February 6, 2024, Misc. Docket No. 24-9005. Public comments are due May 1, 2024; the final rule is expected to be effective September 1, 2024.

20Tex. R. App. P. 25.1(d)(9).

21Order of September 8, 2023, Misc. Docket No. 239071 at R. 9.2(c)(7)(A). Public comment closed on January 1, 2024, although the final rule has not been issued by the time of writing.

22Order of February 6, 2024, Misc. Docket No. 24-9005 at Tex. R. App. P. 39.8(c).