TEXAS: An Introduction to Texas

As the state’s tourism slogan goes, “Texas. It’s like a whole other country.” Texas is different, and appellate litigation in the state reflects that. The state’s appellate system is large and complex. There are currently 80 intermediate appellate court justices across the state, divided into 14 different courts. The Texas Supreme Court, which handles only civil cases, is an active presence on appeal and even during trials. As a result, a significant appellate bar has developed in Texas to help clients navigate the nuances of Texas’s distinct system.

Structure and Operation Appellate Courts 

The following provides an overview of the state and federal appellate systems in Texas, focusing on the state system since it hears the larger number of civil cases.

Texas Supreme Court 

Texas is one of only two states with two courts of last resort: one for civil cases and the other for criminal. The Texas Supreme Court is the court of last resort for civil matters. It is composed of a chief justice and eight justices. The justices are elected to staggered six-year terms in state-wide elections. In 2022, all three incumbent justices up for re-election prevailed against their challengers.

The Texas Supreme Court has appellate jurisdiction to review orders and judgments of lower courts that it determines present questions of law important to the jurisprudence of the state. This jurisdiction is discretionary and is invoked by a party filing a petition for review. The Supreme Court also has the power to issue writs, such as writs of mandamus.

Each year, the Texas Supreme Court considers and rules on more than 850 petitions for review and more than 325 other petitions for writs (primarily, mandamus). The Supreme Court only grants review in approximately 100 of those causes per year - it resolves about 60 after oral argument, and the balance without oral argument by issuing a per curiam opinion.

Texas intermediate courts of appeals 

Texas has 14 intermediate courts of appeals whose districts each encompass multiple counties. The ten-county region around Houston is served by two appellate courts which share jurisdiction. The courts of appeals vary in size from three to 15 justices. The courts ordinarily sit in panels of three. They occasionally consider cases en banc, with the entire court sitting.

The Fifth Circuit 

The U.S. Court of Appeals for the Fifth Circuit has appellate jurisdiction over Texas’s four federal districts. The Fifth Circuit currently has 16 active judges, with one current vacancy caused by the resignation last year of Judge Gregg Costa to return to private practice. Although it is based in New Orleans, Louisiana, the Fifth Circuit has several courtrooms in Texas; most of its active judges have chambers there, and it frequently certifies important questions of Texas law to the Texas Supreme Court. Like the Texas courts of appeals, the Fifth Circuit sits in panels of three judges. In addition, a few times each year, the Fifth Circuit gathers as a full court to hear cases en banc.

Receiving more than 6,000 new appeals each year, the Fifth Circuit is the second busiest federal appeals court in the country. Approximately 35% of those are civil cases. The majority of the Fifth Circuit’s new cases, more than 4,000, come from federal district courts in Texas.

Appellate Issues Unique to Texas 

Appellate rules are technical, and the failure to follow them can result in a party losing its appellate rights. Just within the Texas state court system, the rules contain substantial complexity, creating potential traps for the unwary.

The groundwork for a successful appeal is laid in the trial court; therefore, appellate counsel is frequently retained in Texas to assist with matters before a trial begins. Many legal issues can arise which deserve and require an immediate appellate response.

Venue 

Although Texas used to require an entire trial to determine if venue was proper, venue is now determined by pretrial motion. In certain cases, the ruling can be subject to mandamus or interlocutory appeal; otherwise, a trial on the merits must happen first. If there is no evidence of proper venue after the trial, the case must be reversed and ordered transferred to a county of proper venue. This severe consequence counsels in favor of careful review of venue by an appellate lawyer where disputed.

Mandamus Practice 

A few decades ago, the writ of mandamus was rarely used. More recently, it has become available to remedy trial court rulings on discovery and other matters that make awaiting a final judgment impracticable. Texas appellate lawyers are active in pursuing mandamus both before and during trial, including to the Texas Supreme Court.

Interlocutory Appeals 

While Texas generally follows the final-judgment rule, the Legislature has authorized interlocutory appeals in a variety of circumstances. This includes when a trial judge certifies that a controlling legal question is fairly disputed.

Voir Dire 

Texas’s method of voir dire has been described as “the Wild West”. Lawyers conduct the voir dire, but the Texas Supreme Court has been active in attempting to curb lawyers’ efforts to win the case before any evidence is admitted.

Jury Charge  

The process for preserving error in the jury charge is also complicated in Texas. When and how to object, and what to offer the court in writing, are questions that vary with each case and issue. Careful attention is demanded.

Differences Between State and Federal Appellate Litigation

Critical differences between state and federal appellate litigation in Texas heighten the demand for attention. A skilled appellate lawyer should be consulted about any specific issue.

Interlocutory review 

Texas state court procedures for raising personal jurisdiction, venue, and other pretrial issues reflect unique historical practices and customs and differ substantially from federal procedures. Some of these issues can be challenged by an interlocutory appeal, some of them may be challenged by mandamus, and some must await final judgment. The appropriate remedy depends on the facts of the case and the court in which the case is pending.

Pre-trial, trial, and post-trial 

Federal courts generally require a detailed pretrial order that lists all issues and confines the parties to them. Texas state courts do not usually require that. Texas rules on expert witnesses have been amended to more closely match the federal rules, but they are not the same. Federal courts have smaller juries that must be unanimous, while Texas requires only ten of the 12 to agree on most issues. Post-verdict and post-judgment motions also vary significantly between the federal and state systems, including what motions must be filed to preserve error, and how the motions and any ruling thereon affect the appellate deadlines.

Texas’ Specialized Appellate Bar 

The differences between Texas’ appellate system and Texas’ substantive law, on the one hand, and that of many other states on the other, have led to the development of a specialized appellate bar within the state. The Texas Board of Legal Specialization, with the approval of the Texas Supreme Court, offers certification in civil appellate law. While Texas currently boasts more than 90,000 active lawyers, fewer than 400 have been certified in civil appellate law.

Appellate lawyers can preserve error and help trial lawyers remain focused on the jury by assisting with or handling pretrial motions, mandamus petitions, interlocutory appeals, trial briefing, and the jury charge.