TEXAS: An Introduction to Litigation: Appellate

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 those differences. The state’s appellate system is large and complex. There are currently 80 intermediate appellate court justices across the state. There are significant contrasts between state and federal appellate courts in Texas, as well as among the state’s appellate courts themselves. A significant appellate bar has developed in Texas to help clients navigate the nuances of Texas’s distinct appellate system.

Structure and Operation of 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 that have 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 statewide elections. 2024 marks an election year for three of the justices.

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.

In 2023, the Texas Supreme Court considered and ruled on 888 petitions for review and 222 other petitions for writs (primarily, the writ of mandamus). The Supreme Court only granted review in 99 of those causes.

Texas Intermediate Courts of Appeals 

Texas has fourteen 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 thirteen justices. The courts ordinarily sit in panels of three. They occasionally consider a case en banc, with the entire court sitting.

The Fifth Circuit 

The US Court of Appeals for the Fifth Circuit has appellate jurisdiction over Texas’s four federal districts. The Fifth Circuit has 17 active judges (including the chief judge). It is based in New Orleans, Louisiana, but it has several courtrooms in Texas, most of its active judges have chambers there. 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.

The Fifth Circuit received 5,740 new appeals during the 2023 fiscal year. Only a small fraction of those are civil cases (with most being criminal or prisoner appeals). The majority of the Fifth Circuit’s new cases, more than 4,000, came from federal district courts in Texas. Appeals from the Fifth Circuit may be taken to the United States Supreme Court.

Appellate Issues Unique to Texas 

Appellate rules are technical, and the failure to follow them can result in a party losing its appellate rights. There are many 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 immediately which deserve appellate consideration.

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 first occur. 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.

Mandamus Practice 

The writ of mandamus was rarely used in decades past. But more recently, it has become available to remedy trial court rulings on discovery or on matters that make awaiting a final judgment impracticable.

Interlocutory Appeals 

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

Voir Dire 

 Texas’s method of voir dire (in Texas parlance, rhymes with “more wire”) has been described as “the Wild West.” Lawyers conduct the voir dire, but the Texas Supreme Court has been active in attempting to curb the lawyers’ efforts to win the case before any evidence is admitted. This is a developing area and the error preservation can be complex.

Jury Charge 

The process for preserving error in the jury charge is 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. The State Bar pulishes pattern jury questions and instruction, but those patterns are not binding on the courts or the parties.

Differences Between State and Federal Appellate Litigation

Critical differences between state and federal appellate litigation in Texas heighten the demand for attention. Some key considerations are highlighted here, but again 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. Early engagement of appellate counsel is helpful to map out a successful course.

Pre-trial, Trial, and Post-trial 

Federal courts generally require a detailed pretrial order that lists all issues and confines the parties to those issues. 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; Texas requires only ten of the twelve jurors to agree on most issues. Post-verdict and post-judgment motions also vary greatly between the federal and state systems, including what motions must be filed to preserve error, and how the motions and any rulings thereon affect the appellate deadlines.

Briefing and Oral Argument 

Neither the state nor federal appellate courts are obliged to grant oral argument, so quality of the briefing is critically important. Oral arguments were “virtual” during the pandemic, and some still are, although almost all courts are have gone back to in-person arguments.

Texas’s Specialized Appellate Bar 

The uniqueness of Texas’s appellate system and substantive law 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 100,000 active lawyers, just slightly over 400 are certified in civil appellate law.

Because of the critical role appellate lawyers play in preserving error before, during, and after trial, few case of any significance go to trial without appellate counsel on both sides.