TEXAS: An Introduction to Litigation: Appellate

Texas has a large and robust appellate system in which litigants can count on a serious review of the issues on appeal. There are currently 83 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.

Structure and Operation of State Appellate Courts

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.

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.

The Texas Supreme Court grants review in approximately 10% of the cases presented to it.

Texas intermediate courts of appeals

Texas has fifteen intermediate courts of appeals whose districts each encompass multiple counties. 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. In 2024 a new court of appeals began operating: the Fifteenth Court of Appeals. It has state-wide jurisdiction, and exclusive jurisdiction over appeals of cases brought by or against governmental entities and appeals from the newly created business courts.

The Federal Fifth Circuit

The US Court of Appeals for the Fifth Circuit, based in New Orleans, has appellate jurisdiction over Texas’s four federal districts, as well as the federal courts in Louisiana and Mississippi. 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 hears civil and criminal cases. The majority of the Fifth Circuit’s cases are from federal district courts in Texas.

Appellate issues unique to Texas

Appellate rules are technical, and 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, with various objections and motions required to be filed before, during, or after trial.

Venue

Although Texas used to require an entire trial to determine if venue was proper, venue is now determined by pre-trial 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 has become in recent years a very powerful and frequently invoked procedure to remedy trial court rulings on discovery or on matters that make awaiting a final judgment impracticable.

Interlocutoryappeals

While Texas generally allows an appeal only from a final judgment, 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 publishes pattern jury questions and instructions, 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 pre-trial 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

There are significant differences between state and federal courts on pretrial requirements, discovery rules, rules of evidence, jury charge practice, and post-trial motions. Federal courts have smaller juries that must be unanimous; Texas requires only ten of the twelve jurors to agree on most issues. Counsel must be keenly aware of these differences to effectively represent their clients in each system.

Briefing and oral argument

Neither the state nor federal appellate courts are obliged to grant oral argument, so the quality of the briefing is critically important.

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 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 cases of any significance go to trial without appellate counsel on both sides.