Procedures Before Appellate Courts: A Comparative Overview of the Fifth Circuit and Texas Courts of Appeal
By Joel M. Androphy and Lynne Liberato

The appellate lawyer who usually practices in the Texas Courts of Appeals may be tempted to perfect an appeal by filing a cost bond in the Fifth Circuit within 30 days of the signing of the trial court's judgment.¹ Addressing this type of confusion of procedure is the purpose of this article.² It compares the basic procedural steps in the Fifth Circuit with those in the Texas Courts of Appeal.

1. Approach

There are fundamental differences in the approaches taken by the federal and state courts. In federal court, appellate procedures are relatively simple. The Fifth Circuit supervises the preparation of the record, sends the lawyers forms for compliance with the appellate steps, and provides detailed written local rules to assist in compliance.

In contrast, in the state courts, no one is looking over a lawyer's shoulder to supervise compliance with appellate rules. Lawyers must be more attentive to state procedural rules. The responsibility for filing the record and obtaining extensions is placed on the attorney, not the court, and only a few courts have written rules explaining their local practices.

The following comparison of the individual steps will demonstrate these differences in overall approach.

2. Jurisdiction: Mandatory

Fifth Circuit:

Federal courts of appeal have jurisdiction to review "final" decisions of district courts in both civil and criminal cases.³ in civil cases, the courts of appeal also have jurisdiction from "interlocutory" orders granting or denying injunctions, appointing receivers, in certain admiralty cases,⁴ and from orders that fall within the "collateral order" exception to the final judgment rule first announced in Cohen v. Beneficial Indus. Loan Corp.⁵ In criminal cases, the only express statutory basis for "interlocutory" appeals is 18 U.S.C. §3415 involving review of release and detention orders.⁶ The "collateral order" exception to the final judgment rule permits appeals from other interlocutory orders. An example is denial of motion to dismiss based on double jeopardy grounds.⁷ even if there is a right of appeal based on the "collateral order" exception, a district court may proceed to trial if it finds the claim is frivolous.⁸

The U.S. government may appeal certain interlocutory rulings in criminal cases,⁹ for example, orders dismissing indictments,¹⁰ orders suppressing evidence,¹¹ and bail determinations.¹² It may not appeal findings of "not guilty" by a court or jury,¹³ or the entry of a judgment of acquittal.¹⁴

Courts of Appeals:

An appeal may be taken to a court of appeals from a final judgment of a district or county court in a civil case in which the judgment or amount in controversy exceeds $100, exclusive of interests or costs.¹⁵ As in federal court, a few interlocutory orders are appealable. These are made appealable by specific statutory grant. The most common are: orders granting or refusing a temporary injunction or an order dissolving a temporary injunction;¹⁶ orders appointing a receiver or trustee;¹⁷ an order certifying or refusing to certify a class under Tex. R. Civ. P. 42;¹⁸ some orders respecting juveniles;¹⁹ and certain arbitration orders.²⁰

Courts of appeals have appellate jurisdiction in criminal cases except those in which the death penalty has been assessed or in which the fine imposed by a county court does not exceed $100 unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.²¹ Through a 1987 amendment to Tex. Const. Art. V, §26, the State may appeal certain pre-trial and post-trial legal rulings.

3. Jurisdiction: Permissive

Fifth Circuit:

In civil cases, when a district judge is of the opinion that (1) an order involves a controlling question of law (2) about which there is a substantial ground for difference of opinion and (3) an immediate appeal from the order may materially advance the ultimate termination of litigation, the court of appeals may, in its discretion, permit an appeal of such action.²² The trial proceedings, however, shall not be stayed unless so ordered by the district judge or court of appeals.²³ Furthermore, in civil cases, when more than one claim for relief is presented in an action or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more, but fewer than all, of the claims or parties, only upon an express determination that there is no reason for delay and upon an express direction for the entry of judgment.²⁴ There is no permissive right of appeal in criminal cases.

Courts of Appeals:

Unless one considers the court's discretion to accept or reject petitions in original proceedings,²⁵ there is no such thing as a court of appeals' permissive jurisdiction.

4. Motion for New Trial

Fifth Circuit:

A motion for new trial is not a prerequisite to an appeal in a criminal or civil case. Whether one is filed does affect the appellate timetable.²⁶

Courts of Appeals:

A motion for new trial is not a prerequisite to appeal in a criminal case.²⁷ However, Tex. R. Civ. P. 324(b) provides that a motion for new trial is a prerequisite to raising the following points in a civil appeal:

(1) a complaint on which evidence must be heard such as one of jury misconduct or newly discovered evidence or failure to set aside a judgment by default;

(2) a complaint of factual insufficiency of the evidence to support a jury finding;

(3) a complaint that a jury finding is against the overwhelming weight of the evidence;

(4) a complaint of inadequacy or excessiveness of the damages found by the jury; or

(5) incurable jury argument if not otherwise ruled on by the trial court.

5. Perfection of Appeal

Fifth Circuit:

In civil and criminal cases, a written notice of appeal is filed with the clerk of the district court.²⁸ Upon the filing of a notice of appeal, the appellant must pay to the clerk of the district court a docket fee of $100,²⁹ and a statutory fee of $5.³⁰

Courts of Appeals:

Typically, a civil appeal is perfected when the bond, cash deposit, or negotiable obligation is filed with the district clerk.³¹ A criminal appeal is perfected by filing a written notice of appeal signed by the appellant or the attorney in the trial court.³²

6. Time to Perfect Appeal

Fifth Circuit:

In a civil case, a written notice of appeal must be filed within 30 days after the entry of the judgment or the order appealed from, or 60 days after such entry if the United States or any officer or agency thereof is a party. If a timely motion for judgment notwithstanding the verdict, to amend or make additional findings of fact, to alter or amend the judgment, or for a new trial is filed, the time for appeal for all parties shall run from the entry of the other denying new trial or granting or denying any other such motion.³³ In criminal cases, a written notice of appeal shall be filed within 10 days after the entry of the judgment or the order appealed from, or 30 days after such entry when an appeal by the government is authorized by statute. If a timely motion in arrest of judgment or for a new trial has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion.³⁴

Courts of Appeals:

The physical act of signing the judgment commences civil appellate time limits.³⁵ The cost bond or substitute must be filed with the trial court clerk within 30 days after the judgment is signed, or within 90 days after the judgment is signed if a timely motion for new trial has been filed by any part.³⁶ In a criminal case, notice of appeal must be filed within 30 days after the day sentence is imposed or suspended in open court, except if a motion for new trial is timely filed, notice shall be filed within 90 days after the sentence is imposed or suspended in open court.³⁷

7. Stay of Appeal in Civil Cases

Fifth Circuit:

An appeal does not stay the judgment or execution of the judgment. Generally, a party seeking a stay must first apply to the district court. The court has discretion to depart from the usual requirement of a full security supersedeas bond to suspend the operation of a money judgment.³⁸

Courts of Appeals:

Neither does an appeal stay the judgment or execution of the judgment in state court. Nor should one confuse a cost bond with a supersedeas bond. A cost bond perfects the appeal and secures the costs of the appeal; a supersedeas bond stays execution of the judgment. An appellant desiring to stay execution by means of a supersedeas bond must deposit with the district clerk a "good and sufficient bond."³⁹ In the case of a money judgment, the amount of the bond or deposit shall be at least the amount of the judgment, interest, and costs.⁴⁰ Effective Jan. 1, 1988, the trial court can deviate from the general requirement that the bond cover the full amount of the judgment, interest, and costs.⁴¹

8. The Record: Nomenclature

Fifth Circuit:

The court reporter's transcription of the proceedings is called the "transcript."⁴² The original papers and exhibits filed in the district court, the transcript, if any, and a certified copy of the docket entries prepared by the clerk of the district court collectively are called the "record."⁴³

Courts of Appeals:

The record may also consist of two parts: the "transcript" includes the pleadings and motions before the trial court, the judgment, the appeal bond, the docket sheet, and similar documents. The "statement of facts," if any, consists of the court reporter's transcribed notes and the exhibits.⁴⁴

9. Record Preparation and Filing

Fifth Circuit:

Within 10 days after filing the notice of appeal, the appellant has the responsibility to order from the court reporter a transcript of those parts of the proceedings he or she deems necessary and that are not already on file.⁴⁵ This obligation is satisfied in the Fifth Circuit when the appellant completes the transcript order form provided by the district court clerk.⁴⁶ Under federal and local rules, the appellant also must contact the court reporter to make satisfactory arrangements for payment of the cost of the transcript and must designate the form of payment on the order form.⁴⁷ Unlike state court, the court reporter has the duty to file the transcript. If the appellant needs additional time to complete financial arrangements with the court reporter, he or she must contact the court of appeals case manager who handles the appropriate district. The internal operating procedures provide that the appellant should not complete the transcript order form until financial arrangements have been completed. Although failure to follow instructions may lead to dismissal, as a practical matter, the court of appeals will work with an attorney who shows reasonable efforts to comply with the federal and local rules.

In the event the appellant orders only a partial transcript, he or she must, within the 10 days, file a statement of the issues he or she intends to present on the appeal and serve on the appellee a copy of the order or certificate and of the statement.⁴⁸ If the appellee deems a transcript or other parts of the proceedings necessary, within 10 days after service, he or she should file and serve on the appellant a designation of additional parts to be included.⁴⁹

Courts of Appeals:

The burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal.⁵⁰ The trial court clerk should prepare the transcript (the papers filed in this case) according to the contents listed in Tex. R. App. P. 51(a). Any party may file with the clerk a written designation specifying matters for inclusion in the transcript.⁵¹ Even though it is the clerk's duty to prepare the transcript,⁵² if she misses the deadline, and an extension is not filed within the 15-day grace period, the court may not consider the transcript and the appeal must be dismissed.⁵³ As for the statement of facts (the transcription of the court reporter's notes), the appellant should make a written request to the court reporter at or before the time for perfecting the appeal, designating the evidence or other proceedings to be included.⁵⁴ Again here, even though the court reporter may file the statements of facts, the lawyer, not the court reporter, has the duty to cause the statement of facts to be filed in the appellate court. If the lawyer discovers after the expiration of the 15-day grace period, that the court reporter has not filed the statement of facts, the court cannot grant an extension.⁵⁵ An appellant may request a partial statement of facts, but he or she must include with the request to the court reporter a list of appellate points.⁵⁶

10. Time to File Record

Fifth Circuit:

Unless otherwise provided, the clerk of the district court is responsible for filing the record on appeal within 15 days from the filing of the notice of appeal, or 15 days after the filing of the transcript of the trial proceedings, whichever is later, or advise the clerk of the appellate court the reasons for the delay and request a filing extension.⁵⁷ The court reporter should file the transcript within 30 days receipt of appellant's order form.⁵⁸

Courts of Appeals:

In a civil case, the transcript and statement of facts are due in the appellate court within 60 days after the judgment is signed unless a motion for new trial has been filed. In that event, the transcript and statement of facts are due 120 days after the judgment is signed.⁵⁹ In a criminal case, the transcript and statement of facts must be filed in the appellate court within 60 days after the day sentence is imposed or suspended in open court. If a motion for new trial is filed, the record is due within 100 days.⁶⁰

11. Motions for Extension

Fifth Circuit:

The court reporter is responsible for filing extensions of time as proscribed by the clerk of court.⁶¹ A court reporter may be held in contempt and penalized part of his or her fee if orders of the court are ignored regarding extensions.

Courts of Appeals:

The attorney, not the court reporter, is responsible for requesting extensions. They must be in writing and filed with the clerk of the court of appeals. Fairly detailed information concerning the case is required⁶² and affidavits are also required when facts are alleged outside the record,⁶³ or by the court reporter, when the requested extension is for the statement of facts.⁶⁴

12. Presenting the Record on Appeal

Fifth Circuit:

The appellant shall prepare and file with the brief record excerpts that will generally be the record reviewed by the court. The record excerpts should contain (1) the docket sheet in the proceeding below; (2) the judgment or interlocutory order appealed from; (3) any other orders or rulings sought to be reviewed; and (4) any supporting opinions, findings of fact or conclusions of law filed or delivered orally by the district court.⁶⁵

Courts of Appeals:

Record excerpts are not necessary. The court has in its files and will consider the entire record as brought forward by the parties.

13. Time to File Briefs

Fifth Circuit:

The brief of the appellant is due within 40 days after the date on which the record is filed. The appellee shall serve and file a brief within 30 days after service of the brief of the appellant. The appellant may file a reply brief within 14 more days, but at least three days before argument.⁶⁶ The clerk will normally grant the first unopposed request for an extension for 15 days.⁶⁷ Usually this does not require a written motion and the request may be made by phone with a confirming letter.

Courts of Appeals:

The brief of the appellant is due 30 days after the record is filed.⁶⁸ Appellee's or the State's brief is due 25 days thereafter. There is no state procedure similar to the federal allowing for automatic extensions, extensions by the clerk, or extensions not in writing.

14. Requisites of the Briefs

Fifth Circuit:

Except by permission of the court, principal briefs shall not exceed 50 pages and reply briefs shall not exceed 25 pages. Motions for leave to file briefs in excess of the page requirements will only be granted for extraordinary and compelling reasons.⁶⁹ Depending on who is filing it, brief covers must be certain colors.⁷⁰

Courts of Appeals:

Similarly, briefs in civil cases shall not exceed 50 pages. Some courts also enforce this rule as to criminal briefs. The brief may be typewritten or printed. If typewritten, it must be double spaced.⁷¹ As to brief covers, courts of appeal are color blind.

15. Number of Copies of Brief

Fifth Circuit:

7.⁷²

Courts of Appeals:

6.⁷³

16. Oral Argument

Fifth Circuit:

In effect, the court determines whether there will be oral argument.⁷⁴ (1) If the appeal is frivolous or (2) the dispositive issue or set of issues has been recently authoritatively decided; or (3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument, the court will hear the case without oral submission.⁷⁵ A party who desires to waive oral argument in a case noticed for oral argument must file a motion for permission to waive in advance of the date set for hearing.⁷⁶ In most cases, each side is allowed 20 minutes.⁷⁷

Courts of Appeals:

Oral argument is usually given as a matter of right if it is requested when the brief is filed.⁷⁸ A request by one side, however, does not automatically entitle the other to argument. Both sides must request argument, otherwise only the side making the request is entitled to argue. Although some courts modify the time by local rule, the appellate rules provide that argument will be 30 minutes per side, with 15 minutes more in rebuttal by the appellant.⁷⁹

17. Motions for Rehearing

Fifth Circuit:

A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order.⁸⁰ No petition for rehearing in the court of appeals is required as a prerequisite to the filing of a petition for certiorari in the Supreme Court of the United States.⁸¹

Courts of Appeals:

Any party desiring a rehearing must file a motion for rehearing within 15 days after the appellate court's decision.⁸² A motion for rehearing is a prerequisite to filing a writ of error to the Texas Supreme Court, but it is not a requirement before filing a petition for discretionary review to the Court of Criminal Appeals.⁸³

18. Sanctions

Fifth Circuit:

If the court determines that an appeal is frivolous, it may award just damage and single or double costs to the appellee.⁸⁴

Courts of Appeals:

In civil cases, if the court determines that an appeal has been taken for delay or without sufficient cause, it may award each prevailing party an amount not to exceed 10 percent of the amount of damages awarded to that party.⁸⁵ If there is no amount awarded to the prevailing appellee as money damages, the court may award each prevailing appellee an amount not to exceed 10 times the total taxable costs.⁸⁶

19. Writs of Mandamus

Fifth Circuit:

The writ is appropriately used in civil cases only when there is usurpation of judicial power or clear abuse of discretion.⁸⁷ The following guidelines should be considered in determining whether mandamus will be issued:

1. There is no adequate remedy by appeal or otherwise;

2. Petitioner will be damaged in a way not correctable on direct appeal;

3. the district court's challenged order is erroneous as a matter of law;

4. The issue is likely to recur, either because the particular district judge has a practice of making such rulings, or because the problem presented is capable of repetition and may repeatedly evade appellate review;

5. The challenged order raises issues that are new and important or of first impression.⁸⁸

The same principles apply in criminal cases except the court of appeals will review the guidelines more strictly.

Courts of Appeals:

Courts of Appeals are vested with general mandamus authority over district and county judges.⁸⁹ Writs of mandamus will be granted only to correct an abuse of discretion,⁹⁰ and the relator (the party seeking relief) must ordinarily show that there is no other adequate remedy available.⁹¹ Writs of mandamus and other original proceedings have their own requirements for presentment to the court,⁹² including the necessity for a motion for leave to file on which the court rules whether it will even consider the petition.

20. Conclusion

An appeal in an intermediate state appellate court takes different routes from an appeal in the intermediate federal court. The time of signing rather than entry of judgment is important and there are differing responsibilities for monitoring record preparation. Even the record has different names. While whole bodies of case law qualify each step, at least one general observation can be made: a lawyer clearly should not make assumptions about the procedure of one court based on familiarity with the procedure of the other court.

Endnotes

1. In a federal civil case, notice of appeal, not a cost bond, perfects the appeal and is filed 30 days after entry, not signing of judgment. In state court, unless waived (usually for a government entity), a cost bond or substitute must be filed 30 days after signing of the judgment.

2. More detailed references on federal appellate procedure are: M. Tigar, Federal Appeals: Jurisdiction & Practices (1987); Fifth Circuit Reporter (Issued monthly by the Bar Association of the Fifth Federal Circuit, 600 Camp St., New Orleans, LA 70130); for state practice: State Bar of Texas, Advance Appellate Practice Course (October 1987); Liberato & Peveto, Nuts & Jolts of Civil Appellate Practice, 50 Tex. B.J. 642 (June 1987).

3. 28 U.S.C. §1291.

4. 28 U.S.C. §1292; see generally Hanby, Interlocutory Appeals in Federal Court, I Appellate Advocate (Appellate Practice & Advocacy Section Report) 8 (Winter 1988).

5. 337 U.S. 541, 546 (1949); U.S. Armada Petroleum Corp., 700 F.2d 706, 708 (Temp. Emer. Ct. App. 1983). To qualify as a collateral order, the order must (1) conclusively determine a disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) as a practical matter, be unreviewable on appeal from a final judgment. Richardson-Merrell, Inc. v. Koller, 472 U.S. 429 (1985).

6. U.S. v. Spilotro, 786 F.2d 808, 812-813 (8th Cir. 1986).

7. Abney v. U.S., 431 U.S. 651, 658-662 (1977); U.S. v. Martin, 682 F.2d 506, 507-509 (5th Cir. 1982); U.S. v. Sneed, 705 F.2d 745, 746-49 (5th Cir. 1983); U.S. v. Barcelona, 814 F.2d 165, 167 (5th Cir. 1987).

8. U.S. v. Dunbar, 611 F.2d 985, 982 (5th Cir. 1980); U.S. v. Kalish, 690 F.2d 1144, 1153-54 (5th Cir. 1982).

9. 18 U.S.C. §3731.

10. U.S. v. Lee, 786 F.2d 951,955-56 (9th Cir. 1986).

11. U.S. v. Accardo, 749 F.2d 1477, 1479 (11th Cir.), cert. denied, 106 S.Ct. 314 (1985).

12. U.S. v. Fernandez-Toedo, 749 F.2d 703, 705 (11th Cir. 1985).

13. U.S. v. Wison, 420 U.S. 332, 342-44 (1975); U.S. v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977); U.S. v. Martinez, 763 F.2d 1297, 1309-1310 (11th Cir. 1985).

14. U.S. v. Scott, 437 U.S. 82, 91 n. 7 (1978); U.S. v. Leal, 781 F.2d 1108, 1110 (5th Cir. 1986).

15. Tex. Civ. Prac. Rem. Code Ann. §51.012 (Vernon 1986); Tex. Gov. Code §22.220 (Vernon Pamp. 1988). The most difficult aspect of this proscription is that of finality of judgment. To be final, and thus appealable, a judgment must dispose of all issues and parties in a case. Northeast Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).

16. Tex. Civ. Prac. & Rem. Code Ann. §51.014 (Vernon Supp. 1988).

17. Id. at §51.014(2)(3).

18. Id. at §51.014(3).

19. Id. at §56.01(c)(1).

20. Tex. Rev. Civ. Stat. Ann. Art. 238-2 §A (Vernon 1983).

21. Tex. Code Crim. Pro. Art. 4.03 (Vernon Supp. 1988).

22. 28 U.S.C. §1292(b). See, e.g., Aucoin v. Matador Serv., Inc., 749 F.2d 1180 (5th Cir. 1985). The procedure to be followed is described in Fed. R. App. P. 5.

23. 28 U.S.C. §1292(b).

24. Fed. R. Civ. P. 54(b); Wolf v. Banco Nacional, 721 F.2d 662 (9th Cir. 1983).

25. See infra Section 19, "Original Proceedings."

26. See infra Section 6, "Time to Perfect Appeal." The filing of a timely motion is jurisdictional. Berman v. United States, 378 U.S. 530 (1964); Williams v. Treen, 671 F.2d 892 (5th Cir. 1982).

27. Tex. R. App. P. 30(a).

28. Fed. R. App. P. 4(a)(b); Williams v. Bolger, 633 F.2d 410, 411 (5th Cir. 1980).

29. 28 U.S.C. §1913.

30. 28 U.S.C. §1917; Fed. R. App. P. 3(e).

31. 28 Tex. R. App. P. 40(a), 48.

32. Tex. R. App. P. 40(b)(1); Shute v. State, 744 S.W.2d 96 (Tex. Crim App. 1988).

33. Fed. R. App. P. 4(a). A notice of appeal filed before the disposition of any of these motions shall have no effect. A new notice of appeal must be filed within the prescribed time after the entry of the order disposing of the motion. No additional fees shall be required, provided the notice is labeled: "Amended Notice of Appeal."

34. Fed. R. App. R. 4(b).

35. Tex. R. App. P. 5(b)(1).

36. Tex. P. App. P. 41(a)(1). The timely filing of a cost bond is jurisdictional. Davis v. Massey, 561 S.W.2d 799, 801 (Tex. 1978).

37. Tex. R. App. P. 41(b)(1).

38. Poplar Grove v. Bache Halsey Stuart, 600 F.2d 1189 (5th Cir. 1979) (sets guidelines for fixing the amount of a supersedeas bond); Fed. R. App. 8(a).

39. Tex. R. App. P. 47(a).

40. Id. at 47(b); Cooper v. Bowser, 583 S.W.2d 805, 807 (Tex.App.--San Antonio 1979, no writ).

41. Tex. R. App. P. 47(b).

42. Fed. R. App. P. 10(b).

43. Fed. P. App. P. 10(a).

44. Tex. R. App. P. 51(a) sets out what the trial court clerk shall include in the transcript absent a designation by the parties. However, the careful practitioner will file a written designation of the record with the clerk of the trial court as provided by Tex. R. App. P. 50(b), because despite Rule 51's proscription as to what should be in an undesignated record, the burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal. Tex. R. App. P. 50(d).

45. Fed. R. App. P. 10(b)(1). Failure to provide an adequate record on appeal may preclude processing of the record on appeal. See Stout v. Jefferson Co. Bd. Of Educ., 489 F.2d 97 (5th Cir. 1974).

46. Loc. R. 10.1 and I.O.P. thereunder.

47. Fed. R. App. P. 10(b)(4); L.R. 10 and I.O.P. thereunder.

48. Fed. R. App. P. 10(b)(3).

49. Fed. R. App. P. 10(b)(3).

50. Tex. R. App. P. 50(d).

51. Id. at 51(b).

52. Id. at 51(a)(c).

53. Id. at 54(c); Transcontinental Properties. Ltd. v. Taylor, 717 S.W.2d 890 (Tex. 1986).

54. Tex. R. App. P. at 53(a), 54(c); Container Port Serv. v. Gage, 719 S.W.2d 662 (Tex.App.-- El Paso 1986, no writ).

55. B. D. Click v. Safari Drilling Co., 638 S.W.2d 860 (Tex. 1982); Men's Warehouse v. Helms, 682 S.W.2d 429 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

56. Tex. R. App. P. 53(d); Phaup v. Boswell, 731 S.W.2d 625 (Tex.App. [1st Dist.] 1987).

57. Loc. R. 11.2.

58. Fed. R. App. P. 11(b); Loc. R. 11.1 and I.O.P. thereunder.

59. Tex. R. App. P. 54(a).

60. Tex. R. App. P. 57.

61. Fed. R. App. P. 11(b); Loc. R., 11.1 and I.O.P. thereunder.

62. Tex. R. App. P. 73.

63. Id. at 19(d).

64. Id. at 73(i).

65. Loc. R. 30.1.

66. Fed. P. App. P. 31; Loc. R. 31.

67. Loc. R. 27.1 and I.O.P. thereunder.

68. Tex. R. App. P. 74(k), (m).

69. Fed. R. App. P. 27; Loc. R. 28.1. Violations of these limitations may result in the court's refusal to accept the brief. Nelly v. Barker's Trust Co. of Texas, 757 F.2d 621, 634 n. 18 (5th Cir. 1985).

70. Loc. R. 32 and I.O.P. thereunder.

71. Tex. R. App. P. 75(h), (j).

72. Loc. R. 31.1.

73. Tex. R. App. P. 74(i).

74. Loc. R. 34 and I.O.P. thereunder.

75. Fed. R. App. P. 34(a).

76. Loc. R. 34.3.

77. Loc. R. 34 and I.O.P. thereunder.

78. Tex. R. App. P. 75(a), (f), the best practice is to type "oral argument requested" on the cover, not on inside page, of the brief.

79. Id. 75(d).

80. Fed. R. App. P. 40(a).

81. I.O.P. under Fed. R. App. P. 40.

82. Tex. R. App. P. 100(a).

83. Id. at 200(d); Dawkins v. Van Winkle, 377 S.W.2d 830 (Tex. 1964).

84. Fed. R. App. P. 38; Loc. R. 42.2.

85. Tex. R. App. P. 84.

86. Id.; see generally Hittner & Boudreaux, Frivolous Appeals in Texas, Tex. Bar J., April 1984, Steiner, Frivolous Appeals: An Update, I Appellate Advocate (State Bar Appellate Practice of Advocacy Section Report) 6 (Winter 1988).

87. In re E.E.O.C., 709 F.2d 392, 395 (5th Cir. 1983); 28 U.S.C. §1651; Fed. R. App. P. 21; Loc. R. 21.

88. Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir. 1977); In re Bendectin Prod. Liab. Litig., 749 F.2d 300 (6th Cir. 1984).

89. Tex. Gov't Code 22-221(b) (Vernon Pamp. 1988)

90. Johnson v. Fourth Court of Appeals, 700 S.W. 916, 917 (Tex. 1985).

91. State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980).

92. Tex. R. App. P. 121; see generally, Ray, The Mandamus Explosion, 28 S. Tex. L. Rev. 901 (1987).

For more information and case citations, please see “Federal False Claims Act and Qui Tam Litigation,” published by Law Journal Press (2006).

 

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