CHAPTER 9 Appellate Motions

• Jurisdiction: United States

CHAPTER 9

Appellate Motions

9-1 General Rules

During the course of an appeal, the advocate often files more motions than briefs. Although the appeal is presented through the briefs (and oral argument), motions can, and usually do, play an important part in accomplishing that goal. This chapter presents several general principles of appellate-motion practice, and then addresses specific motions, providing the purposes, requirements, and practical pointers for each.

9-1:1 Organizing the Content of the Motion

Like briefs, motions should be brief, and should quickly state what the movant wants the court to do. To that end, the following steps in organizing the motion's content may be helpful:

• Know the general requirements of appellate motions contained in Texas Rule of Appellate Procedure 10; ¹

• Determine which specific rule governs your motion and knows its requirements;

• Specifically write out the desired relief;

• Think about the explanation you need to present to obtain the desired relief; and

• Determine what, if any, evidentiary support you will need to make that explanation, and whether it is contained in the appellate record (if filed) or outside the record.

9-1:2 Requirements of Rule 10

Rule 10 provides the general requirements for appellate motions, and expressly states that additional requirements may exist for certain motions.² Also, always check the local rules for the court of appeals in which your appeal has been filed for additional requirements.

Content of the motion. A party seeking "an order or other relief" must file a motion, which must:

• "contain or be accompanied by any matter specifically required by a rule governing such a motion;"

• "state with particularity the grounds on which it is based;"

• "set forth the order or relief sought;"

• "be served and filed with any brief, affidavit, or other paper filed in support of the motion;" and

• in civil cases (and except for motions for rehearing and en banc reconsideration), contain a certificate of conference—that the filing party "conferred, or made a reasonable attempt to confer, with all other parties about the merits of the motion and whether those parties oppose the motion." ³

9-1:3 Evidence

Rule 10.2 addresses evidence supporting appellate motions. Essentially, factual support for motions comes from four general sources:

1. the appellate record;

2. sources outside the record;

3. the court's "knowledge in its official capacity;" and

4. the signing attorney's personal knowledge.

Facts from sources 1, 3, and 4 do not need to be verified by affidavit or other evidence.⁴ Facts supported by sources outside the record must be supported by an affidavit "or other satisfactory evidence."⁵ For example, if a motion is relying on an order filed in the trial court but not yet filed in the appellate record, the motion should attach that order and an affidavit signed by an attorney who can authenticate it.

9-1:4 Rulings on Motions

9-1:4.1 Timing

Courts generally wait to rule on a motion until after a response is filed (if opposed) or 10 days.⁶ Courts "should not" rule on a motion until 10 days have passed unless:

• the motion is for an extension of time to file a brief, petition for review, or petition for discretionary review;

• the motion is unopposed; or

• it is an emergency motion. ⁷

9-1:4.2 Reconsideration

If the court prematurely rules on a motion, the party adversely affected may request the court to reconsider its order.⁸

9-1:4.3 Ruling by One Judge

Most motions may be ruled upon by one judge.⁹ But in civil cases, one judge should not do the following:

• rule on a petition for extraordinary relief (e.g., a mandamus petition); or

• "dismiss or otherwise determine an appeal or a motion for rehearing." ¹⁰

9-1:4.4 Ruling by Panel

Rule 10.4(b) provides that the appellate court may provide by order or a local rule that a panel or the en banc court must determine any motion or "class of motions."

9-1:5 Local Rules

Before filing any motion in a court of appeals, consult that court's local rules to determine whether that court has additional requirements for the motion.

9-1:6 Filing Fees

Most motions require a filing fee, which must be paid by the filing party unless it is excused by statute or the appellate rules.¹¹ Consult the court's web site and/or local rules for a list of motions requiring a filing fee and the amount of the fee. If the motion is not listed, or if you have doubt about the category which applies to your motion, telephone the clerk's office.

9-2 Specific Motions

9-2:1 Motion to Extend Time to File Notice of Appeal

A party that fails to timely file a notice of appeal in the trial court may, within 15 days of the missed deadline, file in the court of appeals (i) a motion to extend the time for filing the notice of appeal, and (ii) the notice of appeal.¹² The motion must state:

• the deadline for filing the notice of appeal in the trial court;

• a reasonable explanation as to why the notice of appeal was not timely filed;

• the identity of the trial court;

• the date of the trial court's judgment or appealable order; and

• the case number and style of the case in the trial court. ¹³

The "reasonable explanation" can be simply that the attorney inadvertently missed the deadline, or miscalculated the due date for the notice of appeal.¹⁴ If these requisites are met, the court of appeals should grant the extension and deem the notice of appeal timely when filed.

9-2:2 Motions Regarding Counsel

9-2:2.1 Motions to Admit Counsel Pro Hac Vice

A non-resident attorney should consult several sources before seeking admission pro hac vice to participate in a proceeding in any court in Texas, including an appellate court:

• Rule XIX of the State Bar of Texas Rules Governing Admission to the Bar;

• Section 82.0361 of the Texas Government Code; and

• The Texas Board of Law Examiners (BLE) web site addressing the procedures and providing a link for the application that must precede the motion. ¹⁵

A non-resident attorney must complete the procedures outlined below for each proceeding in which the attorney desires admission. These procedures are specific and mandatory, and therefore must be carefully followed.

9-2:2.1a Application

The non-resident attorney must first make application before moving for admission pro hac vice by following these steps:

• Obtain and complete a copy of the Application for Pro Hac Vice Admission from the website listed above (if any question is not answered, the Application will be rejected);

• Mail a completed Application (which must be notarized) to the BLE with a check for $250 made payable to the BLE (this fee must accompany each application); and

• Wait for receipt by mail of an acknowledgment issued by the BLE. ¹⁶

9-2:2.1b Motion by Non-Resident Attorney

After receipt of the acknowledgment, the non-resident attorney must file with the applicable court a sworn motion requesting permission to participate in a particular proceeding, providing:

1. the office address, telephone number, and fax number of the non-resident attorney;

2. the name and State Bar number of a duly licensed Texas attorney with whom the non-resident attorney will be associated in the proceeding and the same contact information for that attorney;

3. a list of all Texas cases and causes, including cause number and caption, in which the non-resident attorney has appeared or sought leave to appear or participate within the past two years;

4. "a list of jurisdictions in which the non-resident attorney is licensed, including federal courts, and a statement that the non-resident attorney is or is not an active member in good standing in each of those jurisdictions;"

5. "a statement that the non-resident attorney has or has not been the subject of disciplinary action by the Bar or courts of any jurisdiction in which the attorney is licensed within the preceding five years, with a description of any such disciplinary action;"

6. "a statement that the non-resident attorney has or has not been denied admission to the courts of any State or to any federal court during the preceding five years;"

7. "a statement that the non-resident attorney is familiar with the State Bar Act, the State Bar Rules, and the Texas Disciplinary Rules of Professional Conduct," and that the attorney will abide by and comply with the foregoing as long as the attorney participates in the proceeding; and

8. a copy of the acknowledgment from the BLE, which provides proof that the non-resident attorney paid the mandatory fee. ¹⁷

9-2:2.1c Motion by Texas Attorney

The non-resident attorney's motion must be accompanied by a separate motion of the "resident practicing Texas attorney with whom the non-resident attorney shall be associated in the proceeding of a particular cause."¹⁸ The motion must provide:

1. a statement that the resident attorney finds the non-resident attorney to be a reputable attorney; and

2. a recommendation that the non-resident attorney be granted permission to participate in the proceeding at issue. ¹⁹

Unlike the motion by the non-resident attorney, this motion is not a sworn motion.

In practice, the motions by the non-resident attorney and the Texas attorney are filed separately, but contemporaneously. If more than one non-resident attorney is seeking permission to participate in a particular proceeding, each non-resident attorney must file his or her own motion, and the Texas attorney should file a separate supporting motion for each non-resident attorney.

9-2:2.2 Motions to Withdraw/Substitute Counsel

9-2:2.2a Mandatory Content When No Attorney Substitutes

When no attorney is immediately substituting for the withdrawing counsel, Rule 6.5(a) provides that the motion to withdraw by the current attorney must contain:

• "a list of current deadlines and settings in the case;"

• "the party's name and last known address and telephone number;"

• "a statement that a copy of the motion was delivered to the party;" and

• "a

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