Requisites of Briefs

38.1. Appellant’s Brief The appellant’s brief must, under appropriate headings and in the order here indicated, contain the following: (a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court’s judgment or order appealed from, except as otherwise provided in Rule 9.8. The brief must also give a complete list of the names of all counsel appearing in the trial or appellate courts; their firm or office name at the time of the appearance; and, for counsel currently appearing, their mailing address, 55 (h) Summary of the Argument. The brief must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. This summary must not merely repeat the issues or points presented for review. (i) Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. (j) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought. (k) Appendix in Civil Cases. (A) the list of parties and counsel is not to unless the or necessary correct required supplement appellant’s list; (B) the appellee’s brief need not include a statement of the case, a statement issues presented, or a of the the facts, unless statement of appellee is dissatisfied with that portion of the appellant’s brief; and (C) the appendix to the appellee’s brief need not contain any item already contained in an appendix filed by the appellant. (1) Necessary Contents. The appendix must be bookmarked to assist in locating each item and, unless voluminous or impracticable, must contain a copy of: (2) When practicable, the appellee’s brief should respond to the appellant’s issues or points in the order the appellant presented those issues or points. (b) Cross-Points. (1) Judgment Notwithstanding the Verdict. When the trial court renders judgment notwithstanding the verdict on one or more questions, the appellee must bring forward by cross-point any issue or point that would have vitiated the verdict or that would have prevented an affirmance of the judgment if the trial court had rendered the verdict. Failure to bring forward by cross-point an issue or point that would vitiate the verdict or prevent an affirmance of the judgment waives complaint. Included in this requirement is a point that: judgment on that (A) the verdict or one or more jury findings insufficient have evidentiary support or are against the overwhelming preponderance of the evidence as a matter of fact; or (B) the verdict should be set aside because of improper argument of counsel. (2) When Evidentiary Hearing Needed. The appellate court must remand a case to the trial court to take evidence if: (A) the trial court’s judgment or other appealable order from which relief is sought; (B) the jury charge and verdict, if any, or the trial court’s findings of fact and conclusions of law, if any; and (C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argument is based, and the text of any contract or other document that is central to the argument. (2) Optional Contents. The appendix may contain any other item pertinent to the issues or points presented for review, including copies or excerpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excerpts from the reporter’s record, and similar material. Items should not be included in the appendix to attempt to avoid the page limits for the brief. 38.2. Appellee’s Brief (a) Form of Brief. (1) An appellee’s brief must conform to the requirements of Rule 38.1, except that: 56 (A) the appellate court has sustained a point raised by the appellant; and (B) the appellee raised a cross-point that requires the taking of additional evidence. 38.3. Reply Brief The appellant may file a reply brief addressing any matter in the appellee’s brief. However, the appellate court may consider and decide the case before a reply brief is filed. 38.4. Deleted 38.5. Appendix for Cases Recorded Electronically In cases where the proceedings were electronically recorded, the following rules apply: (a) Appendix. (1) In General. At or before the time a party's brief is due, the party must file one copy of an appendix containing a transcription of all portions of the recording the party considers relevant to the appellate issues or points. Unless another party objects, the transcription will be presumed accurate. that (2) Repetition Not Required. A party's appendix need not repeat evidence included filed appendix. in any previously (3) Form. The form of the appendix and transcription must conform to any specifications of the Supreme Court and Court of Criminal Appeals concerning the form of the reporter’s record except that it need not have the reporter’s certificate. (4) Notice. At the time the appendix is filed, the party must give written notice of the filing to all parties to the trial court's judgment or order. The notice must specify, by referring index numbers in the court recorder's logs, those parts of the recording that are included in the appendix. The filing party need not serve a copy of the appendix but must make a copy available to all parties for inspection and copying. the to (b) Presumptions. The same presumptions that apply to a partial reporter’s record under Rule 34.6(c)(4) apply to the parties' appendixes. The appellate court need not review any part of the electronic recording. (c) Supplemental Appendix. The appellate court may direct or allow a party to file a a appendix supplemental transcription of additional portions of the recording. containing (d) Inability to Pay. A party who cannot pay the cost of an appendix must file the affidavit provided for by Rule 20. The party must also state in the affidavit or a supplemental affidavit that the party has neither the access to the equipment necessary nor the skill necessary to prepare the appendix. If a contest to the affidavit is not sustained by written order, the court recorder must transcribe or have transcribed those portions of the recording that the party designates and must file the transcription as that party's appendix, along with all exhibits. (e) Inaccuracies. (1) Correction by Agreement. The parties may agree to correct an inaccuracy in the transcription of the recording. (2) Correction by Appellate or Trial Court. If the parties dispute whether an transcription electronic recording or accurately discloses what occurred in the trial court but cannot agree on corrections, the appellate court may: (A) settle the dispute by reviewing the recording; or (B) submit the dispute to the trial court, which must — after notice and hearing — settle the dispute and ensure recording or the transcription is made to conform to what occurred in the trial court. that (f) Costs. The actual expense of preparing the appendixes or the amount prescribed for official reporters, whichever is less, is taxed as costs. The appellate court may disallow the cost of any portion of the appendixes that it that does not considers surplusage or 57 conform to any specifications prescribed by the Supreme Court or Court of Criminal Appeals. 38.6. Time to File Briefs (a) Appellant's Filing Date. Except in a habeas corpus or bail appeal, which is governed by Rule 31, or when an appendix is filed under Rule 34.5a, an appellant must file a brief within 30 days — 20 days in an accelerated appeal — after the later of: the appellant's failure to timely file a brief; (2) decline to dismiss the appeal and give further direction to the case as it considers proper; or (3) if an appellee’s brief is filed, the court may regard that brief as correctly presenting the case and may affirm the trial court's judgment upon that brief without examining the record. (1) the date the clerk’s record was filed; or (b) Criminal Cases. (2) the date the reporter’s record was filed. (b) Appellee's Filing Date. The appellee's brief must be filed within 30 days — 20 days in an accelerated appeal — after the date the appellant's brief was filed. In a civil case, if the appellant has not filed a brief as provided in this rule, an appellee may file a brief within 30 days — 20 days in an accelerated appeal — after the date the appellant's brief was due. (c) Filing Date for Reply Brief. A reply brief, if any, must be filed within 20 days after the date the appellee's brief was filed. (d) Modifications of Filing Time. On motion complying with Rule 10.5(b), the appellate court may extend the time for filing a brief and may postpone submission of the case. A motion to extend the time to file a brief may be filed before or after the date the brief is due. The court may also, in the interests of justice, shorten the time for filing briefs and for submission of the case. 38.7. Amendment or Supplementation A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe. 38.8. Failure of Appellant to File Brief (a) Civil Cases. If an appellant fails to timely file a brief, the appellate court may: (1) dismiss the appeal unless for want of appellant the prosecution, reasonably explains the failure and the appellee is not significantly injured by 58 (1) Effect. An appellant's failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs. (2) Notice. If the appellant's brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate and recommendations. to determine whether findings (3) Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which record — including any order and findings — must be sent to the appellate court. are rights (4) Appellate Court Action. Based on the trial court's record, the appellate court may act appropriately to ensure that the protected, appellant's contempt initiating including proceedings against appellant's counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require. postpone the filing of any brief, not just the appellant's brief. 38.9. Briefing Rules to be Construed Liberally Because briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient, subject to the following. (a) Formal Defects. If the court determines that this rule has been flagrantly violated, it may require a brief to be amended, supplemented, or redrawn. If another brief that does not comply with this rule is filed, the court may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief. (b) Substantive Defects. If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case. Notes and Comments Comment to 1997 change: This is former Rule 74. The rule is substantially rewritten. Paragraph 38.1(e) now specifically allows a party to either present issues or points of error. Paragraphs 38.1(f) and (g) are new and require a brief to include a statement of facts and summary of the argument. Paragraph 38.2(b) is new and gives specific requirements for cross-points. See also TEX. R. CIV. P. 324(c). Subdivision 38.3 is new and provides for a reply brief. Subdivision 38.4 imposes a total brief limit of 90 pages on each party. Thus, if more than one party has filed a notice of appeal, there will be multiple appellant’s, appellee’s, and reply briefs, but each party is limited to a total of 90 pages. Subdivision 38.5 is new and provides for an appendix in cases recorded electronically in the trial court. Paragraph 38.6(b) now provides that the appellee has 30 — rather than 25 — days to file a brief. The provisions of former Rules 74(I) (Number of Copies), (j) (Briefs Typewritten or Printed), and (q) (Service of Briefs) are omitted as unnecessary. See