Chapter 26 

Posttrial Proceedings and Appeals

§ 26.1Final Order

Generally:      There can be only one final judgment, which settles all legal issues and rights between the parties and which is appealable. Tex. R. Civ. P. 301; Johnson v. Ven­tling, 132 S.W.3d 173, 177 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.). When the trial court renders a judgment after a conventional trial on the merits (whether by jury or bench trial) and there is no order for separate trials, there is a presumption (known as the “Aldridge presumption”) that the judgment disposes of all issues and par­ties. John v. Marshall Health Services, 58 S.W.3d 738, 740 (Tex. 2001) (per curiam); North East ISD v. Aldridge, 400 S.W.2d 893, 897–98 (Tex. 1966). When the Aldridge presumption applies, the judgment is treated as final for purposes of appeal. See John, 58 S.W.3d at 740; see, e.g., Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 627 (Tex. App.—Dallas 2001, pet. denied) (judgment ostensibly rendered after full trial on merits, which contained Mother Hubbard clause denying all relief not granted, was final). However, see further discussion regarding Mother Hubbard clauses below.

Judgment vs. Rendition:      Before an appeal may be pursued, a final order must be signed by the court. A judgment routinely goes through three stages: rendition, reduc­tion to writing, and entry. Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex. App.—Waco 1988, no writ).

Rendition of judgment occurs when the trial judge officially announces a decision on the law as to the matters at issue, either orally in open court or by written memorandum filed with the clerk. Garza v. Texas Alcoholic Beverage Commission, 89 S.W.3d 1, 6 (Tex. 2002).

The subsequent reduction of the pronouncement to writing, signed and dated by the court, is a ministerial act of the court. Oak Creek Homes, 758 S.W.2d at 290. The reduc­tion of the pronouncement to writing does not change the date of a prior rendition to the date of the signing of the written draft. Knox v. Long, 257 S.W.2d 289, 292 (Tex. 1953), overruled in part on other grounds, Jackson v. Hernandez, 285 S.W.2d 184, 191 (Tex. 1955). After a trial judge orally renders judgment, the subsequent written judgment may be signed by a different judge; this signing is a ministerial act and does not affect the rendition or the written judgment. Townsend v. Vasquez, 569 S.W.3d 796, 805 (Tex. App.—Houston [1st Dist.] 2018, pet. denied), cert. denied, 140 S. Ct. 478 (2019).

A judgment is “entered” when it is recorded on the minutes of the trial court by a purely ministerial act of the clerk of the court, and “entered” is synonymous with neither “signed” nor “rendered” when used in relation to a judgment or the date of the judg­ment. Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978).

The trial court’s rendition is fully effective for all purposes, except calculation of the time by which an appeal must be perfected. Tex. R. App. P. 26.1; see Galbraith v. Gal­braith, 619 S.W.2d 238, 240 (Tex. App.—Texarkana 1981, no writ). Once the trial court renders its decision, the court’s orders are valid from that time forward until vacated or set aside. Ex parte Cole, 778 S.W.2d 599, 600 (Tex. App.—Houston [14th Dist.] 1989, orig. proceeding).

Oral rendition is proper if the words state the pronouncement to be a present rendition of judgment, not as an intent to perform a future act. State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015). The Texas Supreme Court has found that the court rendered judgment after approving a settlement agreement in open court. Samples Exterminators v. Sam­ples, 640 S.W.2d 873, 874–75 (Tex. 1982) (per curiam). The Texas Supreme Court has also held that, when the trial court specifies the terms of the judgment on the docket sheet along with the words “decree to be entered,” rendition has occurred. See Bur­naman v. Heaton, 240 S.W.2d 288, 290–91 (Tex. 1951). Judges’ oral pronouncements, however, are often necessarily tentative and may not cover all the details of a final decree, since judges know that they will review the draft of the judgment before signing it. Stallworth v. Stallworth, 201 S.W.3d 338, 349 (Tex. App.—Dallas 2006, no pet.) (judge orally announced fifty-fifty division of retirement benefits, but decree awarded each party own retirement benefits).

Trial courts sometimes issue memorandum or letter rulings that can raise questions regarding whether the ruling is a final judgment for appellate purposes. A memoran­dum ruling can be accorded final judgment status triggering appellate deadlines if (1) the ruling describes the decision with certainty as to the parties and effect, (2) it requires no further action to memorialize the ruling and contains the name and cause number of the case, (3) the court’s diction is affirmative rather than anticipatory of a future ruling, (4) the ruling bears a date, (5) it was signed by the court, and (6) it was filed with the district clerk. In re B.D., No. 05-17-00674-CV, 2017 WL 3765848 (Tex. App.—Dallas Aug. 31, 2017, no pet.) (mem. op.). However, orders following a conventional trial can be ambiguous as to their finality, and, if there are doubts regarding finality, an appellate court should review the record to determine whether the trial court intended the order to be final. In re R.R.K., 590 S.W.3d 535, 541 (Tex. 2019).

Docket sheet entries alone, without a decree of divorce or a record, are insufficient to constitute a judgment or decree of the court. A docket sheet entry is a memorandum made for the convenience of the trial court and the court clerk. Docket sheet entries are inherently unreliable because they lack the formality of orders and judgments. Bailey-Mason v. Mason, 122 S.W.3d 894, 897 (Tex. App.—Dallas 2003, pet. denied).

Agreed Judgments:      An agreed judgment must be interpreted as if it were a contract between the parties, and its interpretation is governed by the laws relating to contracts, rather than laws relating to judgments. However, an agreed judgment is accorded the same degree of finality and binding force as a final judgment rendered at the conclusion of an adversary proceeding. McCray v. McCray, 584 S.W.2d 279, 281 (Tex. 1979) (per curiam). A court is bound by the express stated intent of the parties as manifested within the four corners of the instrument itself, absent any allegations of ambiguity. See National Union Fire Insurance Co. v. CBI Industries, 907 S.W.2d 517, 520 (Tex. 1995) (per curiam).

A Mother Hubbard clause is a clause in a judgment reciting that “all relief not expressly granted is denied” or containing similar language purporting to dispose of all parties and all issues in the suit. In re J.G.W., 54 S.W.3d 826, 831, n.4 (Tex. App.—Texarkana 2001, no pet.). If a judgment contains language such as a Mother Hubbard clause that purports to grant or deny relief that disposes of all claims or parties, regardless of the intent of the parties or the trial court, that judgment may be presumed final as to all claims and all parties. See In re J.G.W., 54 S.W.3d at 831. But see In re R.R.K., 590 S.W.3d at 541–42, wherein the Texas Supreme Court holds that inclusion of a Mother Hubbard clause is not conclusive of finality and, in that case, omission from a trial court’s memorandum ruling of matters that were otherwise required to be included in a final order pursuant to Family Code section 105.006 prevented the memorandum ruling from being a final, appealable judgment.

Final Order Signed by Presiding Judge vs. Associate Judge:      An associate judge may “render” and “sign” final orders only when (1) the final order is agreed to in writ­ing as to both form and substance and signed by all parties, (2) the final order is based on a default, or (3) the final order is in a case where a party has signed an unrevoked waiver pursuant to rule 119 of the Texas Rules of Civil Procedure that waives notice of the final hearing or waives the party’s appearance at the final hearing. Tex. Fam. Code § 201.007(a)(14). In all other circumstances, an associate judge’s pronouncement and signature on a proposed final order constitutes only a “recommendation,” and the order does not become final until approved by the presiding judge. Mathis v. Graves, No. 01-18-00789-CV, 2019 WL 5606869, at *3 (Tex. App.—Houston [1st Dist.] Oct. 31, 2019, pet. denied) (mem. op.).

Bifurcated Trial:      When issues in a case have been bifurcated, not severed, an order issued after a trial on only some of the bifurcated issues is not a final judgment and there will be no final judgment until such time as the remaining bifurcated issues have been resolved. Wright v. Payne, No. 02-19-00147-CV, 2019 WL 6003243, at *2 (Tex. App.—Fort Worth Nov. 14, 2019, no pet.) (mem. op.).

Attorney’s Fees:      A trial court’s failure to include terms within a judgment either granting or denying an award of attorney’s fees, when a claim for such relief was raised by the pleadings and evidence in a suit affecting the parent-child relationship, prevents the finality of that judgment. In re K.M.B., 148 S.W.3d 618 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

COMMENT:      Although the opinion in In re K.M.B. does not mention inclusion within the subject orders of a Mother Hubbard clause denying all relief not specifically granted, such terms would likely have resulted in finality, precluding dismissal on appeal for lack of jurisdiction in the case.

Pending Sanctions:      A judgment need not resolve pending sanctions issues to be final, and sanctions may not be imposed after the expiration of a trial court’s plenary jurisdiction. Lane Bank Equipment Co. v. Smith Southern Equipment, Inc., 10 S.W.3d 308, 311–12 (Tex. 2000).

Collateral Attack on Judgments:      A collateral attack is an attempt to avoid the bind­ing force of a judgment in a separate proceeding brought for some other purpose. John­son, 132 S.W.3d at 177. To prevail in a collateral attack, a party to the original judgment must show that the complained-of judgment is void, not simply voidable. Gainous v. Gainous, 219 S.W.3d 97, 105 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). In general, as long as the court that enters a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judg­ment is not void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). All other errors make the judgment merely voidable so that it may be corrected only through a direct attack. Reiss, 118 S.W.3d at 443. One may raise a collateral attack challenging a void order at any time, and res judicata is not a bar to the attack. In a collateral attack the challenged order is presumed valid, and the party challenging it has the burden to show that it is void. Gainous, 219 S.W.3d at 106.

A husband was not allowed to collaterally attack a final decree of divorce in a proceed­ing to declare the marriage void based on his claim that wife was guilty of bigamy, because he could not establish that the trial court lacked jurisdiction over prior divorce proceedings. Instead, after the trial court’s plenary power expired, husband’s only rem­edy was to directly attack the final decree of divorce by bill of review. Athans v. Athans, No. 09-20-00047-CV, 2021 WL 1295429, at *3 (Tex. App.—Beaumont Apr. 29, 2022, no pet.) (mem. op.).

In a collateral attack on a judgment, extrinsic evidence may not be used to establish a lack of jurisdiction. Johnson, 132 S.W.3d at 177–78. A collateral attack fails if the judgment contains jurisdictional recitals, even if other parts of the record show a lack of jurisdiction. Johnson, 132 S.W.3d at 178. Plain jurisdiction recitals of personal jurisdic­tion in a judgment must be accorded absolute verity. Armentor v. Kern, 178 S.W.3d 147 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A divorce judgment, unappealed and regular on its face, is not subject to a collateral attack in a subsequent suit. Hardin v. Hardin, 597 S.W.2d 347, 350 (Tex. 1980).

Collateral Attack on QDRO:      The court that rendered a divorce decree or any other final order dividing property retains continuing, exclusive jurisdiction to render an enforceable qualified domestic relations order (QDRO) or similar order permitting pay­ment of divisible pension, retirement plan, or other employee benefits to an alternate payee or other lawful payee. As with any postdivorce enforcement or clarification order, a QDRO may not amend, modify, alter, or change the division of property made or approved in the decree. If the provisions of the QDRO and the divorce decree con­flict, the QDRO’s provisions are void, unenforceable, and subject to collateral attack. See Gainous, 219 S.W.3d at 106–07.

§ 26.2Posttrial Pleadings

To preserve a complaint for appeal, a party must first have presented the complaint to the trial court through a timely, specific request, objection, or motion and obtained a ruling. See Tex. R. App. P. 33.1; In re M.M.W., 536 S.W.3d 611 (Tex. App.—Texarkana 2017, no pet.) (objections must be sufficiently specific).

COMMENT:      After the trial, the attorney must review the case and determine if the court did or did not do anything that his client wants to complain about on appeal. If the attorney failed to timely and specifically object or failed to obtain a ruling on an objec­tion, the attorney may still be able to preserve the error through the use of a posttrial motion. Also, some complaints may be made for the first time only in a posttrial motion.

§ 26.3New Trial

§ 26.3:1Generally

A motion for new trial asks the trial court to reconsider and correct a trial error either in its rulings or in the jury’s findings and to grant the movant a new trial. The primary rea­sons for filing a motion for new trial are to give the trial court a chance to correct any mistakes, to preserve error for appeal, and to extend the appellate deadlines.

New trials may be granted and judgment set aside for good cause on the motion of any party or on the court’s own motion on the terms the court directs. If it appears to the court that a new trial should be granted on a point or points that affect only a part of the matters in controversy and that the affected part is clearly separable without unfairness to the parties, the court may grant a new trial as to that part only. Tex. R. Civ. P. 320. Rule 320 applies to divorce cases, and a trial court may grant a partial new trial on prop­erty issues; however, these issues cannot be severed from the issue of divorce, Hersch­berg v. Herschberg, 994 S.W.2d 273, 277 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.), the parties remain married, and the community estate continues to exist until all issues subject to the new trial have been resolved. Gathe v. Gathe, 376 S.W.3d 308, 314–15 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Unlike the trial court, an appellate court may effectively sever the issues of divorce and division by affirming a divorce while reversing and remanding the division of property. In that circumstance, the marriage relationship is not prolonged until the property issues are decided on remand. Herschberg, 994 S.W.2d at 277.

A trial court in a divorce proceeding has discretion to grant a new trial within the time frame that the court has plenary jurisdiction, even if one party dies after the divorce decree is entered. Nichols v. Nichols, 907 S.W.2d 6, 10 (Tex. App.—Tyler 1995, writ denied). The negligence, inadvertence, or mistake of an attorney is attributable to his client so that the attorney’s failure to defend the case properly or to develop fully the available evidence does not constitute “good cause” authorizing a new trial. A motion for new trial may not be used as a vehicle by which the case may be tried over and dif­ferently. Scheffer v. Chron, 560 S.W.2d 419, 420 (Tex. App.—Beaumont 1977, writ ref’d n.r.e.). A motion for new trial may be filed only by a party to the underlying suit. In re Trevino, 329 S.W.3d 906 (Tex. App.—Dallas 2010, orig. proceeding).

Granting a new trial has the legal effect of vacating the original judgment and return­ing the case to the trial docket as though there had been no previous trial or hearing; the original judgment is set aside, and the parties may proceed without prejudice from previous proceedings. Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.—Hous­ton [14th Dist.] 2003, pet. denied). Thus, when the trial court grants a motion for new trial, the court essentially wipes the slate clean and starts over. Wilkins v. Methodist Health Care System, 160 S.W.3d 559, 563 (Tex. 2005).

Generally, an order granting a new trial within the court’s period of plenary power is not subject to review by direct appeal either from that order or from a final judgment ren­dered after further proceedings in the trial court. Dupree v. Dupree, No. 14-20-00296-CV, 2022 WL 4899228, at *6 (Tex. App.—Houston [14th Dist.] Oct. 21, 2021, no pet.) (mem. op.).

§ 26.3:2Format of Motion

The motion must be in writing and signed by the attorney or the party. Tex. R. Civ. P. 320. Each point relied on in a motion for new trial or in arrest of judgment shall briefly refer to that part of the ruling of the court, charge given the jury or charge refused, admission or rejection of evidence, or other proceedings that are designated to be com­plained of, in such a way that the objection can be clearly identified and understood by the court. Tex. R. Civ. P. 321. Grounds of objection couched in general terms shall not be considered by the court. Tex. R. Civ. P. 322. The motion must specifically request a new trial; if the request is for a different judgment, it is not a motion for new trial. See Mercer v. Band, 454 S.W.2d 833, 836 (Tex. App.—Houston [14th Dist.] 1970, no writ).

Motions for new trial on which evidence must be heard, such as those based on newly discovered evidence or jury misconduct, require a verification and one or more affida­vits or, in the case of jury misconduct, a reasonable explanation and excuse why an affi­davit may not be secured. See Zuniga v. Zuniga, 13 S.W.3d 798, 803 n.4 (Tex. App.—San Antonio 1999, no pet.), disapproved on other grounds, In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003); Brown v. Hopkins, 921 S.W.2d 306, 310–11 (Tex. App.—Corpus Christi–Edinburg 1996, no writ) (newly discovered evidence); Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623, 636 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (jury misconduct).

§ 26.3:3Filing for Appellate Purposes

A motion for new trial is not necessary to preserve error in either a jury or a nonjury case, except under very limited circumstance. See Tex. R. Civ. P. 324(a). After either a jury or a nonjury trial, a motion for new trial is necessary to preserve posttrial com­plaints on which evidence must be heard, such as newly discovered evidence or failure to set aside a default judgment (Tex. R. Civ. P. 324(b)(1)) and complaints that were not brought to the trial court’s attention during the trial (Tex. R. Civ. P. 324(b)(2)–(5)).

The motion for new trial, however, does not negate the need for the party to have objected at trial.

After a jury trial, a party must file a motion for new trial to preserve certain types of complaints on appeal, including the following:

1.Posttrial complaints on which evidence must be heard (such as jury miscon­duct). Tex. R. Civ. P. 324(b)(1).

2.Complaints of incurable jury argument if the trial court has not otherwise made a ruling on it. Tex. R. Civ. P. 324(b)(5).

3.Complaints of factual insufficiency of the evidence to support a jury finding or that the jury finding is against the great weight and preponderance of the evi­dence. Tex. R. Civ. P. 324(b)(2), (b)(3); In re A.B., 548 S.W.3d 81, 83–84 (Tex. App.—Beaumont 2018, no pet.); In re A.M., 385 S.W.3d 74, 79 (Tex. App.—Waco 2012, pet. denied).

4.Complaints of legal insufficiency. Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988). However, if a party raises legal insufficiency for the first and only time in a motion for new trial, the party is not entitled to a ren­dition by the appellate court, only to a remand to the trial court. Horrocks v. Texas Department of Transportation, 852 S.W.2d 498, 499 (Tex. 1993) (per curiam).

5.Complaints that the jury’s damages are inadequate or excessive. Tex. R. Civ. P. 324(b)(4).

If a motion for new trial is a prerequisite of appeal, error not complained of in the motion is waived. Beacon National Insurance Co. v. Young, 448 S.W.2d 812, 814 (Tex. App.—Dallas 1969, writ ref’d n.r.e.). A party whose motion for judgment on verdict of a jury is denied may forgo the filing of a motion for new trial and predicate his points of error on appeal on matters included in the motion. The party following that course may complain on appeal only of denial of the motion for judgment. Abbott v. Earl Hayes Chevrolet Co., 384 S.W.2d 782, 784 (Tex. App.—Tyler 1964, no writ).

The filing of a motion for new trial in order to extend the appellate timetable is a matter of right, regardless of whether there is any sound or reasonable basis for the conclusion that a further motion is necessary. Old Republic Insurance Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993) (per curiam).

§ 26.3:4Newly Discovered Evidence

A party seeking a new trial on the ground of newly discovered evidence must establish that (1) the evidence has come to the party’s knowledge since the trial, (2) the failure to discover the new evidence was not for want of due diligence, (3) it is not cumulative evidence, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds, Moritz v. Preiss, 121 S.W.3d 715, 720–21 (Tex. 2003). See, e.g., In re Calzadias, 484 S.W.3d 574, 576 (Tex. App.—Amarillo 2016, orig. proceeding) (new evidence strongly showed original order would seriously and adversely affect interest and welfare of children, and presentation of that evidence at another trial would probably change result). The granting of a motion for new trial on the ground of newly discovered evidence will not be disturbed on appeal absent an abuse of discretion.

In denying a motion for new trial on the ground of newly discovered evidence, the trial court should take into consideration the weight and the importance of the new evidence and its bearing in connection with the evidence received at trial. The inquiry is not whether, according to the evidence in the record, the request for new trial should have been granted in the particular case, but whether the refusal to grant the request has involved the violation of a clear legal right or a manifest abuse of judicial discretion. Every reasonable presumption will be made on review in favor of orders of the trial court refusing new trials. Jackson, 660 S.W.2d at 809. In reviewing a trial court’s deci­sion refusing a new trial, appellate courts recognize the well-established principle that courts do not favor motions for new trial on the ground of newly discovered evidence, and such motions are reviewed with careful scrutiny. Brown v. Hopkins, 921 S.W.2d 306, 311 (Tex. App.—Corpus Christi–Edinburg 1996, no writ). Review of a trial court’s action under the abuse of discretion criteria is a question of law. Jackson, 660 S.W.2d at 809.

Each element of a motion for new trial on the ground of newly discovered evidence must be established by affidavit. Brown, 921 S.W.2d at 310–11; Fulton v. Duhaime, 525 S.W.2d 62, 64 (Tex. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.). This is true even though the motion is verified and not controverted. Steelman v. Rosenfeld, 408 S.W.2d 330, 335 (Tex. App.—Dallas 1966, no writ). Specifically, the attached affidavit must contain a statement that, with the exercise of due diligence, the newly discovered evi­dence could not have been discovered before the hearing. Jackson, 660 S.W.2d at 810. Furthermore, the motion must be accompanied by an affidavit of the person by whom the expected proof is to be made, and that witness must be called to testify on the hear­ing of the motion. Steelman, 408 S.W.2d at 335.

§ 26.3:5After Default Judgment

Generally, there are two types of default judgments: (1) those granted without the respondent’s receiving proper notice of the suit, hearing, or trial and (2) those granted after the respondent receives proper notice of the suit, hearing, or trial but fails to appear because of a mistake or accident.

Improper Service:      If the trial court grants a default judgment without the defen­dant’s receiving proper service, the defendant should challenge any deficiencies in the citation (see Tex. R. Civ. P. 15, 99), the service (see Wood v. Brown, 819 S.W.2d 799, 800 (Tex. 1991) (per curiam)), the return (see Tex. R. Civ. P. 107), and the petitioner’s pleadings (see Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988)). There are no presumptions in favor of valid issuance, service, or return of cita­tion. Creaven v. Creaven, 551 S.W.3d 865, 870 (Tex. App.—Houston [14th Dist.] 2018, no pet.). A default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the law­suit. In re T.J.T., 486 S.W.3d 675, 678–79 (Tex. App.—Texarkana 2016, no pet.) (cita­tion served on father failed to inform him that answer was required or that he would risk default judgment if he failed to answer); Singh v. Gill, No. 05-19-01146-CV, 2021 WL 194114, at *3–4 (Tex. App.—Dallas Jan. 20, 2021, no pet.) (mem. op.) (affidavits of wife and her attorney supporting substituted service did not comply with Tex. R. Civ. P. 106(b), failing to demonstrate a diligent search to locate and attempts at per­sonal service or by certified mail, making substituted service improper and negating personal jurisdiction over respondent). However, if the defendant’s counsel appears at a motion to quash service, his client has entered an appearance, and a default judgment is proper if that party does not appear at trial. In re A.M., 351 S.W.3d 395, 398 (Tex. App.—El Paso 2011, no pet.). Amended pleadings may be served on a defendant under rule 21a of the Texas Rules of Civil Procedure without the necessity of obtaining a new citation. In re E.A., 287 S.W.3d 1, 4 (Tex. 2009).

In passing title 4 of the Family Code (Protective Orders and Family Violence), the leg­islature did not intend for rule 107(h) of the Texas Rules of Civil Procedure (require­ment that return of service be on file for at least ten days before a proper default judgment may be rendered) to apply to family violence protective orders. Applying rule 107(h) to family violence protective orders would render meaningless the requirement of Family Code section 84.001(a) that a hearing be held “not  . . . later than the 14th day after the date the application is filed,” would render meaningless section 84.004(a)’s requirement that a trial court reschedule hearings on a respondent’s request when the respondent has been served with an application within the forty-eight hours before the time set for the hearing, would seek to insert the words return of service into section 82.043(c), and would generally thwart the purpose of title 4 by causing delay in what is meant to be an expedited process. Therefore rule 107(h) does not apply to family vio­lence protective orders. Johnson v. Simmons, 597 S.W.3d 538, 545 (Tex. App.—Fort Worth 2020, no pet.). But see Lancaster v. Lancaster, No. 01-14-00845-CV, 2015 WL 9480098, at *4 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, no pet.) (mem. op.).

No Notice of Trial:      Because, without notice, a respondent cannot intentionally or with conscious indifference fail to appear, if the respondent proves that a default judg­ment was granted without proper notice of the trial or hearing, he satisfies the first prong of the test set forth in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). Texas Sting, Ltd. v. R.B. Foods, 82 S.W.3d 644, 650–52 (Tex. App.—San Antonio 2002, pet. denied).

Proving lack of notice of the trial also relieves the respondent from needing to establish the remainder of the Craddock factors because, once the respondent enters an appear­ance, the respondent is entitled to notice of the trial setting as a matter of due process. LBL Oil Co. v. International Power Services, 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam).

Since a party has a right to raise defenses to the validity of a mediated settlement agree­ment before judgment, a hearing to prove up a mediated settlement agreement is con­sidered a final hearing that requires at least forty-five days’ notice under Tex. R. Civ. P. 245, and a default judgment without such notice is improper. M.B. v. R.B., No. 02-19-00342-CV, 2021 WL 2252792, at *5 (Tex. App.—Fort Worth June 3, 2021, no pet.) (mem. op.).

Failure to Appear after Receipt of Proper Notice of Trial:      A defendant challeng­ing a default judgment must show that (1) the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference but was due to a mistake or an accident, (2) the motion for new trial set up a meritorious defense, and (3) the motion was filed at a time when to grant it would cause no delay or otherwise work an injury to the plaintiff. Bank One, Texas v. Moody, 830 S.W.2d 81, 82–83 (Tex. 1992) (interpreting three-pronged test set out in Craddock, 133 S.W.2d at 126).

But Craddock applies only to default judgments and not to judgments rendered after an adversarial trial, even when a party participates in the trial without his lawyer because of a calendaring error. In re G.B.A., 528 S.W.3d 815 (Tex. App.—Texarkana 2017, no pet.).

Conscious Indifference:      “Conscious indifference” means a failure to take some action that would seem indicated to a person of reasonable sensibilities under the same or similar circumstances. Sharpe v. Kilcoyne, 962 S.W.2d 697, 701 (Tex. App.—Fort Worth 1998, no pet.). Conscious indifference exists when a person knows that he has been sued but does not care. Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012). A failure to appear is not due to conscious indifference merely because it was inten­tional or deliberate; it must also be without adequate justification. State v. Sledge, 982 S.W.2d 911, 914 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

The courts have liberally interpreted the first Craddock prong in favor of the movant. See Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex. App.—Houston [14th Dist.] 1988, no writ). The absence of a purposeful or bad-faith failure to answer is the “controlling fact” and is satisfied by even a slight excuse. Gotcher, 757 S.W.2d at 401. Negligence alone will not preclude setting aside a default judgment. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966); Ferguson & Co. v. Roll, 776 S.W.2d 692, 697 (Tex. App.—Dallas 1989, no writ); see also Michael A. Pohl and David Hittner, Judgment by Default in Texas, 37 Sw. L.J. 421, 433 (1983) (“[t]he defendant’s burden of demonstrating the accidental or mistaken nature of his failure to answer may often result in an admission of negligence.”). Thus, it appears that some excuse, even if not strong, is sufficient under the Craddock rationale to warrant setting aside a default judgment, provided that the defendant’s failure to answer was, in fact, accidental. Craddock, 133 S.W.2d at 125; Ferguson, 776 S.W.2d at 695.

Evidence of extrinsic fraud also satisfies the first Craddock prong. See Rhamey v. Fielder, 203 S.W.3d 24, 29 (Tex. App.—San Antonio 2006, no pet.). Extrinsic fraud is wrongful conduct practiced outside the adversary trial, such as keeping a party away from court or making false promises of compromise, that affects the manner in which the judgment is procured. Rhamey, 203 S.W.3d at 29; see also Browning v. Prostok, 165 S.W.3d 336, 347 (Tex. 2005).

A party’s failure to answer because of a heavy workload or preoccupation with other activities can satisfy Craddock’s first prong. See Southland Paint Co. v. Thousand Oaks Racket Club, 724 S.W.2d 809, 811 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.) (late answer due to staff shortage at defendant’s insurance broker’s office); Evans v. Woodward, 669 S.W.2d 154, 155 (Tex. App.—Dallas 1984, no writ) (no conscious indifference when answer not filed due to confusion in attorney’s office); Drake v. McGalin, 626 S.W.2d 786, 788 (Tex. App.—Beaumont 1981, no writ) (failure to answer due to accident or mistake when answer prepared by secretary presumably lost by volunteer exchange student who was assisting defendant’s attorney as an “office boy”); Dallas Heating Co. v. Pardee, 561 S.W.2d 16, 19 (Tex. App.—Dallas 1977, writ ref’d n.r.e.) (suit papers inadvertently misplaced in defendant’s office sufficient to negate conscious indifference); Leonard v. Leonard, 512 S.W.2d 771, 773 (Tex. App.—Corpus Christi–Edinburg 1974, writ dism’d w.o.j.) (no conscious indifference when attorney misplaced file); Schindler v. Schindler, No. 13-16-00483-CV, 2018 WL 3151857 (Tex. App.—Corpus Christi–Edinburg June 28, 2018, no pet.) (mem. op.) (finding of conscious indifference affirmed when husband failed to appear after being properly served and complying with court’s temporary orders).

Meritorious Defense:      To set up a meritorious defense, the motion must allege facts that in law would constitute a defense to the cause of action asserted by the plaintiff, and it must be supported by affidavits or other evidence proving prima facie that the defendant has such a meritorious defense. Estate of Pollack v. McMurrey, 858 S.W.2d 388, 392 (Tex. 1993) (quoting Ivy, 407 S.W.2d at 214). The movant must do more than merely assert that it has a meritorious defense, Ivy, 407 S.W.2d at 214; however, it need not prove the defense in order to meet Craddock’s second prong. In re Marriage of San­doval, 619 S.W.3d 716, 722–23 (Tex. 2021) (per curiam) (husband’s affidavit stating facts that established house awarded to wife was his separate property sufficiently set up meritorious defense and sufficiently explained his failure to answer based on mis­taken belief that divorce decree could not distribute this property in his absence).

To satisfy this requirement, the defaulting party need only assert, but not prove, facts that, if true, would cause a different result on retrial. Gotcher, 757 S.W.2d at 403. A meritorious defense, however, is not limited to one that, if proved, would lead to an entirely opposite result. It is sufficient if at least a portion of the judgment would not be sustained at retrial. HST Gathering Co. v. Motor Service, Inc., 683 S.W.2d 743, 745 (Tex. App.—Corpus Christi–Edinburg 1984, no writ).

The trial court may not try the defensive issues in deciding whether to set aside the default judgment and should not consider counter affidavits or conflicting testimony offered to refute the movant’s factual allegations. Estate of Pollack, 858 S.W.2d at 392.

If a defendant had no actual or constructive notice of a trial setting and a default judg­ment is entered against him, he is not required to show that he had a meritorious defense, because such a requirement violates his due-process rights under the Four­teenth Amendment to the United States Constitution. Peralta v. Heights Medical Cen­ter, Inc., 485 U.S. 80, 86–87 (1988).

No Delay or Injury:      To set aside a default judgment, the defendant must also allege that a new trial would occasion no delay or otherwise work an injury to the plaintiff. Craddock, 133 S.W.2d at 126. In determining whether the granting of a new trial would injure the plaintiff or occasion delay, the court should deal with the facts on a case-by-case basis. Angelo v. Champion Restaurant Equipment Co., 713 S.W.2d 96, 98 (Tex. 1986). One way a defendant may show that the granting of a new trial will not injure the plaintiff is by showing that he is ready to proceed to trial and that he has offered to reimburse the plaintiff for expenses incurred in obtaining the default judgment. Gotcher, 757 S.W.2d at 404. Although reimbursement of costs in obtaining default judgment and the defendant’s ability to go to trial immediately may both be important factors in avoiding delay or injury to a plaintiff, neither factor is so indispensable that a new trial cannot be granted without it. Angelo, 713 S.W.2d at 98. If the defendant alleges that the granting of a new trial will not injure the plaintiff, the burden switches to the plaintiff to produce proof of injury, such as the loss of witnesses or other valuable evidence. Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d 922, 929 (Tex. 2009).

A plaintiff’s claims of injury that relate to financial hardship have been held insufficient to negate the third element of the Craddock test. Director v. Evans, 889 S.W.2d 266, 270 (Tex. 1994). However, if costs are being considered in determining whether to grant a motion for new trial, the court may not consider expenses accrued by a party after the filing of the opponent’s motion for new trial. The court similarly may not con­sider a change of position to the nonmovant’s detriment if that change of position relied on the validity of the judgment after the filing of the motion for new trial. Burns v. Burns, 568 S.W.2d 669, 672 (Tex. App.—Fort Worth 1978, writ ref’d n.r.e.).

After Service by Publication:      When a default judgment is sought after service by publication, the trial court must appoint an attorney ad litem to defend the case and that attorney must be paid a reasonable fee for his services for the trial. Tex. R. Civ. P. 244. After the court renders judgment, the court must also approve and sign a statement of evidence, which is separate and apart from the reporter’s record. Tex. R. Civ. P. 244; Montgomery v. R.E.C. Interests, Inc., 130 S.W.3d 444, 446–47 (Tex. App.—Texarkana 2004, no pet.). A motion for new trial after service by publication is equivalent to an equitable bill of review and must be verified by affidavit. Tex. R. Civ. P. 329; Stock v. Stock, 702 S.W.2d 713, 714 (Tex. App.—San Antonio 1985, no writ).

Respondent in Military Service:      A person against whom a default judgment is entered in a proceeding during the person’s period of military service or within sixty days thereafter may apply to the court to reopen the judgment for the purpose of allow­ing the servicemember to defend the action. The servicemember must show a meritori­ous or legal defense and that the servicemember’s ability to defend the action was materially affected by the military service. The application must be filed within ninety days after military service ends. See 50 U.S.C. § 3931(g). A servicemember of the Texas military forces who is ordered to state active duty or to state training and other duty is entitled to the same benefits and protections provided to U.S. military service­members by the foregoing provisions of 50 U.S.C. § 3931. Tex. Gov’t Code § 437.213.

Preserving Complaints Regarding Sufficiency of the Evidence:      After a default judgment, a party’s failure to file a motion for new trial under the Craddock standards does not foreclose the party’s ability to challenge for the first time on appeal the suffi­ciency of the evidence supporting the trial court’s final order. In re Marriage of Wil­liams, 646 S.W.3d 542, 544 (Tex. 2022) (per curiam).

§ 26.3:6Time for Filing Motions

A motion for new trial must be filed before or within thirty days after the judgment or other order complained of is signed. Tex. R. Civ. P. 329b(a). Within that same thirty-day period, a party may file one or more amended motions for new trial without leave of court as long as the trial court has not already overruled an earlier motion for new trial. Tex. R. Civ. P. 329b(b). With leave of the court, a party may file an amended motion even if the court has overruled an earlier motion for new trial. This rule also applies to supplemental motions. See Equinox Enterprises, Inc. v. Associated Media, Inc., 730 S.W.2d 872, 875 (Tex. App.—Dallas 1987, no writ).

Motions, whether original, amended, or supplemental, filed after this thirty-day period are a nullity and cannot be considered by appellate courts. Equinox, 730 S.W.2d at 875. A court may not lengthen the period for taking any action under the Texas Rules of Civil Procedure relating to new trials except as stated in those rules. Tex. R. Civ. P. 5. A court is without authority to grant leave to file an amended motion for new trial after this thirty-day period. Lind v. Gresham, 672 S.W.2d 20, 22 (Tex. App.—Houston [14th Dist.] 1984, no writ). Although a motion for new trial filed more than thirty days after the trial court signs its judgment is untimely, a trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent author­ity before it loses plenary power. Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). A prematurely filed motion for new trial is deemed to be filed on the date of, but subse­quent to, the time that the court signs the judgment. Tex. R. Civ. P. 306c. The judgment date still serves as the date from which the appellate timetable begins.

COMMENT:      Although the Texas Rules of Civil Procedure require that a motion for new trial be filed within thirty days of the judgment, the rules do not address the filing of a brief in support of the motion. Therefore, the practitioner should consider filing such a brief if it is later determined that more detail or explanation is needed that was inadver­tently omitted from the motion for new trial.

Exceptions to the general rule requiring filing of the motion within thirty days of the signing of the judgment apply when a party receives a late notice of judgment (see Tex. R. Civ. P. 306a), when the trial court signs a judgment rendered after citation by publi­cation (see Tex. R. Civ. P. 329(a)), or when a party files an original petition in a Texas court to enforce a foreign judgment (see Tex. Civ. Prac. & Rem. Code § 35.003(b), (c)).

To invoke the extended deadline to file a motion for new trial due to receiving late notice of judgment under Tex. R. Civ. P. 306a(4), a movant must establish a specific date on which he or his attorney received notice or obtained actual knowledge of the judgment. The deadline to file a motion for new trial “runs from the date the party or the party's attorney receives notice from the clerk of the court or acquires actual knowl­edge that the trial court signed the order, whichever occurs first, as long as that date is not more than ninety days after the trial court signed the order.” In re Mitchell, No. 05-17-00734-CV, 2017 WL 3392768, at *2 (Tex. App.—Dallas Aug. 8, 2017, orig. pro­ceeding) (mem. op.).

Citation by Publication:      A motion for new trial after citation by publication, if the defendant has not appeared, is timely if filed within two years after the judgment is signed. Tex. R. Civ. P. 329(a). However, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed. Tex. Fam. Code § 161.211(b).

COMMENT:      Since it is unclear whether Tex. Fam. Code § 161.211(b) applies to both motions for new trial and bills of review or just to motions for new trial, if the six-month period has ended and there has been clear extrinsic fraud, the practitioner should con­sider filing a bill of review.

§ 26.3:7Plenary Power

The trial court has thirty days from the date a final order is signed, without a motion, to change any part of the order. Tex. R. Civ. P. 329b(d). This plenary power may be extended in certain instances. Tex. R. Civ. P. 329b(c), (g) (motion for new trial or to modify, correct, or reform a judgment), 306a(4) (no notice of judgment). Judicial action taken after the court’s jurisdiction over a cause has expired is a nullity. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485–86 (Tex. 1995) (per curiam).

Only a motion for new trial or a motion to modify, correct, and reform judgment filed by a party of record automatically extends the trial court’s plenary power. A motion for new trial filed by a nonparty is simply an unofficial plea to the trial court to exercise its discretion allowed under rule 320 to set aside the judgment during the court’s plenary power. State & County Mutual Fire Insurance Co. v. Kelly, 915 S.W.2d 224, 227 (Tex. App.—Austin 1996, no writ). If a motion for new trial is denied on the same day the judgment is signed, the trial court loses plenary power thirty days later unless another motion extending plenary power (for example, a motion to modify, correct, or reform the judgment) is filed. In re Brookshire Grocery Co., 250 S.W.3d 66 (Tex. 2008) (orig. proceeding).

Even after a trial court’s plenary power has expired, a court may still sign an order in that case under the following limited circumstances:

1.the order is a judgment nunc pro tunc to correct a clerical error (Tex. R. Civ. P. 316); or

2.the order declares the prior judgment void because—

a.   the prior order was signed after the expiration of the court’s plenary          power;

b.   the court lacked subject-matter jurisdiction to render the judgment;

c.   a complete failure or lack of service violated due process; or

d.   there is any ground allowing a collateral attack on the judgment.

In re Martinez, 478 S.W.3d 123, 127–28 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding).

§ 26.3:8Order on Motion for New Trial

An order granting a motion for new trial must be written and signed. In re Lovito-Nelson, 278 S.W.3d 773, 775–76 (Tex. 2009) (per curiam). A docket entry is not an order and may not be considered as part of the record. Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Services, 960 S.W.2d 334, 336 (Tex. App.—Corpus Christi–Edinburg 1997, pet. denied). An order granting a new trial must be entered before the trial court loses plenary power. An order is insufficient unless it clearly states that the trial court has granted the motion for new trial. See In re Nguyen, 155 S.W.3d 191, 194 (Tex. App.—Tyler 2003, orig. proceeding) (“Here, the scheduling order does not contain any reference to the pending motion for new trial and does not expressly grant a new trial. Consequently, we conclude that the scheduling order does not consti­tute a written, signed order granting a new trial.”). A letter ruling stating the court “will sign” an order granting motion for new trial may also be insufficient. See, e.g., In re Johnson, 557 S.W.3d 740 (Tex. App.—Waco 2018, orig. proceeding).

The order on the motion for new trial must specifically state the reason for the granting of the new trial. An order that attempts to set aside a jury verdict is insufficient if it sim­ply states that the new trial has been granted “in the interests of justice and fairness.” In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 211 (Tex. 2009) (orig. proceeding).

A trial court retains the power to vacate or “ungrant” a new trial and reinstate the origi­nal judgment at any time. In re Baylor Medical Center at Garland, 280 S.W.3d 227 (Tex. 2008).

§ 26.4Motion to Modify, Correct, or Reform Judgment

A motion to modify, correct, or reform the judgment is filed to request the trial court to change its judgment. See Tex. R. Civ. P. 329b(g). It should be filed to correct any error in the judgment, such as when the trial court does not award attorney’s fees or does not award the correct amount of attorney’s fees (see Texas Education Agency v. Maxwell, 937 S.W.2d 621, 623 (Tex. App.—Eastland 1997, writ denied)) or when the judgment does not award costs or awards an incorrect amount (see Portland Savings & Loan Ass’n v. Bernstein, 716 S.W.2d 532, 541 (Tex. App.—Corpus Christi–Edinburg 1985, writ ref’d n.r.e.), overruled on other grounds, Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex. 1998)).

Format of Motion:      The motion must be in writing and signed by the party or his attorney and must specify what aspects of the judgment should be modified, corrected, or reformed. Tex. R. Civ. P. 329b(g).

Filing Motion:      The motion to modify, correct, or reform the judgment must be filed within thirty days of the date the court signed the judgment. Tex. R. Civ. P. 329b(g). A party may file a motion to modify, correct, or reform the judgment even if the court has already overruled a motion for new trial as long as it is filed within the thirty-day period following the court’s signing of the judgment. L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 443 (Tex. 1996) (per curiam).

Motion to Modify, Correct, or Reform Judgment vs. Motion for Judgment Non Obstante Veredicto:      Although a motion for judgment non obstante veredicto is not one of the motions listed in rule 26.1 of the Texas Rules of Appellate Procedure, one court has held that such a motion extends the appellate timetable. Kirschberg v. Lowe, 974 S.W.2d 844, 847–48 (Tex. App.—San Antonio 1998, no pet.); see also In re Brook­shire Grocery Co., 250 S.W.3d 66, 74 n.5 (Tex. 2008) (Hecht, J., dissenting).

COMMENT:      The better practice is to clearly delineate these motions, especially if the practitioner is relying on the motion to modify, correct, or reform the judgment to extend the appellate timetable.

Motion to Modify, Correct, or Reform vs. Motion to Clarify:      A motion to modify differs from a motion to clarify. A court may clarify an order rendered by the court if the court finds, on the motion of a party or on the court’s own motion, that the order is not specific enough to be enforced by contempt. Tex. Fam. Code §§ 9.008, 157.421(a); Lundy v. Lundy, 973 S.W.2d 687, 688 (Tex. App.—Tyler 1998, pet. denied). A court, however, may not change the substantive provisions of an order to be clarified, and a substantive change is not enforceable. Tex. Fam. Code § 157.423; Lundy, 973 S.W.2d at 688; see Tex. Fam. Code § 9.006.

COMMENT:      Under Family Code chapter 9, a statutory motion to clarify an order may be filed when necessary.

The only basis for clarifying a prior decree is when a provision is ambiguous and non­specific. Lundy, 973 S.W.2d at 688; see Bina v. Bina, 908 S.W.2d 595, 598 (Tex. App.—Fort Worth 1995, no writ). In the absence of an ambiguity, the trial court is with­out authority to modify the judgment. Lundy, 973 S.W.2d at 688–89. A court may not modify the original judgment under the guise of clarification. Dunn v. Dunn, 708 S.W.2d 20, 23 (Tex. App.—Dallas 1986, no writ), citing McGehee v. Epley, 661 S.W.2d 924, 925 (Tex. 1983) (per curiam). A motion to clarify does not extend the time to file the notice of appeal. See Tex. R. App. P. 26.1. A motion to clarify is analogous to a judgment nunc pro tunc in that it may not substantively change a final order. In re Mar­riage of Ward, 137 S.W.3d 910, 913 (Tex. App.—Texarkana 2004, no pet.).

Clarifying orders may more precisely specify the manner of carrying out the property division previously ordered, as long as the substantive division of the property is not altered. Tex. Fam. Code § 9.006(b); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.—Texarkana 2003, pet. denied).

The trial court may not render an order to clarify the property division made or approved in the decree before the thirtieth day after the date the final judgment is signed. If a timely motion for new trial or to vacate, modify, correct, or reform the decree is filed, the trial court may not render an order to clarify the property division before the thirtieth day after the date the order overruling the motion is signed or the motion is overruled by operation of law. Tex. Fam. Code § 9.007(c).

Motion to Modify, Correct, or Reform vs. Judgment Nunc Pro Tunc:      A motion to modify, correct, or reform the judgment may be filed within the first thirty days follow­ing entry of the judgment to correct either a judicial error or a clerical error. After the trial court’s plenary power expires, an order entered to correct a judicial error in the guise of judgment nunc pro tunc is void. The only ground for a motion for judgment nunc pro tunc is to correct a clerical error made in entering the judgment as opposed to a judicial error made in rendering the judgment. See Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986).  A clerical error may be corrected at any time. See Tex. R. Civ. P. 316. If it is corrected after the court loses plenary jurisdiction, the appellate timetable is not extended for any complaint about the original judgment. Tex. R. Civ. P. 306a(6).

A clerical error is a discrepancy between the entry of a judgment in the official record and the judgment as it was actually rendered. Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28, 29–30 (Tex. 1971) (orig. proceeding). A clerical error does not result from judicial reasoning or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986) (per curiam). A clerical error includes a variance between the judgment signed and the judgment the court intended to sign. Delaup v. Delaup, 917 S.W.2d 411, 413 (Tex. App.—Houston [14th Dist.] 1996, no writ) (judgment did not reflect settle­ment agreement made in open court).

When deciding whether an error in a judgment is clerical or judicial, the court must look to the judgment actually rendered and not the judgment that should have been ren­dered. Whether an error is judicial or clerical is a question of law. Escobar, 711 S.W.2d at 231–32. A split of authority exists as to what amount of evidence is required to prove that the error was clerical rather than judicial. Woodward v. Woodward, No. 14-18-00039-CV, 2019 WL 3943020, at *3 (Tex. App.—Houston [14th Dist.] Aug. 20, 2019, no pet.) (mem. op.) (applying “some probative evidence” standard articulated in Esco­bar, while noting that First and Thirteenth Courts of Appeals have applied “clear and convincing evidence” standard).

In In re A.M.R., 528 S.W.3d 119 (Tex. App.—El Paso 2017, no pet.), the trial court orally granted the father’s request to impose a geographic restriction on the child’s resi­dence to El Paso County, Texas. The trial court subsequently entered a final written order that stated the geographic restriction would be lifted if the father failed to reside within El Paso County, Texas. The father filed a motion for judgment nunc pro tunc and requested the provision be removed because he did not live in El Paso County, Texas, and the court’s oral rendition of judgment did not contain such a stipulation on the child’s geographic restriction. The trial court granted the request and entered a judg­ment nunc pro tunc that deleted the contested provision. The mother appealed, arguing the judgment nunc pro tunc was void because it impermissibly corrected a judicial error rather than clerical error. The appellate court affirmed, holding that the trial court’s removal of the provision lifting the geographic restriction if the father did not live in El Paso County constituted clerical error, not a judicial error, because the trial court did not intend for the geographic restriction to be conditioned on the father’s residence when the court orally rendered judgment.

Correction of the start date for child support to comport with the date of divorce is a correction of a judicial error, not of a clerical error. Rawlins v. Rawlins, 324 S.W.3d 852, 856–57 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding).

§ 26.5Request for Findings of Fact and Conclusions of Law

A trial judge has the authority and duty to file requested findings of fact and conclu­sions of law where there has been an evidentiary hearing to the court or a bench trial on the merits. This duty does not extend to requests for findings and conclusions from postjudgment hearings. Also, a dismissed complaint imposes no duty on the trial judge to file findings of fact and conclusions of law. Zimmerman v. Robinson, 862 S.W.2d 162, 164 (Tex. App.—Amarillo 1993, no writ). If the case is tried in part to a jury and in part to the court, findings and conclusions are available in the nonjury portion of the trial. Additionally, when the judgment of the court differs substantially from or exceeds the scope of the jury verdict, findings are available. Roberts v. Roberts, 999 S.W.2d 424, 433 (Tex. App.—El Paso 1999, no pet.).

If the trial judge dies before filing findings of fact and conclusions of law in a case pending at his death, the judge’s successor may file them. Tex. Civ. Prac. & Rem. Code § 30.002(b). A successor judge may make findings of fact and conclusions of law when the preceding judge has died, resigned, or become disabled during his term of office. See Tex. R. Civ. P. 18. However, a successor judge who takes the bench after defeating his predecessor in an election lacks authority to issue findings of fact and conclusions of law for a trial heard by his predecessor. Ad Villarai, LLC v. Pak, 519 S.W.3d 132 (Tex. 2017) (per curiam).

The Government Code defines “retired judge” to mean a person who has retired under one of the judicial retirement systems of Texas (i.e., a “retiree”) or the county and dis­trict retirement system. Tex. Gov’t Code § 74.041(3), (6). A “former judge,” on the other hand, is a person who has served as an active judge in Texas but is not a retired judge. Tex. Gov’t Code § 74.041(5). Any retiree may elect to be a judicial officer and is then designated a “senior judge.” Tex. Gov’t Code § 75.001. A former appellate judge may also elect to serve as a judicial officer, but a senior appellate judge can be assigned to more courts in a broader geographic area. Compare Tex. Gov’t Code § 75.002 (assignment of retiree) and Tex. Gov’t Code § 75.003 (assignment of former judge). A judge’s status is fixed when he leaves office. If neither article 30.002 nor rule 18 applies to a case that requires findings of fact and conclusions of law, the case must be remanded for a new trial. In re J.D.H., No. 05-14-00504-CV, 2016 WL 3946822, at *6 (Tex. App.—Dallas July 18, 2016, no pet.) (mem. op.).

In a nonjury trial, findings of fact serve the same purpose that the jury’s answers to the jury’s questions do; they resolve the factual disputes in the case. Conclusions of law are the court’s statement of the legal bases that it applied to resolve the facts in the case. Findings of fact governed by rule 296 of the Texas Rules of Civil Procedure should be requested by the party who loses; otherwise, facts are deemed in favor of the judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).

When It Is Necessary to Request Findings of Fact:      Requests for findings of fact are necessary (1) in any case tried without a jury (Tex. R. Civ. P. 296), (2) in a nonjury case that is resolved by a judgment after the petitioner rests (Qantel Business Systems, Inc. v. Custom Controls Co., 761 S.W.2d 302, 304 (Tex. 1988)), and (3) when the jury omits elements of an issue (see Tex. R. Civ. P. 296). When part of the case is tried to a jury and part is tried to the court, findings of fact should be requested on the issues decided by the court. Roberts, 999 S.W.2d at 433–34.

When Findings of Fact Are Helpful:      Findings of fact are helpful (1) when the court rules on jurisdiction challenges after an evidentiary hearing (see Goodenbour v. Good­enbour, 64 S.W.3d 69, 76 (Tex. App.—Austin 2001, pet. denied)), (2) after the court holds a hearing on motion to transfer venue (see Challenger Sales & Supply v. Halten­berger, 730 S.W.2d 453, 455 (Tex. App.—Beaumont 1987, writ ref’d n.r.e.)), and (3) after an evidentiary hearing on a motion for new trial (see Higginbotham v. General Life & Accident Insurance Co., 796 S.W.2d 695, 695 (Tex. 1990)).

When Findings of Fact Are Inappropriate:      Findings of fact are inappropriate and will not extend the time within which to perfect the appeal (1) when issues are tried to a jury, (2) when the court renders a summary judgment, (3) when the court grants a directed verdict in a jury trial, and (4) when the court grants a judgment non obstante veredicto. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).

When Request for Findings of Fact Should Be Made:

Child support:      Without regard to rules 296 through 299 of the Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make findings of fact if (1) a party files a written request with the court before the final order is signed, but not later than twenty days after the date of rendition of the order, (2) a party makes an oral request in open court during the hearing, or (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines under section 154.125 or 154.129, as applicable. Tex. Fam. Code § 154.130(a). Find­ings under section 154.130 are not required if a trial court merely denies a request for modification of child support. Hardin v. Hardin, 161 S.W.3d 14, 19–20 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

COMMENT:      Section 154.130 is unclear as to the mechanism by which a party should obtain the mandatory findings when the amount of the child support order varies from the amount computed by applying the percentage guidelines. Since without the findings an appellate court will not know the basis of the court order or that the child support order varies, to preserve error a written request for the findings should be requested before the order is signed, as part of a rule 296 request, or in a motion to modify, cor­rect, and reform the judgment.

Possession:      In all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, including a posses­sion order for a child under three years of age, on request by a party, the court shall state in writing the specific reasons for the variance from the standard order. A request for findings of fact under this provision must conform to the Texas Rules of Civil Proce­dure. Tex. Fam. Code § 153.258. A party may ask for these findings any time the trial court’s possession order varies from the standard possession order. See In re Rangel, No. 04-17-00060-CV, 2017 WL 1161173, at *2 (Tex. App.—San Antonio Mar. 29, 2017, orig. proceeding) (mem. op.) (despite timely request, trial court failed to include mandatory findings in temporary order that varied from standard possession order). Under the rules, the first request for findings of fact must be filed within twenty days of the date that the court signs the judgment. See Tex. R. Civ. P. 296.

On a party’s request, the court shall make findings of fact and conclusions of law with respect to an order under Family Code section 153.3171, which concerns alterations of the standard possession order to provide alternative beginning and ending possession times without an election when the possessory conservator resides not more than fifty miles from the child’s primary residence. Tex. Fam. Code § 153.3171(c).

Marital property:      Like findings of fact for child support and possession, specific find­ings of fact associated with disputed issues involving characterization, valuation, and division of the marital estate are authorized by section 6.711 of the Texas Family Code. See Tex. Fam. Code § 6.711. Under section 6.711, the timetables for seeking such find­ings are the same as those set forth in rule 296 of the Texas Rules of Civil Procedure, and the first request for findings of fact must be filed within twenty days of the date that the court signs the judgment. See Tex. R. Civ. P. 296.

Trial Court’s Response:      On receipt of a request for findings, it is the clerk’s duty to immediately call the request to the attention of the judge who tried the case. Tex. R. Civ. P. 296. The trial court shall file findings of fact within twenty days of receiving the request. Tex. R. Civ. P. 297.

The courts of appeals are split on whether an appellate court may consider findings included in the final order but not in findings of fact and conclusions of law. The Ama­rillo court of appeals in Hill held that if the findings in the judgment do not conflict with the findings of fact and conclusions of law, those in the judgment have effect. Hill v. Hill, 971 S.W.2d 153, 157 (Tex. App.—Amarillo 1998, no pet.). A Houston court of appeals reached a different conclusion, stating that the purpose of rule 299a is clear. Findings of fact and conclusions of law shall not be recited in a judgment. If they are, they cannot form the basis of a claim on appeal. Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d). In Tate v. Tate, the El Paso court of appeals noted that findings of fact and conclusions of law were not filed and that the appellee’s attorney had drafted the decree that included the findings. The court therefore concluded that the appellee had waived any complaint regarding the invalidity of those findings. Tate v. Tate, 55 S.W.3d 1, 7 n.4 (Tex. App.—El Paso 2000, no pet.).

Second Request for Findings of Fact and Conclusions of Law:      If the trial court fails to file findings of fact within twenty days after the first request, the requesting party has thirty days from the date of the original request to file a notice of past due findings of fact and conclusions of law. The clerk must immediately call the notice to the court’s attention. Tex. R. Civ. P. 297. If the requesting party fails to file a notice of past due findings of fact and conclusions of law, the right to complain of the court’s fail­ure to file findings of fact and conclusions of law is waived. Curtis v. Commission for Lawyer Discipline, 20 S.W.3d 227, 231–32 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Once a party files a notice of past due findings of fact and conclusions of law, the trial court has forty days from the filing of the party’s first request to file findings and conclusions. Tex. R. Civ. P. 297.

Appeal from Interlocutory Order:      In an appeal from an interlocutory order, which is an accelerated appeal, the trial court need not file findings of fact and conclusions of law; however, it may file findings and conclusions within thirty days of the date of the signing of the order. See Tex. R. App. P. 28.1(c).

Request for Additional or Amended Findings of Fact and Conclusions of Law:      Once the trial court files findings and conclusions, either party has ten days to request additional or amended findings or conclusions. Tex. R. Civ. P. 298. If the court omitted a finding on a material fact, the requesting party must submit a specific pro­posed finding. See Alvarez v. Espinoza, 844 S.W.2d 238, 241–42 (Tex. App.—San Antonio 1992, writ dism’d w.o.j.) (per curiam).

Effect of Trial Court’s Failure to File Findings of Fact and Conclusions of Law after Proper Request:      If a party timely and properly files a request for findings of fact (including a notice of past-due findings as needed), the trial court has a mandatory duty to file findings of fact and harm will be presumed unless the record on appeal affir­matively shows no injury to the complaining party. Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). If the record shows, however, that the appellant suffered no harm, this presumption may be rebutted. Roberts, 999 S.W.2d at 436–37. Whether the requesting party suffers harm rests on whether the circumstances of a particular case require an appellant to guess the reason or reasons that the trial court ruled against him. See Thomas James Associates v. Owens, 1 S.W.3d 315, 319 (Tex. App.—Dallas 1999, no pet.).

COMMENT:      If findings of fact were timely requested by an appealing party but not filed, once the appeal is underway, the appealing party should file a motion in the court of appeals asking the court to abate the appeal and direct the trial court to issue find­ings. The motion should include proof demonstrating the date of the final order and the dates on which the original and second requests for findings were timely filed and request that the appealing party be permitted to seek additional or amended findings as needed pursuant to rule 298. Since injury is presumed, the appellate court should grant this motion, abate the appeal, and direct the trial court to issue findings. The appellate court should also give the appellant the opportunity to request additional or amended findings in accordance with the rules. However, note that in the unique circumstance where a trial judge’s term expires and the judge is replaced as a result of an election, the failure of the trial judge to issue findings as timely requested may require reversal and remand to the new trial judge where an appellant is required to guess about the reasons for the former trial judge’s rulings. In re A.W.M., No. 04-20-00535-CV, 2021 WL 3516677, at *3–4 (Tex. App.—San Antonio Aug. 11, 2021, no pet.) (mem. op.).

Effect of Parties’ Failure to Request Findings of Fact and Conclusions of Law:      If no party requests findings of fact and conclusions of law, the appellate court is com­pelled to uphold the judgment of the trial court on any theory of law applicable to the case. All facts should be deemed found against the appealing party and in support of the portion of the judgment from which he appeals. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987) (per curiam). The appellate court can consider only the evidence most favorable to the implied factual findings and will disregard all oppos­ing or contradictory evidence. Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 613 (Tex. 1950).

Effect of Filing Request for Findings of Fact:      In a case in which findings of fact are appropriate, a timely filed request for findings and conclusions extends the deadline for filing a notice of appeal. Tex. R. App. P. 26.1; see also IKB Industries (Nigeria) Ltd., 938 S.W.2d at 443. A request for findings of fact, however, does not extend a trial court’s plenary power. In re Gillespie, 124 S.W.3d 699, 703 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding); see also Lane Bank Equipment Co. v. Smith Southern Equipment, Inc., 10 S.W.3d 308, 310 (Tex. 2000). After its plenary power has expired, the trial court is not prevented from entering properly requested findings and conclu­sions. Robles v. Robles, 965 S.W.2d 605, 610–11 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). But see Sonnier v. Sonnier, 331 S.W.3d 211, 214 (Tex. App.—Beau­mont 2011, no pet.) (findings issued seven months after exclusive appellate jurisdiction attached considered nullity, but husband waived error regarding absence of findings because he did not timely file notice advising trial court that findings were past due).

Effect of Trial Court’s Filing of Belated Findings of Fact and Conclusions of Law:      The procedural rules establishing the time limits for the requesting and filing of findings of fact and conclusions of law do not preclude the trial court from issuing belated findings. Robles, 965 S.W.2d at 610. When a court files belated findings the only issue that arises is the injury to the appellant, not the trial court’s jurisdiction to make the findings. Morrison v. Morrison, 713 S.W.2d 377, 381 (Tex. App.—Dallas 1986, writ dism’d). Unless they can show injury, litigants have no remedy if a trial court files untimely findings and conclusions. Injury may be in one of two forms: (1) the liti­gant was unable to request additional findings or (2) the litigant was prevented from properly presenting his appeal. If injury is shown, the appellate court may abate the appeal so as to give the appellant the opportunity to request additional or amended find­ings in accordance with the rules. Robles, 965 S.W.2d at 610.

§ 26.6Findings of Fact and Conclusions of Law

Child Support:      If findings are required, the court shall state whether the application of the guidelines would be unjust or inappropriate and shall state (1) the amount of the obligor’s net resources per month, (2) the amount of the obligee’s net resources per month, (3) the percentage applied to the obligor’s net resources for child support, and (4) if applicable, the specific reasons the amount ordered varies from the amount com­puted by applying the percentage guidelines under section 154.125 or 154.129, as applicable. Tex. Fam. Code § 154.130(b). Findings concerning the amount of the obli­gee’s net resources per month are required only if evidence of such resources has been offered. Tex. Fam. Code § 154.130(c).

COMMENT:      If it becomes necessary to seek findings of fact in regard to the amount of child support, note that the monthly net resources of the obligee is a mandatory find­ing. Accordingly, such information should be sought and obtained during discovery in case it becomes an issue at trial. Typically, when this information is requested during discovery in cases in which the obligor is not seeking custody, a relevance objection is raised. However, this information is clearly relevant to an obligor’s decision to seek a variance from guideline support.

The court’s failure to make these findings on proper request constitutes reversible error. Hanna v. Hanna, 813 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1991, no writ). The requirement to make these findings does not extend to orders denying a motion to modify child support and effectively ordering the continued payment of child support set in the original order. In re Striegler, 915 S.W.2d 629, 635 (Tex. App.—Amarillo, 1996, writ denied).

Possession:      The requirement to make findings under sections 153.258 and 153.3171 is mandatory on proper request. See Tex. Fam. Code §§ 153.258, 153.3171. Under sec­tion 153.258, the trial court must state in writing specific reasons for the variance from the standard possession order. The court may not simply state that the special needs of the child render the application of the standard possession order unworkable and inap­propriate. Voros v. Turnage, 849 S.W.2d 353, 354–55 (Tex. App.—Houston [1st Dist.] 1992) (per curiam), on appeal after remand, 856 S.W.2d 759 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Requiring a court to state specific reasons for variance is functionally equivalent to making findings of fact. In re T.J.S., 71 S.W.3d 452, 458–59 (Tex. App.—Waco 2002, pet. denied). However, under rule 299a of the Texas Rules of Civil Procedure, findings of fact are not to be included in a final order except in limited circumstances; the inclusion of unrequired specific factual information—for example, a parent’s drug use—that has the potential to violate a child’s privacy is improper, and such findings should be stricken. In re Z.G., No. 02-19-00352-CV, 2021 WL 1229968, at *25 (Tex. App.—Fort Worth Apr. 1, 2021, no pet.) (mem. op.).

Property Division:      In a suit for dissolution of marriage in which the court orders a division of the estate, on a party’s request the court shall state in writing its findings of fact and conclusions of law, including the characterization and value of all assets, liabil­ities, claims, and offsets on which disputed evidence has been presented. The request for findings of fact and conclusions of law must conform to the Texas Rules of Civil Procedure. These findings of fact and conclusions of law are in addition to any other findings or conclusions required or authorized by law. Tex. Fam. Code § 6.711.

To determine whether the assets of the community estate were divided in a just and right manner, an appellate court must have the trial court’s findings on the value of those assets. Without findings of fact, the appellate court does not know the basis for the division, the values assigned to the community assets, or the percentage of the mar­ital estate that each party received. Property inventories filed by the parties cannot serve as a substitute for findings of fact by the trial court. In the absence of trial court find­ings, the appellate court presumes the trial court made all the necessary findings to sup­port its judgment. Thus, if a party does not request findings of fact from the trial court, a party cannot establish whether the trial court intended the division to be equal or dis­proportionate and, if disproportionate, what factors the trial court found to warrant an unequal distribution if one was intended. Brown v. Wokocha, 526 S.W.3d 504, 507–08 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Tate v. Tate, 55 S.W.3d 1, 10 (Tex. App.—El Paso 2000, no pet.).

Appointment of Receiver:      Within seven days after appointing a receiver, the trial court shall issue, without request, written findings of fact and conclusions of law sup­porting the appointment. Tex. Fam. Code § 6.502(c).

§ 26.7Formal Bill of Exception

To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception if no offer of proof was otherwise made during trial. Tex. R. App. P. 33.2. There is no specific form for the bill; however, the objection to the court’s ruling must be stated with enough specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.2(a). A formal bill of exception must be filed no later than thirty days after the filing party’s notice of appeal is filed. Tex. R. App. P. 33.2(e).

§ 26.8Relief Pending Appeal

Suspension of Judgment:      The filing of the notice of appeal does not suspend enforcement of the judgment, and enforcement of the judgment may proceed, unless the judgment is superseded in accordance with rule 24 of the Texas Rules of Appellate Pro­cedure. Tex. R. App. P. 25.1(h)(1). In a divorce action, a judgment requiring a party to take a specific action, such as signing a special warranty deed, stock transfers, a quali­fied domestic relations order, or any other type of document to effectuate a property transfer, or to pay a money judgment would need to be superseded in order to stay the enforcement of that judgment. A party has an absolute right to supersede a money judg­ment pending appeal. Tex. R. App. P. 24.1; Ex parte Kimbrough, 146 S.W.2d 371, 372 (Tex. 1941) (orig. proceeding); State ex rel. State Highway & Public Transportation Commission v. Schless, 815 S.W.2d 373, 375 (Tex. App.—Austin 1991, orig. proceed­ing) (per curiam). The judgment debtor may supersede the judgment by (1) filing with the trial court clerk a written agreement with the judgment creditor for suspending the enforcement of the judgment, (2) filing with the trial court clerk a good and sufficient bond, (3) making a deposit with the trial court clerk in lieu of a bond, or (4) providing alternate security ordered by the court. Tex. R. App. P. 24.1(a). A party may also seek to suspend a judgment as part of temporary orders pending appeal pursuant to either sec­tion 6.709 or section 109.001 of the Family Code, discussed in greater detail below. Once a judgment is superseded, enforcement of a judgment is suspended and, if already begun, must cease. If execution has been issued, the clerk will promptly issue a writ of supersedeas. Tex. R. App. P. 24.1(f). However, if the clerk has not issued a writ of exe­cution, the trial court has discretion in issuing a writ of supersedeas. In re Fuentes, 530 S.W.3d 244 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding).

The trial court may not render an order to assist in the implementation of or to clarify the property division made or approved in the decree before the thirtieth day after the date the final judgment is signed. If a timely motion for new trial or to vacate, modify, correct, or reform the decree is filed, the trial court may not render an order to assist in the implementation of or to clarify the property division made or approved in the decree before the thirtieth day after the date the order overruling the motion is signed or the motion is overruled by operation of law. Tex. Fam. Code § 9.007(c).

In a suit involving conservatorship or custody of a child, an appeal from a final order, with or without a supersedeas bond, does not suspend the order unless suspension is ordered by the court rendering the order. The appellate court, on a proper showing, may permit the order to be suspended except in proceedings to terminate the parent-child relationship brought by certain governmental agencies. Tex. Fam. Code § 109.002(c); Tex. R. App. P. 24.2(a)(4); Nixon v. Attorney General, No. 05-17-01080-CV, 2018 WL 2126823, at *1 (Tex. App.—Dallas May 8, 2018 [mand. denied]) (mem. op.) (father claimed he would suffer irrevocable harm and hardship without suspension of judg­ment but did not elaborate on claim, so no abuse of discretion in not suspending enforcement). 

Temporary Orders Pending Appeal in Suits for Divorce, for Annulment, or to Declare Marriage Void:      On the court’s motion or on that of a party and after notice and hearing, the trial court may render a temporary order as considered equitable and necessary for the preservation of the property and for the protection of the parties during an appeal, including an order directed toward one or both parties. In addition to other matters, an order may require the support of either spouse, require the payment of reasonable and necessary attorney’s fees and expenses, appoint a receiver for the pres­ervation and protection of the parties’ property, award one spouse exclusive occupancy of the parties’ residence pending the appeal, enjoin a party from dissipating or transfer­ring the property awarded to the other party in the trial court’s property division, or sus­pend the operation of all or part of the property division that is being appealed. Tex. Fam. Code § 6.709(a).

A motion seeking an original temporary order under section 6.709 may be filed before trial and may not be filed by a party after the date by which that party is required to file the party’s notice of appeal under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 6.709(h). The trial court retains jurisdiction to conduct a hearing and sign an original temporary order until the sixtieth day after the date any eligible party has filed a notice of appeal from final judgment under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 6.709(i). The trial court retains jurisdiction to modify and enforce a temporary order unless the appellate court, on a proper showing, supersedes the trial court’s order. Tex. Fam. Code § 6.709(j).

On the motion of a party or on the court’s own motion, after notice and hearing, the trial court may modify a previous temporary order if the circumstances of a party have mate­rially and substantially changed since the rendition of the previous order and modifica­tion is equitable and necessary for the preservation of the property or for the protection of the parties during the appeal. Tex. Fam. Code § 6.709(k). A party may seek review of the trial court’s temporary order by motion filed in the court of appeals with jurisdiction or potential jurisdiction over the appeal from the judgment in the case, proper assign­ment in the party’s brief, or petition for writ of mandamus. Tex. Fam. Code § 6.709(l). A temporary order rendered under section 6.709 is not subject to interlocutory appeal. Tex. Fam. Code § 6.709(m).

A temporary order pending appeal enjoining a party from dissipating or transferring the property awarded to the other party in the trial court’s property division may be ren­dered without the issuance of a bond between the spouses or an affidavit or a verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result. The temporary order is not required to define the injury or state why the injury is irreparable or include an order setting the suit for trial on the merits with respect to the ultimate relief sought. The temporary order may not prohibit a party’s use, transfer, conveyance, or dissipation of the property awarded to the other party in the trial court’s property division if the use, transfer, conveyance, or dissipation of the property is for the purpose of suspending the enforcement of the property division that is the subject of the appeal. Tex. Fam. Code § 6.709(b).

A temporary order that suspends the operation of all or part of the property division that is the subject of the appeal may not be rendered unless the trial court takes reasonable steps to ensure that the party awarded property in the trial court’s property division is protected from the other party’s dissipation or transfer of that property. Tex. Fam. Code § 6.709(c). In considering a party’s request to suspend the enforcement of the property division, the trial court shall consider whether any relief granted under section 6.709(a) is adequate to protect the party’s interest in the property awarded to the party or the party who was not awarded the property should also be required to provide security for the appeal in addition to any relief granted under section 6.709(a). Tex. Fam. Code § 6.709(d).

If the trial court determines that the party awarded the property can be adequately pro­tected from the other party’s dissipation of assets during the appeal only if the other party provides security for the appeal, the trial court shall set the appropriate amount of security, taking into consideration any relief granted under section 6.709(a) and the amount of security that the other party would otherwise have to provide by law if relief under section 6.709(a) was not granted. Tex. Fam. Code § 6.709(e).

In rendering a temporary order that suspends enforcement of all or part of the property division, the trial court may grant any relief under section 6.709(a), in addition to requiring the party who was not awarded the property to post security for that part of the property division to be suspended. The trial court may require that the party who was not awarded the property post all or only part of the security that would otherwise be required by law. Tex. Fam. Code § 6.709(f).

Section 6.709 does not prevent a party who was not awarded the property from exercis­ing that party’s right to suspend the enforcement of the property division as provided by law, which would include the available methods for superseding a judgment under rule 24 of the Texas Rules of Appellate Procedure. See Tex. Fam. Code § 6.709(g).

Temporary orders pending appeal must be supported by the evidence presented at the temporary order hearing. See In re Fuentes, No. 01-16-00951-CV, 2017 WL 3184760 (Tex. App.—Houston [1st Dist.] July 27, 2017, orig. proceeding) (mem. op.) (tempo­rary spousal support not required to maintain party’s standard of living); In re Fuentes, 506 S.W.3d 586, 593–94 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding).

A relator may challenge temporary orders pending appeal obtained pursuant to section 6.709 by mandamus only if the trial court’s order constitutes an abuse of discretion and the pending appeal provides an inadequate remedy. In re Merriam, 228 S.W.3d 413 (Tex. App.—Beaumont 2007, orig. proceeding) (per curiam).

If a party fails to comply with temporary orders pending appeal, the court of appeals may dismiss the appeal. Rodriguez v. Borrego, 536 S.W.3d 16 (Tex. App.—El Paso  2016, pet. denied) (appeal dismissed after husband given multiple opportunities to com­ply with temporary orders pending appeal failed to do so).

Temporary Orders Pending Appeal in Suits Affecting Parent-Child Relationship:      The court may, on its own motion or that of any party and after notice and hearing, make any order necessary to preserve and protect the safety and welfare of the child during the pendency of an appeal as the court may deem necessary and equita­ble. To establish that the temporary orders are for the safety and welfare of the child, the requesting party need only show that the party “has primary responsibility of the chil­dren and for the care and upkeep of and the debt on the children’s principal home.” Marcus v. Smith, 313 S.W.3d 408, 418 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

In addition to other matters, an order may appoint temporary conservators for the child and provide for possession of the child, require the temporary support of the child by a party, enjoin a party from molesting or disturbing the peace of the child or another party, prohibit a person from removing the child beyond a geographical area identified by the court, require payment of reasonable and necessary attorney’s fees and expenses, or suspend the operation of the order or judgment that is being appealed (except an order or judgment terminating the parent-child relationship in a suit brought by certain governmental agencies). Tex. Fam. Code § 109.001(a), (d).

A temporary order pending appeal enjoining a party from molesting or disturbing the peace of the child or another party may be rendered without the issuance of a bond between the parties or an affidavit or a verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result. The temporary order is not required to define the injury or state why the injury is irreparable or include an order setting the suit for trial on the merits with respect to the ultimate relief sought. Tex. Fam. Code § 109.001(b).

A motion seeking an original temporary order under section 109.001 may be filed before trial and may not be filed by a party after the date by which that party is required to file the party’s notice of appeal under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 109.001(b–1). The trial court retains jurisdiction to conduct a hearing and sign a temporary order until the sixtieth day after the date any eligible party has filed a notice of appeal from final judgment under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 109.001(b–2).

The court retains jurisdiction to modify and enforce these orders unless the appellate court, on a proper showing, supersedes the court’s order. Tex. Fam. Code § 109.001(b–3). On the motion of a party or on the court’s own motion, after notice and hearing, the trial court may modify a previous temporary order if the circum­stances of a party have materially and substantially changed since the rendition of the previous order and modification is equitable and necessary for the safety and welfare of the child. Tex. Fam. Code § 109.001(b–4).

The temporary orders rendered by the trial court pending appeal are not subject to inter­locutory appeal. Tex. Fam. Code § 109.001(c). A party may seek review of the trial court’s temporary order under section 109.001 by petition for writ of mandamus or proper assignment in the party’s brief. Tex. Fam. Code § 109.001(b–5).

Attorney’s Fees on Appeal:      The trial court has the discretion to order one spouse to pay the other spouse attorney’s fees pending appeal from a final judgment in a suit for dissolution of the marriage. Tex. Fam. Code § 6.709(a)(2); see Love v. Bailey-Love, 217 S.W.3d 33, 36 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The trial court has the same authority in appeals from final orders signed in suits affecting the parent-child relationship. Tex. Fam. Code § 109.001(a)(5).

Contingent appellate attorney’s fees that have not yet been incurred must be projected based on expert testimony. The lack of certainty does not excuse a party seeking to recover contingent appellate fees from the burden to provide opinion testimony about the services the party reasonably believes will be necessary to handle the appeal and a reasonable hourly rate for those services. Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020).

In a suit for dissolution of marriage, the award of appellate attorney’s fees to the appel­lee must be conditioned on an appellant’s unsuccessful appeal. Moroch v. Collins, 174 S.W.3d 849, 870 (Tex. App.—Dallas 2005, pet. denied). Further, in a suit for dissolu­tion of marriage, a trial court may not order a party to prepay the other party’s condi­tional appellate attorney’s fees into the registry of the court or include an unconditional award of appellate attorney’s fees in the amount of a supersedeas bond. In re Chris­tensen, No. 01-16-00893-CV, 2017 WL 1485574 (Tex. App.—Houston [1st Dist.] Apr. 25, 2017, orig. proceeding) (mem. op.). An unconditional award of appellate attorney’s fees serves as an improper deterrent to appellate review. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding). Further, such a penalty improperly chills a party from exercising his legal rights. Ford Motor Co., 988 S.W.2d at 722. A party may not be penalized for taking a successful appeal. Siegler v. Williams, 658 S.W.2d 236, 241 (Tex. App.—Houston [1st Dist.] 1983, no writ).

An appellee may not recover attorney’s fees for work performed on any issue of the appeal where the appellant was successful. However, an appellee may still recover attorney’s fees for work performed on any issue of the appeal where the appellant was unsuccessful. If a party is entitled to attorney’s fees from the adverse party on one claim but not another, the party claiming attorney’s fees must segregate the recover­able fees from the unrecoverable fees. Robertson v. Robertson, No. 13-16-00309-CV, 2017 WL 6546005, at *5 (Tex. App.—Corpus Christi–Edinburg Dec. 21, 2017, no pet.) (mem. op.).

In a suit affecting the parent-child relationship, an award of appellate attorney’s fees is not required to be conditioned on a successful appeal. In re Mansour, 360 S.W.3d 103, 108–09 (Tex. App.—San Antonio 2020, orig. proceeding); In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693, at *2 (Tex. App.—Dallas Jan. 2, 2015, orig. proceeding) (mem. op.).

In In re Jafarzadeh, while acknowledging that at least three other courts of appeal have reached a contrary conclusion, the Dallas court of appeals held that in a suit affecting the parent-child relationship (SAPCR) deferring the fee award until resolution of an appeal is impractical because it fails to provide the resources necessary to the appellee to defend the appeal. An award of attorney’s fees in a SAPCR, unlike in other civil cases, is not based on a punitive or damages rationale, but rather on the rationale that the award is in the best interest of the child. Because both parents are responsible for providing for the child’s needs, attorney’s fees in a SAPCR may be imposed on either parent. Conditioning the award on an unsuccessful appeal may defeat the ability of the parent who prevailed in the trial court from defending an order that was in the best interest of the child. In re Jafarzadeh, 2015 WL 72693, at *2.

The award of attorney’s fees on appeal must be necessary to preserve and protect the safety and welfare of a child. See Tex. Fam. Code § 109.001(a). “Safety” means “the condition of being safe from undergoing or causing hurt, injury, or loss,” while “safe” means “free from harm or risk” or “secure from threat of danger, harm, or loss.” “Wel­fare” means “the state of doing well especially in respect to good fortune, happiness, well-being, or prosperity.” McCain v. McCain, 636 S.W.3d 679, 684 (Tex. App.—Aus­tin 2021, no pet.) (affirming award of appellate fees under section 109.001 where mother established financial hardship she faced in caring for children if she was required to pay fees in defense of father’s appeal).

It should be noted that in In re Marriage of Murgola & Blythe, No. 14-21-00139-CV, 2022 WL 3365264, at *6 (Tex. App.—Houston [14th Dist.] Aug. 16, 2022, no pet.) (mem. op.), the Fourteenth Court of Appeals has held that the trial court’s authority to award fees under Family Code section 6.709 is limited to only those fees to be incurred after a notice of appeal is filed.

Attorney’s fees on appeal are more fully discussed in section 20.23 in this manual.

§ 26.9Motion to Withdraw Exhibits

The court may order a filed exhibit to be withdrawn by any party only on the party’s leaving on file a certified copy, photocopy, or other reproduced copy of the exhibit. Tex. R. Civ. P. 75b.

§ 26.10Motion to Seal Court Documents

The provisions of rule 76a of the Texas Rules of Civil Procedure concerning the sealing of court records specifically exclude documents filed in an action originally arising under the Family Code. Tex. R. Civ. P. 76a(2)(a)(3). The court, on the motion of a party or on the court’s own motion, may order the sealing of the file, the minutes of the court, or both, in termination and adoption suits. See Tex. Fam. Code §§ 161.210, 162.021(a).

§ 26.11Writ of Habeas Corpus Not Appealable Order

A writ of habeas corpus for the return of a child pursuant to section 157.372 of the Fam­ily Code is reviewable only by mandamus.

[T]he Legislature intended to effect a substantial change in the prior practice which permitted a habeas corpus proceeding to put in issue anew the right to custody. The Legislature intended a limited habeas corpus proceeding to compel obedience to existing court orders. Standley v. Stewart, 539 S.W.2d 882 (Tex. 1976); Lamphere v. Chrisman, 554 S.W.2d 935 (Tex. 1977); McElreath v. Stewart, 545 S.W.2d 955 (Tex. 1977); Saucier v. Pena, 559 S.W.2d 654 (Tex. 1978); Trader v. Dear, 565 S.W.2d 233 (Tex. 1978). It is for this reason, no doubt, that the Legislature did not provide for an appeal from such orders. The time exhausted by an appeal would tend to thwart the purpose of a limited proceeding.

Gray v. Rankin, 594 S.W.2d 409, 409 (Tex. 1980) (per curiam).

§ 26.12Rules Governing Appeal

Rules of Appellate Procedure:      The rules of appellate procedure govern procedure in appellate courts and before appellate judges. Tex. R. App. P. 1.1. Although an appellate court may not alter the time for perfecting an appeal in a civil case, it may on a party’s motion or on its own initiative suspend a rule’s operation in a particular case and order a different procedure. Tex. R. App. P. 2.

Local Rules:      A court of appeals may promulgate rules governing its practice that are not inconsistent with the rules of appellate procedure. Tex. R. App. P. 1.2(a). A majority of the fourteen courts of appeal in Texas have local rules of which attorneys must be aware when filing appeals in those courts. Normally, when an appeal is initiated in any court, the clerk will send out formal correspondence to all parties providing general information regarding court policies, practices, and local rules. Local rules for the vari­ous courts may be found on the website for each specific court (www.txcourts.gov). A court of appeals must not dismiss an appeal for noncompliance with a local rule without giving the noncomplying party notice and reasonable opportunity to cure the noncom­pliance. Tex. R. App. P. 1.2(c).

§ 26.13Types of Appeals Available Other than Regular Appeal

Interlocutory Appeals:      An interlocutory appeal is filed during the course of the pro­ceedings. It has a very limited application, especially in family law cases. Section 51.014 of the Texas Civil Practice and Remedies Code sets forth the rules from which a party may file an interlocutory appeal. Tex. Civ. Prac. & Rem. Code § 51.014. Except in the rarest of cases the only orders routinely entered in family law cases from which an interlocutory appeal may be taken are the appointment of a receiver or trustee or the overruling of a motion to vacate an order that appoints a receiver or trustee. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(1), (a)(2). In these instances, the filing of an inter­locutory appeal will stay the commencement of a trial in the trial court pending resolu­tion of the appeal. Tex. Civ. Prac. & Rem. Code § 51.014(b). An appeal from an interlocutory order, when allowed, will be accelerated. Tex. R. App. P. 28.1(a). Provi­sions for permissive appeals of interlocutory orders under Tex. Civ. Prac. & Rem. Code § 51.014(d) do not apply to actions brought under the Family Code. Tex. Civ. Prac. & Rem. Code § 51.014(d–1).

Accelerated Appeal:      Accelerated appeals are given preference over other appeals and are put on a faster track in the appellate court. See Tex. R. App. P. 26.1. An appeal from an interlocutory order, when allowed, must be accelerated. Tex. R. App. P. 28.1; see Stanton v. University of Texas Health Sciences Center, 997 S.W.2d 628, 629 n.1 (Tex. App.—Dallas 1998, pet. denied). Appeals required by statute to be accelerated or expedited and appeals required by law to be filed or perfected within less than thirty days after the date of the order or judgment being appealed are also accelerated appeals. Tex. R. App. P. 28.1(a). All appeals in parental termination and child protection cases are governed generally by the rules for accelerated appeals. Tex. R. App. P. 28.4. See the discussion at section 26.16 below. However, even though a bill of review challenges the termination of a father’s parental rights, because a bill of review is a separate cause of action, an appeal of the bill of review is not accelerated. In re A.A.S., 367 S.W.3d 905, 909–10 (Tex. App.—Houston [14th Dist.] 2012, no pet.). An appeal from an enforcement order relating to the return of a child under the Hague Convention, issued in accordance with Texas Family Code chapter 152 (UCCJEA), subchapter D, is also considered an accelerated appeal. Tex. Fam. Code § 152.314.

COMMENT:      If a case involves child custody or support issues, the appellant should consider the filing of an accelerated appeal, which, although it involves onerous dead­lines, can decrease the time in the appellate court from approximately two years in the larger courts of appeal to six to eight months. See Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam) (justice demands speedy resolution of child custody and child support issues) (although the case involved mandamus, the principles enunciated would also support acceleration in the interest of justice if an erro­neous custody or possession order is not in the best interest of the child); Tex. Fam. Code § 105.004 (although the statute does not specifically relate to appeals, it clearly enunciates the legislature’s intent to place cases involving the best interest of children before routine civil matters).

Restricted Appeal:      Restricted appeals replace the prior procedure for writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals are equally applicable to restricted appeals. Tex. R. App. P. 30. A restricted appeal is a direct attack on the judgment of a trial court. See O’Neal v. O’Neal, 69 S.W.3d 347, 348 (Tex. App.—Eastland 2002, no pet.). The requirements for the filing of a restricted appeal are jurisdictional “and will cut off a party’s right to seek relief by way of a restricted appeal if they are not met.” Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001, pet. denied).

A restricted appeal requires that (1) the appellant filed notice within six months after the judgment or order appealed from was signed; (2) the appellant was a party to the underlying suit; (3) the appellant did not timely file a postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal; (4) the appellant did not participate, either in person or through counsel, in the actual trial of the case; and (5) the trial court erred, and the error is apparent from the face of the record. Tex. R. App. P. 30; Wright Bros. Energy Inc. v. Krough, 67 S.W.3d 271, 273 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Tex. R. App. P. 26.1(c); Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).

Review by restricted appeal affords an appellant the same scope of review as an ordi­nary appeal, that is, a review of the entire case. The only restriction on the scope of the restricted appeal is that the error must appear on the face of the record. The face of the record consists of all the papers on file in the appeal, including the reporter’s record. In re E.M.V., 312 S.W.3d 288, 290 (Tex. App.—Dallas 2010, no pet.). A restricted appeal requires error that is apparent, not error that may be inferred. Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (per curiam).

In addition to citation and service issues, a restricted appeal confers jurisdiction on the appellate court to review whether the evidence is legally and factually sufficient to sup­port the judgment. Norman Communications, 955 S.W.2d at 270. The record must affir­matively show strict compliance with the rules for service of citation in order for a default judgment to withstand a direct attack. If strict compliance is not affirmatively shown, the service of process is invalid. There are no presumptions in favor of valid issuance, service, or return of citation in the face of a restricted appeal attack on a default judgment. Hercules Concrete Pumping Service, Inc. v. Bencon Management & General Contracting Corp., 62 S.W.3d 308, 309–10 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Additionally, the trial court’s discretion to divide the community estate unequally must be supported by evidence at trial, including values of the divided property. In re E.M.V., 312 S.W.3d at 291.

Participation in trial:      The nature and extent of participation precluding a restricted appeal in any particular case is a matter of degree, because trial courts decide cases in a myriad of procedural settings. The issue is whether the appellant participated in the decision-making event resulting in the judgment adjudicating the appellant’s rights. It is the fact of nonparticipation, not the reason for the nonparticipation, that determines the right to a restricted appeal. Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589–90 (Tex. 1996). Courts must liberally construe the nonparticipation requirement for restricted appeals in favor of the right to appeal. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam) (recitation in divorce decree that mother appeared conflicted with court’s docket sheet and reporter’s record).

The law is clear that signing a waiver of service alone is not sufficient to constitute par­ticipation for purposes of a restricted appeal. See, e.g., Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); In re S.W., 614 S.W.3d 311 (Tex. App.—Fort Worth 2020, no pet.) (waiver included in affidavit relinquishing parental rights). This is true even when the language of the waiver indicates that by signing, one is entering an appearance as a substitute for going to trial, giving a judge permission to make decisions in the case without further notice to the signor, and waiving the making of a record of testimony. In re Marriage of Butts, 444 S.W.3d 147, 151 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Postjudgment motion:       If a postjudgment answer does not seek to set aside an existing judgment and request litigation of the issue, it does not constitute a motion for new trial or postjudgment motion that would preclude the filing of a restricted appeal. See Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Error on face of record:       If the return of service does not include an endorsement on the process of the day and hour of its receipt by the officer for service, there is error on the face of the record. In re Z.J.W., 185 S.W.3d 905, 907 (Tex. App.—Tyler 2006, no pet.). If the court grants a party more relief than the party requested in his petition, there is error on the face of the record. Binder v. Joe, 193 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also In re B.M., 228 S.W.3d 462 (Tex. App.—Dallas 2007, no pet.) (father requested only temporary relief regarding conservatorship and custody, and trial court entered final order granting him sole managing conservator­ship and custody of child). If the decree states that the parties waived the making of a record, but one party did not appear at trial, error is apparent on the face of the record. Arbogust v. Graham, No. 03-17-00800-CV, 2018 WL 3150996 (Tex. App.—Austin June 28, 2018, no pet.) (mem. op.). Service on a party’s attorney who is not an attorney of record—that is, one who has filed pleadings or appeared in court—is not proper ser­vice and constitutes error on the face of the record. Moreno v. Moreno, No. 04-17-00586-CV, 2018 WL 3440713, at *2 (Tex. App.—San Antonio July 18, 2018, no pet.) (mem. op.).

The law presumes that a trial court hears a case only after proper notice to the parties. If the record is silent as to whether notice of a trial setting was given, no error appears on the face of the record. Absence of notice from the clerk’s record of trial setting is not proof that a party did not get notice, especially when the judgment includes a recitation that due notice was given. Richardson v. Sims, No. 01-15-01115-CV, 2016 WL 5787291, at *2 (Tex. App.—Houston [1st Dist.] Oct. 4, 2016, no pet.) (mem. op.).

§ 26.14Notice of Appeal

A party perfects an appeal by filing a written notice of appeal with the trial court clerk. If the party mistakenly files the notice of appeal with the appellate court, the notice is deemed to be filed with the trial court clerk on that same day, and the appellate clerk must immediately send the trial court clerk a copy of the notice. The filing of a notice of appeal invokes the jurisdiction of the appellate court. The party that is seeking to alter the trial court’s judgment is the person who files the notice of appeal. Parties whose interests are aligned may file a joint notice of appeal. Tex. R. App. P. 25.1(a)–(c). The notice of appeal may be combined with a motion for new trial. In re J.M., 396 S.W.3d 528, 530 (Tex. 2013) (per curiam).

The notice should (1) identify the trial court and the cause number and style of the case; (2) state the date of judgment or order from which the party is appealing; (3) state that the party desires to appeal; (4) designate the court to which the appeal is taken, unless the appeal is to either the first or fourteenth court of appeals, in which case the notice must state that the appeal is to either of those courts; (5) state the name of each party fil­ing the notice; and (6) state, if applicable, that the appellant is presumed indigent and may proceed without paying costs. Tex. R. App. P. 25.1(d)(1)–(5), (d)(8).

In an accelerated appeal, the notice must also state that the appeal is accelerated and state whether it is a parental termination or child protection case. Tex. R. App. P. 25.1(d)(6). In a restricted appeal, the notice must also state that the appellant is a party affected by the judgment but that he did not participate in the hearing resulting in the judgment; state that the appellant did not file a timely postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal; and be verified by the appellant if the appeal is pro se. Tex. R. App. P. 25.1(d)(7).

The appellant is not required to specify issues in a general or restricted notice of appeal under Tex. R. App. P. 25.1(d). Vazquez v. Vazquez, 292 S.W.3d 80 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

The appellant must serve the notice of appeal on all parties to the trial court’s final judg­ment and deliver a copy of the notice of appeal to each court reporter responsible for preparing the reporter’s record. Tex. R. App. P. 25.1(e).

Although a cost bond is not required, the court clerk and the court reporter are not responsible for preparing, certifying, and timely filing the record unless the appellant either has paid the fees, is entitled to appeal without paying the fees, or has “made satis­factory arrangements” to pay the fees. Tex. R. App. P. 35.3. Although it remains to be decided, a bond to secure payment should be a “satisfactory arrangement” in most cases. Supersedeas bonds, deposits in lieu of bond, and alternative security are allowed. See Tex. R. App. P. 24.1. If the appeal is from a money judgment, the bond, deposit, or security must include costs, but the amount may not exceed the lesser of 50 percent of the judgment debtor’s current net worth or 25 million dollars. Tex. R. App. P. 24.2(a)(1).

Although the trial court clerk is responsible for timely filing the clerk’s record and the official or deputy reporter is responsible for filing the reporter’s record (Tex. R. App. P. 35.3), the appellate court may dismiss the appeal if the appellant is at fault for the fail­ure to file. Tex. R. App. P. 37.3.

COMMENT:      An amicus attorney represents the trial court, which is not a party to the suit. Therefore, an amicus attorney has no basis for filing a notice of appeal or filing a brief in the appellate court. See O’Connor v. O’Connor, 245 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

§ 26.15Time for Filing Notice of Appeal

Caution:      Since all termination cases, all cases involving placement of children under the care of the Texas Department of Family and Protective Services (TDFPS), and all appeals from enforcement orders under subchapter D, chapter 152, of the Texas Fam­ily Code are subject to accelerated appeals, compliance with the applicable deadlines for filing the notice of appeal must be met or appellate rights are waived. See the dead­lines set forth below in this section and the discussion in section 26.16 below.

 

§ 26.15:1Deadline for Filing Accelerated Appeal

In an accelerated appeal, the notice of appeal must be filed within twenty days after the judgment or order is signed. Tex. R. App. P. 26.1(b). Unless otherwise provided by stat­ute, an accelerated appeal is perfected by filing a notice of appeal within the time allowed by rule 26.1(b) or as extended by rule 26.3. Tex. R. App. P. 28.1(b). (Extension of time under rule 26.3 is discussed in section 26.15:6 below.) Filing a motion for new trial, any other posttrial motion, or a request for findings of fact will not extend the time to perfect an accelerated appeal. Tex. R. App. P. 28.1(b).

Certain statutes and rules mandate the acceleration of certain types of appeals and require that the appeal be placed on a shortened timetable for filing of the notice of appeal, filing of the record, briefs, and submission. There are two grounds for accelera­tion:

1.Mandatory:      Acceleration of the appeal may be mandatory because of some statute or rule, including (1) appeals in suits in which termination of the parent-child relationship is ordered (see Tex. Fam. Code § 109.002; Tex. R. App. P. 28.4 (termination “at issue”); In re J.C., 146 S.W.3d 741 (Tex. App.—Texar­kana 2004, no pet.) (appeal dismissed because notice not filed within twenty days of judgment)); (2) appeals of final orders rendered under chapter 263, placement of children under the care of TDFPS (see Tex. Fam. Code § 263.405(a); Tex. R. App. P. 28.4); (3) appeals of cases involving the Uniform Child Custody Jurisdiction and Enforcement Act, which must be in accordance with accelerated appellate procedures as in other civil cases (see Tex. Fam. Code § 152.314; In re K.L.V., 109 S.W.3d 61, 67 (Tex. App.—Fort Worth 2003, pet. denied) (appeal dismissed because notice of appeal filed outside deadline provided by Texas Rules of Appellate Procedure)); and (4) appeals from inter­locutory orders (see Tex. R. App. P. 28.1(a)). In the family law context, inter­locutory orders would include (1) an order that appoints a receiver or trustee (see Tex. Civ. Prac. & Rem. Code § 51.014(a)(1)); (2) an order that grants or denies a temporary injunction (see Tex. Civ. Prac. & Rem. Code § 51.014(a)(4)); and (3) an order denying the intervention or joinder of parties (see Tex. Civ. Prac. & Rem. Code § 15.003).

2.Preference in Interests of Justice:      Appeals may also be accelerated in the interests of justice. The Texas Supreme Court has held that justice demands a speedy resolution of child custody and child support issues. See Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam). Although Proffer involved a mandamus, the principles enunciated would also support acceleration in the interest of justice if an erroneous custody or possession order is not in the best interest of the child. The Family Code also recognizes that, in cases involving children, if ordinary scheduling practices will unreasonably affect the best interest of the children, the case should be given a preferential setting. See Tex. Fam. Code § 105.004. Although the statute does not specifi­cally relate to appeals, it clearly enunciates the legislature’s intent to place cases involving the best interest of children before routine civil matters.

COMMENT:      In cases involving children, the attorney should always consider request­ing that the appeal be accelerated in the interests of justice. Although the rules of appellate procedure do not expressly address how to obtain an accelerated appeal on this basis, it is suggested that the practitioner file a verified motion or attach an affidavit setting forth facts that would warrant an acceleration of the appeal in the interests of justice.

§ 26.15:2Deadline for Filing Regular Appeal

Usually, a notice of appeal must be filed within thirty days after the judgment is signed. However, the notice must be filed within ninety days after the judgment is signed if any party timely files a motion for new trial, a motion to modify the judgment, a motion to reinstate after a dismissal for want of prosecution, or a request for findings of fact and conclusions of law if findings and conclusions are required by the rules of civil proce­dure or, if not required, could be properly considered by the appellate court. Tex. R. App. P. 26.1(a).

Specifically, under the following circumstances, findings of fact and conclusions of law are not appropriate and the time to file the notice of appeal will not be extended beyond thirty days: (1) after a jury trial, on issues tried to the jury, IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); (2) after the trial court renders a summary judgment, IKB, 938 S.W.2d at 441–42; (3) in a case tried to a jury but resolved by a directed verdict, IKB, 938 S.W.2d at 443; (4) after the trial court renders a judgment notwithstanding the verdict, IKB, 938 S.W.2d at 443; or (5) after the trial court renders a judgment based upon an agreed statement of facts as provided under rule 263 of the Texas Rules of Civil Procedure, City of Galveston v. Giles, 902 S.W.2d 167, 170 n.2 (Tex. App.—Houston [1st Dist.] 1995, no writ).

An appellant is not required to wait for a ruling on his motion for new trial before filing his notice of appeal. In re Norris, 371 S.W.3d 546, 553 (Tex. App.—Austin 2012, orig. proceeding).

§ 26.15:3Deadline for Filing Restricted Appeal

In a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed. Tex. R. App. P. 26.1(c). A party who did not participate, either in person or through counsel, in the hearing that resulted in the judgment com­plained of and who did not timely file a postjudgment motion or request findings of fact and conclusions of law or a notice of appeal within the deadlines set forth in rule 26.1(a) may file a restricted appeal. Tex. R. App. P. 30.

§ 26.15:4Citation by Publication

The time to file a notice of appeal on a motion for new trial filed more than thirty days after judgment following citation by publication runs as if the judgment were signed on the date the motion for new trial was filed. Tex. R. App. P. 4.4; Tex. R. Civ. P. 306a(7). The parties adversely interested shall be cited as in other cases. Tex. R. Civ. P. 329(a). The citation form would ordinarily require an answer on the “Monday next following the expiration of twenty days” after service. See Tex. R. Civ. P. 99(c).

COMMENT:      The trial court may not be able to grant a new trial because of service problems, but the rules do not excuse the movant from filing the notice of appeal within ninety days of filing the motion for new trial.

§ 26.15:5Filing Notice of Appeal in Parental Notification Suit

A minor whose application to allow consent for an abortion without notification to or consent of a parent, managing conservator, or guardian has been denied may appeal to the court of appeals having jurisdiction over civil matters in the county in which the application is filed. On receipt of a notice of appeal, the clerk of the court that denied the application shall deliver a copy of the notice of appeal and record on appeal to the clerk of the court of appeals. On receipt of the notice and record, the clerk of the court of appeals shall place the appeal on the docket of the court. Tex. Fam. Code § 33.004(a). The court of appeals shall rule on such an appeal not later than 5:00 p.m. on the fifth business day after the date the notice of appeal is filed with the court denying the application unless the minor requests an extension. Tex. Fam. Code § 33.004(b). An expedited appeal shall be available to any pregnant minor to whom a court of appeals denies an application to authorize the minor to consent to the performance of an abor­tion without notification to or consent of a parent, managing conservator, or guardian. Tex. Fam. Code § 33.004(f).

COMMENT:      The Texas Rules of Appellate Procedure do not address parental notifi­cation suits and contain no designated deadlines for filing the notice.

§ 26.15:6Extension of Time for Filing of Notice of Appeal

The appellate court may extend the time to file the notice of appeal, including those for restricted appeals, if, within fifteen days after the deadline for filing the notice of appeal, the party files in the trial court the notice of appeal and files in the appellate court a motion requesting the extension. Tex. R. App. P. 26.3; Wray v. Papp, 434 S.W.3d 297, 299 (Tex. App.—San Antonio 2014, no pet.). Filing of the notice of appeal within fifteen days of the date that it was due implies a motion requesting an extension. The appellant, however, must still provide a reasonable explanation for the late filing. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). A reasonable explanation means any plausible statement of circumstances indicating that the failure to file within the required time period was not deliberate or intentional, but was the result of inadver­tence, mistake, or mischance. Any conduct short of deliberate or intentional noncompli­ance—even if that conduct can be characterized as professional negligence—qualifies as inadvertence, mistake, or mischance and would be accepted as a reasonable explana­tion. Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669–70 (Tex. 1989). General alle­gations of workload, standing alone, do not constitute good cause for an extension of time to file a brief and, therefore, may not constitute good cause for filing an extension of time to file the notice of appeal. See Pool v. Texas Department of Family & Protec­tive Services, 227 S.W.3d 212 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

In Weik v. Second Baptist Church of Houston, 988 S.W.2d 437 (Tex. App.—Houston [1st Dist.] 1999, pet. denied), the appellant’s explanation for failing to timely file the notice of appeal was based on advice from his attorney. The attorney told the appellant that, if he appealed while the trial court still had authority to reinstate the case and it did reinstate the case, the appellant would have a difficult time prosecuting his claim because of the trial court’s displeasure. The attorney agreed to file the motion only after the trial court’s plenary power expired. The court held this showed an intentional deci­sion by the appellant to delay filing. Accordingly, the court dismissed the appeal for want of jurisdiction. Weik, 988 S.W.2d at 439.

In Rodman v. State, 47 S.W.3d 545 (Tex. App.—Amarillo 2000, no pet.), the court of appeals found the appellant’s excuse was not reasonable when, after the state disclosed its intent to indict the appellant for other crimes after expiration of the time for giving notice of appeal, the appellant decided to appeal and preserve his eligibility for proba­tion in the upcoming trials. The court found this demonstrated the appellant’s inten­tional, deliberate decision not to file a notice of appeal within the time frame required by the rules. Rodman, 47 S.W.3d at 548.

In Hykonnen v. Baker Hughes Business Support Services, 93 S.W.3d 562 (Tex. App.—Houston [14th Dist.] 2002, no pet.), the appellate court held that the inability of the appellant to retain counsel to represent him on appeal due to a lack of funds was not a reasonable explanation for the need to obtain an extension of time to file his notice of appeal since the appellant did not contend he did not know of the deadline; rather, the appellant deliberately failed to file the notice until he found an attorney willing to repre­sent him at little or no cost. The appellant presented no evidence of his diligence in securing counsel, and the notice of appeal was filed on the last day of the grace period. Additionally, the appellant had other options available, such as filing a pro se notice of appeal instead of seeking an extension of the due date. Hykonnen, 93 S.W.3d at 563–64.

Restricted appeals are exempted from the rule allowing for an extension of time for per­fecting the appeal beyond the six-month period. Tex. R. App. P. 4.2(a)(2); Maldonado v. Macaluso, 100 S.W.3d 345, 346 (Tex. App.—San Antonio 2002, no pet.) (per curiam).

§ 26.15:7Premature Filing of Notice of Appeal

“In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal.” Tex. R. App. P. 27.1(a).

§ 26.15:8Appellee’s Notice of Appeal

If a party timely files a notice of appeal, any other party may file a notice of appeal within the applicable period, as provided in rule 26.1(a)–(c), or fourteen days after the first filed notice of appeal, whichever is later. Tex. R. App. P. 26.1(d).

§ 26.16Appeals in Parental Termination and Child Protection Cases

The Texas Family Code provides that an appeal of a final order rendered under chapter 263, which addresses the placement of children under the care of the Texas Department of Family and Protective Services, is governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure. See Tex. Fam. Code § 263.405(a). A final order rendered under chapter 263 must contain a statement prescribed in section 263.405 regarding the right to appeal, application of the rules for accelerated appeals, and the possible result of failure to follow those rules. See Tex. Fam. Code § 263.405(b).

Amendments to the Texas Rules of Appellate Procedure made in accordance with these provisions of the Family Code provide that appeals in all parental termination cases (not just those brought by a governmental agency) and child protection cases are gov­erned by the rules of appellate procedure for accelerated appeals, except as otherwise provided in Tex. R. App. P. 28.4. See Tex. R. App. P. 28.4(a)(1). A “parental termina­tion case” is a suit in which termination of the parent-child relationship is in issue. Tex. R. App. P. 28.4(a)(2)(A). A “child protection case” is a suit affecting the parent-child relationship filed by a governmental entity for managing conservatorship. Tex. R. App. P. 28.4(a)(2)(B).

In an accelerated appeal, notice of appeal in compliance with Tex. R. App. P. 25.1 must be filed within the time allowed by Tex. R. App. P. 26.1(b) (twenty days after the judg­ment or order is signed) or as extended by Tex. R. App. P. 26.3. Tex. R. App. P. 28.1(b). (Extension of time is discussed in section 26.15:6 above.) The appellate record must be filed within ten days after the notice of appeal is filed. Tex. R. App. P. 35.1(b). The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed and may extend the time if requested by the clerk or reporter; each exten­sion must not exceed ten days. Tex. R. App. P. 35.3(c).

Several exceptions to the general rules for accelerated appeals apply to appeals in a parental termination or child protection case. The cumulative extensions of time to file the appellate record under Tex. R. App. P. 35.3(c) may not exceed sixty days unless there are extraordinary circumstances. Tex. R. App. P. 28.4(b)(2). When the reporter’s responsibility to prepare, certify, and timely file the reporter’s records arises under Tex. R. App. P. 35.3(b), the trial court must direct the reporter to immediately commence preparing the reporter’s record and must arrange for a substitute reporter, if necessary. Tex. R. App. P. 28.4(b)(1). The restrictions in Tex. Civ. Prac. & Rem. Code § 13.003 on provision of a free statement of facts and transcript do not apply to these appeals. Tex. R. App. P. 28.4(b)(3).

If the appellate court reverses and remands a parental termination or child protection case for a new trial, the judgment must instruct the trial court to begin the new trial no later than 180 days after the appellate court mandate is issued. Tex. R. App. P. 28.4(c).

The appellate courts should, as far as reasonably possible, ensure that the appeal of a parental termination or child protection suit is brought to final disposition (1) in the court of appeals, within 180 days of the date the notice of appeal is filed, and (2) in the Texas Supreme Court, within 180 days of the date the petition for review is filed. Tex. R. Jud. Admin. 6.2.

§ 26.17Appointment of Attorney on Appeal

In cases filed by a governmental entity under subtitle E of title 5 of the Family Code in which termination of the parent-child relationship or appointment of a conservator is requested, the court must appoint an attorney ad litem to represent a parent in certain circumstances, including indigency. Tex. Fam. Code § 107.013(a). In such cases, the court must require a party who claims indigency to file an affidavit of indigency (now called a statement of inability to afford payment of court costs) in accordance with rule 145(b) of the Texas Rules of Civil Procedure before the court may conduct a hearing to determine the parent’s indigence. The court may consider additional evidence at the hearing and, if it determines that the parent is indigent, must appoint an attorney ad litem. Tex. Fam. Code § 107.013(d). A parent determined to be indigent is presumed to remain indigent for the duration of the suit and any appeal, unless the court on later motion determines that the parent is no longer indigent due to a material and substantial change in the parent’s financial circumstances. Tex. Fam. Code § 107.013(e); see Tex. R. App. P. 20.1(b). The attorney ad litem continues to serve throughout the appeal pro­cess unless relieved of his duties or replaced. See Tex. Fam. Code § 107.016; In re G.P., 501 S.W.3d 252, 253 (Tex. App.—Texarkana 2016, no pet.) (appointed counsel’s duty extends through exhaustion or waiver of all appeals); In re A.M., 495 S.W.3d 573, 582 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (appointed counsel’s duty extends through exhaustion or waiver of all appeals). The attorney ad litem appointed under these provisions is entitled to reasonable fees and expenses. Tex. Fam. Code § 107.015(a), (c). No other provision in the Family Code provides for the appointment or payment of an attorney on appeal to assist an indigent parent.

The right to counsel under Family Code section 107.013(a)(1) through the exhaustion of appeals under section 107.016(2)(B) includes all proceedings in both the court of appeals and the Texas Supreme Court, including the filing of a petition for review. Once appointed by the trial court, counsel should be permitted to withdraw only for good cause and on appropriate terms and conditions. Mere dissatisfaction of counsel or client with each other is not good cause. Nor is counsel’s belief that the client has no grounds to seek further review from the court of appeals’ decision. In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016).

Counsel’s obligation to the client may still be satisfied by filing an appellate brief meeting the standards set in Anders v. California, 386 U.S. 738 (1967), that includes an assertion that on examination of the record and applicable law, the attorney has con­cluded that the appeal was frivolous. See In re N.F.M., 582 S.W.3d 539, 545–46 (Tex. App.—San Antonio 2018, no pet.) (striking Anders brief because it failed to meet briefing requirements). An Anders motion to withdraw brought in the court of appeals, in the absence of additional grounds for withdrawal, may be premature. See, e.g., In re J.S., 584 S.W.3d 622, 639 (Tex. App.—Houston [1st Dist.] 2019, no pet.). Courts have a duty to see that withdrawal of counsel will not result in foreseeable prejudice to the client. If a court of appeals allows an attorney to withdraw, it must provide for the appointment of new counsel to pursue a petition for review. In the Texas Supreme Court, appointed counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief. In re P.M., 520 S.W.3d at 27–28.

§ 26.18Costs of Appeal—Indigence

Rule 20.1 of the Texas Rules of Appellate Procedure provides rules under which indi­gent parties may proceed without payment of filing fees in the appellate court. Fees charged for preparation of the appellate record are governed by rule 145 of the Texas Rules of Civil Procedure. Tex. R. App. P. 20.1(a).

Filing Fees in Appellate Court:      A determination of indigence in the trial court car­ries forward to appeal in all cases, and there are also some other circumstances in which a party may be allowed to proceed in the appellate court without paying filing fees.

If statement was filed in trial court:      A party who filed a statement of inability to afford payment of costs in the trial court under rule 145 of the Texas Rules of Civil Pro­cedure is not required to pay filing fees in the appellate court unless the trial court over­ruled the party’s claim of indigence in an order complying with rule 145, and the party is not required to pay the fees if the trial court ordered the party to pay partial costs or to pay costs in installments. Tex. R. App. P. 20.1(b)(1). Rule 145 allows a party, the reporter, or the clerk to file a motion to require the party to pay costs. See Tex. R. Civ. P. 145(e). If, after written notice and hearing, the party is ordered to pay costs, the trial court’s order must be supported by detailed findings that the defendant can afford to pay costs. Tex. R. Civ. P. 145(f)(1), (f)(2). The burden is on the party to provide the inability to pay costs. Tex. R. Civ. P. 145(f)(1). A contest may be sustained when the allegedly indigent party presents no evidence indicating that payment of the costs would affect his ability to meet his own basic needs. In re J.S., No. 05-17-00341-CV, 2017 WL 1455406 (Tex. App.—Dallas Apr. 20, 2017, no pet.) (mem. op.).

Thus, no new statement is required to be filed in the appellate court unless the trial court made affirmative findings under rule 145 that the party is able to afford all court costs and to pay those costs as they are incurred, and there is no provision in rule 20.1 for contesting the party’s indigence. In an appeal from the trial court, the party must com­municate in writing to the appellate court clerk—in the notice of appeal and in the docketing statement—that the party is presumed indigent. Tex. R. App. P. 20.1(b)(2).

A party who does not qualify under rule 20.1(b)(1) may proceed without paying filing fees if he establishes that his financial circumstances have materially changed since the date of the trial court’s order under rule 145. The party must file a motion in the appel­late court alleging that his financial circumstances have materially changed and file a current statement of inability to afford payment of court costs that complies with rule 145. (The statement filed in the trial court does not suffice.) The appellate court may decide the motion based on the record or may refer the motion to the trial court with instructions to hear evidence and issue findings of fact. In the latter situation, the appel­late court must review the trial court’s findings and the record of the hearing before rul­ing on the motion. Tex. R. App. P. 20.1(b)(3).

If no statement was filed in trial court:      The appellate court may permit a party who did not file a statement of inability to afford payment of court costs in the trial court to proceed without paying filing fees. The appellate court may require the party to file such a statement in the appellate court. If the appellate court denies the party’s request to proceed without paying filing fees, the court must do so in a written order. Tex. R. App. P. 20.1(c).

Preparation of Appellate Record:      Rule 145 of the Texas Rules of Civil Procedure provides rules under which a party may proceed without paying costs. Costs addressed in rule 145 include fees charged by the clerk or court reporter for preparation of the appellate record. See Tex. R. Civ. P. 145(a).

The party must file the Statement of Inability to Afford Payment of Court Costs approved by the Texas Supreme Court or another sworn document containing the same information. The statement must be signed before a notary or made under penalty of perjury. Tex. R. Civ. P. 145(b).

The clerk may return a statement for correction only if it is not sworn—not for failure to attach evidence or any other reason. Tex. R. Civ. P. 145(c)(2).

The declarant—the person filing the statement—should submit with the statement any available evidence of the declarant’s inability to afford payment of costs. An attachment that demonstrates any of the following is prima facie evidence of inability: (1) that the declarant or the declarant’s dependent receives benefits from a means-tested govern­ment entitlement program; (2) that the declarant is being represented by an attorney providing legal services through a provider funded by the Texas Access to Justice Foundation or the Legal Services Corporation or through a nonprofit providing civil legal services to those meeting certain poverty standards; or (3) the declarant has applied for free legal services through a provider described in (2) and was found finan­cially eligible but was declined representation. Tex. R. Civ. P. 145(b), (d).

A motion to require the declarant to pay costs must meet certain requirements. A motion filed by the clerk, the court reporter, or a party must contain sworn evidence—not merely allegations—that the statement of inability to afford payment of costs was materially false when made or that, because of changed circumstances, it is no longer true. The court on its own may require the declarant to prove the inability to afford costs if evidence comes before the court that the declarant may be able to afford costs or when an officer or professional must be appointed in the case. Tex. R. Civ. P. 145(e).

Before the declarant may be required to pay costs, certain procedural requirements must be satisfied. There must be an oral evidentiary hearing, with ten days’ notice to the declarant, either written and served in accordance with rule 21a or given in open court. At the hearing, the burden is on the declarant to prove the inability to afford costs. An order requiring payment of costs must be supported by detailed findings that the declar­ant can afford to pay costs. The court may order that the declarant pay part of the costs or pay in installments, but the court may not delay the case if payment is made in installments. An order requiring the declarant to pay costs must contain, in conspicuous type, a prescribed notice of the right to appeal. Tex. R. Civ. P. 145(f).

Only the declarant may challenge a trial court order under rule 145. On this challenge, accomplished by motion filed in the court of appeals, neither related filing fees nor costs for providing the record on the trial court proceedings on the claim of indigence may be charged. Tex. R. Civ. P. 145(g).

In addition to the requirements of rule 145, a party seeking to obtain free or reduced-cost clerk’s and reporter’s records must also comply with section 13.003 of the Civil Practice and Remedies Code. See Pena v. Garza, 61 S.W.3d 529, 531 (Tex. App.—San Antonio 2001, no pet.) (rules of procedure are general rules; statutes are specific). A court reporter shall provide without cost a statement of facts and a clerk of a court shall prepare a transcript for appealing a judgment from the court only if (1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure and (2) the trial judge finds that the appeal is not frivolous and that the state­ment of facts and the clerk’s transcript are needed to decide the issue presented by the appeal. Tex. Civ. Prac. & Rem. Code § 13.003(a). In determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial ques­tion for appellate review. Tex. Civ. Prac. & Rem. Code § 13.003(b). A proceeding is “frivolous” when it lacks an arguable basis either in law or in fact. See Tex. Civ. Prac. & Rem. Code § 13.001(b)(2); Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990). Necessarily, therefore, both questions of fact and questions of law may be involved in a determination that an appeal is frivolous. De La Vega v. Taco Cabana, 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.).

§ 26.19Appellate Record

The appellate record consists of the clerk’s record and, if necessary, the reporter’s record. Tex. R. App. P. 34.1.

Clerk’s Record:      The trial court clerk, or in some counties the district clerk, is respon­sible for preparing, certifying, and timely filing the clerk’s record if a notice of appeal has been filed and the appellant has paid the clerk’s fee, has made satisfactory arrange­ments with the clerk to pay the fee, or is entitled to appeal without paying the fee. Tex. R. App. P. 35.3(a). The appellate court may dismiss the appeal for want of prosecution if the appellant has failed to pay or make arrangements to pay the clerk to prepare the record. Tex. R. App. P. 37.3(b).

The clerk’s record must include all pleadings on which the trial was held; the court’s docket sheet; the jury charge and verdict or the court’s findings of fact and conclusions of law; the court’s judgment or other order that is being appealed; any request for find­ings of fact and conclusions of law, any postjudgment motion, and the court’s order on the motion; the notice of appeal; any formal bill of exception; any request for a reporter’s record; any request for preparation of the clerk’s record; and a certified bill of costs, including the cost of preparing the clerk’s record, showing credit for payments made. Tex. R. App. P. 34.5.

At any time before the clerk’s record is prepared, any party may file with the trial court clerk (or in some counties the district clerk) a written designation of the specific items to be included in the clerk’s record. See Tex. R. App. P. 34.5(b), (c). No formal request is required for the preparation of this record, but the clerk may consult with the parties concerning the contents of the record. See Tex. R. App. P. 34.5(h).

Reporter’s Record:      A record should be made as in civil cases generally unless waived by the parties with the consent of the court. Tex. Fam. Code § 105.003(c). A party may waive the making of a record by express written agreement or by failing to object to the lack of a record during the hearing. If a party does not appear at a hearing he is unable to object, and his absence cannot be construed as a waiver to the making of a record. One party cannot waive another party’s right to a record. Without a reporter’s record, a defendant would be unable to obtain a record of the evidence to present to an appellate court for review. Thompson v. Thompson, No. 02-13-00292-CV, 2014 WL 3865951 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.) (mem. op.).

If the proceedings were stenographically recorded, the reporter’s record consists of the court reporter’s transcription of so much of the proceedings, and any of the exhibits, that the parties to the appeal designate. Tex. R. App. P. 34.6(a)(1). At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter’s record, must designate the exhibits to be included, and must des­ignate the portions of the proceedings to be included. Tex. R. App. P. 34.6(b)(1). If only a partial reporter’s record has been transcribed, the appellant cannot appeal based on legal or factual sufficiency of the evidence. Sareen v. Sareen, 350 S.W.3d 314, 316–17 (Tex. App.—San Antonio 2011, no pet.). In the complete absence of a reporter’s record, the appellate court must presume that the trial court heard sufficient evidence to support its judgment. De Vega v. Munoz, 623 S.W.3d 565, 567 (Tex. App.—El Paso 2021, no pet.).

§ 26.20Limiting Scope of Appeal

An appellant may request a partial reporter’s record; if he does so, the appellant must include in the request a statement of the points or issues relied on and will then be lim­ited to those points or issues. Tex. R. App. P. 34.6(c)(1); see also Melton v. Toomey, 350 S.W.3d 235 (Tex. App.—San Antonio 2011, no pet.). Other parties may request other parts of the record. Tex. R. App. P. 34.6(c)(2). Additions requested by another party must be included in the reporter’s record at the appellant’s cost. But if the trial court finds that all or part of the designated additions are unnecessary to the appeal, the trial court may order the other party to pay the costs for the preparation of the unnecessary additions. The appellate court, however, may tax costs differently. Tex. R. App. P. 34.6(c)(3). The appellate court “must presume that the partial reporter’s record desig­nated by the parties constitutes the entire record for purposes of reviewing the stated points or issues.” Tex. R. App. P. 34.6(c)(4).

There is no specific requirement that the request for preparation of the reporter’s record be served on other parties, but it must be filed with the trial court clerk (Tex. R. App. P. 34.6(b)(2)) and included in the clerk’s record. Tex. R. App. P. 34.5(a)(9). The record may be freely supplemented without motion or leave of the appellate court. Tex. R. App. P. 34.6(d), 37.2.

§ 26.21Docketing Statement

The appellant, promptly upon filing the notice of appeal, must file with the court of appeals a docketing statement containing specified information. Tex. R. App. P. 32.1. The rules do not prescribe a standard form for the statement, and the courts of appeals have developed various forms, which can be downloaded from the websites of the indi­vidual courts of appeals. (See section 26.28 below.) The rules do not provide a specific process for compelling the filing of the docketing statement. If the appellant’s failure to file the docketing statement is deemed to constitute want of prosecution or a failure to comply with a requirement of the appellate rules, a court order, or a deadline of the appellate court, dismissal of the appeal or affirmance of the appealed judgment or order may be ordered. See Tex. R. App. P. 42.3.

§ 26.22Mediation

In accordance with the general policy of the state of Texas, mediation is also an option at the appellate level. For example, the Dallas court of appeals, as a part of the docket­ing statement, asks whether the parties have mediated and, if so, the name of the media­tor and whether mediation would be appropriate at this stage of the litigation. Several of the courts of appeals will order the parties to mediation even over the objection of the appellee. Other appellate courts ask the parties if they want to mediate and will order it unless a party objects. Many appellate courts also require the appellee to file a media­tion docketing statement, specifically to identify what, if any, alternative dispute resolu­tion proceedings took place in the trial court and whether a referral to ADR by the appellate court is warranted or, if not, why not. The attorney for both appellant and appellee should check each court’s local rules in this regard at the specific court’s web­site. See section 26.28 below.

§ 26.23Estoppel to Appeal

Estoppel to appeal is also known as the “acceptance-of-benefits doctrine.” A litigant cannot treat a judgment as both right and wrong. Thus, a party who has voluntarily accepted the benefits of a judgment cannot appeal from that judgment. Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex. 1950); see Texas State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002). The acceptance-of-benefits doctrine applies in direct appeals, direct appeals by writ of error (now restricted appeals), and equitable bill of review proceed­ings. See Carle, 234 S.W.2d at 1003 (direct appeal); Bloom v. Bloom, 935 S.W.2d 942, 946–47 (Tex. App.—San Antonio 1996, no writ) (direct appeal by writ of error); Biggs v. Biggs, 553 S.W.2d 207, 209 (Tex. App.—Houston [14th Dist.] 1977, writ dism’d) (bill of review).

The burden is on the appellee to prove that the appellant is estopped by the accep­tance-of-benefits doctrine. See Gonzalez v. Gonzalez, 614 S.W.2d 203, 204 (Tex. App.—Eastland 1981, writ dism’d); Mallia v. Mallia, No. 14-07-00695-CV, 2009 WL 909588, at *1 (Tex. App.—Houston [14th Dist.] Apr. 5, 2009, no pet.) (mem. op.). For the court to consider whether a party is estopped from appealing, the record must reflect the relevant facts showing voluntary acceptance of the benefits of the judgment. Rogers v. Rogers, 806 S.W.2d 886, 889 (Tex App.—Corpus Christi–Edinburg 1991, no writ); Miller v. Miller, 569 S.W.2d 592, 593 (Tex. App.—San Antonio 1978, no writ).

The acceptance-of-benefits doctrine frequently arises in divorce cases, because a spouse tends to take and use the property awarded to him or her in the divorce while appealing from the divorce judgment. See, e.g., Roye v. Roye, 531 S.W.2d 242 (Tex. App.—Tyler 1975, no writ). However, even if an appealing party accepts a portion of a divorce judgment, the appealing party is not necessarily estopped from appealing the entire judgment. In Roa v. Roa, 970 S.W.2d 163, 166 (Tex. App.—Fort Worth 1998, no pet.), the appellate court held that even though the appealing party had accepted the decree of divorce and division of property, she had not accepted those portions of the judgment addressing child custody, visitation, and support. The appellate court also recognized that issues related to the custody of children are severable from the remain­der of a divorce decree. Roa, 970 S.W.2d at 166.

In Kramer v. Kastleman, 508 S.W.3d 211 (Tex. 2017),  the Texas Supreme Court exam­ined the acceptance-of-benefits doctrine in a marital dissolution case for the first time in over sixty-five years since its decision in Carle, 234 S.W.2d 1002. In Kramer, the wife had appealed a final decree of divorce that divided the parties’ $30 million marital estate. Before the appeal was final, the wife collected rental income of over $20,000 per month that was generated by properties awarded to her in the divorce decree. She also refinanced loans secured by properties allocated to her in the decree, among other things. The husband moved to dismiss the appeal based on the wife’s acceptance of benefits under the divorce decree. The court of appeals granted the motion and dis­missed the wife’s appeal without reaching the merits. Kastleman v. Kastleman, No. 03-13-00133-CV, 2014 WL 3809759 (Tex. App.—Austin July 30, 2014) (mem. op.), rev’d, Kramer, 508 S.W.3d 211. In reversing, the supreme court found that in the years since Carle, the doctrine had been “applied irregularly,” that it had “become unmoored from its equitable underpinnings,” and that “[t]he jurisprudence trends away from the doc­trine’s root principles.” Kramer, 508 S.W.3d at 213. The court acknowledged that the doctrine is a fact-dependent, estoppel-based doctrine that should be focused on prevent­ing unfair prejudice to the opposing party, stating:

[B]efore denying a merits-based resolution to a dispute, courts must evaluate whether, by asserting dominion over assets awarded in the judgment under review, the appealing party clearly intended to acquiesce in the judgment; whether the assets have been so dissipated as to prevent their recovery if the judgment is reversed or modified; and whether the opposing party will be unfairly prejudiced. Equity simply will not tolerate a Catch-22 that involves a choice between relinquishing possession and control of community prop­erty and relinquishing the right to appeal.

Kramer, 508 S.W.3d at 227.

The court held that the following nonexclusive factors inform the estoppel inquiry: (1) whether acceptance of benefits was voluntary or was the product of financial duress; (2) whether the right to joint or individual possession and control preceded the judgment on appeal or exists only by virtue of the judgment; (3) whether the assets have been so dis­sipated, wasted, or converted as to prevent their recovery if the judgment is reversed or modified; (4) whether the appealing party is entitled to the benefit as a matter of right or by the nonappealing party’s concession; (5) whether the appeal, if successful, may result in a more favorable judgment but there is no risk of a less favorable one; (6) if a less favorable judgment is possible, whether there is no risk the appellant could receive an award less than the value of the assets dissipated, wasted, or converted; (7) whether the appellant affirmatively sought enforcement of rights or obligations that exist only because of the judgment; (8) whether the issue on appeal is severable from the benefits accepted; (9) the presence of actual or reasonably certain prejudice;  and (10) whether any prejudice is curable. Kramer, 508 S.W.3d at 228–29.

COMMENT:      An appellant might be able to avoid the acceptance-of-benefits doctrine by asking for temporary orders pending appeal that allow the use of certain monies or property during the pendency of the appeal for living expenses and attorney’s fees. In any case, the appellant could put on evidence that without the use of some of the monies or property awarded to him or her, he or she will not be able to pay necessary living expenses and attorney’s fees needed to pursue an appeal. Therefore, if the acceptance is subsequently raised by the appellee, the appellant can justify by citation to the record.

Some Texas courts have declined to consider an appeal from a custody decree when the appealing party refuses to obey the adverse judgment. See Baker v. Baker, 588 S.W.2d 677 (Tex. App.—Eastland 1979, writ ref’d n.r.e.). In Baker, after the wife filed suit and the husband answered, the husband absconded from the state with the minor child and continued to withhold the child from the wife, who had been named manag­ing conservator. The husband did not personally appear at the hearing but appeared by attorney of record. Under these circumstances, the appellate court dismissed the hus­band’s appeal. Baker, 588 S.W.2d at 678. For similar decisions in other appellate courts, see Velasco v. Ellis, No. 01-10-00073-CV, 2011 WL 2118865 (Tex. App.—Houston [1st Dist.] May 26, 2011, no pet.) (mem. op.); Eberle-Adams v. Adams, No. 14-96-00432-CV, 1996 WL 307488 (Tex. App.—Houston [14th Dist.] June 6, 1996, no writ) (not designated for publication); Alexander v. Gunning, 572 S.W.2d 34 (Tex. App.—Houston [1st Dist.] 1978, no writ); O. v. P., 560 S.W.2d 122 (Tex. App.—Fort Worth 1977, no writ); Strange v. Strange, 464 S.W.2d 216 (Tex. App.—Fort Worth 1970, writ dism’d w.o.j.) (per curiam); and Hays v. Brandon, 245 S.W.2d 381 (Tex. App.—Fort Worth 1951, no writ).

§ 26.24Modification Suit Pending Appeal

Generally, a trial court has no jurisdiction to vacate or change a judgment once the case has been appealed. Robertson v. Ranger Insurance Co., 689 S.W.2d 209, 210 (Tex. 1985) (per curiam). The Family Code, however, expressly provides a trial court with continuing, exclusive jurisdiction to modify an order regarding child-related issues even if that order has been appealed. Tex. Fam. Code Ann. §§ 155.003(a), 156.001;  In re Reardon, 514 S.W.3d 919, 922–24 (Tex. App.—Fort Worth 2017, orig. proceeding); Blank v. Nuszen, No. 01-13-01061-CV, 2015 WL 4747022 (Tex. App.—Houston [1st Dist.] Aug. 11, 2015, no pet.) (mem. op.); Hudson v. Markum, 931 S.W.2d 336 (Tex. App.—Dallas 1996, no pet.). But see In re E.W.N., 482 S.W.3d 150, (Tex. App.—El Paso 2015, no pet.).

In Hudson the mother sued the father to establish paternity of her minor daughter and for child support and other damages. While that case was pending on appeal, the father filed a motion to modify child support payments in the trial court. The trial court dis­missed the motion for want of jurisdiction, and the father appealed. Hudson, 931 S.W.2d at 336. The Dallas court of appeals held that the father’s motion to modify filed during the pendency of his appeal from the order he sought to modify did not alter the trial court’s jurisdiction. Because the Family Code vested the trial court with continuing, exclusive jurisdiction to hear the father’s motion to modify child support, the trial court erred in dismissing the motion. Hudson, 931 S.W.2d at 338.

Further, a petition to modify an existing order affecting the parent-child relationship is a new lawsuit. Tex. Fam. Code Ann. § 156.004; Normand v. Fox, 940 S.W.2d 401, 403 (Tex. App.—Waco 1997, no writ); Hudson, 931 S.W.2d at 338 n.5 (noting that 1995 recodification of Family Code refers to “a suit for modification” rather than “a motion to modify,” which emphasized that legislature intended trial courts to continue to treat motions to modify as original lawsuits). The entry of an appealable order in a previous modification proceeding concludes those proceedings, and each subsequent filing of a new motion to modify requires issuance of citation and observation of the formalities of due process. See Tex. Fam. Code Ann. §§ 156.003, 156.004; Rose v. Rose, 117 S.W.3d 84, 88 (Tex. App.—Waco 2003, no pet.) (distinguishing motions to enforce existing judgments from motions to modify SAPCRs).

On the other hand, in In re E.W.N. the trial court appointed the parents joint managing conservators and ordered the father to pay child support. He appealed. While his appeal was pending, he filed a petition in the trial court to reduce his child support obligation, and the trial court entered temporary orders. On the mother’s motion, the trial court dismissed the father’s modification without prejudice because the appellate court had the exclusive “power” of the cause. The father appealed, arguing that because the trial court had continuing, exclusive jurisdiction, it had jurisdiction over the parent-child relationship regardless of whether an appeal was pending. In re E.W.N., 482 S.W.3d at 152.

The El Paso court of appeals affirmed the trial court, reasoning that section 109.001 of the Family Code authorizes a trial court to enter temporary orders during the pendency of an appeal under certain circumstances. If the continuing, exclusive jurisdiction of a trial court to enter orders affecting a child was automatically retained during the pen­dency of an appeal, section 109.001 would be unnecessary. In re E.W.N., 482 S.W.3d at 154.

The El Paso court of appeals also noted that there are remedies available to petitioners who need emergency relief to protect a child during the pendency of an appeal. For example, section 109.002 of the Family Code provides that an appellate court may, on a proper showing, permit the trial court’s order to be suspended. Additionally, pursuant to Tex. R. App. P. 10, a litigant may file a motion with the court of appeals explaining the circumstances that require abatement of an appeal to permit the trial court to set an emergency hearing to protect the child. In re E.W.N., 482 S.W.3d at 156–57.

§ 26.25Bankruptcy during Appeal

During the pendency of the appeal, any party may file a notice that the party is in bank­ruptcy. Tex. R. App. P. 8.1. The filing of bankruptcy suspends the appeal and all time periods set forth in the Texas Rules of Appellate Procedure from the date when the bankruptcy petition is filed until the appellate court reinstates or severs the appeal. A period that had begun to run at the time of the filing of the appeal, but had yet to expire at the time the proceeding was suspended, begins anew when the proceeding is either reinstated or severed. A document filed by a party while the proceeding is suspended will be deemed to have been filed on the same day as, but after the time, that the court reinstates or severs the appeal and will not be considered ineffective because it was filed while the proceeding was suspended. Tex. R. App. P. 8.2. If an appeal has been suspended by a bankruptcy filing, a party may move that the appellate court reinstate the appeal if allowed by federal law or the bankruptcy court. If the bankruptcy court has lifted or terminated the stay, a certified copy of the order must be attached to the motion. Tex. R. App. P. 8.3(a).

COMMENT:      A motion to reinstate is the only method provided in the Texas Rules of Appellate Procedure to move the appeal along. Accordingly, if the party who filed the bankruptcy is the appellant and that party fails to file a motion to reinstate within a rea­sonable period of time following the termination or lifting of the stay, the appellee should consider filing a motion to dismiss the appeal.

§ 26.26Family Law Appellate Timetable

§ 26.27Effect of Remand

When an appellate court remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue. In re Mar­riage of Stein, 190 S.W.3d 73, 75 (Tex. App.—Amarillo 2005, no pet.). An appellate court cannot reverse only one piece of a property division but instead must remand the entire community estate for a new division. Bufkin v. Bufkin, 259 S.W.3d 343 (Tex. App.—Dallas 2008, pet. denied). The only relief that an appellate court may grant an appellant who argues factual insufficiency is a remand for a new trial; it may not reverse and render judgment in favor of the other party. In re S.K.H., 324 S.W.3d 156, 159 (Tex. App.—El Paso 2010, no pet.).

COMMENT:      If the appellate court orders a partial remand for a new trial, counsel should ensure that the appellate court affirms the granting of the divorce to avoid hav­ing that matter raised as an issue in the new trial.

§ 26.28Internet Resources

The Office of Court Administration, in conjunction with the Judicial Committee on Information Technology, maintains a website with links to the Supreme Court of Texas, the Texas Court of Criminal Appeals, and all the appellate courts, which may be found at www.txcourts.gov.

§ 26.29Useful Websites

The following websites contain information relating to the topic of this chapter:

Court of Criminal Appeals
www.txcourts.gov/cca.aspx

Links to individual Texas court sites (§ 26.28)
www.txcourts.gov

Texas appellate courts (§§ 26.12, 26.22)
www.txcourts.gov

Texas courts of appeals:

First Court of Appeals (Houston)
www.txcourts.gov/1stcoa.aspx

Second Court of Appeals (Fort Worth)
www.txcourts.gov/2ndcoa.aspx

Third Court of Appeals (Austin)
www.txcourts.gov/3rdcoa.aspx

Fourth Court of Appeals (San Antonio)
www.txcourts.gov/4thcoa.aspx

Fifth Court of Appeals (Dallas)
www.txcourts.gov/5thcoa.aspx

Sixth Court of Appeals (Texarkana)
www.txcourts.gov/6thcoa.aspx

Seventh Court of Appeals (Amarillo)
www.txcourts.gov/7thcoa.aspx

Eighth Court of Appeals (El Paso)
www.txcourts.gov/8thcoa.aspx

Ninth Court of Appeals (Beaumont)
www.txcourts.gov/9thcoa.aspx

Tenth Court of Appeals (Waco)
www.txcourts.gov/10thcoa.aspx

Eleventh Court of Appeals (Eastland)
www.txcourts.gov/11thcoa.aspx

Twelfth Court of Appeals (Tyler)
www.txcourts.gov/12thcoa.aspx

Thirteenth Court of Appeals (Corpus Christi)
www.txcourts.gov/13thcoa.aspx

Fourteenth Court of Appeals (Houston)
www.txcourts.gov/14thcoa.aspx

Texas Supreme Court
www.txcourts.gov/supreme.aspx