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Appellate lawyers share some job-related realities with journalists, namely running up against deadlines. Although attorneys don’t rush to finish stories before a midnight printing, we do have to meet filing deadlines to seek relief from erroneous trial-court or intermediate-appellate court decisions. Knowing those deadlines (and how they are calculated) is paramount to correctly perfecting appeals. Lawyers can, at times, find solace in rule-based mechanisms to extend those deadlines if they miscalculate. But, attorneys should not exclusively rely on extensions to preserve their clients’ opportunities to seek appellate relief.
When Does the Clock Start?
Since counting should (hopefully) not be an issue, when perfecting a direct appeal in a Texas intermediate appellate, there are two related concepts to master. The first is what triggers the deadlines for filing a notice of appeal. The deadline is calculated from the date the trial-court judge signs the appealable judgment or order. Therefore, the proverbial clock starts ticking on the judgment’s/order’s signing date, not on the date the judge rendered the judgment and not on the day that the clerk filed the judgment.
Because the Texas rules allow certain post-judgment motions to extend the deadline for filing a notice of appeal, practitioners can, and have, confused the deadline-triggering event. To perfect an appeal, a lawyer must file a notice of appeal within 30 days after the judgment is signed. A timely, qualifying post-judgment motion, however, extends that deadline to 90 days. But, it does not alter the triggering date. For example, the 90 days does not start when you file a qualifying post-judgment motion or when that motion is ruled upon either by the trial court or through the operation of law. The signing date is still the triggering event from which you calculate the deadline.
The second concept involves actually calculating the deadlines. While this seems simple enough, for the uninitiated (like myself when I was a newly minted associate), it may cause some confusion. Do you count 30 days from the signing date or do you count 30 days starting with the day after the signing date? And, what happens if the 30th day lands on the weekend or another day that the clerk’s office is closed? Fortunately, the Texas rules answer these questions with some precision. The triggering date is not counted. So, you start counting on the following day. If the deadline falls on a weekend day or a legal holiday, the deadline moves to the next consecutive day that is not a weekend day or a holiday. The same occurs if the clerk’s office is closed or inaccessible.
Perfecting an appeal to the Texas Supreme Court shares some of the basic concepts with appealing a decision to the intermediate courts, but has its own unique considerations. When appealing an intermediate court’s decision, to determine the deadline for filing a petition for review, practitioners employ the same counting method as described above. The difference lies in the triggering date. Unlike perfecting an appeal in a Texas intermediate court, the triggering date can change depending on whether a party files a timely motion for rehearing and/or reconsideration en banc. If no qualifying motions are filed, the triggering date is the day the court of appeals rendered judgment, and the deadline is 45 days after that date. If, however, the appealing party timely filed a qualifying motion, the triggering date becomes the date the court ruled on the last of these motions. And, the deadline lands 45 days after the court’s last ruling.