1). Preserving Error
In trial, a judge is tasked with making decisions about how the court is conducted. Examples of these decisions include choosing whether to allow certain lines of argument, choosing to allow or disallow evidence to be presented, or choosing whether to grant or deny a motion. Because of this, there will almost always be errors in the proceedings that could possibly be used to build an argument for an appeal. However, it is important for lawyers in the trial to preserve these errors or they will be considered waived. This means the error has been “let go” and will not be considered as grounds for appeal by the appellate court. Lawyers can preserve error by meeting four criteria in the state of Texas. First they must raise their concern about the possible error with a request, objection, or motion. This concern must be shown promptly and must be specific. The lawyer must also get the court to rule on their request in order for the error to be considered preserved. Preserving error is an essential step in having legitimate grounds to make an appeal.
2). Filing a Notice of Appeal
In most cases, whichever side wishes to appeal the initial ruling has 30 days to file the Notice of Appeal. In some specific cases, the deadline to file this notice is 20 days. This informs the other side and the court system that they are going to appeal the ruling.
4). Appellee's Brief Filed
The appellee has 30 days from the time the Appellant's Brief is filed to create and file their own brief to the court with their argument on the case. This brief usually directly addresses and responds to arguments in the appellant brief. The Appellee's Brief has the same maximum word count as the Appellant's Brief Just like the appellant, the appellee can also file a motion for extension of time and also has the option to choose whether or not to request an oral argument with an explanation of why..
6). Oral Argument
The court can ask to hear an oral argument where they will allow both parties the chance to make their cases and answer questions in person. In an oral argument, both sides, starting with the appellant, will have a brief period of time to make their case and answer questions from the judge. This time is typically 20 minutes for each side. If the Court grants oral argument, it is a critical part of the appellate process because the appellate attorneys generally get an idea of whether their arguments will fly high with the Court or crash and burn. The appellant will then have a brief chance to respond to the appellee. This is typically around 5 minutes.
8). Motion for Rehearing
​After a ruling is laid down by the appellate court, the losing side has 25 days to file a motion for rehearing. This motion is asking the appellate court to issue a new opinion. This motion looks at the appellate court decision and would usually state that the court either misinterpreted facts from the case or incorrectly applied the law in their opinion. The court can choose whether to grant or deny this motion. An oral argument can be requested but is typically not necessary.
10). Petition for Review to Texas Supreme Court
After either the court decision has been laid down or any further motions for rehearing have been ruled on, the losing side will have 45 days to petition for review to the Texas Supreme Court. They will now be known as the petitioner and the other side will be known as the respondent. This petition asks the court to grant a writ of certiorari. Granting cert simply means that the Supreme Court will take up the case. This first stage of briefing is meant for the petitioner to convince the court that this is an important issue that they should review.
12). Briefing on the Merits
If the Supreme Court agrees to take up the case they will then begin the second stage of briefing where each side will present their argument. In this stage, the petitioner will first have 45 days from the court granting cert to file their briefs. The respondent will then have 30 days to file theirs. If they feel it is necessary, the petitioner will also be given 30 days to file a reply brief. An oral argument can be requested but is not always given.
3). Appellant's Brief Filed
The appellant has 30 days from the date that the records from
the trial court, i.e. the record from trial and prior hearings and motions, are filed with the court of appeals to file the Appellant’s Brief. Typically this is about two months after the Notice of Appeal is filed. The brief is an extensive packet containing information about the case and the argument they are presenting. The maximum word count for these briefs is 15,000 words, or about 70 pages. This is submitted to the appellate court. The appellant can file a motion for extension of time which can give them more time to complete their brief. In the brief they can also choose whether or not to request an oral argument and can explain why or why not it would be important.
5). Appellant's Reply Brief Filed
The appellant has the ability to choose to file a reply brief. This would answer and respond to the arguments made by the appellee in their brief. If they choose to do so they will have 21 days to respond from the time the appellee brief was filed. The maximum word count for this brief is 7,500 words. They also must complete this more than 7 days before an oral argument.
7). Appellate Court Decision
If an oral argument is granted the court will lay down a ruling on the specific question posed in the appeal. If they overturn the initial decision they will send the case back to the initial trial court to review again, or will make their own judgment in the case. Whatever side loses this ruling has further steps for appeal.
9). Motion for Rehearing En Banc
The losing side from the appellate court ruling has 14 days from the opinion of the court to file a motion for rehearing en banc. When an appellate court reviews an appeal it is typically done by a panel of three justices. Each Court of Appeals Texas is composed of up to 13 total justices. A rehearing en banc would have the appeal be reviewed by the entire court. This motion will be granted if the majority of the justices agree that it should be reviewed. An oral argument can be requested but is typically not necessary.
11). Response to Petition for Review
​After the petition is filed, the respondent has 30 days to reply. This gives the opportunity for the respondent to argue that the case does not need to be reviewed by the court.
13). Texas Supreme Court Ruling
The Texas Supreme Court will then lay down the final decision on the issue. If the case revolves around a federal issue, the same petitioning process can then be brought before the US Supreme Court.