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38.1. Appellant’s Brief
The appellant’s brief must, under appropriate
headings and in the order here indicated, contain the
following:
(a) Identity of Parties and Counsel. The brief
must give a complete list of all parties to the
trial court’s judgment or order appealed from,
except as otherwise provided in Rule 9.8. The
brief must also give a complete list of the
names of all counsel appearing in the trial or
appellate courts; their firm or office name at
the time of the appearance; and, for counsel
currently appearing, their mailing address,
telephone number, and email address. If new
counsel appears or if any counsel currently
appearing changes their firm or office
affiliation during the pendency of the appeal,
lead counsel for the party must notify the
clerk by filing a supplemental disclosure.
(b) Table of Contents. The brief must have a
table of contents with references to the pages
of the brief and, in civil cases, be bookmarked
to assist in locating each item. The table of
contents must indicate the subject matter of
each issue or point, or group of issues or
points.
(c) Index of Authorities. The brief must have an
index of authorities arranged alphabetically
and indicating the pages of the brief where
the authorities are cited.
(d) Statement of the Case. The brief must state
concisely the nature of the case (e.g., whether
it is a suit for damages, on a note, or involving
a murder prosecution), the course of
proceedings, and the trial court’s disposition
of the case. The statement should be
supported by record references, should
seldom exceed one-half page, and should not
discuss the facts.
(e) Any Statement Regarding Oral Argument.
The brief may include a statement explaining
why oral argument should or should not be
permitted. Any such statement must not
exceed one page and should address how the
court’s decisional process would, or would
not, be aided by oral argument. As required
by Rule 39.7, any party requesting oral
argument must note that request on the front
cover of the party’s brief.
(f) Issues Presented. The brief must state
concisely all issues or points presented for
review. The statement of an issue or point
will be treated as covering every subsidiary
question that is fairly included.
(g) Statement of Facts. The brief must state
concisely and without argument the facts
pertinent to the issues or points presented. In
a civil case, the court will accept as true the
facts stated unless another party contradicts
them. The statement must be supported by
record references.
(h) Summary of the Argument. The brief must
contain a succinct, clear, and accurate
statement of the arguments made in the body
of the brief. This summary must not merely
repeat the issues or points presented for
review.
(i) Argument. The brief must contain a clear and
concise argument for the contentions made,
with appropriate citations to authorities and
to the record.
(j) Prayer. The brief must contain a short
conclusion that clearly states the nature of the
relief sought.
(k) Appendix in Civil Cases.
(1) Necessary Contents. The appendix must
be bookmarked to assist in locating each
item
and,
unless
voluminous
or
impracticable, must contain a copy of:
(A) the trial court’s judgment or
other appealable order from which
relief is sought;
(B) the jury charge and verdict, if any,
or the trial court’s findings of fact
and conclusions of law, if any; and
(C) the text of any rule, regulation,
ordinance, statute, constitutional
provision, or other law (excluding
case law) on which the argument is
based, and the text of any contract or
other document that is central to the
argument.
(2) Optional Contents. The appendix may
contain any other item pertinent to the
issues or points presented for review,
including copies or excerpts of relevant
court opinions, laws, documents on
which the suit was based, pleadings,
excerpts from the reporter’s record, and
similar material. Items should not be
included in the appendix to attempt to
avoid the page limits for the brief.
38.2. Appellee’s Brief
(a) Form of Brief.
(1) An appellee’s brief must conform to the
requirements of Rule 38.1, except that:
(A) the list of parties and counsel is not
required
unless
necessary
to
supplement
or
correct
the
appellant’s list;
(B) the appellee’s brief need not include
a statement of the case, a statement
of the issues presented, or a
statement of facts, unless the
appellee is dissatisfied with that
portion of the appellant’s brief; and
(C) the appendix to the appellee’s brief
need not contain any item already
contained in an appendix filed by
the appellant.
(2) When practicable, the appellee’s brief
should respond to the appellant’s issues
or points in the order the appellant
presented those issues or points.
(b) Cross-Points.
(1) Judgment Notwithstanding the Verdict.
When the trial court renders judgment
notwithstanding the verdict on one or
more questions, the appellee must bring
forward by cross-point any issue or point
that would have vitiated the verdict or
that would have prevented an affirmance
of the judgment if the trial court had
rendered judgment on the verdict.
Failure to bring forward by cross-point
an issue or point that would vitiate the
verdict or prevent an affirmance of the
judgment
waives
that
complaint.
Included in this requirement is a point
that:
(A) the verdict or one or more jury
findings
have
insufficient
evidentiary support or are against
the overwhelming preponderance of
the evidence as a matter of fact; or
(B) the verdict should be set aside
because of improper argument of
counsel.
(2) When Evidentiary Hearing Needed.
The appellate court must remand a case
to the trial court to take evidence if:
(A) the appellate court has sustained a
point raised by the appellant; and
(B) the appellee raised a cross-point that
requires the taking of additional
evidence.
38.3. Reply Brief
The appellant may file a reply brief addressing
any matter in the appellee’s brief. However, the
appellate court may consider and decide the case
before a reply brief is filed.
38.4. Deleted
38.5. Appendix for Cases Recorded Electronically
In
cases
where
the
proceedings
were
electronically recorded, the following rules apply:
(a) Appendix.
(1) In General. At or before the time a
party's brief is due, the party must file
one copy of an appendix containing a
transcription of all portions of the
recording that the party considers
relevant to the appellate issues or points.
Unless another party objects, the
transcription will be presumed accurate.
(2) Repetition Not Required. A party's
appendix need not repeat evidence
included
in
any
previously
filed
appendix.
(3) Form. The form of the appendix and
transcription must conform to any
specifications of the Supreme Court and
Court of Criminal Appeals concerning
the form of the reporter’s record except
that it need not have the reporter’s
certificate.
(4) Notice. At the time the appendix is filed,
the party must give written notice of the
filing to all parties to the trial court's
judgment or order. The notice must
specify, by referring to the index
numbers in the court recorder's logs,
those parts of the recording that are
included in the appendix. The filing
party need not serve a copy of the
appendix but must make a copy available
to all parties for inspection and copying.
(b) Presumptions. The same presumptions that
apply to a partial reporter’s record under Rule
34.6(c)(4) apply to the parties' appendixes.
The appellate court need not review any part
of the electronic recording.
(c) Supplemental Appendix. The appellate court
may direct or allow a party to file a
supplemental
appendix
containing
a
transcription of additional portions of the
recording.
(d) Inability to Pay. A party who cannot pay the
cost of an appendix must file the affidavit
provided for by Rule 20. The party must also
state in the affidavit or a supplemental
affidavit that the party has neither the access
to the equipment necessary nor the skill
necessary to prepare the appendix. If a
contest to the affidavit is not sustained by
written order, the court recorder must
transcribe or have transcribed those portions
of the recording that the party designates and
must file the transcription as that party's
appendix, along with all exhibits.
(e) Inaccuracies.
(1) Correction by Agreement. The parties
may agree to correct an inaccuracy in the
transcription of the recording.
(2) Correction by Appellate or Trial Court.
If the parties dispute whether an
electronic recording or transcription
accurately discloses what occurred in the
trial
court
but
cannot
agree
on
corrections, the appellate court may:
(A) settle the dispute by reviewing
the recording; or
(B) submit the dispute to the trial
court, which must — after notice
and hearing — settle the dispute and
ensure
that
the
recording
or
transcription is made to conform to
what occurred in the trial court.
(f) Costs. The actual expense of preparing the
appendixes or the amount prescribed for
official reporters, whichever is less, is taxed
as costs. The appellate court may disallow the
cost of any portion of the appendixes that it
considers surplusage or that does not
conform to any specifications prescribed by
the Supreme Court or Court of Criminal
Appeals.
38.6. Time to File Briefs
(a) Appellant's Filing Date. Except in a habeas
corpus or bail appeal, which is governed by
Rule 31, or when an appendix is filed under
Rule 34.5a, an appellant must file a brief
within 30 days — 20 days in an accelerated
appeal — after the later of:
(1) the date the clerk’s record was filed; or
(2) the date the reporter’s record was filed.
(b) Appellee's Filing Date. The appellee's brief
must be filed within 30 days — 20 days in an
accelerated appeal — after the date the
appellant's brief was filed. In a civil case, if
the appellant has not filed a brief as provided
in this rule, an appellee may file a brief within
30 days — 20 days in an accelerated appeal
— after the date the appellant's brief was due.
(c) Filing Date for Reply Brief. A reply brief, if
any, must be filed within 20 days after the
date the appellee's brief was filed.
(d) Modifications of Filing Time. On motion
complying with Rule 10.5(b), the appellate
court may extend the time for filing a brief
and may postpone submission of the case. A
motion to extend the time to file a brief may
be filed before or after the date the brief is
due. The court may also, in the interests of
justice, shorten the time for filing briefs and
for submission of the case.
38.7. Amendment or Supplementation
A brief may be amended or supplemented
whenever justice requires, on whatever reasonable
terms the court may prescribe.
38.8. Failure of Appellant to File Brief
(a) Civil Cases. If an appellant fails to timely file
a brief, the appellate court may:
(1) dismiss
the
appeal
for
want
of
prosecution,
unless
the
appellant
reasonably explains the failure and the
appellee is not significantly injured by
the appellant's failure to timely file a
brief;
(2) decline to dismiss the appeal and give
further direction to the case as it
considers proper; or
(3) if an appellee’s brief is filed, the court
may regard that brief as correctly
presenting the case and may affirm the
trial court's judgment upon that brief
without examining the record.
(b) Criminal Cases.
(1) Effect. An appellant's failure to timely
file a brief does not authorize either
dismissal of the appeal or, except as
provided in (4), consideration of the
appeal without briefs.
(2) Notice. If the appellant's brief is not
timely filed, the appellate clerk must
notify counsel for the parties and the trial
court of that fact. If the appellate court
does not receive a satisfactory response
within ten days, the court must order the
trial court to immediately conduct a
hearing to determine whether the
appellant desires to prosecute his appeal,
whether the appellant is indigent, or, if
not indigent, whether retained counsel
has abandoned the appeal, and to make
appropriate
findings
and
recommendations.
(3) Hearing. In accordance with (2), the trial
court must conduct any necessary
hearings, make appropriate findings and
recommendations, and have a record of
the proceedings prepared, which record
— including any order and findings —
must be sent to the appellate court.
(4) Appellate Court Action. Based on the
trial court's record, the appellate court
may act appropriately to ensure that the
appellant's
rights
are
protected,
including
initiating
contempt
proceedings against appellant's counsel.
If the trial court has found that the
appellant no longer desires to prosecute
the appeal, or that the appellant is not
indigent but has not made the necessary
arrangements for filing a brief, the
appellate court may consider the appeal
without briefs, as justice may require.
38.9. Briefing Rules to be Construed Liberally
Because briefs are meant to acquaint the court
with the issues in a case and to present argument that
will enable the court to decide the case, substantial
compliance with this rule is sufficient, subject to the
following.
(a) Formal Defects. If the court determines that
this rule has been flagrantly violated, it may
require a brief to be amended, supplemented,
or redrawn. If another brief that does not
comply with this rule is filed, the court may
strike the brief, prohibit the party from filing
another, and proceed as if the party had failed
to file a brief.
(b) Substantive Defects. If the court determines,
either before or after submission, that the case
has not been properly presented in the briefs,
or that the law and authorities have not been
properly cited in the briefs, the court may
postpone submission, require additional
briefing, and make any other order necessary
for a satisfactory submission of the case.