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Rule 372. Bills of Exception (1967)

TEXT

If either party during the progress of a cause is dissatisfied with any ruling, opinion, or other action of the court, he may except thereto at the time the said ruling is made, or announced or such action taken, and at his request time shall be given to embody such exception in a written bill. Where, under Rule 373, formal exception is not required, a similor opportunity shall be given the objecting party to embody his objection in a written bill. The term "bill of exceptions," as herein used, shall embrace bills both for the purpose of showing formal exceptions and for the purpose of showing objections under Rule 373. The preparation and filing of bills of exception shall be governed by the following rules:

(a) No particular form of words shall be required in a bill of exception; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain, and no mare, and the whole as briefly as possible.

(b) Where the statement of facts contains all. The evidence requisite to explain the bill of exception evidence need not be set out in the bill; but it shall be sufficient to refer to the same as it appears in the statement of facts.

(c) All objections to rulings on evidence or other matters may be shown in the statement of facts without the necessity of formal bills of exception, but the parties may have approved and filed formal bills of exception showing such objection, exception, ruling and other matters.

(d) The ruling of the court in giving or qualifying instructions to the jury shall be regarded as approved unless excepted to.

(e) Where the ruling or other action of the court appears otherwise of record, no bill shall be necessary to reserve an exception thereto; and all motions and answers thereto, the orders thereon and any exceptions shown in such orders shall, for the purpose of this rule, be considered a part of the record without the necessity of bills of exception; provided that if testimony is heard upon a motion, such testimony may be preserved only by bill of exception or statement of facts.

(f) Bills of exceptions not in the statement of facts shall be presented to the judge for his allowance and signature.

(g) The judge shall submit such bill to the adverse party or his counsel, if in attendance on the court, and if found to be correct, the judge shall sign it without delay and file it with the clerk.

(h) If the judge finds such bill incor­rect, he shall suggest to the party or his counsel such corrections as he deems necessary therein, and if they are agreed to, he shall make such corrections, sign the bill and file it with the clerk.

(i) Should the party not agree to such corrections, the judge shall return the bill to him with his refusal indorsed thereon, and shall prepare, sign and file with the clerk such bill of exception as will, in his opinion, present the ruling of the court as it actually occurred.

(j) Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this state, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as a part of the record relating thereto. The truth of such bill of exceptions shall be determined on appeal from such affidavits.

(k) In the event a separate bill of exception is filed and there is a conflict between its provisions and the provisions of the statement of facts, the bill of exceptions shall control.

(l) Anything occurring in open court or in chambers that is reported and so certified by the court reporter may be included in the statement of facts rather than in a bill of exception; provided that the party requesting that all or part of the jury arguments or of the voir dire examination of the jury panel be included in the statement of facts shall pay the cost thereof, which cost shall be separately listed in the certificate of costs prepared by the clerk of the trial court, and the same may be taxed in whole or in part by the court of civil appeals or the supreme court against any party to the appeal.

Amended by order of July 20, 1966, eff. Jan. 1, 1967: subdivision (l) has been added.

ADVISORY OPINIONS

(No. 46 ) Question: Does subdivision (k) of Rule 372 apply to bystander's bills of exception, said subdivision (k) being the portion of the rule which provides that where there is a conflict between a bill of exception and the statement of facts, the bill of exception shall control?

Answer: It is our opinion that subdivi­sion (k) does not apply to a bystander's bill until the bystander's bill has been found to be correct by the appellate court in the manner set out in the preceding subdivision (j) of said rule.

Before a bystander's bill is filed, the rule provides that the trial judge shall prepare and file a bill of exception which in his opinion correctly presents the ruling of the court. Then the dissatisfied party is allowed to file the rejected bill of excep­tion which said party had prepared pro­vided it is attested by three bystanders. Thus the record contains two inconsistent bills of exception, and therefore subdivi­sion (k) which makes a bill of exception control over the statement of facts cannot be invoked until the appellate court determines which bill of exception is cor­rect.

The rule expressly provides that the truth of such bills of exception shall be determined on appeal from affidavits filed by the opposing parties with reference to the transaction, and in view of a state­ment in our correspondent's letter we wish to call attention to the fact that the con­troverting and maintaining affidavits do not have to be made by bystanders but can be made by any person. The court reporter, the attorneys, the clerk, or any person who knows the facts is competent to make such an affidavit. The bystand­er's bill itself must be attested by three bystanders; but the affidavits supporting or controverting the bill can be made by any person. Therefore it should not be difficult to contest the truth of an incor­rect bystander's bill.

After the correctness of the bill of ex­ception has been determined by the ap­pellate court as provided in subdivision (j), subdivision (k) would make said cor­rect bill of exception controlling over the statement of facts. After the bill of ex­ception has been found to be correct upon investigation of the particular point in question we feel that there could be little objection to giving it precedence over the statement of facts.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 21 (1945).