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Rule 385. Accelerated Appeals (1981)

TEXT

(a) The following appeals shall be accelerated:

(1) Appeals from interlocutory orders (when allowed by law).

(2) Appeals in quo warranto proceedings.

(b) In appeals from interlocutory orders, no motion for new trial shall be filed. The trial judge need not file findings of fact and conclusions of law, but may file findings and conclusions within 30 days after the judgment is signed.

(c) In quo warranto, the filing of a motion for new trial shall not extend the time for perfecting the appeal or the time for filing appellant’s brief; but the trial court shall have power to grant such motion, if timely filed, until 50 days after the judgment or order appealed from is signed. If not determined by written order within that period, the motion shall be deemed overruled by operation of law.

(d) In all accelerated appeals, the bond, or the notice or affidavit in lieu thereof, shall be filed, or the deposit in lieu of bond shall be made, within30 days after the judgment or order is signed. Likewise, the record shall be filed in the appellate court within 30 days after the judgment or order is signed. The appellant's brief shall be filed within 20 days after the record is filed, and appellee's brief shall be filed within 20 days after appellant's brief is filed. Failure to file either the record of appellant's brief within the time specified, unless reasonably explained, shall be ground for dismissal or affirmance under Rule 387, but shall not affect the court's jurisdiction or its authority to consider material filed late.

(e) When the appeal is from an order sustaining a plea of privilege, transfer of the venue and trial on the merits shall be suspended pending the appeal.

(f) When the appeal is from an order granting or refusing a temporary injunction, or granting or overruling a motion to dissolve such an injunction, the court, on motion of any party or by order of the court, may advance the appeal and give it priority over other cases pending, and may shorten the time for filing briefs or allow the case to be submitted without briefs. Such appeal shall not have the effect of suspending the order appealed from unless it shall be so ordered by the court or judge entering the order.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: (a) has been rewritten and extended to quo warranto proceedings. The normal 30 day period provided in Rule 356 for perfecting appeal applies but appellant must file the brief in 50 days.

(b) changes running of time from “rendition of judgment” to “after the judgment is signed.”

(c) permits filing a motion for new trial but without any extension of time to perfect appeal.

(d) runs from time judgment is signed, changes time to appeal 30 days as in other appeals but requires briefs filed in 50 days. Failure to file may be excused if “reasonably explained.”

(e) is unchanged.

(f) is rewritten.

ADVISORY OPINIONS

(No. 98) Question: In regard to Rule 87 concerning the notice to be given after the filing of a controverting plea: (1) Did the rule appeal the former statute, Article 2008; (2) Does the rule require service of notice upon each defendant in the case; (3) Is notice required only as to the defendant filing the plea of privilege?

Answer: In our opinion the first question should be answered in the affirmative, that is that Article 2008 has been repealed except for the portion of the article providing that "Either party may appeal from the judgment sustaining or overruling the plea of privilege." Said quoted part of the statute was considered jurisdictional and it was not repealed when the new rules were enacted, and said unrepealed portion is set out for context only following Rule 384. The remaining portion of Article 2008 was repealed and supplanted by Rule 87, and also partly by Rule 385. See list of repealed statutes enumerated in the Supreme Court order and published at the close of the rules in the Bar Journal.

In response to the second and third questions, it is the opinion of the sub-committee under Rule 87 that formal notice by mailing by registered mail of a copy of the controverting plea together with the judge's notation thereon is only required to be given to the defendant or de­fendants filing the plea of privilege. This con­clusion is reached because the provisions of the former statute which required service "on each defendant" were changed by the rule so as to require the mailing of the notice to "the de­fendant ... at the post office address stated in such plea of privilege."

Although we feel that the formal notice re­quired in the rule need only be given to the de­fendant filing the plea of privilege, nevertheless it is obvious that the other defendants in the case can be affected by the disposition of the plea of privilege, and therefore we feel that they should be advised of the date upon which the hearing will be had so that they may be present if they so desire at the time of the hearing. This is not because of any express provision in the rule, but merely because every party to a suit should be advised of the time that the court is going to hear a motion or take up any other matter in the case that might affect his interests.

While the subject is not directly within the questions, we feel that we should call attention to the fact that by amendment effective De­cember 31, next, the method of service has been extended to include a mere delivery to the de­fendant or his attorney of the controverting plea with the notation thereon of date of hearing. In other words, service may be had by manual delivery of the controverting plea as well as by registered mail.

6 Tex. B.J. 276 (1943) reprinted in 8 Tex. B.J. 35 (1945).