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Rule 414. Briefs: Time for Filing (Mar1941)

TEXT

The appellant, within thirty days from the date of notice of submission of a cause in the Court of Civil Appeals, and the appellee, not less than five days before such submission date, shall file with the clerk of the Court of Civil Appeals four copies of their briefs. One of the briefs of each party shall be signed by at least one of his attorneys, and each party shall forward one copy of his brief to the counsel for the opposing party. The brief of each party shall give the post office addresses of the respective attorneys whose names are subscribed to it. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs, and may extend the time for submission of the case.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: The third, fourth, and fifth words of the original rule, which read "not less than," have been stricken out and the word "within" substituted therefor.

ADVISORY OPINIONS

(No. 109) Question: Under amended Rule 414, effective December 31, 1943, if a cause is pending on appeal when the rule takes effect must appellant's brief be filed in thirty days after the record is filed OR is there an enlargement of time for filing such brief?

Answer: We are of the opinion that there is an enlargement of time. As now worded, Rule 414 requires the brief to be filed within thirty days after notice of the date of submission in the Court of Civil Appeals. The amendment, on the other hand, requires it to be filed within thirty days after the date upon which the record is filed in the Court of Civil Appeals. Copies are to be filed in either instance. It should be added that the purpose of the amendment is to prevent delay and any retarding of the supply of business upon which the Courts of Civil Appeals may work. A number of situations could present themselves in an appealed case at the end of the year of 1943 when the amendment becomes effective. If as of that time notice of date of submission has not been given under the old rule and the record has not been filed there is, of course, no difficulty: the time for the brief runs from the date upon which the record shall be filed. If such notice has been given and the record had been filed, under the formula given in Odum v. Garner, 86 Tex. 374, 25 S.W. 18 (1894), whatever proportion of the old period has elapsed at the effective date of amendment is to be deducted from the new period and the rest of the new period is still open. Thus, for example, if two-thirds of the old period has elapsed, one-third of the new period, or, in this case, ten days is still open. If such notice of date of submission has not been given but the record has been filed, by the same principle (since under the old law the full thirty days are still open) full thirty days from the effective date of the amendment are available. If the record has not as yet been filed, under the express words of the amendment full thirty days will lie after the record shall be filed.

In his letter correspondent suggests that aside from any consideration of time as a matter of right, the appellate court may grant time in the exercise of discretion. In this connection we call attention to Rule 437 as amended in 1941, and express the opinion that in determining a "reasonable time" thereunder important factors would be the consideration of actual prejudice to opponent and of the convenience and business load of the court. San Antonio & Aransas Pass Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751 (1900), and Rule 414 as amended.

7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 40 (1945).