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Rule 483. Orders on Application for Writ of Error, Petition for Mandamus and Prohibition (1981)

TEXT

In all cases where the judgment of the Court of Civil Appeals is a correct one and where the principles of law declared in the opinion of the court are correctly determined, the Supreme Court will refuse the application with the docket notation "Refused." In all cases where the Supreme Court is not satisfied that the opinion of the Court of Civil Appeals in all respects has correctly declared the law, but is of the opinion that the application presents no error which requires reversal, the Court will deny the application with the notation "Refused. No Reversible Error." In all cases where the Supreme Court is without jurisdiction of the case as presented in the application, it will dismiss the application with the docket notation "Dismissed for Want of Jurisdiction."

In cases of conflict named in subdivision 2 of Art. 1728 of the Revised Civil Statutes of Texas, as amended, the Supreme Court shall grant the application for writ of error, unless it be in agreement with the decision of the Court of Civil Appeals in the case wherein the application is filed, in which event said Supreme Court shall so state in its order, with such explanatory remarks as may be deemed appropriate. In cases where the decision of the Court of Civil Appeals is in conflict with a previous opinion of the Supreme Court, is contrary to the Constitution, the statutes or these rules, the Supreme Court may, upon granting writ of error and without hearing argument in the case, reverse, reform or modify the judgment of the Court of Civil Appeals, making, at the same time, such further orders as may be appropriate.

When, subsequent to the filing of an application for writ of error, it is made to appear that a cause or an appealable portion thereof is moot, the Supreme Court may, in its discretion and after notice to the parties, upon granting writ of error and without hearing argument with reference thereto, dismiss such cause or the appealable portion thereof without reference to the merits of the appeal.

In cases over which the Supreme Court has mandamus or prohibition jurisdiction and in which the action or order of the respondent is in conflict with a previous opinion of the Supreme Court, is contrary to the Constitution, the statutes or these rules, the Supreme Court may grant leave to file the petition and may, after respondent and any real party in interest has had an opportunity to file a reply as provided by Rule 474, sections, without hearing argument, grant the writ and make such orders in writing as may be appropriate.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: The fourth paragraph, providing for disposition of certain original proceedings when a conflict exists, is new.

ADVISORY OPINIONS

(No. 86c) Question: In Consolidated Underwriters v. Ruff, 164 S.W.2d 550 (Tex. Civ. App.-Beaumont 1942), the Court of Civil Appeals held that the action of the trial court in orally calling attention to a conflict in the jury's findings instead of reducing that instruction to writing, in accordance with Rule 295, committed reversible error upon the ground, as expressed in its opinion, that "In giving additional charges to the jury this rule must be complied with, since it has the force and effect of a statute.... Where the statute regulating the giving of the charges to the jury is violated, error must be presumed." The Supreme Court refused application for writ of error in the case for want of merit, thus declining, under Rule 483, to approve the opinion. Does the violation of such a requirement as is found in Rule 295 present a case of presumed harm?

Answer: In our opinion the answer should be in the negative. As to presumed harm, see the above questions and answers and No. 35 in 5 Tex. B.J. 170. As to the pertinent distinction between rules and statutes see No.6, 5 Tex. B.J. 168 and Texas Employers' Ins. Ass'n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942). Although the Subcommittee, considers that the result should be the same if a statute had been involved, that question is not presented here because in this instance the requirement of writing is found entirely in a rule of court.

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).