Legal Tips and Resources
After a trial to a judge or jury, many family law litigants ask their family lawyer in Austin, TX about an appeal either because they are concerned that their ex will appeal or because they want to appeal themselves. Most lawyers, including myself, give advice on the likelihood of prevailing in an appeal, provide an estimate of the high cost of prosecuting an appeal, and explain to our clients that with issues regarding children, you are generally running up against the heightened error analyzation standard of “abuse of discretion” in the appellate courts. Ultimately though, it is the client who makes the decision whether to pursue an appeal. This article covers most of the deadlines that lawyers and clients alike need to think about post-judgment.
When looking at the appellate deadlines, there are many rules and codes that must be read together to get the entire picture. The Texas Rules of Appellate Procedure (TRAP) perfecting appeals rules, TRAP Motion practice rules, the Texas Rules of Civil Procedure (TRCP) for Findings of Fact and Conclusions of Law (FoF and CoL) rules, the TRCP for Motion for New Trial (MNT) rules, and the Texas Family Code for Child Support findings.
(1) Notice of Appeal – Generally, an appeal is perfected by filing a Notice of Appeal in the trial court within 30 days of the final judgment being signed.
That deadline can be extended in several ways. A Notice of Appeal can be filed up to 45 days if you file the Notice of Appeal with the trial court clerk and the appellate court clerk at the same time along with a Motion to Extend Time in the appellate court., A trial court’s plenary power over a case ends 30 days after it signs a final order unless a higher court says it can be extended. Therefore, a filing of a Notice of Appeal in both courts and a Motion to Extend Time in the appellate court will keep the case within the plenary jurisdiction of the trial court. I have successfully exercised this option when a client came in to see me on day 44 post signing of the final judgment.
I say “generally” above, because the 30-day deadline can also be extended by a deadline extending motion. If a party files a deadline extending motion they have 90 days to file a Notice of Appeal from the date the final judgment is signed.
EXCEPTION – Let’s say that Party A files his MNT on day 30 after the judgment has been signed and then it is overruled by operation law after 75 days. In that instance, Party A has only 15 days to file a Notice of Appeal, because it is a hard rule that if you file an appellate deadline extending motion, you have to perfect appeal within 90 days.
(2) Findings of Fact and Conclusions of Law – Findings of Fact and Conclusions of Law must be filed 20 days after the judgment is signed. If filed before the final judgment is signed, then the clock doesn’t start running until the final judgment is signed. You can make a general request for Findings of Fact and Conclusions of Law or you can make a specific request regarding the types of findings you want from the court. Once you file a request for Findings of Fact and Conclusions of Law, the Court has 20 days to issue them. If the court doesn’t issue the Findings of Fact and Conclusions of Law within the deadline, then you must send a reminder letter to the court.
From a practical standpoint, how it works in practice is Party A files a request for Findings of Fact and Conclusions of Law, the Judge sends a letter out to the lawyers telling the lawyers for Party B to write a draft and circulate a draft of the Findings of Fact and Conclusions of Law to the Court and the lawyer for Party A. The lawyer for Party A can propose her own alternate Findings of Fact and Conclusions of Law and then the Judge picks between the two. The Judge can call for a hearing on the entry of the Findings of Fact and Conclusions of Law, but that is rare. Generally, Judges choose which findings and conclusions they want. Once the Court files the Findings of Fact and Conclusions of Law, you have 10 days from the date they are filed to make the request for additional or amended Findings of Fact and Conclusions of Law.
(3) Motion for New Trial – A Motion for New Trial must be filed 30 days from the date the judgment is filed. Once the Motion for New Trial is filed, if the court hasn’t ruled and signed an order regarding the Motion for New Trial at the end of the 75th day after signing the original judgment, the Motion for New Trial is overruled by operation of law. There are three main reasons for filing a Motion for New Trial: (a) there is a genuine issue for a Motion for New Trial (i.e., new evidence, grave abuse of discretion, etc.); (b) an attempt to expand the record for appellate purposes; and (c) to extend appellate deadlines. “C” is the most common motivation to file a Motion for New Trial, especially in non-jury trials. Practice tip – when a party files a Motion for New Trial and wants to have a genuine hearing, the Motion for New Trial must be sworn if that party wants to put on evidence, otherwise, it is an argument only hearing.
(4) Child Support Findings – A party can file a request for child support findings no later than 20 days after the date that the court rendered the order. At the conclusion of the trial the Judge most likely rendered his order even though it is still being drafted by the lawyers and there is no judgment signed. Child Support findings are very specific and are found in Tex Fam Code 154.130. Child Support findings must be in the order if the Judge deviated from the Texas Family Code Child Support Guidelines in the ruling.
(5) A practical consideration – If there were no appellate attorney fees awarded in the trial, consider filing a Motion for Temporary Orders Pending Appeal to get appellate attorney fees ordered. I’ve found that judges are more likely to grant appellate fees after a Notice of Appeal is filed than they are during trial. Plus, if there are appellate fees, it makes the other side seriously consider whether to continue with their appeal.
All appellate fees are conditional upon being victorious. Therefore, an order of appellate fees does not have to be superseded in an appeal, it just takes effect after an appellate mandate is issued.
There are some pretty strict timetables in a Motion for Temporary Orders Pending Appeal, so if the opposing party files a Notice of Appeal, have your lawyer check those rules quickly.
(6) Supersedeas – To prevent judgment collection practices while a case is on appeal the appealing party must supersede the money portions of the final order if they want to prevent writs of garnishment, etc. They can do this by placing the money that is due to the other party into the registry of the Court or by getting a supersedeas bond. I use the John Barclay Agency for all bonding https://barclay-insurance.com/.
(7) Waiver – Try to avoid waiving the appeal by accepting benefits of the judgment. If you accept benefits of a judgment you open up the argument that the right of appeal has been waived. A litigant can accept the benefits or tender the benefits subject to their right to appeal.
These are just some of the post-trial considerations to consider when weighing an appeal.
 Perfecting appeal is that easy. Just file a one page notice of appeal in the trial court within the trial court’s plenary power.  Texas Rules of Appellate Procedure 26.1.  TRAP 26.3.  For Motion to Extend in Appellate Courts see TRAP 10.5(b). Here, a few rules must be read together.  Plenary power – is the complete power of a court to do anything in a case which is before the court.  There is an additional Motion to Extend Postjudgment Deadlines that can also be filed, but that discussion exceeds the scope of this article. See, TRCP 306a and TRAP 4.2.  Motion for New Trial, Request for Findings of Fact and Conclusions of Law, Motion to Modify Judgment, Motion to Reinstate after Dismissal for Want of Prosecution. If a deadline extending motion or request is filed before the final judgment is signed, it is deemed filed on the date the final judgment is signed for the purposes of calculating deadlines.  This deadline used to be 10 days but was changed to 20 days in the 2017 legislative session.  Note this is rendered not signed (i.e. when the judge pronounces her ruling from the bench).
Thanks to Gray & Becker, P.C. for their insight into family law and appeals.