|
In Texas the law provides for four separate types of appeals. The distinction among them focuses on not only when the appeal is taken, but what relief is available in the appeal. Appeal of an Associate Judge's Recommendation: The first appeal may be taken from an associate judge's "recommendation" after normally conducting a temporary orders hearing. Some larger counties in Texas have associate judges to help the district judge (or in some instances the county court at law judge) handle the docket. Counties such as Bexar, Dallas, Harris, Tarrant and Travis have sitting associate judges assigned to each court. The associate judge normally handles preliminary -- but extremely important -- matters pending in the court. This normally includes the conducting of hearings for the entry of temporary orders pending the final hearing on the case. This appeal of the recommendation is taken to the district judge (or in some instance the county court at law judge). An appeal must be filed within three (3) days of recommendation, and set within thirty (30) days of the notice; however, this latter requirement is in serious question. This appeal is considered a de novo appeal. The district court (or in some instance the county court at law) will consider the matter as if the associate judge did not conduct a hearing. These are normally not successful and the court only allows a limited amount of time for such since the court presumes the associate judge did the correct thing on a practical level. This appeal is best used if you have new evidence, witnesses who could not attend the first hearing, or a novel issue of law beyond the practical authority of the associate judge. Writ of Mandamus: The second appeal may be taken during the pendency of a case. It is technically not an appeal, but an original action filed in the appellate court seeking an order from the appellate court directing or "mandating" the trial court to do some act it must do as a matter of law. Such is normally limited to discovery disputes or extraordinary events in a case. The person seeking relief must show the trial court is clearly wrong or abusing its discretion in a manner which is simply and clearly wrong based on a misinterpretation or application of law. This appeal is extremely rare. Direct Appeal: This is what most people think of when the term "appeal" is used. It is challenging the family court's judgment in an appellate court. This is a very technical area of the law which is controlled by a separate and distinct series of procedural rules. Generally an appeal is filed by filing a notice of appeal within thirty (30) days of the judgment's signing by the court. This time may be extended by filing various post-trial and post-judgment motions. The party seeking the appeal normally must file the complete record of what transpired in the trial court. This includes a transcription of the court reporter's notes of hearings and the trial, as well the exhibits offered whether admitted or not, and a complete copy of the trial court's file. If a jury has not been used in the trial court (and juries are more rare in family law actions), it is necessary to request specific factual findings and legal conclusions so the appellate court can determine what it is the trial court actually decided. The appeal may challenge evidentiary rulings (admitting and excluding evidence), application and interpretation of the law to the facts, as well as the weight and credibility of the facts actually presented to name but three. In any event, the appeal must show not only the trial court made a mistake, but that such mistake affected the ultimate outcome of the case. The appeal may seek the appellate court to actually render the judgment the trial court should have entered, modification of a portion of the judgment, or even the granting of a new trial on part or all of the case. During the pendency of the appeal, if a money judgment has been issued, the person seeking the appeal normally must post a bond in the amount of the judgment to stop execution on the judgment. Normally, the appeal does not stop the enforcement of other terms of the judgment regarding conservatorship and support, or other matters, but the trial court or the appellate court may stay portions of the judgment pending the appeal if good cause is shown. Collateral Attack on a Judgment: After a judgment has become final, and it was not challenged by an appeal, and the time for bringing a direct appeal has expired, a person may challenge the judgment in very rare circumstances. Such a challenge is normally in the form of a "Bill of Review" filed in a trial court which challenges the legality of the judgment entered for very technical and extremely are circumstances. Another form of a "collateral" attack on a judgment may revolve around a problem in the original service or notice provided to a party of the actual original litigation. This style of challenge normally involves some form of a plea to the jurisdiction of the court seeking to enforce the judgment. -- The Law Offices of Steven E. Rogers |