Civil Appellate Process and Duties of an Appellate Paralegal in CPS Cases By: Assistant Harris County Attorney Robert J. Hazeltine-Shedd and Sally Almendarez, Paralegal Subtitle

I. The life of an appeal: it begins… TRAP* 25.1: Notice of appeal invokes appellate court’s jurisdiction. (* Texas Rules of Appellate Procedure) TRAP 26.1: Must be filed General Civil Cases: 30 days after judgment signed, extended to 90 if post-judgment motion (motion for new trial, to modify judgement or request for findings of fact, etc) Accelerated Appeals: 20 days, not extended by post judgment motion But see TRAP 26.3: extension possible if requested within 15 days of deadline for filing notice, and in compliance with TRAP 10.5(b) TRAP 28.4: Parental Termination Cases are accelerated Any effect on trial court’s judgment? Tex. Fam. Code 109.002(c): an appeal from a final order does not suspend the final order (unless court orders suspension), but no suspension in parental termination cases brought by the state. Note though: adoption effected during appeal is void. See Scheisser v. State, 544 S.W.2d 373, 377 (Tex. 1976).

I. The life of an appeal: what happens next? TRAP 34.1, 35.3: The record Consists of a clerk’s record and a reporter’s record. TRAP 34.5: Clerk’s Record contains pleadings, docket sheet, jury charge and verdict or findings of fact, post judgment motions, the notice of appeal Any party may request additional items, and may request that the record be supplemented TRAP 34.6: Reporter’s Record contains any transcript taken of the proceedings and exhibits admitted into evidence. Note: The Clerk’s Record is not evidence, the Reporter’s Record is. Time for filing? TRAP 35.1 General Civil Cases: 120 days after judgment signed Accelerated Appeals: 10 days after notice of appeal But see TRAP 35.3: deadlines may be extended if requested, but not more than 30 days in general civil matters, or 10 days in accelerated appeals

I. The life of an appeal: Now we argue. TRAP 38.6: Appellant’s Brief is due General civil cases: 30 days after the later of when either the clerk’s or reporter’s records is filed Accelerated appeals: 20 days after the above. TRAP 38.6: Appellee’s Brief is due General civil cases: 30 days after appellant’s brief is filed But see TRAP 38.6(d): deadlines may be extended on motion complying with 10.5(b), filed within 15 days of original deadline.

I. The life of an appeal: When will the court decide? TRAP 43.1: “The court of appeals should render its judgment promptly…” But see the Rules of Judicial Administration 6.2: In appeals in cases involving the parent-child relationship filed by the government, the appellate court should bring the appeal to final disposition within 180 days of the date the notice of appeal is filed. TRAP 43.2: Possible Judgments Affirm / modify judgment and affirm as modified Reverse and render the decision the lower court should have rendered Reverse and remand for rehearing on issues specified Vacate and dismiss the case, or dismiss the appeal See TRAP 28.4: if remand in parental termination case, new trial to be held within 180 days (see also Tex. Fam. Code 263.401(b-1) Also note: Abatement can occur (issues with representation, indigency, the record).

I. The life of an appeal: We’re done, right? TRAP 49.1: Motion for Rehearing possible, due 15 days after judgment No response necessary, but no grant without response TRAP 49.5: can file subsequent motions for rehearing if the court modifies, vacates and renders a new judgment, or issues a new opinion TRAP 49.7: En Banc Reconsideration possible, due 15 days after judgment – or – court’s denial of last motion for rehearing Can be filed with or without a motion for rehearing But see TRAP 49.8: 15-day window for extension of deadlines possible on motion complying with 10.5(b).

I. The life of an appeal: NOW we’re done, right? TRAP 53.1: Petition for Review to the Texas Supreme Court Petition due 45 days after judgment of court of appeals But see TRAP 53.7: 15-day window for extension possible with 10.5(b) motion TRAP 53.3: No response necessary, but no grant without response TRAP 53.7: Response due 30 days after petition filed (though, see above) But 15-day window extension possible with 10.5(b) motion. Reply, if any, is due 15 days after response (but court may decide case without it) TRAP 55.1: Brief on the Merits Must not be filed unless requested. TRAP 55.7: If court does not set briefing schedule, brief due 30 days after notice, response due 20 days later, reply due 15 days after that. But extensions possible if 10.5(b) motion filed within 15 days of deadline

I. The life of an appeal: Finally…a decision… TRAP 56.1: Orders on Petition for Review Once petition on file for 30 days, court may enter order Petition Denied, Dismissed “w.o.j.”, Refused TRAP 60.1: Petition granted? Possible judgments: Affirm / modify and affirm as modified Reverse in whole or in part and render the decision that should have been rendered Reverse and remand to lower court for further proceedings Vacate the judgment and dismiss the case Vacate and remand in light of new law Remand to the trial court if in the interest of justice

I. The life of an appeal: NOW are we done? TRAP 64.1: Motion for Rehearing May be filed within 15 days of the judgment No response necessary, unless requested Second motion will not be considered unless the court vacates, modifies, or renders a new judgment, or issues a new opinion But extension of deadlines possible if 10.5(b) motion filed within 15 days of deadline. Note: Rules of Judicial Administration 6.2: In appeals in cases involving the parent-child relationship filed by the government, the supreme court should bring the appeal to final disposition within 180 days of the date the petition for review is filed

I. The life of an appeal: Okay. We’re done. TRAP 51.1 (Court of Appeals) and 65.1-.2 (Texas Supreme Court) Enforcement of Judgments after Mandate Higher court’s judgment to be enforced when the trial court receives the mandate. No further action necessary by the trial court if the court of appeals: Affirms the trial court’s judgment, or modifies and affirms as modified; or Renders judgment the trial court should have rendered Or if the Texas Supreme Court renders judgment

II. Appellate Paralegal’s Duties – CPS Appeals B. SUBSTANTIVE DUTIES A. CLERICAL DUTIES 1. Connect Appeal To Attorney’s Case Mail Tracking Account 2. Calendar Events and Deadlines 3. Download Record on Appeal From COA Attorney Portal 4. Redact Confidential Information 5. E-filing 1. Know the Law: Tex. R. App. P. , Local Rules, and Tex. Fam. Code 2. Review Appellant’s Brief for Issues/ Challenges 3. Review Record on Appeal & Prepare Request to Supplement the Clerk’s Record 4. Set Up Response Brief: Contents of ROA, Alias Names, Prepare Statement of the Case & Facts 5. Assist With Legal Argument and Legal Research

1. CONNECT APPEAL TO ATTORNEY’S CASE MAIL TRACKING ACCOUNT https://casemail.txcourts.gov ►CASE MAIL ACCOUNTS FOUND ON TEXAS JUDICIAL BRANCH WEBSITE ►CREATE ACCOUNT FOR ATTORNEY ►ADD APPEAL TO RECEIVE UPDATES ►CAN ALSO CREATE ACCOUNT FOR PARALEGAL TO RECEIVE UPDATES

***Texas Judicial Branch website- Supreme Court of Texas Administrative Order (No. 11-9152 went into effect 09-12-2011)

2. CALENDAR EVENTS AND DEADLINES ● Clerk’s record & Reporter’s record ● Appellant’s brief deadline and MET ● Appellee’s brief e-filing deadline ● Set for Submission on 1) record and briefs or 2) Oral argument ● Opinion, Motion for Rehearing due, Petition for Review due, Mandate

3. DOWNLOAD RECORD ON APPEAL FROM COA’s ATTORNEY PORTAL

Accessing ROA Through Attorney Portal

5. REDACT CONFIDENTIAL INFORMATION – Tex. R. App. P. 9.8

5.1 REDACT CONFIDENTIAL INFORMATION – Tex. R. App. P. 9.9

6. E-FILING

Bookmarking and Redacting

Tex. R. App. P. 9.4(h) Form: Appendix and Original Proceeding Record … An electronically filed record in an original proceeding or an electronically filed appendix that includes more than one item must contain bookmarks to assist in locating each item.

Hyperlink –Supreme Court of Texas (not required)

B. SUBSTANTIVE DUTIES 1. Know the Law: ►Tex. R. App. P. ►Local Rules ►Tex. Fam. Code Ann. §§ 262, 263, 161, and Holley v. Adams, 544 S.W.2d 367 (Tex. 1976)

1. Know the Law continued – Tex. R. App. P 1. Know the Law continued – Tex. R. App. P. (Divided into five sections)

1. Know the Law continued – Local Rules

1. Know the Law continued – (Notice of appeal untimely filed -14th COA mem.op.)

1. Know the Law continued – Texas Family Code Chapter 262 1. Know the Law continued – Texas Family Code Chapter 262. Procedures in Suit by Governmental Entity to Protect Health and Safety of Child

1. Know the Law continued – Tex. Fam. Code § 262 1. Know the Law continued – Tex. Fam. Code § 262.101 Filing Petition Before Taking Possession of Child Tex. Fam. Code § 262.105 Filing Petition After Taking Possession of Child

1. Know the Law continued – Tex. Fam. Code § 262 1. Know the Law continued – Tex. Fam. Code § 262.201 (Full Adversary Hearing -14 days after taking possession of child) § 263.201 Status Hearing -within 60 days of naming TDFPS temporary managing conservator § 263.202 Status Hearing –focus on status of child and family service plan)

1. Know the Law continued – Tex. Fam. Code § 161 1. Know the Law continued – Tex. Fam. Code § 161.001(b)(1)(A)-(U) predicate grounds and § 161.001(b)(2) best interest

1. Know the Law continued – Tex. Fam. Code § 161 1. Know the Law continued – Tex. Fam. Code § 161.001(b)(1) predicate grounds and § 161.001(b)(2) best interest

1. Know the Law continued – Tex. Fam. Code § 263. 307 and Holley v 1. Know the Law continued – Tex. Fam. Code § 263.307 and Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) “Holley Factors”

2. READ APPELLANT’S BRIEF FOR ISSUES/ CHALLENGES

3. REVIEW RECORD ON APPEAL & PREPARE REQUEST TO SUPPLEMENT THE CLERK’S RECORD

4. SET UP RESPONSE BRIEF: STYLE, CONTENTS OF ROA, ALIAS NAMES, PREPARE STATEMENT OF THE CASE & STATEMENT OF FACTS

STATEMENT OF FACTS Tell the story using Clerk’s Record and Reporter’s Record

5.ASSIST WITH LEGAL ARGUMENT AND LEGAL RESEARCH Have to meet all elements

5.ASSIST WITH LEGAL ARGUMENT AND LEGAL RESEARCH - continued

5.ASSIST WITH LEGAL ARGUMENT AND LEGAL RESEARCH - continued Boolean search: DI(Infants 161.001(N) /p abandon! /p (reason! /p effort!)) v. natural language

5.ASSIST WITH LEGAL ARGUMENT AND LEGAL RESEARCH - continued

5.ASSIST WITH LEGAL ARGUMENT AND LEGAL RESEARCH - continued Holding in the Opinion of this appeal: The Court of Appeals, held that Department of Family and Protective Services failed to establish by clear and convincing evidence that father constructively abandoned his son. Application: Father concedes Rico was in the Department’s managing conservatorship for not less than six months. We find the evidence legally insufficient to support a finding under part (iii) of subsection N: that Father has demonstrated an inability to provide the child with a safe environment. Accordingly, we do not consider whether the Department satisfied requirements (i) or (ii).

5.ASSIST WITH LEGAL ARGUMENT AND LEGAL RESEARCH - continued (WL Topics)

5.ASSIST WITH LEGAL ARGUMENT AND LEGAL RESEARCH - continued (My timeline and notes)

HCAO Protective Services Group – Appeals 68 Response briefs e-filed 1 Petition for Review e-filed 3 Motions for Rehearing e-filed 2 Motions for En Banc Reconsideration e-filed 3 Responses to Petition for Mandamus e-filed 61 Opinions affirming trial court judgment 1 Oral Argument 2017 Report

“You have to learn the rules of the game “You have to learn the rules of the game. And then, you have to play better than anyone else. .” ALBERT EINSTEIN

CONTINUE LEGAL EDUCATION WHEN IN DOUBT, ASK YOUR ATTORNEY QUESTIONS

CONTACT INFORMATION Attorney Robert J. Hazeltine-Shedd, Harris County Attorney’s Office Protective Services Practice Group-Appeals 1019 Congress, 17th Floor Houston, Texas 77002 robert.hazeltine-shedd@cao.hctx.net 713.274.5292 Sally Almendarez, Paralegal Harris County Attorney’s Office Protective Services Practice Group-Appeals 1019 Congress, 17th Floor Houston, Texas 77002 sally.almendarez@cao.hctx.net 713.274.5154