Texas Bar Journal • December 2024

Appellate Law

Written by Warren W. Harris and Jacob M. Mcintosh

Supreme Court of Texas
This was a noteworthy year in Texas appellate law. It was the last year of Chief Justice Nathan L. Hecht’s tenure on the Supreme Court of Texas. His nearly 36 years on the court make him Texas’ longest-serving justice ever and, as Judge Don Willett suggested in one tribute, perhaps “the most consequential jurist in the history of Texas.”¹

The 15th Court of Appeals in Austin began operating on September 1, with a bench of three experienced appellate jurists: Chief Justice Scott Brister, Justice Scott Field, and Justice April Farris.² It has exclusive appellate jurisdiction over certain civil matters involving the state of Texas and its agencies, as well as appeals from the newly created Texas business trial courts.³ The Supreme Court of Texas blessed the new court as constitutional in In re Dallas County, rejecting a challenge to its statewide jurisdiction and the method of its justices’ appointments.⁴

The Supreme Court of Texas also addressed several other appellate issues. In Horton v. Kansas City Southern Railway Co., the court clarified the analysis of jury charge error.⁵

In a wrongful-death case, two theories of negligence were submitted to the jury using a single broad-form negligence question, and the jury found negligence.⁶ Although one of the theories was supported by no evidence, the court held that the use of a broad-form question was not harmful error.⁷ Noting some conflicting precedent, the court made clear that there is no presumed harm from commingling valid and invalid theories when a theory is invalid “merely because it lacks legally sufficient evidentiary support.”⁸ Rather, “the appellate court must consider the entire record of the case as a whole” to “determine whether an error was harmful.”⁹

In Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room Managers of America, L.L.C., the court addressed the finality and appealability of judgments.¹⁰ First, it held that severing claims disposed of by partial summary judgment renders the judgment in the severed case final and appealable, even when claims “remain pending in the original action” or when there was “procedural error in ordering severance.”¹¹ Second, it held that, when a party seeking attorneys’ fees under a prevailing-party statute loses a claim on summary judgment, a court “need not expressly dispose of that fee request to achieve finality,” since summary judgment “necessarily dooms” the request for prevailing-party fees.¹²

Additionally, in In re State, the court clarified the standard for motions for temporary relief under Texas Rule of Appellate Procedure 52.10.¹³ While past cases focused on “preservation of the status quo,” identifying the status quo is not always straightforward.¹⁴ The court instead instructed that the better focus is the “preservation of the parties’ rights while the appeal proceeds” and highlighted “two required considerations in every case”: “a preliminary inquiry into the likely merits of the parties’ legal positions,” and “the injury that will befall either party depending on the court’s decision.”¹⁵ Applying that framework, the court granted the state of Texas’ motion to stay payments from Harris County’s guaranteed-income program while the state’s temporary-injunction appeal remained pending in the court of appeals.¹⁶

U.S. Supreme Court
2024 featured many headline-grabbing decisions from the U.S. Supreme Court. On the appellate procedure front, Harrow v. Department of Defense addressed which time limits are jurisdictional.¹⁷ The court held that the deadline to petition a federal appellate court for review of a decision of the U.S. Merit Systems Protection Board was not jurisdictional.¹⁸ A procedural requirement is treated as jurisdictional “only if Congress ‘clearly states’ that it is,” and there was no clear statement that the deadline at issue was jurisdictional.¹⁹ Though a past case held that the statutory deadline to appeal civil decisions from a federal district court is jurisdictional, the court limited its reasoning to appeals “from one Article III court to another.”²⁰ The appeal here, by contrast, was “not from another court but from an agency.”²¹

WARREN W. HARRIS is a partner in Bracewell in Houston, where he heads the firm’s appellate practice group. He is the immediate past president of the American Academy of Appellate Lawyers.

JACOB M. MCINTOSH is an appellate associate in Bracewell’s Houston office. Previously, he clerked for Justice Rebeca A. Huddle of the Supreme Court of Texas.