Texas Children's Commission

Rule 52: Original Proceedings

52.1. Commencement

An original appellate proceeding seeking extraordinary relief — such as a writ of habeas corpus, mandamus, prohibition, injunction, or quo warranto — is commenced by filing a petition with the clerk of the appropriate appellate court. The petition must be captioned ―In re [name of relator].‖

52.2. Designation of Parties

The party seeking the relief is the relator. In original proceedings other than habeas corpus, the person against whom relief is sought — whether a judge, court, tribunal, officer, or other person — is the respondent. A person whose interest would be directly affected by the relief sought is a real party in interest and a party to the case.

52.3. Form and Contents of Petition

The petition must, under appropriate headings and in the order here indicated, contain the following:

(a) Identity of Parties and Counsel. The petition must give a complete list of all parties, and the names, and addresses of all counsel.

(b) Table of Contents. The petition must include a table of contents with references to the pages of the petition. The table of contents must indicate the subject matter of each issue or point, or group of issues or points.

(c) Index of Authorities. The petition must include an index of authorities arranged alphabetically and indicating the pages of the petition where the authorities are cited.

(d) Statement of the Case. The petition must contain a statement of the case that should seldom exceed one page and should not discuss the facts. The statement must contain the following:

(1) a concise description of the nature of any underlying proceeding (e.g., a suit for damages, a contempt proceeding for failure to pay child support, or the certification of a candidate for inclusion on an election ballot);

(2) if the respondent is a judge, the name of the judge, the designation of the court in which the judge was sitting, and the county in which the court is located; and if the respondent is an official other than a judge, the designation and location of the office held by the respondent;

(3) a concise description of the respondent’s action from which the relator seeks relief;

(4) if the relator seeks a writ of habeas corpus, a statement describing how and where the relator is being deprived of liberty;

(5) if the petition is filed in the Supreme Court after a petition requesting the same relief was filed in the court of appeals:

(A) the date the petition was filed in the court of appeals;

(B) the district of the court of appeals and the names of the justices who participated in the decision;

(D) the citation of the court’s opinion;

(E) the disposition of the case by the court of appeals, and the date of the court of appeals’ order.

(e) Statement of Jurisdiction. The petition must state, without argument, the basis of the court's jurisdiction. If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.

(f) Issues Presented. The petition must state concisely all issues or points presented for relief. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.

(g) Statement of Facts. The petition must state concisely and without argument the facts pertinent to the issues or points presented. Every statement of fact in the petition must be supported by citation to competent evidence included in the appendix or record.

(h) Argument. The petition must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record.

(i) Prayer. The petition must contain a short conclusion that clearly states the nature of the relief sought.

(j) Certification. The person filing the petition must certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.

(k) Appendix.

(1) Necessary Contents. The appendix must contain:

(A) a certified or sworn copy of any order complained of, or any other document showing the matter complained of;

(B) any order or opinion of the court of appeals, if the petition is filed in the Supreme Court;

(C) unless voluminous or impracticable, the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argument is based; and

(D) if a writ of habeas corpus is sought, proof that the relator is being restrained.

(2) Optional Contents. The appendix may contain any other item pertinent to the issues or points presented for review, including copies or excerpts of relevant court opinions, statutes, constitutional provisions, documents on which the suit was based, pleadings, and similar material. Items should not be included in the appendix to attempt to avoid the page limits for the petition. The appendix should not contain any evidence or other item that is not necessary for a decision.

52.4. Response

Any party may file a response to the petition, but it is not mandatory. The court must not grant relief — other than temporary relief — before a response has been filed or requested by the court. The response must conform to the requirements of 52.3, except that:

(a) the list of parties and counsel is not required unless necessary to supplement or correct the list contained in the petition;

(b) the response need not include a statement of the case, a statement of the issues presented, or a statement of the facts unless the responding party is dissatisfied with that portion of the petition;

(c) a statement of jurisdiction should be omitted unless the petition fails to assert valid grounds for jurisdiction, in which case the reasons why the court lacks jurisdiction must be concisely stated;

(d) the argument must be confined to the issues or points presented in the petition; and

(e) the appendix to the response need not contain any item already contained in an appendix filed by the relator.

52.5. Relator’s Reply to Response

The relator may file a reply addressing any matter in the response. However, the court may consider and decide the case before a reply brief is filed.

52.6. Deleted

52.7. Record

(a) Filing by Relator Required. Relator must file with the petition:

(1) a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding; and

(2) a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained.

(b) Supplementation Permitted. After the record is filed, relator or any other party to the proceeding may file additional materials for inclusion in the record.

(c) Service of Record on All Parties. Relator and any party who files materials for inclusion in the record must – at the same time – serve on each party:

(1) those materials not previously served on that party as part of the record in another original appellate proceeding in the same or another court; and

(2) an index listing the materials filed and describing them in sufficient detail to identify them.

52.8. Action on Petition

(a) Relief Denied. If the court determines from the petition and any response and reply that the relator is not entitled to the relief sought, the court must deny the petition. If the relator in a habeas corpus proceeding has been released on bond, the court must remand the relator to custody and issue an order of commitment. If the relator is not returned to custody, the court may declare the bond to be forfeited and render judgment against the surety.

(b) Interim Action. If the court is of the tentative opinion that relator is entitled to the relief sought or that a serious question concerning the relief requires further consideration:

(1) the court must request a response if one has not been filed;

(2) the Supreme Court may request full briefing under Rule 55;

(3) in a habeas corpus proceeding, the court may order that relator be discharged on execution and filing of a bond in an amount set by the court; and

(4) the court may set the case for oral argument.

(c) Relief Granted. If the court determines that relator is entitled to relief, it must make an appropriate order. The court may grant relief without hearing oral argument.

(d) Opinion. When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case. Rule 47 is applicable to an order or opinion by a court of appeals except that the court of appeals may not order an unpublished opinion published after the Supreme Court or Court of Criminal Appeals has acted on any party’s petition for extraordinary relief addressing the same issues.

52.9. Motion for Rehearing

Any party may file a motion for rehearing within 15 days after the final order is rendered. The motion must clearly state the points relied on for the rehearing. No response to a motion for rehearing need be filed unless the court so requests. The court will not grant a motion for rehearing unless a response has been filed or requested.

52.10. Temporary Relief

(a) Motion for Temporary Relief; Certificate of Compliance. The relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court’s action on the petition. The relator must notify or make a diligent effort to notify all parties by expedited means (such as by telephone or fax) that a motion for temporary relief has been or will be filed and must certify to the court that the relator has complied with this paragraph before temporary relief will be granted.

(b) Grant of Temporary Relief. The court — on motion of any party or on its own initiative — may without notice grant any just relief pending the court’s action on the petition. As a condition of granting temporary relief, the court may require a bond to protect the parties who will be affected by the relief. Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.

52.11. Groundless Petition or Misleading Statement or Record

On motion of any party or on its own initiative, the court may — after notice and a reasonable opportunity to respond — impose just sanctions on a party or attorney who is not acting in good faith as indicated by any of the following:

(a) filing a petition that is clearly groundless;

(b) bringing the petition solely for delay of an underlying proceeding;

(d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents.

Comments

Comment to 1997 change: Former Rules 120, 121, and 122 are merged into this rule. The requirement of a motion for leave in original proceedings is repealed. The form of the petition and response, contents of the appendix and record, page limits, and relief that may be granted are specifically stated. Specific provision is now made for a motion for rehearing. A provision for sanctions is added.

Comment to 2002 change: Subdivision 52.7(c) is added to specify how record materials in original proceedings are to be served. Ordinarily, a party must serve record materials and an index of those materials on all other parties. But when materials have already been served in related original proceedings, they need not be served again. Examples are when original proceedings raising the same issues are brought in both the court of appeals and the Supreme Court, or when separate original proceedings are filed arising out of the same underlying lawsuit. The purpose of this procedure is to ensure that all parties have record materials readily available without requiring unnecessary duplication.

Comment to 2008 change: The reference to ―unpublished‖ opinions in Subdivision 52.3(d)(5)(D) is deleted. The filer should provide the best cite available for the court of appeals’ opinion, which may be a LEXIS, Westlaw, or other citation to an electronic medium. Subdivision 52.3 is further amended to delete the requirement that all factual statements be verified by affidavit. Instead, the filer — in the usual case of a party with legal representation, the lead counsel — must include a statement certifying that all factual statements are supported by competent evidence in the appendix or record to which the petition has cited. The certification required by subdivision 52.3(j) does not count against the page limitations.

Texas Rules of Appellate Procedure > Section Three > Rule 52

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