by Nicholas Bruno
Typically, there is little reason for parties to transfer an appeal between the courts of appeals. It is often clear that one—and only one—appellate court is the appropriate court for the appeal.
Houston appellate lawyers are aware of one exception in which the appropriate appellate court is not clear from the outset. The First and Fourteenth Courts of Appeals share jurisdiction over appeals from the courts of ten counties. See Tex. Gov’t Code §§ 22.201(b), (o). Appeals are automatically assigned to one of the two appellate courts by a statutory procedure. Tex. Gov’t Code §§ 22.202(h), 22.215(e). In some circumstances, however, a party may believe that an appeal belongs in the other Houston appellate court.
This feature of overlapping jurisdiction of appellate courts appears to be unique to Texas. The Supreme Court has “been unable to find any other state in the union which has created geographically overlapping appellate districts.” Miles v. Ford Motor Co., 914 S.W.2d 135, 139 (Tex. 1995). While the Supreme Court has previously stated “its view that overlaps in appellate districts are disfavored,” id. at 140, overlaps in the jurisdiction of the intermediate appellate courts continue to exist. In this reality, practitioners may face issues regarding how to transfer cases between the courts of appeals.
This article aims to provide some of the relevant rules and statutes governing transfers, especially the special rules governing transfers between the Houston appellate courts.
I. The Texas Supreme Court may transfer cases between the courts of appeals.
The Government Code gives the Texas Supreme Court the statutory right to transfer cases between the courts of appeals for “good cause”:
The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.
Tex. Gov’t Code § 73.001.
Discussing this statute, the Supreme Court has noted that “[o]nly the Supreme Court is authorized to transfer appellate cases.” Miles, 914 S.W.2d at 137.
A. When does good cause exist?
There is not much Supreme Court guidance, however, on what the Court considers “good cause” for a transfer. Although the Supreme Court “typically exercise this authority to equalize the dockets of the courts of appeals, section 73.001 does not limit [the Supreme Court’s] transfer authority to that purpose.” Id. The Supreme Court authority that sheds the most light on this issue is Miles, which sets out principles governing transfers under the Supreme Court’s transfer authority.
Good cause may exist to ensure that appeals from the same trial court case are heard in the same appellate court. Because “all challenges to the trial court’s judgment should be heard together in one appellate proceeding,” id. at 137-38, transfers appear to be appropriate if appeals from the same trial court judgment wind up in different appellate courts.
The first court to obtain jurisdiction over the appeal is the appropriate court to receive a transferred case: “[o]nce the first appeal is perfected, the court of appeals acquires jurisdiction over the entire controversy.” Id. at 138. Thus, another appellate court “will not be permitted to interfere with the previously attached jurisdiction of another court of co-ordinate power.” Id.
Mandamus proceedings may not count as the “first appeal” for purposes of Section 73.001. When an appellate court “has previously decided . . . mandamus proceedings arising from th[e] lawsuit,” the mandamus proceedings do not necessarily constitute “the first appeal” if the mandamus proceedings “have since been concluded.” Id. at 139. This part of Miles, however, may not apply to the Houston courts. The First and Fourteenth Courts’ Local Rules provide that “[i]f a related appeal or original proceeding has been previously filed in or assigned to either the First or Fourteenth Court of Appeals, the trial court clerk must assign the appeal to the court of appeals in which the related appeal or original proceeding was previously filed.” Rule 1.4(b).
The only other situation that Miles described as potentially satisfying the “good cause” inquiry involves cross-appeals. Miles stated that “[i]f for some reason the second appellant desires a transfer to protect a point of error that was not properly raised as a cross-point in the first appeal, the second appellant may make an appropriate motion to this Court.” Miles, 914 S.W.2d at 139. The Court, however, did not explain any situation in which this would occur or give any citation to an example of such a situation. No other Supreme Court decision has cited this language.
B. Procedure to obtain a transfer between the courts of appeals.
If a party believes “good cause” exists for an appeal to be transferred to another court of appeals, the party should file a motion for transfer. The Supreme Court has laid out the “proper procedure for presenting a motion to transfer to” the Court:
The party requesting a transfer should file a copy of the motion to transfer in each of the two courts of appeals, asking that, when the motion is forwarded to the Supreme Court, each court of appeals advise the Supreme Court in writing whether it has any objection to the proposed transfer.
Any briefs in favor of the proposed transfer should also be filed in each court of appeals and forwarded with the transfer motion. We will then have the motion, the briefs, and the comments of the two courts of appeals in determining whether to grant the motion to transfer.
Id. at 137 n.2.
If the Supreme Court grants the motion to transfer, the appeal in the court from which the appeal is transferred will be abated. Miles explained that “abatement is the more appropriate remedy,” to “protect the second appellant’s right to proceed in its chosen forum if at any time it becomes apparent that the appellant filed the first appeal merely as a sham, with no intent to prosecute the appeal.” Id. at 139.
Section 73.001 gives the Supreme Court broad authority to transfer appeals between the appellate courts. Should one believe that there is “good cause” for such a transfer, the most straightforward way to obtain a transfer is to comply with the procedure set out in Miles.
II. The Houston Courts.
Houston presents a unique transfer situation. The First and Fourteenth Courts “have no authority to transfer appeals or original proceedings to any other court of appeals except” each other. See In re Williams, 123 S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding). There are two main circumstances in which the Houston Courts can transfer cases between each other: (1) when the cases are “related” and (2) to equalize dockets between the Courts.
First, the Courts may transfer “related” cases. The Government Code provides a procedure to assign a case to either the First or Fourteenth Court of Appeals. See Tex. Gov’t Code §§ 22.202(h), 22.215(e) (same statutory provision for the Fourteenth Court). Importantly for purposes of transfers, that statute provides that, once a case is assigned to one of those courts, the case “and any companion cases” will be assigned to that court. Id. § 22.202(h) (emphasis added).
The First and Fourteenth Courts’ Local Rules provide that the courts will transfer cases “when a related appeal or original proceeding has been previously filed”:
The First or Fourteenth Court of Appeals may, either sua sponte or on motion of a party, transfer an appeal or an original proceeding to the other Houston court of appeals when a related appeal or original proceeding has been previously filed.
This Local Rule is, by its terms, limited to a “related” case. The Local Rules define that term: “‘Related’ means arising from the same underlying case or a case that has been remanded by either the First or Fourteenth Court of Appeals and includes cases severed from the main case.” Rule 1.1(b). An “underlying case” means “a trial court case number that is filed in one of the counties that comprise the jurisdiction of the First and Fourteenth Courts of Appeals and is subsequently the subject of either an appeal or original proceeding in the First or Fourteenth Court of Appeals.” Rule 1.1(a).
If a case meets these limited circumstances in which the Houston appellate courts can transfer an appeal, a party may file a “motion [to] transfer an appeal or an original proceeding to the other Houston court of appeals.” Rule 1.5(a).
Second, the courts may transfer cases between each other for docket equalization purposes. “Subject to Subchapter A, Chapter 73, the clerks of the First and the Fourteenth Courts of Appeals Districts may from time to time equalize the dockets of the two courts by transferring cases from one court to the other.” Tex. Gov’t Code § 22.202(i); see id. § 22.215(e). As a practical matter, for obvious reasons, this statute is unlikely to be used by practitioners in a motion for transfer.
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Oftentimes, only one appellate court is the appropriate court for an appeal. Some circumstances, however, may warrant a transfer from one court of appeals to another. The most straightforward way to obtain such a transfer is to file a motion showing the Supreme Court that there is “good cause” for a transfer, in accordance with the procedure set out by Miles. Additionally, the Houston appellate courts have authority to transfer appeals between those courts in the circumstances allowed by the Government Code and those courts’ local rules.