We generally think of the 30-day window after a final order as the only time in which a party can appeal. However, if there was clear error, and the other party did not have an opportunity to participate, the Rules have an exception that allows that party six months to file a restricted appeal. If a party succeeds in a restricted appeal, that party is entitled to a whole new trial.
Under the Texas Rules of Appellate Procedure, a party who did not participate—either in person or through counsel—in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the normal time permitted by the Rules, may file a notice of appeal within six months after the judgment or order was signed. Thus, to prevail, a party must show that:
he filed within six months of the judgment;
he was a party to underlying suit;
he did not participate in the hearing resulting in the judgment and did not file any post-judgment pleadings or requests for findings; and
the complained-of error is apparent on the face of the record.
Typically, in opinions addressing restricted appeals, the first three requirements are clearly met, and the issue before the court is whether error was apparent on the face of the record. So, finding an error in the underlying proceeding, or proactively ensuring there are no errors, can be pivotal depending which side of the case you are representing.
The “face of the record” includes everything before the appellate court, including the clerk’s record and the reporter’s record. To create the clerk’s record, the appealing attorney provides a list of filed pleadings and orders to the trial court clerk with a request that the clerk file those specified pleadings as a single “record” of what occurred in the trial court (the “Clerk’s Record”). Similarly, to create the “Reporter’s Record,” the appealing attorney asks the trial court reporter to create and file a single “record” of all the relevant transcripts and admitted exhibits from the underlying proceeding. The appealing attorney must then rely on these official, filed records in presenting the appeal and cannot rely on any evidence not included in those records.
Restricted appeals are not “abuse of discretion” cases. Restricted appeals are used when there is obvious error that cannot withstand scrutiny. Often this comes up after a default judgment where service was improper or there was absolutely no evidence to support the judgment. If you are getting a default judgment, you must make sure:
All the service requirements are satisfied. Reread the relevant rules and double check your process server’s affidavit. You can always file an amended affidavit if you think it lacks specificity or is in any way inaccurate.
You gave the opposing party time to respond and prepare as defined by the Rules. Do not shortchange anything. If the opposing party is entitled to 45 days’ notice, do try to get away with only 39 days. Be patient, and do it by the book.
Present evidence!! You cannot rely on evidence presented at prior hearings; it does not carry over. This is not an agreed order. The petitioner carries the burden to prove her case at trial even if the other party never answered. File a sworn inventory with estimated values. Submit the same evidence supporting the possession order that you would need if the other party were present in the courtroom.
Additionally, if you have a client who comes in a few months after the judgment was signed, look at the return service and check the judgment. If anything looks fishy—for example, if the judgment looks like an “agreed” judgment even though your client was not at trial—there may be a good basis for restricted appeal.