Temporary Orders Pending Appeal

A motion for temporary orders pending an appeal can be made by a party or on the court’s own motion. Tex. Fam Code §§ 6.709(a), 109.001(a). A party seeking temporary orders pending appeal must file the motion no later than the date the party is required to file a notice of appeal under the Texas Rules of Appellate procedure, but the motion can also be filed before trial. Tex. Fam. Code §§ 6.709(h), 109.001(b-1). Either party can challenge temporary orders pending appeal through a mandamus proceeding or within the appeal itself (assuming the party has filed a notice of appeal). Tex. Fam. Code §§ 6.709(l), 109.001(b-5). In an appeal from a divorce proceeding, a party may also challenge the orders via a motion in the appellate court. Tex. Fam. Code § 6.709(l)(1).

These two Family Code statutes permit temporary orders pending the appeal from a divorce proceeding (Section 6.709) or a suit affecting the parent-child relationship (Section 109.001). The relief available through a motion for temporary orders pending appeal is similar to that available during the pendency of the underlying suit. See Tex. Fam. Code § 6.502, 6.709(a), 105.001, 109.001(a).

In a divorce, the burden of proof is to show that the requested order is “equitable and necessary for the preservation of the property and for the protection of the parties during an appeal.” Tex. Fam. Code § 6.709. This Section is often used as a form of stay (instead of relying on Texas Rule of Appellate Procedure 24.1 detailing supersedeas bonds). Like the imposition of a supersedeas bond under Rule 24.1, the temporary order must take reasonable steps to ensure the non-appealing party is protected during the pendency of an appeal. Tex. Fam. Code § 6.709(c). When crafting such orders, it is important to consider that an average appeal takes about two years. It is possible to modify the orders pending appeal, but the better option would be to make sure that modification would likely be unnecessary because a modification would require a showing of a material and substantial change. See Tex. Fam. Code § 6.709(j), (k).

In a suit affecting the parent-child relationship, the burden is to show the order is “necessary to preserve and protect the safety and welfare of the child during the pendency of an appeal.” Tex. Fam. Code § 109.001(a) (emphasis added). This language tracks the language permitting a temporary order during the pendency of a SAPCR, and it should be noted that the burden is not “best interest” of the child. See Tex. Fam. Code §§ 105.001(a), 109.001(a). Like the divorce provision, the temporary order may be modified while the appeal is pending so long as there is proof of a material and substantial change. Tex. Fam. Code § 109.001(b-3), (b-4).

Other than a stay after a divorce decree, the primary use of these two statutes is often to seek appellate attorney’s fees. See Tex. Fam. Code §§ 6.709(a)(2), 109.001(a)(5). If appellate attorney’s fees were not awarded in the judgment being appealed, this is the last opportunity for the non-appealing party to ask for them. The appellate courts generally do not award fees because (1) the question of amount, reasonableness, and necessity is a fact question that must be presented to a trial court; and (2) the appellate court cannot grant affirmative relief to a party that did not file a notice of appeal. Clients should be advised that if they file a motion for temporary orders pending appeal to stay enforcement of a property division or to “modify” anything related to a final SAPCR order, that could encourage the other party to file a cross-motion for temporary orders pending appeal seeking attorney’s fees. If the trial judge is confident that the correct decisions were made in the final judgment, the odds of getting a stay or modification are lower, while the odds of getting attorney’s fees for the “prevailing” party are higher.

The deadlines for seeking and obtaining temporary orders pending appeal are jurisdictional, so if a party wants to ask for them, knowing these deadlines is imperative, and it may be wise to contact an appellate attorney who can assist in decoding the Rules of Civil Procedure, Appellate Procedure, and the Family Code. See In re Simons, No. 13-25-00458-CV, 2025 WL 2922881 (Tex. App.—Corpus Christi–Edinburg, orig. proceeding) (mem. op.); Czarkowski-Golejewski v. Wilson, No. 07-24-00127-CV, 2025 WL 20566 (Tex. App.—Amarillo 2025, no pet.) (mem. op.).

Texas Rule of Appellate Procedure 26.1 provides the deadlines for filing the notice of appeal from a family-law matter. See Tex. Fam. Code §§ 6.709(h), 109.001(b-1); Tex. R. App. P. 26.1. Normally, the deadline to file a notice of appeal is 30 days after the judgment. Tex. R. App. P. 26.1. However, if a party files a motion for new trial, a request to change or reinstate a judgment, or a request for findings, the deadline to file a notice of appeal—and, thus, the deadline to file a motion for temporary orders pending appeal is extended to 90 days. Tex. R. App. P. 26.1(a); see Tex. Fam. Code §§ 6.709(h), 109.001(b-1). However, if the appeal is accelerated (e.g., a parental-rights termination suit), then the deadline is a quick 20 days after the judgment that cannot be extended. Tex. R. Civ. P. 26.1(b). Additionally, the Family Code’s temporary-orders-pending-appeal statutes require the motion be filed before “the date by which a party is required to file a notice of appeal,” not the date by which a notice of appeal has actually been filed. See Tex. Fam. Code §§ 6.709(h), 109.001(b-1) (emphasis added). Under the appellate rules, the non-appealing party can file a notice of cross appeal until 14 days after the appealing party’s notice or 90 days after the judgment (assuming the deadlines have been extended), whichever is later. Tex. R. App. P. 26.1(d). Thus, the non-appealing party can also file a motion for temporary orders pending appeal until 14 days after the appealing party’s notice or 90 days after the judgment (assuming the deadlines have been extended), whichever is later, regardless of whether a notice of cross-appeal is actually filed. See Tex. Fam. Code §§ 6.709(h), 109.001(b-1).

While the deadline to file the motion is based on the deadlines to file a notice of appeal, regardless of whether a notice is filed, the deadline for the trial court to issue a ruling is determined by the date a notice actually IS filed. Compare Tex. Fam. Code §§ 6.709(h), 109.001(b-1) with Tex. Fam. Code §§ 6.709(i), 109.001(b-2). While a party may file a request for findings on the 20th day after a judgment (extending the appellate deadlines) and then file a notice of appeal on the 90th day after a judgment, that party may also choose to immediately file a notice of appeal the day a judgment is signed. See Tex. R. Civ. P. 329b, 296; Tex. R. App. P. 26.1(a). So, in that case, even though the non-appealing party would have until 90 days after the judgment to file a motion, the trial court (per the plain language of the temporary-orders-pending-appeal statutes) would only have until 60 days after the motion was filed (in this case, 60 days after judgment) to rule on such a motion. Tex. Fam. Code §§ 6.709(h), 109.001(b-1). There are some efforts in progress to modify these deadlines, but this is how they stand today.

Despite the 60-day deadline, a trial court will have plenary power (meaning: full, complete, or entire) to rule on any properly filed motions before the expiration of that plenary power. Compare Tex. Fam. Code §§ 6.709(h), 109.001(b-1) with Tex. R. Civ. P. 329b; see WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 751–52 (Tex. App.—Dallas 2006, pet. denied) (“Plenary power in general is broadly defined as the court’s power to dispose of any matter properly before it.” (emphasis added)). Additionally, because the deadline is based on any party’s timely filing of a notice of appeal, the otherwise-non-appealing party could file a notice of cross appeal (incurring a $205 filing fee) to “extend” the deadline beyond the trial court’s plenary power if necessary to get a hearing and obtain a ruling. See Tex. Fam. Code §§ 6.709(i), 109.001(b-2); Tex. R. App. P. 26.1(d). Additionally, the filing of a notice of appeal does not extend appellate deadlines, so the non-appealing party must be mindful of the fact that the deadline to file a motion for temporary orders pending appeal could be only 30 days after the judgment. See Tex. R. Civ. P. 329b; Tex. Fam. Code §§ 6.709(h), 109.001(b-1).

All these deadlines are a handful to keep track of. And, potential costs and other ramifications of filing a motion for temporary orders pending appeal should be considered before doing so. However, clients need to be made aware that this will be the opportunity to request appellate attorney’s fees and factor that consideration into the overall decision of whether to seek this relief.