Restricted Appeals

A restricted appeal is a direct attack on a judgment. To be entitled to a restricted appeal, an appellant must demonstrate several elements described below.

What is necessary to bring a restricted appeal in a Texas court?

To attack a trial court’s judgment by restricted appeal, a party must show that:

• a notice of appeal was filed within six months of the date that the complained-of judgment was signed;
• the filer was a party to the suit that did not participate in the hearing that resulted in the judgment or order;
• the party did not timely file a post-judgment motion, request findings of fact and conclusions of law, or file a notice of appeal within the time permitted under Texas Rule of Appellate Procedure 26.1(a); and
• the complained-of error is apparent from the face of the record.

These requirements are jurisdictional. And if they are not met, a party cannot obtain relief by way of a restricted appeal.

The face of the record, for purposes of a restricted appeal, consists of all the papers that were before the trial court when it rendered its judgment.

When does a party participate in the hearing below?

Whether a party meets the non-participation requirement of a restricted appeal is determined by whether he took part in the decision-making event that resulted in the adjudication of his rights. The nature and extent of participation that is sufficient to preclude a restricted appeal in any particular case is not always a black-and-white issue — it is often a matter of degree. But in any event, it is the fact of non-participation, and not the reason for it, that determines a person’s right to pursue a restricted appeal. And notably, courts generally construe participation for purposes of a restricted appeal liberally in favor of a right to appeal.

The decision-making event is the proceeding in which the questions of law and fact are decided. In a summary judgment case, the decisions are made on the evidence presented to the trial court prior to the actual summary-judgment hearing; thus “a party who has taken part in all steps of a summary-judgment proceeding except the hearing on the motion has participated” in the decision-making event.

But in a jury case, the decisions are made on the evidence presented to the jury, and thus a party must participate in the hearing before the jury in order to participate in the decision-making event.

Is the Error-on-the-Face-of-the-Record Requirement Jurisdictional?

The Texas Supreme Court has recently held that the error-on-the-face-of-the-record requirement is not jurisdictional. And it has recognized that because the task of determining error on the face of the record ultimately requires an analysis of the merits of the appellant’s grounds for appeal, courts should generally, at least, avoid inquiring into the merits of an appeal when deciding whether the appellant procedurally invoked the court of appeals’ jurisdiction.

Thus, although the first three requirements for a restricted appeal are jurisdictional, the fourth is not. An appellant who satisfies the first three requirements establishes the court’s jurisdiction and must then establish error from the face of the record to prevail in the restricted appeal.

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