Rule 68.

1997 Rules of Appellate Procedure

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RULE 68. DISCRETIONARY REVIEW WITH PETITION

68.1 Generally. On petition by any party, the Court of Criminal Appeals may review a court of appeals' decision in a criminal case.

68.2 Time to File Petition.

(a) First petition . The petition must be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals.

(b) Subsequent petition. Even if the time specified in (a) has expired, a party who otherwise may file a petition may do so within 10 days after the timely filing of another party's petition.

(c) Extension of time. The Court of Criminal Appeals may extend the time to file a petition for discretionary review if a party files a motion complying with Rule 10.5(b) no later than 15 days after the last day for filing the petition. The Court of Criminal Appeals may extend the time to file a response or reply if a party files a motion complying with Rule 10.5(b) either before or after the response or reply is due.

68.3 Where to File Petition. The petition and all copies of the petition must be filed with the clerk of the court of appeals, but if the State's Prosecuting Attorney files a petition, the State's Prosecuting Attorney may file the copies of the petition — but not the original — with the clerk of the Court of Criminal Appeals instead of with the court of appeals clerk.

68.4 Contents of Petition. A petition for discretionary review must be as brief as possible. It must be addressed to the “Court of Criminal Appeals of Texas” and must state the name of the party or parties applying for review. The petition must contain the following items:

(a) 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 ground or question presented for review.

(b) 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.

(c) Statement regarding oral argument . The petition must include a short statement of why oral argument would be helpful, or a statement that oral argument is waived. If a reply or cross-petition is filed, it likewise must include a statement of why oral argument should or should not be heard.

(d) Statement of the case . The petition must state briefly the nature of the case. This statement should seldom exceed half a page. The details of the case should be reserved and stated with the pertinent grounds or questions.

(e) Statement of procedural history . The petition must state:

(1) the date any opinion of the court of appeals was handed down, or the date of any order of the court of appeals disposing of the case without an opinion;

(2) the date any motion for rehearing was filed (or a statement that none was filed); and

(3) the date the motion for rehearing was overruled or otherwise disposed of.

(f) Grounds for review . The petition must state briefly, without argument, the grounds on which the petition is based. The grounds must be separately numbered. If the petitioner has access to the record, the petitioner must (after each ground) refer to the page of the record where the matter complained of is found. Instead of listing grounds for review, the petition may contain the questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of questions should be short and concise, not argumentative or repetitious.

(g) Reasons for review . The petition must contain a direct and concise argument, with supporting authorities, amplifying the reasons for granting review. See Rule 66.3 The court of appeals' opinions will be considered with the petition, and statements in those opinions need not be repeated if counsel accepts them as correct.

(h) Prayer for relief . The petition must state clearly the nature of the relief sought.

(i) Appendix . The petition must contain a copy of any opinion of the court of appeals.

68.5 Length of Petition and Reply . The petition must be no longer than 15 pages, exclusive of pages containing the table of contents, the index of authorities, the statement regarding oral argument, the statement of the case, the statement of procedural history, and the appendix. A reply may be no longer than 8 pages, exclusive of the items stated above. The Court may, on motion, permit a longer petition or reply.

68.6 Nonconforming Petition. The Court may strike, order redrawn, or summarily refuse a petition for discretionary review that is unnecessarily lengthy or that does not conform to these rules.

68.7 Court of Appeals Clerk's Duties.

(a) On filing of the petition . Upon receiving the petition, the court of appeals clerk must file the original petition and note the filing on the docket.

(b) Sending petition to Court of Criminal Appeals . Unless a petition for discretionary review is dismissed under Rule 50, the clerk of the court of appeals must, within 30 days after the petition is filed, send to the clerk of the Court of Criminal Appeals the petition and any copies furnished by counsel, together with the record, copies of the motions filed in the case, and certified copies of any judgments, opinions, and orders of the court of appeals. The clerk need not forward any nondocumentary exhibits unless ordered to do so by the Court of Criminal Appeals.

68.8 Court of Criminal Appeals Clerk ’s Duties on Receipt of Petition. The clerk of the Court of Criminal Appeals will receive a petition for discretionary review, file the petition and the accompanying record from the court of appeals, note the filing of the petition and record on the docket, and notify the parties by U.S. Mail of the filing. The Court may dispense with notice and grant or refuse the petition immediately upon its filing.

68.9 Reply. The opposing party has 30 days after the timely filing of the petition in the Court of Criminal Appeals — unless additional time is allowed — to file a reply to the petition with the Clerk of the Court of Criminal Appeals. When a reply is filed or the time for filing a reply has expired, the petition will be treated as submitted to the Court and ready for disposition.

68.10 Amendment. The petition or a reply may be amended or supplemented within 30 days after the original petition was filed in the court of appeals or at any time when justice requires. The record may be amended in the Court of Criminal Appeals under the same circumstances and in the same manner as in the court of appeals.

68.11 Service on State Prosecuting Attorney. In addition to the service required by Rule 9.5, service of the petition, the reply, and any amendment or supplementation of a petition or reply must be made on the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711.

Notes and Comments
Comment to 1997 change: This is former Rule 202. Subdivisions (k) and (l) of the former rule have been relocated to Rule 69. The new rule limits the length of a petition and reply. The time for amendment of a petition or reply is increased to conform with the amendment in Rule 50. The rule is otherwise amended without substantive change.

Last modified: November 08, 2001