This is the fifth post in the Flipping the Script series, drawn from Episode 162 of the Texas Appellate Law Podcast. The series examines what Texas appellate courts could do to make appellate practice better.

Federal Rule of Appellate Procedure 28.1 governs cross-appeals in federal court. It sets a clean four-brief structure: the appellant’s opening brief; a combined appellee-and-cross-appellant’s brief; a combined reply-and-cross-appellee’s brief; and a cross-appellant’s reply. Word limits are calibrated to match the doubled work. The schedule is coherent. Lawyers handling cross-appeals in the Fifth Circuit and other federal appellate courts have used it for over two decades.

Two Texas intermediate courts of appeals have adopted essentially the same rule. The Fifth Court in Dallas (Local Rule 5) and the Eighth Court in El Paso (Local Rule 1) each have a local rule titled “Briefs in Cross-Appeals” that imports the FRAP 28.1 architecture into practice before those courts. The two rules use identical word counts and the same four-brief sequence.

That leaves thirteen Texas intermediate courts of appeals without a binding cross-appeal rule. Three of them—the First, Fourteenth, and Fifteenth Courts—gesture at the problem through non-binding internal operating procedures that encourage parties to file an agreed motion. The remaining ten say nothing. A lawyer handling a Texas cross-appeal has to know which court they’re in just to know how many briefs they’ll be filing.

What the Local Rules Do

The Dallas and El Paso rules compress six briefs into four. Without the rules, both sides file a full appellant’s brief, a full appellee’s brief, and a full reply on their own appeal. Across two parallel tracks, that’s six briefs.

The local rule collapses the overlap. The appellee’s brief and the cross-appellant’s opening brief are combined into one document with a larger word limit. The same consolidation happens on the reply side. The cross-appellant gets a separate short reply at the end. Four briefs instead of six, with word limits that account for the combined work.

The structure tracks FRAP 28.1. It works in federal court. It works in Dallas and El Paso. It would work everywhere else.

The Gap, and What It Costs

I had a cross-appeal in an intermediate court with no local rule on the subject. I didn’t want to file three separate briefs and ask my client to pay for the duplication. So I borrowed the structure. I filed a joint motion with opposing counsel asking the court to adopt the Dallas and El Paso briefing schedule for our case, with matching word limits. The court granted it. The appeal proceeded on four briefs instead of six. The client paid less. The court read less. Everybody benefited.

The fix worked. But it shouldn’t have required a motion.

Every time a cross-appeal lands in one of the thirteen courts without a local rule, someone has to do the same work again: draft the motion, persuade opposing counsel to join, and hope the court grants it. If opposing counsel won’t agree, the workaround collapses. The default TRAP 38.6 schedule applies—six briefs, parallel tracks, overlapping deadlines.

The State Bar of Texas Appellate Section has noticed. The section maintains a “Joint Motion to Set Briefing Schedule in Cross-Appeal” form on its website. The form tells the receiving court that the proposed schedule is based on the Dallas and El Paso local rules. It bakes in the exact word counts from those rules—15,000 / 30,000 / 22,500 / 7,500—and gives any lawyer in any Texas court a template to import the structure case by case.

That’s an institutional acknowledgment from the bar that the rule is missing. The Appellate Section took the two local rules, packaged them as a motion, and posted them for download. But the form only works when opposing counsel agrees to join. The structural problem—that there’s no statewide rule—remains.

The Ask

The Supreme Court of Texas should refer a statewide cross-appeal rule to the Supreme Court Advisory Committee for study and recommendation. I haven’t found anything in the publicly available SCAC materials showing that this issue has been on the committee’s agenda. The substantive rule work has gone elsewhere, and the cross-appeal gap has stayed open.

What makes this referral easy: SCAC wouldn’t be inventing anything. The template exists in three places already. FRAP 28.1 provides the federal model that has worked in the Fifth Circuit and elsewhere for decades. The Dallas and El Paso local rules, both in effect for many years, have already piloted the concept in state courts. The Appellate Section’s form motion provides further support.

No one needs to debate the structure or the word limits long. SCAC just needs to recommend, and the Supreme Court just needs to adopt, what’s already working.

A uniform cross-appeal rule would save clients money in every cross-appeal handled in a Texas court that doesn’t currently have one. It would save lawyers the motion practice. It would save courts the inconsistency. And it would close a gap that has been open too long.

Flipping the Script Series