Some confusion exists about when an appellate court’s decision must be observed after the opinion and judgment have been released.

The rule is spelled out for accelerated appeals. In those cases, the court of appeals’ judgment takes effect when the mandate issues. See Tex. R. App. P. 18.6. In accelerated appeals, which are generally interlocutory, the appellate court often issues the mandate with its judgment, leaving no doubt about when the judgment must be observed.

No equivalent rule exists for appeals from final judgments in civil cases.

Unlike interlocutory appeals—which involve ongoing cases in which the trial court usually retains jurisdiction to make further orders—a trial court can take no action once it loses plenary power over a final judgment. When plenary power has expired and appellate jurisdiction has attached, the case belongs solely to the appellate court. 

The confusion arises because the mandate does not issue immediately in ordinary appeals. The appellate court’s judgment becomes final when the mandate issues, but there may be a significant time gap between the judgment and the mandate. The reason for this gap is to prevent conflicting judgments between the trial and appellate courts.

So what is the status during the period falling after the judgment but before the mandate?

In 2009, the Texas Supreme Court declined to establish a general rule, describing the question as “a difficult [one] under Texas law and procedure.” See Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 394 (Tex. 2009). The uncertainty drew dueling concurrences from Justices Brister and Willett. Justice Brister opined that what matters is the judgment. See id. at 406-07 (Brister, J., concurring). Justice Willett concluded that “the better default date is the mandate.” See id. at 412-13 (Willett, J., concurring). 

A decade after Chemical Lime, the question still has not been answered definitively. Until it is, parties should not presume that an appellate court’s judgment is final and enforceable until the mandate issues.

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