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What is a motion for new trial in Texas?

If you believe than an error was made by a judge in your child custody or divorce trial you have an opportunity to correct the error(s) by filing a motion for new trial. By filing a motion for new trial you have the ability to get the error corrected without having to go through an entirely new process as in situations when you have to appeal your trial results to an appellate court. Today’s blog post from the Law Office of Bryan Fagan, PLLC will go through what a motion for new trial looks like and how it can play out in the courtroom.

The basis for a motion for new trial

As I mentioned a moment ago, a motion for new trial is a post-trial remedy that allows the same judge who issued the decisions in your case to correct any errors that were made in applying the law to your specific facts and circumstances. By going to the judge who issued your decision you can save time and money potentially. With that all said, some types of cases require that you file a motion for new trial before you are able to file an appeal to a higher court. Typically, these cases all involve juries which are rare in family law trials.

Overall, in order to make an argument to an appeals court that a particular issue was wrongly decided by your trial court judge you must bring that error to the attention of the court. The typical method of doing this is through a motion for new trial which states the specific error and requesting relief based on those errors. If your motion for new trial is granted then you can get a new trial- either in full or in relation to a part of your trial.

The general rule that appellate courts follow in Texas is that trial courts should allow for new trials to be granted with relatively great frequency. When the basic requirements stated above are met a new trial should be granted. However, the devil is in the details and you must be specific in regard to the error made and the relief that you are seeking. If the trial court believes that the error affected or might reasonably have affected the results of your trial then your motion should be granted.

Newly discovered evidence as the basis for granting a motion for new trial

If you discover new information that either was not available or was not known to you at the time of your trial you can utilize this as your basis for a motion for new trial. However, the following conditions must be present in order to win a new trial after a hearing is held:

-You must show that the evidence would like cause a different result in a new trial

-You must show that due diligence was utilized in order to obtain this evidence prior to your trial

-You must show that the evidence isn’t just duplicative (the same as) of evidence previously produced at your trial. If the content of the evidence calls into question the honesty of your opposing party then this will not allow for a new trial to be had

-You must show that you were unaware of the evidence before the trial and had no notice of its existence

-You must show that the newly discovered evidence must be admissible, in terms of being offered and admitted into the record of evidence (testimonial and documentary) that a judge can consider

However, I will note that in some appellate court decisions the above standards can be relaxed for those people who are going through child custody cases on the basis that failing to do so would go against public policy towards doing what is in the best interests of a child.

For instance, suppose that you have been made aware of evidence that could have completely changed the outcome of your child custody case- but only were made aware of its existence a week after your trial ended. In situations like this if you can show that the original custody order would have a severely negative impact on your child then the judge must grant a motion for new trial if you file one or if it files one on its own motion.

Default judgment motions for new trial

If you file a motion for new trial after having a default judgment rendered against you, you can do so based on a specific statute under our Code of Civil Procedure/Family Law Code or based on equity/fairness grounds. Procedurally if you were not served with notice correctly and a default judgment was rendered then the motion for new trial should be granted without delay. Secondly, you can also win on a motion for new trial based on a default judgment based on equity and fairness grounds as well.

Utilizing a motion for new trial as the basis for an appeal

Within thirty days of filing a notice of appeal and having that appeal honored and accepted by the particular appellate court. In this time period you or your attorney can file a motion with the trial court seeking protection of you or your children and for the preservation of evidence related to your case while you wait for the appellate decision to be issued by the judge.

There are other issues that may be dealt with in regard to a motion of this kind. Support may be requested of either party in a divorce case or of a child in either a divorce or child custody case. Temporary conservators of a child may be requested as well and temporary restraining orders may be requested in order to keep every party’s behavior on par with where it ought to be. No withdrawing from school will be done. Think back to the temporary orders in your divorce and the restraining orders in this scenario would look a lot like those. Geographic restrictions can be put in place if they are presently not part of the trial court’s order.

When can the Texas Supreme Court agree to hear an appeal?

If you have appealed a trial court decision to an intermediate (Court of Appeals) court and were not successful then you have the ability to request that the Texas Supreme Court review your case for a possible hearing.

The Supreme Court can hear a family law case when there is a dissenting opinion from the appellate court (a decision that did not agree with the majority decision) that involves a question of law that is highly relevant to the overall decision to not grant your appeal request. Also, if your appellate court’s decision is different than the decision made by another appellate court or the Supreme Court then the Supreme Court can agree to hear your case.

Overall, the Supreme Court of Texas can only hear cases where the appellate court has made an error in applying the law of our state. The high court gives the appellate court wide latitude when it comes to deciding fact based issues in your case

Hiring an experienced family law attorney is important when filing a motion for new trial

Many family law attorneys lack the experience necessary to provide you with a good opportunity to win on a motion for new trial. Even then, many attorneys with the experience to do so will decline to accept your case because of the low likelihood of success. The attorneys with the Law Office of Bryan Fagan will speak to you about your case and give you an idea about the process and timeline involved with filing a motion for new trial. Our licensed family law attorneys are experienced in preparing and filing motions for new trial in child custody and divorce cases.

The only way for you to learn whether or not you have a chance at winning a motion for new trial hearing is to speak to an attorney. You have until thirty days after your final orders are signed by the judge to file your motion for new trial so do not waste time. Contact us today for a free of charge consultation with one of our licensed family law attorneys.

If you believe than an error was made by a judge in your child custody or divorce trial you have an opportunity to correct the error(s) by filing a motion for new trial. By filing a motion for new trial you have the ability to get the error corrected without having to go through an entirely new process as in situations when you have to appeal your trial results to an appellate court. Today’s blog post from the Law Office of Bryan Fagan will go through what a motion for new trial looks like and how it can play out in the courtroom.

The basis for a motion for new trial

As I mentioned a moment ago, a motion for new trial is a post-trial remedy that allows the same judge who issued the decisions in your case to correct any errors that were made in applying the law to your specific facts and circumstances. By going to the judge who issued your decision you can save time and money potentially. With that all said, some types of cases require that you file a motion for new trial before you are able to file an appeal to a higher court. Typically, these cases all involve juries which are rare in family law trials.

Overall, in order to make an argument to an appeals court that a particular issue was wrongly decided by your trial court judge you must bring that error to the attention of the court. The typical method of doing this is through a motion for new trial which states the specific error and requesting relief based on those errors. If your motion for new trial is granted then you can get a new trial- either in full or in relation to a part of your trial.

The general rule that appellate courts follow in Texas is that trial courts should allow for new trials to be granted with relatively great frequency. When the basic requirements stated above are met a new trial should be granted. However, the devil is in the details and you must be specific in regard to the error made and the relief that you are seeking. If the trial court believes that the error affected or might reasonably have affected the results of your trial then your motion should be granted.

Newly discovered evidence as the basis for granting a motion for new trial

If you discover new information that either was not available or was not known to you at the time of your trial you can utilize this as your basis for a motion for new trial. However, the following conditions must be present in order to win a new trial after a hearing is held:

-You must show that the evidence would like cause a different result in a new trial

-You must show that due diligence was utilized in order to obtain this evidence prior to your trial

-You must show that the evidence isn’t just duplicative (the same as) of evidence previously produced at your trial. If the content of the evidence calls into question the honesty of your opposing party then this will not allow for a new trial to be had

-You must show that you were unaware of the evidence before the trial and had no notice of its existence

-You must show that the newly discovered evidence must be admissible, in terms of being offered and admitted into the record of evidence (testimonial and documentary) that a judge can consider

However, I will note that in some appellate court decisions the above standards can be relaxed for those people who are going through child custody cases on the basis that failing to do so would go against public policy towards doing what is in the best interests of a child.

For instance, suppose that you have been made aware of evidence that could have completely changed the outcome of your child custody case- but only were made aware of its existence a week after your trial ended. In situations like this if you can show that the original custody order would have a severely negative impact on your child then the judge must grant a motion for new trial if you file one or if it files one on its own motion.

Default judgment motions for new trial

If you file a motion for new trial after having a default judgment rendered against you, you can do so based on a specific statute under our Code of Civil Procedure/Family Law Code or based on equity/fairness grounds. Procedurally if you were not served with notice correctly and a default judgment was rendered then the motion for new trial should be granted without delay. Secondly, you can also win on a motion for new trial based on a default judgment based on equity and fairness grounds as well.

Utilizing a motion for new trial as the basis for an appeal

Within thirty days of filing a notice of appeal and having that appeal honored and accepted by the particular appellate court. In this time period you or your attorney can file a motion with the trial court seeking protection of you or your children and for the preservation of evidence related to your case while you wait for the appellate decision to be issued by the judge.

There are other issues that may be dealt with in regard to a motion of this kind. Support may be requested of either party in a divorce case or of a child in either a divorce or child custody case. Temporary conservators of a child may be requested as well and temporary restraining orders may be requested in order to keep every party’s behavior on par with where it ought to be. No withdrawing from school will be done. Think back to the temporary orders in your divorce and the restraining orders in this scenario would look a lot like those. Geographic restrictions can be put in place if they are presently not part of the trial court’s order.

When can the Texas Supreme Court agree to hear an appeal?

If you have appealed a trial court decision to an intermediate (Court of Appeals) court and were not successful then you have the ability to request that the Texas Supreme Court review your case for a possible hearing.

The Supreme Court can hear a family law case when there is a dissenting opinion from the appellate court (a decision that did not agree with the majority decision) that involves a question of law that is highly relevant to the overall decision to not grant your appeal request. Also, if your appellate court’s decision is different than the decision made by another appellate court or the Supreme Court then the Supreme Court can agree to hear your case.

Overall, the Supreme Court of Texas can only hear cases where the appellate court has made an error in applying the law of our state. The high court gives the appellate court wide latitude when it comes to deciding fact based issues in your case


Hiring an experienced family law attorney is important when filing a motion for new trial

Many family law attorneys lack the experience necessary to provide you with a good opportunity to win on a motion for new trial. Even then, many attorneys with the experience to do so will decline to accept your case because of the low likelihood of success. The attorneys with the Law Office of Bryan Fagan will speak to you about your case and give you an idea about the process and timeline involved with filing a motion for new trial. Our licensed family law attorneys are experienced in preparing and filing motions for new trial in child custody and divorce cases.

The only way for you to learn whether or not you have a chance at winning a motion for new trial hearing is to speak to an attorney. You have until thirty days after your final orders are signed by the judge to file your motion for new trial so do not waste time. Contact us today for a free of charge consultation with one of our licensed family law attorneys.

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