Did You Know . . . ?

by JoAnn Storey

The filing of the mandate in the trial court, following a remand of the case on appeal, is not necessary to the jurisdiction of the trial court. Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex.1972) (citing Continental Casualty Co. v. Street, 364 S.W.2d 184 (Tex.1963)). The courts reason that the rules dealing with the issuance and return of the mandate subsequent to judgment of remand are procedural in nature. See Continental Casualty, 364 S.W.2d at 187. The Court in Continental Casualty thus held that the trial court’s judgment was not void, even though no mandate had been issued at the time of trial. 364 S.W.2d at 187-88. See also Edwards Aquifer Authority v. Chemical Lime, Ltd., 291 S.W.3d 392, 410 (Tex.2009) (mandate is a procedural device intended to keep courts from issuing conflicting orders; it is a means of communication between courts).

For an exhaustive discussion of the history of the rule and its present viability, see Saudi v. Brieven, 176 S.W.3d 108 (Tex.App.─Houston [1st Dist.] 2004, pet. denied).

To preserve the complaint of procedural irregularity in proceeding to trial before the mandate is issued, file an objection. Continental Casualty, 364 S.W.2d at 188.