42.1. Voluntary Dismissal and Settlement in Civil Cases
(a) On Motion or by Agreement. The appellate court may dispose of an appeal as follows:
(1) On Motion of Appellant. In accordance with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless such disposition would prevent a party from seeking relief to which it would otherwise be entitled.
(2) By Agreement. In accordance with an agreement signed by the parties or their attorneys and filed with the clerk, the court may:
(A) render judgment effectuating the parties’ agreement;
(B) set aside the trial court’s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the agreement; or
(C) abate the appeal and permit proceedings in the trial court to effectuate the agreement.
(b) Partial Disposition. A severable portion of the proceeding may be disposed of under (a) if it will not prejudice the remaining parties.
(c) Effect on Court’s Opinion. In dismissing a proceeding, the appellate court will determine whether to withdraw any opinion it has already issued. An agreement or motion for dismissal cannot be conditioned on withdrawal of the opinion.
(d) Costs. Absent agreement of the parties, the court will tax costs against the appellant.
42.2. Voluntary Dismissal in Criminal Cases
(a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal upon the appellant’s motion. The appellant and his or her attorney must sign the written motion to dismiss and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.
(b) After the court of appeals hands down its opinion, it may not grant an appellant’s motion to dismiss the appeal unless the other parties consent. If the other parties consent and the court of appeals grants the appellant’s motion to dismiss the appeal, the appellate opinion must be withdrawn and the appeal dismissed. The appellate clerk must send notice of the dismissal to the trial court clerk.
42.3. Involuntary Dismissal in Civil Cases
Under the following circumstances, on any party’s motion — or on its own initiative after giving ten days’ notice to all parties — the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:
(a) for want of jurisdiction;
(b) for want of prosecution; or
(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.
42.4. Involuntary Dismissal in Criminal Cases
The appellate court must dismiss an appeal on the State’s motion, supported by affidavit, showing that the appellant has escaped from custody pending the appeal and that to the affiant’s knowledge, the appellant has not, within ten days after escaping, voluntarily returned to lawful custody within the state.
(a) Timely Return to Custody; Reinstatement. The appeal may not be dismissed — or, if dismissed, must be reinstated — if an affidavit of an officer or other credible person is filed showing that the appellant, within ten days after escaping, voluntarily returned to lawful custody within the state.
(b) Life Sentence. The appellate court may overrule the motion to dismiss — or, if the motion was granted, may reinstate the appeal — if:
(1) the appellant received a life sentence; and
(2) the appellant is recaptured or voluntarily surrenders within 30 days after escaping.
Notes and Comments
Comment to 1997 change: Former Rules 59 and 60 are merged. Paragraph 42.1(c), allowing a court of appeals to withdraw its opinion, is new. Provision is made in paragraph 42.3(c) for dismissal of an appeal for failure to comply with a notice from the clerk. Other changes are made.
Comment to 2002 change: Rule 42.1 is amended to clarify the procedures for implementing settlements on appeal and to expressly give courts flexibility in effectuating settlements. The rule is also clarified to expressly permit the dismissal of an appeal without dismissal of the action itself. The rule does not permit an appellate court to order a new trial merely on the agreement of the parties absent reversible error, or to vacate a trial court’s judgment absent reversible error or a settlement.