What Is a Petition for Discretionary Review in Texas?
What Is a Petition for Discretionary Review in Texas?
A petition for discretionary review is a party’s request that the Texas Court of Criminal Appeals review a court of appeals’ decision in a criminal case. Texas Rule of Appellate Procedure 68.1. Review is up to the Court: it grants a petition only if four judges vote to hear the case, and otherwise the petition is refused. Rules 66.2, 69.1. The petition must be filed in the Court of Criminal Appeals within 30 days after the court of appeals’ judgment, or within 30 days after the court of appeals overrules the last timely motion for rehearing. Rule 68.2(a).
| Step | Deadline or limit | Rule |
|---|---|---|
| Petition for discretionary review | 30 days after the court of appeals’ judgment, or after it overrules the last timely motion for rehearing or en banc reconsideration | Rule 68.2(a) |
| Motion to extend time to file the petition | No later than 15 days after the petition was due | Rule 68.2(c) |
| Another party’s petition, once one party has filed | 10 days after the first timely petition | Rule 68.2(b) |
| Length of the petition | 4,500 words | Rule 9.4(i)(2)(E) |
| Petitioner’s brief, if review is granted | 30 days after review is granted | Rule 70.1 |
The Court decides which cases it will hear.
Discretionary review “is not a matter of right, but of the Court’s discretion.” Rule 66.2. The court of appeals has already decided the appeal, and the petition asks the state’s highest criminal court to review that decision. The Court can also take a case on its own initiative, by a vote of four judges, before the court of appeals’ mandate issues. Rule 67.1.
What reasons does the Court consider?
Rule 66.3 lists the reasons the Court considers, while saying the list neither controls nor fully measures its discretion. The Court asks whether:
- the court of appeals’ decision conflicts with another court of appeals’ decision on the same issue;
- the court of appeals decided an important question of state or federal law that the Court of Criminal Appeals has not settled and should settle;
- the court of appeals decided an important question of state or federal law in a way that conflicts with decisions of the Court of Criminal Appeals or the Supreme Court of the United States;
- the court of appeals declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued one;
- the justices of the court of appeals disagreed on a material question of law necessary to the decision; or
- the court of appeals departed so far from the usual course of judicial proceedings as to call for the Court’s supervision.
Most items on that list concern more than the defendant’s own case. A petition arguing only that the court of appeals got it wrong gives the Court no reason to grant review; a good petition shows why the question is important and interesting, and only secondarily why the court of appeals answered it wrong.
Where is the petition filed, and what must it contain?
The petition is filed with the clerk of the Texas Court of Criminal Appeals. Rule 68.3(a).
The petition “must be as brief as possible.” Rule 68.4. It must state the grounds for review and make an argument “amplifying the reasons for granting review,” and it must attach the court of appeals’ opinion. Rule 68.4(a)–(j).
A computer-generated petition may run no more than 4,500 words. Rule 9.4(i)(2)(E). The count leaves out the tables, the statement of the case, the procedural history, the appendix, and several other parts, so the limit applies almost entirely to the argument. Rule 9.4(i)(1). The Court may summarily refuse a petition that is unnecessarily long or breaks the rules. Rule 68.6.
The State can file a petition too.
Rule 68.1 lets “any party” petition for review, so a defendant who wins in the court of appeals may face a petition from the State. The State Prosecuting Attorney represents the State in all proceedings before the Court of Criminal Appeals, Tex. Gov’t Code § 42.001(a); often the local prosecutor will also represent the State, and will do the bulk of the work. When one side files a timely petition, the other side has 10 days to file its own, even if its 30 days have run. Rule 68.2(b).
What happens if the Court grants the petition?
The petitioner files a brief on the merits within 30 days after review is granted, and the other side files its brief within 30 days after that. Rules 70.1, 70.2. The Court hears oral argument only in cases it designates; when it does, each side gets up to 20 minutes. Rules 75.1, 75.3.
What happens if the Court refuses the petition?
The clerk notifies the parties. Rule 69.4(a). A motion for rehearing may be filed within 15 days, but it may rest only on “substantial intervening circumstances or on other significant circumstances” specified in the motion. Rules 79.1, 79.2(c). After that, the clerk sends the refusal order to the court of appeals, which then issues its mandate. Rules 69.4(a), 18.1(a)(2). The court of appeals’ judgment stands, and when the mandate issues, the direct appeal is over. Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000).
A case with a federal constitutional question may be taken to the Supreme Court of the United States by petition for writ of certiorari, and federal habeas corpus may be available later. Each has its own deadline. A defendant with a final felony conviction may also file an application for writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure, returnable to the Court of Criminal Appeals. Tex. Code Crim. Proc. art. 11.07, § 3(a). Our page on Texas post-conviction habeas corpus explains that writ, and our page on how long you have to appeal sets out every deadline from sentencing on.
If we did not handle the direct appeal, our flat fee for a petition for discretionary review is $10,000. If we handled the direct appeal, the petition is included in that fee. We include the petition because no one should go into an appeal without a plan for the Court of Criminal Appeals, and we are thinking about that petition from the first draft of the brief. If that is more than you can pay, email us at [email protected] and tell us your budget so that we can give you a referral. There is no charge for the referral, and we will respond promptly.
Talk to an appellate lawyer before the 30 days run.
A good petition finds a question that affects more than one case and shows it to the Court in 4,500 words, and the 30-day deadline leaves little time to write one. Mark Bennett is Board Certified in both Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization—one of fewer than fifty Texas defense lawyers holding both certifications—and handles criminal appeals throughout Texas. In the five years from July 2021 to July 2026, the Court of Criminal Appeals granted eight petitions for discretionary review that Mark Bennett wrote. Our Court of Criminal Appeals record shows the firm’s pending and recent cases before the Court.
If you or someone you care about has lost in the court of appeals, email us at [email protected] or use our contact form. Tell us the court of appeals, the cause number, the date of the opinion, and whether a motion for rehearing has been filed.