The Formal Bill of Exception

October 11, 2011

Previously, we took a look at the offer of proof, which is also known as the “informal” bill of exception. The informal bill is a tool of error preservation, and is used to inform the appellate court of the substance of evidence which the trial court refused.

In addition to an informal bill of exception, the Texas rules provide for a formal bill of exception as well. Although they share a similar name, generally one cannot substitute for another. Informal and formal bills are rarely interchangeable because they are intended for different situations and designed for different purposes.

One characteristic that both formal and informal bills share is that they both serve to supplement the record for appellate purposes and preserve error for appellate review. However, they differ in what they actually prove. An informal bill of exception provides proof of the substance of something that was not permitted into evidence at trial. A formal bill of exception, however, provides proof of something that occurred at trial but isn’t reflected in the record. For example, if a judge made a ruling during the course of a trial which wasn’t included in the court reporter’s record, then the attorney complaining of the ruling could seek a formal bill in an attempt to get the ruling included in the record on appeal.

A second difference between an informal bill and a formal bill is one of timing. Informal bills must be made before the jury is charged, or any error in excluding evidence is waived. A formal bill isn’t due for filing until 30 days after the Notice of Appeal has been filed.

Another, perhaps technical, difference between an informal bill and a formal bill is where they appear in the record. Informal bills will be included in the reporter’s record on appeal, whereas formal bills will be found in the clerk’s record.

The Judge’s Bill: While there are two types of formal bills of exception, for all practical purposes nowadays there is really only one: the “judge’s bill.”  Rule 33.2 of the Texas Rules of Appellate Procedure  provides that when a party wants to complain about a matter which does not appear in the official record of the proceedings, the party should present to the trial judge a formal bill of exception. While there are no magic words which should be used in a formal bill, the rules do require that the bill be sufficiently specific to make the trial court aware of which of the trial court’s actions or rulings is being complained of. Once presented with the bill, what the judge chooses to do with it depends upon the posture of the parties and, in some instances, the discretion of the judge.

If both sides agree to the contents of the formal bill, then the court has no discretion but to sign the bill and file it with the clerk. (According to the rule, this is mandatory even if the judge disagrees with what the parties agree to.) Absent agreement, however, on the bill’s contents, then, after notice and hearing on the matter, the court will be left with three options:

  1. If the judge agrees with the bill, then the judge will sign it and file it with the clerk. If the judge disagrees with the bill, then the judge may suggest corrections to it that, in the court’s opinion, would make it accurate. If the moving party accepts and makes the suggested corrections, then the judge will sign the corrected version and file it with the clerk. (Interestingly enough, if a formal bill of exception conflicts with a reporter’s record, the bill, not the reporter’s record, controls.)
  2. If the moving party disagrees with the suggested corrections, then the judge will return the bill marked “refused” and will instead file a judge’s bill (usually prepared by the other side) which, in the court’s opinion, accurately reflects what occurred.

The Bystander’s Bill: The second type of formal bill, the “bystander’s bill,” is filed by a party who is dissatisfied with the judge’s bill. Today, the bystander’s bill has become a rarity, at least in civil trials. This is because a bystander’s bill must be supported by the affidavit of three disinterested witnesses who were present in the courtroom and witnessed the event which does not appear in the record. These three disinterested bystanders must also attest to the correctness of the bill which the judge refused. (The refused bill must be filed with the clerk as well.)

The requirement that these bystanders be disinterested disqualifies most everyone who is present in the courtroom during the trial of most civil cases today. (Attorneys, parties, and paralegals are all considered “interested.”) The rule permitting the bystander’s bill is still there — TRAP 33.2(c)(3) — but, alas, bystanders are not. With the advent of television and the internet, the bystander’s bill has gone the way of dinnertime conversation, letter-writing and book clubs.

For better or for worse, gone are the days when the courthouse was the center of entertainment for the community. Instead, the community tunes into the more interesting drama of Judge Judy, the People’s Court, and the courtrooms of prime-time T.V. In the event that a courtroom does manage to attract a disinterested audience of three or more — perhaps during a T.V. blackout, or in a criminal trial, which will sometimes manage to muster a decent-sized live audience despite today’s competitive entertainment market — a bystander’s bill will be the only recourse in challenging the accuracy of the judge’s bill. When this happens — when the court of appeals is presented with competing bystander’s bills and judge’s bills — the appellate court will sit as a fact-finder to determine which bill correctly reflects what actually occurred in the courtroom.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

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