BURNS v. BURNS II III (1998)

Opinion on Interlocutory Order

The appellant, Richard Waller Burns, filed a suggestion of bankruptcy.   Although Burns was the plaintiff in the trial court, he is entitled to an automatic suspension of this appeal.

One commentator, relying on federal law, has suggested that the automatic stay does not apply to appeals where the debtor is both appellant and plaintiff.   See Richard Orsinger, Traps Under the New T.R.A.P., 6th Annual Conference on State & Federal Appeals 3-3 (University of Texas School of Law 1998) (citing Freeman v. Commissioner, 799 F.2d 1091, 1092-93 (5th Cir.1986));  see also Thiel v. Thiel, 780 S.W.2d 930, 930 (Tex.App.-San Antonio 1989, no writ).   We disagree.

According to Rule 8.2, “[a] bankruptcy suspends the appeal and all periods in [the rules of appellate procedure] from the date when the bankruptcy petition is filed until the appellate court reinstates or severs the appeal in accordance with federal law.”  Tex.R.App. P. 8.2 (emphasis added).   This rule was intended to simplify the effect of federal bankruptcy law.   See Minutes, Supreme Court Advisory Committee 4010 (Nov. 18, 1994), 5221 (Jan. 20, 1995).   Because the rule applies to any party to the trial court's judgment, we read the italicized phrase “in accordance with federal law” as modifying the reinstatement and severance procedures more fully described in Rule 8.3.   Because Rule 8.2 was drafted after our opinion in Thiel, we decline to follow its holding.   Accordingly, by separate order, we suspend the appeal and all appellate deadlines.

PER CURIAM.