Direct-lee speaking about appellate waiver

The majority opinion in Return Lee to Lee Park v. Rawlings, No. 05-19-00456-CV (Dec. 28, 2020), which affirmed a judgment that allowed the removal of two high-profile Confederate memorials from City of Dallas land, summarized the current state of appellate-waiver law after recent Texas Supreme Court opinions:

“Appellate briefs ‘are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case.’ Tex. R. App. P 38.9. Briefs are to be liberally, but reasonably, construed so that the right to appeal is not lost by waiver. Horron v. Stovall, 591 S.W.3d 567, 569 (Tex. 2019) (per curiam). Appellate courts have the authority to request additional briefing on an unbriefed issue that was fairly included in or inextricably entwined with a briefed issue. St. John Missionary Baptist v. Flakes, 595 S.W.3d 211, 216 (Tex. 2020) (per curiam). However, appellate courts retain authority and discretion to deem an unbriefed point waived in lieu of requesting additional briefing. Horton, 519 S.W.3d at 569–70. Whether that discretion has been properly exercised depends on the facts of the case. Id.”