The San Antonio Express News has an article about a cert petition pending in the U.S. Supreme Court that challenges the Texas parental-termination system. In particular, the petition argues that it is unconstitutional not to give the parent appointed counsel when parental termination is at stake, even in disputes between private parties. (The respondent argued that this issue had been waived for failure to secure the reporter’s record.)

The case moved up the Texas courts, reaching the Texas Supreme Court as In re J.C., No. 08-0351. It was then selected for the Texas Supreme Court’s new pro bono program, through which the parent obtained free counsel who wrote merits before on her behalf. The Texas Supreme Court ultimately denied review. The same counsel apparently stuck with her to write a petition for certiorari to the U.S. Supreme Court.

More information about the case in the Texas Supreme Court, including the briefs, is available by clicking here.

The U.S. Supreme Court’s docket entry is here. The case was distributed for last week’s conference and could be resolved as soon as this morning.

The “green book” — the Texas Rules of Form style guide for Texas citations — is up for revision, and its editors at the Texas Law Review want your input.

Comments should be sent to Rex Mann at the law review. His contact information is here. Comments are requested by October 31, 2009.

Some ideas that warrant discussion:

• A way to cite unpublished cases in Texas outside of a paid research service. When not all courts in Texas even buy the same service, it would sure be nice to be able to cite those (precedential) opinions from their web locations. (I wrote before about researching those unpublished opinions online.)

• The future role of Texas’s unique system of subsequent history. The Texas Supreme Court in practice does not use “petition refused” (which would bless the court of appeals opinion as its own), and “petition denied” status does not make the lower court’s decision binding on any other courts. (( In fact, in the modern petition for review system, there’s no way to tell from “pet. denied” what issue was even presented to the Supreme Court, so there’s no way to know the Court was even asked about the proposition of law you’re citing that case for. )) Yet practitioners go through a remarkable amount of effort to pick out just the right flavor of subsequent history. (( The more subtle differences may affect future litigation between the parties actually involved in that case, but they rarely affect the precedential status of an opinion for nonparties. ))

If you have ideas that you want to see explored more on this blog, please put them in the comment threads (or email them to me privately).

On Friday, the Texas Supreme Court granted an emergency stay in In re Art Harris, No. 09-0761, a petition filed by a freelance reporter who is fighting an order to turn over his hard drive in civil litigation growing out of the Anna Nicole Smith estate battle.

Although this petition involves a freelance journalist (and thus might involve some broader First Amendment principles or even Texas’s recently enacted shield law), it may boil down to a more general question about discovery in civil cases: Have the standards for electronic discovery that the Court announced in In re Weekley Homes, L.P., No. 08-0836 (DocketDB), been met in this case?

You can follow future activity in this petition at DocketDB.

Other materials about the underlying state court suit have been collected by the Citizen Media Law Project here (and materials about a related federal court suit here). Other background is available here.

Sources: “Court grants freelancer’s motion to protect hard drive” (RCFP)

Chief Justice Gray applies for the currently vacant seat on the Texas Supreme Court

The Waco Tribune reports that Chief Justice Gray of the Tenth Court of Appeals has applied for the open seat on the Texas Supreme Court, just vacated by Justice Brister.

That appointment is in high demand. According to the paper:

“Perry had fielded 23 applications for the position as of Thursday, according to a spokeswoman in Perry’s office.”

Justice Brown of Houston files to be a candidate for O’Neill’s seat in 2010

Texas Lawyer has reported that Justice Jeff Brown of the Fourteenth Court has filed the initial paperwork to run for Justice O’Neill’s seat on the Texas Supreme Court in 2010.

The Texas Supreme Court begins its fall with a series of conferences that clear out the petitions from the summer. Traditionally, that means a flurry of briefing requests that will keep the law clerks busy over the winter and set up the Court’s spring argument calendar.

This week’s conferences led to more than 30 new requests for full briefing on the merits. Each of those petitions had at least three Justices interested enough to devote staff to study them more deeply.

You can click through for the full list of recent requests for briefing on the merits in the Texas Supreme Court.

It has been pointed out to me that the issue raised in the Scott & White case the Texas Supreme Court just set for argument this fall — the standard of care applicable to slip and falls on ice in Texas — was actually the subject of the Texas Young Lawyers Association student moot court competition in summer 2008. (( That moot court problem packet is still online. ))

The panel for that final moot court round? “[T]he justices of the Texas Supreme Court”.

Perhaps hearing those arguments last year piqued the Court’s curiosity.

The official notice from the Texas Supreme Court has now been posted. Justice Brister also spoke with Texas Lawyer about his reasons for leaving.

The most interesting tidbit: Justice Brister, who has been one of the Court’s fiercest questioners and most quotable opinion-writers, “has never actually filed a brief.” (He practiced trial law before first being appointed to the trial bench.)

[Read more →]

The Court’s public information officer, Osler McCarthy, just sent the following announcement by email. (There’s not yet a link on the Court’s homepage.)

Texas Supreme Court Justice Scott Brister announced Monday that he would be leaving the Court effective September 7, 2009, to return to private practice with the law firm of Andrews Kurth L.L.P.

Justice Brister has served on the Supreme Court for six years, since his appointment in November 2003. Before that he was chief justice of the 14th District Court of Appeals in Houston, justice on the First Court of Appeals in Houston and district judge in Harris County.

“Scott Brister has served with distinction on this Court. Always current on his docket, always penetrating in his analysis, Scott added greatly to the collegial exchange of ideas around the conference table,” Chief Justice Wallace B. Jefferson said. “The people of Texas should know that Scott Brister devoted decades of his life to serving them, and did so with brilliance and grace.””

Justice Brister will lead Andrews Kurth’s appellate section from the firm’s Austin office.

“It was time for me to move on and give someone else the opportunity to serve,” Justice Brister said. “I am grateful to Governor Perry for appointing me to the last two courts on which I served, and to the voters of Texas for keeping me as a judge for the last 20 years. I will miss the challenges of judicial office, but even more the colleagues and friends I have served with over the last two decades.”

Brister was the first of five judges who came to the Court during a period of high turnover between late 2003 and mid-2005. With a stable membership over the four years since then, the Court has increased its productivity. “With the Court’s docket in better shape than it has been for many years, it was a good time for me to make a switch,” Brister said.

Justice Brister is a native of Waco and an honors graduate of Duke University and of Harvard Law School. He first worked at the Texas Supreme Court as a law clerk to Chief Justice Joe Greenhill in 1980-81, followed by eight years as a trial attorney in the Houston offices of Andrews Kurth.

Justice Brister, his wife, Julie, and their four daughters, Elizabeth, Susannah, Sarah and Mattie, live in Georgetown.