The Court has a private conference scheduled today. As always, cases decided or petitions granted should be noted on Friday’s regular order list.

Articles from the Past Week

• I mentioned two new features of the blog for court-watchers. One is a “Cases in the News” feed tracking news stories, articles, and posts on other blogs that mention Texas Supreme Court cases. You can use this in the sidebar or subscribe by RSS.

  The other new feature, long overdue, is an email subscription option for the blog. If you’re interested, you can subscribe in the sidebar.

• In the crush of legislation at the end of the session, the Texas Legislature may have fixed one of the vexing problems of appellate practice — the parallel appeals required in many arbitration appeals: “Legislature Streamlines Arbitration Appeals.”.

• On Friday, the Court’s regular order list included opinions in six cases, one new petition granted for the fall, and a CVSG.

• A roundup of recent news stories mentioned how legal aid groups are faring after the legislative session, who is preparing for the 2010 elections, and a recent decision by the Third Court about open records that (through a quirk of timing) was overruled by the Legislature two days later.

Handling an appeal from a Texas trial court’s arbitration order is about to be much simpler.

There has been a quirk in Texas law that often forced people to file two separate “appeals” to effectively challenge a trial court’s preliminary order about arbitration: a normal interlocutory appeal to raise a challenge under the Texas Arbitration Act and a parallel writ of mandamus to raise a challenge under the Federal Arbitration Act.

As Victoria VanBuren notes in her roundup of dispute-resolution bill from the Texas Legislature, that is about to change.

One of the bills just sent to the Governor is S.B. 1650, which provides:

Sec. 51.016. APPEAL ARISING UNDER FEDERAL ARBITRATION ACT. In a matter subject to the Federal Arbitration Act (9 U.S.C. Section 1 et seq.), a person may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court, county court at law, or county court under the same circumstances that an appeal from a federal district court’s order or decision would be permitted by 9 U.S.C. Section 16.

This bill would apply to appeals initiated after August 31, 2009.

2010

Now that the Legislature has adjourned from its regular session, Austin gossip turns to who is running for what office in 2010. The Statesman speculates that at least one Texas Supreme Court Justice could be angling for a lower-numbered “SO” license plate next year by running for Attorney General.

Legal Aid Funding

Faced with a crisis in legal aid funding, the Legislature came up with some (but not quite all) of the needed funds. Most of Texas’s legal aid groups still have some budget shortfall that they hope to make up through other sources. (A few came out ahead due to boosts in federal aid.)

Short-Lived Open Records Decision

Last Friday, the Third Court ruled that the Governor’s office would have to produce certain records about the expenses his security detail ran up while guarding him on various trips out of state. (or read the article in the Statesman). The Statesman reported:

A legislative remedy is another option, but a bill this session by Sen. Jeff Wentworth, R-San Antonio, to exempt DPS travel vouchers from public disclosure stalled in the House after passing the Senate.

Looks like the court decision was just enough of a push to move the bill. Two days later, the Legislature overrode that decision, amending the Public Information Act to make this information confidential.

I wrote earlier this week about S.B. 2038, which had quietly passed the Legislature by overwhelming margins and would have provided new, confusing rules for courts to apply when construing recodified statutes.

Yesterday, Governor Perry vetoed the bill — apparently his first veto of this legislative session.

The Statesman has an article with lengthy quotes from the Governor’s veto statement. (The statement is not yet on the Governor’s website but should appear soon on this page.)

The Statesman also quotes Senator Duncan as saying he doubts there would be an effort at a legislative override. Given the Legislature’s already full plate in these closing hours of the regular session, that should be little surprise. The support for this bill was wide but not very deep.

My last post buried the lede. My apologies. Here’s another try:

The Texas Legislature just passed an amendment to the statute governing the jurisdiction of the Texas Supreme Court to interpret Texas statutes. The bill passed overwhelmingly (147-0 in the House; 29-1 in the Senate (( The lone nay vote was cast by Senator Wentworth. )) ) and has been sent to the Governor.

The bill, a reaction to the Court’s controversial Entergy decision, aims to enforce a brand new provision of the Code Construction Act dealing with recodified statutes. Under the new law, Texas courts can no longer take recodified statutes at face value. If a change is made or a provision is added during the recodification process (by which old statutes are rearranged into modern statute books), Texas courts will not be able to give it effect unless there is also some other “direct express evidence of legislative intent.” (( The bill does not clarify what that means. Typically, people look for “legislative intent” in committee reports prepared by staffers, in stray questions asked at committee hearings by individual members, or in floor debates involving just a couple of members. The only statement of “legislative intent” voted on by the Legislature as a whole is the statute itself. )) The bill’s text explains more. Or you can read my first post discussing this bill.

Unless the bill is vetoed by Governor Perry, this change will go into effect immediately. (( The bill contains an emergency clause and received the requisite 2/3 vote in each house of the Legislature needed to become effective before September 1, 2009. I’m assuming that the date of effectiveness will be the date of the Governor’s signature. If someone knows differently, please post a comment or send me an email. )) So, the new jurisdictional limit on the Supreme Court’s authority to interpret statutes could apply to petitions being drafted now. And the substantive changes this bill makes to the Code Construction Act may also be felt in pending cases throughout the court system.

So reports Mary Alice Robbins of the Texas Lawyer on the Tex Parte blog in this post today. Few details are provided, but the article quotes one of the bill’s sponsor’s (Senator Duncan) saying that the bill just “didn’t have the votes.”

The bill that’s dead is the one that would actually have amended the Labor Code to overrule Entergy going forward, not the bill to limit the Texas Supreme Court’s jurisdiction to decide cases involving statutory construction questions. That bill passed both houses of the Legislature and was sent to the Governor.

Statesman weighs in on whether judicial votes should be public

The Statesman, rather than trying to minimize the role of politics in the judiciary, seems to take Senator Watson’s basic argument from the committee hearing — because our judicial elections are so political, we should have detailed information about every vote cast.

If the bill becomes law, I’ll be happy to put together some tools for practitioners to make sense of the new flood of petition-stage data.

But the cynic in me hopes that the bill dies without vote in the House committee (the legislative equivalent of having your petition denied on the order list) or, if it passes, that it does so by voice vote, consent calendar, or some other legislative device that obfuscates individual votes on less contentious legislation to speed things along. A little dose of irony never hurt anyone.

Cross-appeals: Is the federal rule better?

Over at Todd Smith’s Texas Appellate Law Blog, he suggests that Texas consider a version of Federal Rule of Appellate Procedure 28.1, which consolidates the briefing for cross-appeals.

Having been involved in cross-appeals under both federal and Texas state rules, I can say each has its advantages. But the biggest advantage of the federal rule — one that may not be obvious until you’ve lived it — is that the briefs are not filed simultaneously.

Consider the alternative. In a Texas cross-appeal, the two sides proceed on separate, simultaneous tracks. Each files an appellant brief on the same day, when neither yet knows how the other side will frame the basic issues in the case (or even which issues will be in play). (( This also means the court of appeals will get dueling presentations of the facts and procedural history. You can end up with four fact sections — each side presenting its own and then later responding to perceived misstatements in the other. )) This shadow-boxing continues into the second round, as each side has to file its second brief in the case without yet knowing how the other side will respond its first.

The result can be far less clash (to use an old debating term) than you’d like to have in a cross-appeal, especially where the cross-issues are intertwined.

As the state rules about cross-appeals evolve, I hope that they (like the federal rules) place more importance on developing a meaningful clash of arguments than creating a rigid equivalence between the sides.

After a busy order list last Friday, the Court’s calendar is quiet this week. Any activity will show up on this Friday’s regular order list.

Briefing Requests

Last Friday, the Court requested briefing in some of the oldest pending petitions on the docket — a set of related cases out of the Dallas Court in which public employees sought to compel higher benefit payments, an issue addressed (at least in part) in Friday’s decision in City of El Paso v. Heinrich, No. 06-0778 (DB).

The new briefing requests came in City of Dallas v. Albert, No. 07-0284 (DB), City of Dallas v. Barber, No. 07-0285 (DB), City of Dallas v. Arredondo, No. 07-0286 (DB), City of Dallas v. Willis, No. 07-0287 (DB), City of Dallas v. Martin, No. 07-0288 (DB), and City of Dallas v. Parker, No. 07-0289 (DB).

Articles from the Past Week

• The First American case originating from the Texas Supreme Court is up for conference at SCOTUS and was selected as a ‘petition to watch’. Update: SCOTUS denied the petition in this order list (PDF).

• Two bills pending in the Texas Legislature were in the news this week, including a statutory-construction bill inspired by Entergy. Meanwhile, the bill that would require disclosure of the Texas Supreme Court’s intermediate votes remains pending in the Senate.

• In last Friday’s order list, the Texas Supreme Court decided seven cases and granted another for the fall argument calendar.

• And Lexis has recognized the Texas Supreme Court as its “insurance jurist of the year” because of the significance of its recent cases.