Another Texas statute may be winding its way to the United States Supreme Court.

Yesterday, in Reliable Consultants, Inc. v. Earle, a panel of the Fifth Circuit struck down the Texas statute regulating “obscene devices” ((The two relevant statutes are Texas Penal Code §43.21(7) and Texas Penal Code §43.23. )) on the ground that it violated the same substantive-due-process principle that animated Lawrence v. Texas. The vote was 2-1 on that question, with Judge Reavley and Judge Prado in the majority and Judge Barksdale dissenting.

There now appears to be a direct split between the Fifth Circuit and the Eleventh Circuit on whether Lawrence invalidates this class of laws. (( I suppose it cuts against certiorari that there are only a handful of states with statutes precisely like these, but reading Lawrence to undermine statutes grounded in public morality may have unforeseen effects — such as the 2005 district court decision (later reversed by the Third Circuit) that had used Lawrence to hold the federal obscenity statute unconstitutional. ))

Former Chief Justice Phillips wrote a letter to the editor responding to the Houston Chronicle’s recent editorial (titled “Backlog”) that had criticized the Court’s practices of having monthly (rather than weekly) conferences and of assigning responsibility for majority opinions by random draw.

With regard to the scheduling of conferences, Phillips says that he suggested a monthly schedule in 1993 after surveying the practices of other supreme courts. He then explains the Court’s return to — and abandonment of — a weekly schedule in recent years:

In 1999, however, the court decided, over my objection, to return to a weekly conference schedule. As I feared, the backlog slowly accumulated over the next few years. In 2004, just before I left the court, the justices adopted my motion to reinstate the monthly schedule. If that decision was wrong, you should blame me, not Jefferson.

And with regard to the random assignment of majority opinions, he takes issue with whether the procedure leads to delay. He also defends the practice as “preventing the danger of various justices holding forth as ‘specialists’ in particular areas of the law.”

That said, Phillips agrees that the Court “has for many years been too slow in its work.” The letter concludes, however, that public discussion of the Court’s procedures can be of benefit “only if the public has accurate information about what it is now doing and why.”

The Texas Lawyer blog has a post titled “Strike two” about the Third Court’s disposition of a petition for writ of mandamus filed by Karyl Krug, who is running for the 427th District Court in Travis County. Her complaint, as reported by Texas Lawyer blog, is “that Democratic primary foe Jim Coronado, the Travis County criminal magistrate, is violating state election law by calling himself a judge in campaign materials.” I wrote about her previous petition to the Texas Supreme Court in the post “Another Election-Related Mandamus, Another 52.3(e) Dismissal.”

Krug filed a petition for writ of mandamus in the Third Court yesterday — and it was denied with a memorandum opinion later the same day.

The Texas Lawyer blog reports that Krug has filed a petition for writ of mandamus today with the Texas Supreme Court that, the article suggests, is focused on how the Third Court procedurally disposed of her petition:

she is asking the Supreme Court for a writ of mandamus against the 3rd Court for denying her writ petition “without due consideration, oral argument, or explanation.”

The docket information for this new mandamus petition is not yet online. The docket number is 08-0111. If, as this article suggests, it really is only challenging the internal procedures that the Third Court used to dispose of her case, then this second trip to the Texas Supreme Court may also be a short one. [Update: It appears from the docket information that the Texas Lawyer may have been placing undue emphasis on the petition’s rhetoric about the Third Court rather than its substance.]

Today, Texas Lawyer posted an interview with the Chief titled “Tough Times: A Candid Conversation With the Chief About the Texas Supreme Court”.

The interview covers questions about the speed of the court’s docket, recent ethics complaints, and allegations that the Court favors defendants over plaintiffs.

As a lifelong Cowboys fan, I’m not particularly excited about this weekend’s football game. Instead, I get to offer a link to this week’s “We’re taking it all the way to the Supreme Court” case.

As luck would have it, the case happens to involves a former Dallas Cowboys player who won three Super Bowl rings with the team.

Texas Lawyer covers the case in this blog posting: “Court OKs workers’ comp for former NFL star”.

The case is Gulf Insurance Co. v. Hennings, No. 10-06-00192-CV. opinion on rehearing ((Although he had dissented from the original panel decision that had rendered judgment for the insurer — and thus may have been in greater agreement with the opinion on rehearing insofar as it reached the contrary result — Chief Justice Gray recused himself from further participation in the case on January 16, 2008. The order does not specify a reason.)) The “former NFL star” is former Cowboys defensive lineman Chad Hennings, who suffered a spine injury in 2000 that ended his season and prompted his retirement.

The dispute is over a special provision of the Texas workers’ compensation statute that — believe it or not — focuses on professional athletes. Texas Labor Code §406.095 gives a professional athlete the option to elect workers’ compensation instead of the benefits provided by their own collective bargaining agreement, so long as the workers compensation benefits are at least equal to those provided by workers compensation.

The Tenth Court originally rendered judgment in favor of the insurer but earlier this week granted rehearing and issued a new opinion largely ruling in Hennings’ favor. ((Hennings did not succeed on his cross-appeal about one adverse aspect of the judgment, which set his income-related benefits at 15 weeks rather than the maximum of 104 weeks.))

And, as Texas Lawyer reports:

Barry Hasten, a partner in Hasten & Hansen in Arlington who represents Gulf Insurance Co., the Cowboys’ insurance carrier, says that he is surprised by the 10th Court’s reversal: “Their other opinion was very straightforward.” Hasten says that on behalf of his client he will seek Texas Supreme Court review of the 10th Court’s decision.

A little earlier this week, the Dallas Morning News ran an Op-Ed piece by Chief Justice Jefferson titled “It’s time that the state investigates cases that resulted in DNA-evidence exoneration”.

The Chief advocates a commission to study the cases in which the courts have already exonerated an inmate based on DNA evidence to extract lessons about how to reduce the risk of error in future cases. As the article notes, this echoes a call that he previously made to the Legislature:

The second crucial need—one that I also mentioned in my 2005 address— concerns the unfortunate reality that our criminal justice system, on rare occasions, convicts the innocent. I recognize that the convicted often falsely claim to be innocent, but we know, right here in Texas, that some of our inmates have been exonerated by DNA testing. I cannot imagine wasting away in prison for a crime I did not commit. Can you?

Chief Justice Wallace Jefferson, State of the Judiciary Address 2007, at page 6.

This week’s article makes that number more concrete, explaining that Texas has already had 30 exonerations based on DNA evidence since 2001. I had no idea the number was so high. As one bright spot, each of those exonerations (in addition to freeing someone wrongly convicted) would provide a case study for the proposed commission.

The theme today is school finance. There is a pending Texas Supreme Court mandamus proceeding about bonds to pay for schools:

• In re Waller Independent School District No.08-0079. This case, involving the Attorney General’s decision not to approve the school district’s bond package — not normally a scintillating subject — is written up in today’s Houston Chronicle in the article “Waller ISD sues to force release of bond money”.

Another challenge may be brewing that, again, attacks the design of the property-wealth-reallocation system:

• The Dallas Morning News ran an article earlier this week titled “Wimberley school district challenging Texas’ ‘Robin Hood’ finance law”. The article explains that the district has decided not to remit the $3.1 million in property-wealth redistribution that is due on February 15th. The article says this would be “the first instance of a school district refusing to share its property taxes under the 15-year-old law.”

And the Texas Senate has just been charged with studying possible changes to the tax system to short-circuit future challenges to the property-tax system:

• Neeley v. West Orange-Cove (West Orange-Cove II), No. 04-1144, majority dissent. The Dallas Morning News covers Lieutenant Governor Dewhurst’s set of interim charges for Texas Senate committees to study before 2009:
  

  School property taxes were also on Mr. Dewhurst’s priority list as he directed the finance and education committees to revisit that issue in the wake of the 2006 school finance reform law that cut school property taxes by a third and replaced the revenue with a new tax on businesses and a higher state cigarette tax.

  Referring to a Texas Supreme Court order in 2005 that declared the school funding system unconstitutional, Mr. Dewhurst told senators to “explore what mechanisms may exist to prevent any future constitutional funding challenges.” The 2005 court ruling and 2006 reform law stemmed from a lawsuit filed by hundreds of Texas school districts.

• The most covered story from Friday’s order list was In re BP Products North America, Inc., No. 07‑0119, the mandamus decision involving the British Petroleum refinery explosion. The Houston Chronicle has an article, as does the Associated Press and the Austin American-Statesman.

• The Dallas Morning News instead covered City of Rockwall v. Hughes, No. 05-0126, in this article that contains some reactions from the city attorney and others involved in the annexation fight.

• Living Centers of Texas, Inc. v. Penalver, No. 06‑0929, gets some coverage on Texas Lawyer’s Tex Parte blog in a piece called “When not to play the Nazi card”.