Today’s “Practice Before the Texas Supreme Court” CLE

It looks like a good one. I will, unfortunately, not be there because of a conflicting engagement. I’d love to hear about it later (or contemporaneously, if anyone there will be doing the trendy Twitter thing).

At least I’m not alone with having conflicts. At least two Justices will be attending the Travis County Bench-Bar event, and Justice Hecht is of course hosting a two-day Rules Advisory Committee extravaganza.

The Entergy bill leaves the House committee

The Statesman weighs in today, saying that the Legislature should “correct” the Supreme Court on its recent Entergy decision (DB).

The editorial notes that the House version of the bill, introduced by Rep. Giddings, was voted out of committee 9-0. It now moves to the full House.

A bill that would clarify the private status of state employee birthdates

Another bill would answer the question raised by Texas Comptroller of Public Accounts v. Attorney General and the Dallas Morning News, No. 08-0172, a pending case that should be heard for argument this fall, by making the exact dates of birth of state employees confidential information that is exempt from disclosure under Texas Public Information Act.

This bill was also proposed by Rep. Giddings.

Coverage: Dallas Morning News (AP) and Weatherford Democrat (AP).

Fort Worth Court gets approval for new local rule about submitting electronic copies of briefing

The Fort Worth Court’s new local rule, like so many others, requests the brief as a word-searchable PDF — not a scanned copy of a printout.

It always surprises me how many law firms file scanned copies instead, resulting in bloated files that are difficult for the Justices (and of course court-watchers) to work with.

I posted earlier about the Texas Supreme Court’s relatively light slate of oral arguments, ultimately speculating the Court might still hear 75 cases if it filled up all its available slots.

That hypothetical did not come to pass. It seems that the Court has canceled its late April argument sitting, its last of the spring, bringing the total to seven argument days canceled this spring (out of fourteen originally scheduled).

What’s Happening Here?

The Court’s choice to hear so few arguments this year looks like an attempt to clear out its oft-criticized inventory of older cases. If so, I would expect a significant number of opinions in the coming months, perhaps especially in the oldest pending cases.

Read more

In today’s order list, the Texas Supreme Court denied the petition for review in Jerry Gurkoff, D.O. v. Jersak, No. 08-0398 (DB). But two Justices wrote a dissent from the Court’s denial of review, arguing that the Court should actually have taken up the issue. (( By way of background, it would have taken four votes for the Court to grant the petition. Normally, when a petition only receives two or three votes after being discussed at conference, it comes to a quiet end with the very same notation of “petition denied” that is given to petitions that receive no interest at all. For a Justice to publicly note their dissent is an additional step. ))

Opinions dissenting from the denial of review are somewhat rare. They can sometimes be a helpful signal to counsel in other cases that at least some members of the Court are interested in seeing the same issue raised in some future case. (( If you want to read more about them, you might see Dylan Drummond’s article A Vote by Any Other Name: The (Abbreviated) History of the Dissent from Denial of Review at the Texas Supreme Court that was published in the Spring 2006 Appellate Advocate. ))

I broke this out for special attention today because of the pending bill in the Texas Legislature that would require all of these intermediate votes to be disclosed.

Read more…

“ORAL ARGUMENT REQUESTED”

Earlier this week, I saw these words on the cover of a brief filed in the Texas Supreme Court.

If you’ve practiced in Texas’s fourteen appellate courts, you know that you need to formally request oral argument or risk actually waiving the chance to appear at argument. (( This strange rule has led to strange results. Some courts of appeals have interpreted it so rigidly that they have held oral arguments at which only one side could stand up and speak. )) Careful lawyers thus put “ORAL ARGUMENT REQUESTED” on the cover of their briefs in the boldest font they can find.

But the Texas Supreme Court rules are different. Putting these three little words on your brief cover might perhaps show the Court you care, but it has no legal effect.

That’s because, unlike the lower courts of appeals, the Supreme Court of Texas has sole discretion over whether to hear oral argument. Compare Tex. R. App. P. 39.1 (“A party who has filed a brief and who has timely requested oral argument may argue the case to the court unless the court, after examining the briefs, decides that oral argument is unnecessary….”), with Tex. R. App. P. 59.2 (“If the Supreme Court decides that oral argument would aid the Court, the Court will set the case for argument.”).

When a case reaches the Texas Supreme Court, and you’re writing that first brief, deleting those three little words from the cover can remind you that you’re in a different kind of court, one whose primary concern is why it should exercise discretionary review over your petition at all.

This week’s conference may set the tone, not only for this spring’s argument calendar, but also for the fall.

I’ve mentioned before that the Court has not yet set any oral arguments for the remainder of the term. This week’s conference is perfectly positioned to (at least partly) fill the March 10th sitting.

But there is a less visible part of the Court’s docket that has also hit a winter lull — the Court’s requests for full briefing. These do ebb and flow, as the Court digests its workload. But if you glance at the sidebar to your left, you’ll notice (at least as I write this) that there has only been one request for full briefing in the past 30 days. (( In fairness, the Court did issue about a dozen briefing requests on January 9th, so they have only recently fallen off this list. )) Briefing requests need time to mature into oral arguments, so part of the Court’s complex docket-dance is keeping enough briefing requests in the air to be used for the argument calendar when needed.

Petitions That Might Result in Briefing Requests

The petitions that are ripe for the Court to request full briefing — the ones in which a response has been on file for more than 30 days (( The 30 days is an internal practice to give the Justices time to prepare for conference. )) — are collected at this page. (( The Court may also decide to request briefing for some of the petitions that have been on hold for even longer, but it is doubtful they will accelerate any petitions unless the case is especially time-sensitive. ))

If you work through the calendar math, a request for full briefing issued today would give the parties at least two or three months (combined) to complete briefing, and then another month for a law clerk to write a study memo for the Court’s consideration. So, a request issued today could not result in an oral argument this term. (( In particularly time-sensitive cases, the Court does sometimes set a shorter schedule. )) At best, briefing requests made this month and next will ultimately be the cases that fill out next fall’s argument calendar. With that in mind, I expect a big burst of briefing requests this month and next as the Court starts to reload for next year.

Fully Briefed Cases That Might Mature Into Oral Arguments

As for potential Texas Supreme Court oral arguments this spring, the petitions that are ripe to be set for oral argument are listed on this page, which collects cases in which the briefing has been complete for between 30 days (giving the study memo time to be written) and 75 days (giving a little more time to circulate). (( Cases that have been pending much longer than that are perhaps on the “submarine docket,” but the Court can always choose to surface them for oral argument. ))

I posted last month about the sharp dropoff in the Texas Supreme Court’s oral arguments and wondered if the Court would grant more cases for its three-day February sitting. The Texas Supreme Court ultimately canceled the last two days of that sitting.

This year’s calendar is shaping up to be particularly light. Whatever the reason, appellate counsel should be aware that oral argument looks like the last thing on the Court’s mind right now.

Is this just a seasonal pattern?

After my post, I had a couple of conversations about whether this was a seasonal effect — that is, whether the Court’s supply of petitions was just running low at the same time each year before it could fill the spring calendar.

Read more about it…

The Texas Appellate Law Blog and Texas Lawyer have mentioned that some intermediate appellate courts are trying to hold more oral arguments.

The Texas Supreme Court, however, seems to have had difficulty filling out its announced spring argument calendar. The Court’s sitting next week has been reduced from three days down to two. And there is a sitting coming up the first week of February in which the Court so far has just one case scheduled out of nine possible slots. (( The one case now scheduled for February had actually originally been scheduled for January. ))

This Friday’s weekly order list is the last that would give counsel 21 days to prepare for the February argument sitting. (( That can be a short time to prepare, especially for a case in which you haven’t written a brief or re-read the record in several months (or more), a concern I raised when this same thing happened with last year’s February sitting. )) So, the Court may grant review in a number of cases tomorrow. Or it may simply cancel most of the sitting and wait until March.

Last year, at about this same time, the Court faced the same problem. It had only five cases scheduled for the February sitting.

What does this mean?

This is a post that will likely interest only avid court watchers.

I overlooked something as last December wound to a close. In recent years, the Court has issued a formal order formally carrying forward cases to the next term. In December 2007, I even wrote two posts about it.

This year: No order.

Click only if you want to read more about this