the Supreme Court of Texas blog

The Texas Supreme Court did not issue any opinions or grant any petitions with today’s order list.

There is an interesting guest post on the Texas Appellate Law Blog about a case out of the Texas Court of Criminal Appeals.

In Vasilas v. State, decided May 7th, the CCA held that a person could be criminally prosecuted for a false statement made in a civil filing regardless of how that same conduct would be treated under Rule 13 of the Texas Rules of Civil Procedure. The Court’s conclusion was that statutes always trump rules and, accordingly, there was no need to consider Rule 13.

I’ve already posted a comment about the case on the Texas Appellate Law Blog’s comment stream. Whatever one might think of the wisdom of its ultimate holding, the CCA’s opinion doesn’t mention or analyze the statute through which the Legislature vested rule-making power in the Supreme Court of Texas, which does set out a framework to analyze when the rules trump conflicting statutes.

The Houston Chronicle has an online article titled “Report says most Texas Supreme Court opinions anonymous”.

The “report” of the headline is from Texas Watch. The newspaper quotes the group:

“All too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters,” the group wrote in the report. “By relying too heavily on unsigned per curiam opinions, the court operates in the shadows, allowing little public scrutiny and failing to light the way for future jurists.”

Although it’s easy to see how signing an opinion would facilitate an attack ad, I’m puzzled about how signing an opinion would better “light the way for future jurists.”

When Texas Watch releases its report (the newspaper article is just a teaser), I’ll let you know if there is something interesting that isn’t already in this OCA activity report that counts the Court’s signed versus unsigned opinions for the term and also gives a breakdown by Justice (see page 4). (The real statistics are pretty interesting on their own, showing a concentration of per curiams in just a few chambers. I’m not sure how that would relate to the theme Texas Watch has chosen for this report. I’ll have to wait and see.)

In re Nathan Macias, No. 08-0339

A few weeks ago, the blog had a brief note about the election case involving Representative Macias, who is contesting a loss in his party’s primary. At that time, he was challenging the assignment of a visiting judge and his lawyers were considering taking the matter up.

They did. Last Thursday, the Third Court denied Macias’s request for relief. And on Friday, a petition was filed in the Texas Supreme Court.

The trial is currently set for May 19th with a pretrial hearing a few days before that, so the Supreme Court can be expected to resolve this petition pretty quickly. The Court has already requested that a response be filed by tomorrow afternoon.

Background and more information: Herald-Zeitung

Ted Cruz chooses his new law-firm home; another firm launches a “national appellate practice”

Morgan Lewis & Bockius (former holders of one of the early outstanding email-address domains) announced today that they just hired Ted Cruz to lead their new national appellate practice as a partner out of their Houston office.

This is a good thing for Ted. (I still owe him a lunch; I think it’s now official that he’s buying.)

I’m going to go out on a limb and say it’s also a good thing for appellate lawyers when another big firm recognizes this as a distinct specialty worthy of a distinct practice group. I’m finding that the biggest problem in marketing isn’t a glut of appellate lawyers but instead too little recognition of the value that an appellate specialist can bring.

Last Monday was Entergy day at the state capitol

The Texas Supreme Court has already granted rehearing, but last week the Texas Legislature held its own committee hearings with testimony from a number of witnesses about the Court’s decision in the case. (Those were a part of the interim charges given to the committees, as discussed in this earlier post.)

See: Houston Chronicle

Effect of tort reform on growth

Texans for Lawsuit Reform issued a report trying to put a more exact number on the economic benefits from lawsuit reform. The study was done by the Perryman Group.

The numbers in the study include benefits that go far beyond reduced judgment amounts:

“Business owners and taxpayers save millions of dollars by eliminating non-productive expenditures related to unnecessary litigation, including administrative costs, court costs and the waste of the time of executives and workers.”

In other words, if you’re reading this blog, you are a “cost” in this study. That was very expected. But you should be reassured that you’re only a small part of the economic picture. The study credits the vast bulk of the extra growth to its model’s prediction of all the “innovations” attributable to having a less litigious environment. ¹

The article “Lawsuit caps tied to Southeast Texas growth” in the Beaumont Enterprise discusses the study, gets some follow-up quotes from the Perryman Group, and also some reactions from local lawyer Walter Umphrey. (Keeping with one of today’s themes, Umphrey mentioned cited Entergy v. Summers as a particular concern.)

Other coverage: Austin Business Journal

Baylor Law lauds its Texas Supreme Court clerks

The press release “High bar passage caps week of success for Baylor Law” includes a mention of the four Baylor students who will be clerking for the Court this next term.

1. Details about what that means, as well as some finer points about the study’s methodology, are in the full report (PDF). ↩

This week, the Texas Supreme Court’s calendar shows an “other session” of the Court for Monday, Tuesday, and Wednesday. I have been told this represents the Court’s participation in the Fifth Circuit Conference being held in San Antonio.

On Friday, the Court is scheduled to release its regular order list.

Articles from the Past Week

• “Links on Perry Homes”

• “Order List of 5-2-2008″

The press reacted very quickly to the Perry Homes decision, getting stories onto their online editions:

• “Texas Supreme Court rules against Mansfield couple in battle with homebuilder” by Wayne Slater of the Dallas Morning News. This one has been “above the fold” on the online version of the website.

• “Houston homebuilder Bob Perry wins big in Texas Supreme Court” from the Texas Politics blog at the Houston Chronicle.

• “Renegade Texas Supreme Court?” by the Legal Trade blog (part of the Houston Chronicle). Not a whole lot of analysis, just an invitation for blog commenters to weigh in on “the court’s anti-arbitration, pro-federal control and pro- medical malpractice case sanctions decisions?” (We aren’t as hungry for comments here, but then again, we aren’t selling ads.)

• “Question for Readers: The Case Against Bob Perry” - Lapsed lawyer Paul Burka of Texas Monthly has his own shout out for reader comments about the case. The comment thread on that site is pretty interesting, with several of the early posters supportive of the legal result of the decision.

All of the stories have the same implicit thesis (and the bloggers make it explicit), suggesting that campaign dollars drove the decision. Yet, none of the stories tries to square that thesis with the 5-4 split of the Justices in this case. If you use these numbers from an earlier Dallas Morning News story (which aggregated contributions from groups associated with Bob Perry over the 2001 to 2006 timeframe), it looks like Perry had given twice as much in contributions to the four Justices who dissented than to the five who ruled in his favor (a total of $209,000 ($52,000 per Justice) versus $131,000 ($26,000 per Justice)). There are lots of ways to spin that, none simple enough for a sound bite.

Of course, this really isn’t a question of math — it’s a question of public confidence. As someone who reads all of the Court’s decisions, I’ve been struck by how deeply divided the Court was here, as it has been over so many recent cases. Those persistent divisions seem to me to undermine the simplistic equation that “campaign contributions equal favorable decisions,” but, by the same token, the closeness of high-profile decisions such as this one may give more fuel to advocates of tougher recusal rules.

And one of those advocates has been former Chief Justice Phillips of the Texas Supreme Court. I missed passing this along earlier, but he wrote the Foreward to a report issued in April by the Brennan Center published its report about using heightened recusal standards to reduce concerns about judicial election and selection: “Fair Courts: Setting Recusal Standards” by James Sample, David Pozen, and Michael Young. A synopsis is here.¹

1. I mentioned an op-ed written by James Sample in this earlier post about election-related controversies in other states. ↩

The Court issued two opinions with today’s order list, the long-discussed case Perry Homes v. Cull and a slightly revised opinion on rehearing in Igal v. Brighstar Information Technology Group, Inc..

More details follow the break.

[Read more →]

The Court is scheduled to hold a private conference today. Any cases decided or petitions granted should be reflected on this Friday’s order list.

Articles from the Past Week

• “How Does the Texas Litigation Fit Into the Clear Channel Merger Battle?” This posts links to a good analysis of the situation that includes a discussion of how keeping the Texas litigation alive alters the bargaining position of the banks and of Clear Channel.

• “Order List of 4-25-2008″ A quiet week.

• “Cases in the News 4-24-2008″

• “Third Court To Hear Expedited FLDS Appeal” It turns out, however, that the Court cancelled the argument and denied the emergency relief. The explanation of why is interesting.

• “What Not To Say at Oral Argument” A Fifth Circuit example.

• “Yesterday’s Arguments in Lubbock”

Takeover battles often have more pieces in motion than fit into any one courtroom. In the ongoing Clear Channel merger, the banks (who are trying to escape or at least renegotiate their funding obligations) have filed a petition for writ of mandamus with the Texas Supreme Court seeking dismissal of a pending tort suit against them.

How does that fit into the New York litigation, in which summary-judgment motions are pending?

Adam Ross Sorkin from the New York Times has this very interesting analysis of how the pieces fit together and how a pending Texas case shapes what happens in New York settlement talks.