Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court
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Category: 'Practice Notes'

“An Evening with the Texas Supreme Court” (2012)

May 4th, 2012 · Comments Off on “An Evening with the Texas Supreme Court” (2012)

Last Thursday, our local Austin Bar appellate section and the State Bar appellate section co-hosted the 2012 edition of “An Evening with the Texas Supreme Court,” which featured a panel discussion with seven members of the Court.

Here are a few notes that I jotted down:

The importance of studying what issues might interest the Court

The first few questions were about the Court’s petition practice. In Texas Supreme Court practice, the parties file a short petition for review raising each issue being brought to the Court (which can be just one or two, or in some petitions can be many issues). If the Court wants to hear more, it will order full briefing on the merits in support of the petition (before deciding whether to grant review). The Court then grants some of these petitions for oral argument.

One question to the Court was why it did not specify which issues it wanted to hear more about when it was requesting briefs. A second asked why, when the Court granted review and set the case for argument, it did not tell the parties which areas the Court thought were important to address at oral argument.

Both discussions boiled down to the same thing: Advocates have to be responsible for the issues they choose to present. The Chief explained that, when advocates have presented a large number of issues, there are often ongoing disagreements among the Justices about which issues matter. If you asked what to focus on at oral argument, you “might get nine areas of importance.” Justice Guzman called the choice of what to emphasize a “strategic call” by the attorneys as advocates.

The panel also noted a strategic downside to advocates raising “too many issues.” Because the Court has discretionary review, it may decide to wait for a petition that presents the truly important issue directly rather than have to confront it buried within a maze of other issues. (This echoed how the Court responded two years ago, when the Chief explained how a petition that raises additional issues can undermine the Court ever reaching the key issues that might need the Court’s clarification.)

To summarize: Choosing which issues to raise is the job of the advocate, and it should be done with some strategic thought about how the issues relate to each other and to pending issues on the Court’s docket.

CVSGs and other amicus briefs

On the subject of amicus briefs in general, Justice Johnson noted that some “have made a significant difference in my thought process.” He also emphasized that a good amicus brief can add credibility to a petition’s assertion that a case has broad importance, especially if it offers a “deeper perspective.” Justice Medina emphasized that filing an amicus brief earlier in the process can ensure that the Justices have a chance to absorb it before casting their votes.

With regard to the Court’s CVSG practice (in which it asks the Texas solicitor general to weigh in), the Chief noted that the Court prefers to issue those requests in advance of oral argument so that the solicitor general has the chance to request argument time.

Electronic filing and e-briefs

The panel was also asked about the new Texas e-filing system and how the Justices use e-briefs.

The overall response was that the electronic versions were much more convenient (the Justices no longer need to “lug around” boxes of briefs to continue working from home or as they travel). The members of the Court have been issued iPads, and they are using them to read briefs.

The Court also discussed a proposed change to the Texas Rules of Appellate Procedure that would move to a word count rather than a page limit for briefs. Justice Hecht noted that one goal was to enable the advocates to use larger fonts (“as some Justices prefer”), and a second goal was to allow advocates to embed exhibits or helpful items within briefs without running afoul of page limits. (There was some back-and-forth about whether the currently proposed word limits are too low. If you have a view about this, you should probably speak up now.)

Pet peeves and breaking tone

There wasn’t much discussion about pet peeves, but two of them came up.

Justice Johnson noted the importance of not over-claiming the record. He finds it actually “difficult to read” briefs once he realizes that the two sides are making diametrically opposed representations about the record. He sometimes will turn to the court of appeals’s account and find that it doesn’t match either side’s presentation. (This echoes a concern he raised at a panel last year.)

Justice Medina mentioned motions for rehearing as a concern. He said that advocates are “probably not going to beat the Court down” by the force of their rhetoric in a rehearing motion. This matches what the Justices have often said about rehearing practice.

Both of those pet peeves echo things we’ve heard before, but apparently the message has not been received by all corners of the bar. The advice might be this: If you find yourself hitting the exclamation mark on your keyboard, it might be time to call an appellate lawyer who can bring a different perspective.

Tags: Practice Notes

This month in tea leaves: Are opinion releases now on a regular schedule?

February 17th, 2012 · Comments Off on This month in tea leaves: Are opinion releases now on a regular schedule?

When I started this blog, it seemed like every Friday orders list brought the possibility of a new opinion.

To be sure, the odds did not seem even. Weeks with a conference were good candidates. Weeks with an oral-argument sitting were not. And late August was a world unto itself.

Things might be different now. I wrote last fall about how few cases the Court had carried forward from previous terms. Of those four, five, or six cases (( The number varies depending on how you count two cases that were, technically, abated at the magic moment when midnight struck on August 31, 2011. )), the Court has already decided three. The only cases still pending that were argued in a previous term are Bison Building Materials v. Aldridge (blog post) (by far the oldest), Edwards Aquifer Authority v. Day (blog post), and Severance v. Patterson (blog post) (on rehearing).

Last fall I wondered if this would affect the seasonal pattern of opinions: “When during the year does the Texas Supreme Court issue the bulk of its opinions?”

Now we have a little more data.

So what’s the new pattern?

I’ll show you:

DateOpinion CountConference Week?
Feb. 17, 2012 1 decision (signed) Yes (2-day)
Feb. 10, 2012 1 decision (signed) No
Jan. 27, 2012 3 decisions (1 signed) Yes (2-day)
Dec. 16, 2011 11 decisions (3 signed) Yes (2-day)
Nov. 28, 2011 1 decision (signed) No
Nov. 18, 2011 1 decision (signed) Yes (2-day)
Oct. 21, 2011 6 decisions (1 signed) Yes (2-day)
Sep. 30, 2011 None Yes (2-day)

All but two opinions have been issued on the Friday following a conference. Only one conference (the very first) was not followed by at least one opinion.

If I asked you to guess which two opinions this term have been outliers, decided on weeks other than a conference week, you might guess correctly: Allcat and Nestle USA. Both were brought as original proceedings with an unusual statutory deadline.

If you strike those two from the table, the pattern is very strong. With a monthly conference schedule (so far), we have had a monthly set of opinions.

Tea leaves

Looking forward, the Court has two conferences scheduled for March, one in April, and two in May. (The corresponding Fridays are March 9, March 30, April 20, May 11, and May 18.)

When summer comes, the calendar is quite different. The Court has a conference scheduled each week in June, followed by a six-week hiatus from conferences until mid-August.

The pattern described here could easily be broken as the Court digests and decides the cases that were argued this fall. But if it generally holds, it may help us offer clients a little better insight about when to expect decisions.

Tags: Practice Notes

Motions to reset oral argument – No opinions today [Feb. 3, 2012]

February 3rd, 2012 · Comments Off on Motions to reset oral argument – No opinions today [Feb. 3, 2012]

With its orders list today, the Texas Supreme Court did not choose any new cases for argument or issue opinions. But it did reshuffle its argument calendar a bit.

All three of these were chosen for argument with last week’s orders (blog post):

  • The Court chose an argument date for In re Stephanie Lee, No. 11-0732: February 28, 2012.

  • It granted a motion to “reset” the argument in Combs v. Roark Amusement and Vending, L.P., No. 11-0261 (the case about arcade claw machines). It had been scheduled for February 28, 2012. No new date has been assigned.

  • And — for the second in the past two months — it denied a party’s request to reschedule oral argument. Without comment, the orders list notes that a request was filed in In re the Office of the Attorney General, No. 11-0255. It remains set for oral argument on February 27, 2012. (A similar request was denied on December 22, 2011 in Ashford Partners, Ltd. v. Eco Resources, Inc., No. 10-0615. On that orders list, Justice Guzman noted her dissent to the denial of the motion.)

In at least one regard, U.S. Supreme Court advocates have it easy. They know about the grant of review before the merits briefs are even filed, so they can block out preparation time — many go to the elaborate ends of participating in outside moot courts.

In the Texas Supreme Court, by contrast, there can be just a few weeks between the grant of review and the oral argument date. The lawyers in the four cases mentioned above were originally given about four weeks notice of the argument date.

With two of these motions being denied in recent months, I’m curious to know what reasons for rescheduling the Court is finding persuasive — and unpersuasive.

Tags: Order Lists · Practice Notes

No opinions; Court grants rehearing on its recent statute-of-frauds opinion

January 20th, 2012 · Comments Off on No opinions; Court grants rehearing on its recent statute-of-frauds opinion

The Court did not issue any opinions with today’s orders list, but it granted rehearing in a case about how the statute of frauds applies to purchases by a trust or partnership.

John Ganim v. J. Farouk (Frank) Alattar, No. 10-0592.

Two business partners discussed entering a real-estate transaction together to buy some property, and one of them signed for it as “Trustee” (of an unidentified trust). The two later had a falling out, disagreeing about whether the land was bought for them collectively or just by one of them.

In June, the Texas Supreme Court held that the statute of frauds did not bar enforcement of the parties’ oral agreement about this real estate purchase (opinion).

Rehearing was sought, and an amicus brief was submitted by former Justice Brister on behalf of the Episcopal Diocese of Fort Worth — which had its direct appeal about the ownership of church property accepted by the Court two weeks ago.

The amicus brief suggests that the diocese is concerned about how a broad reading of Ganim v. Alattar might affect its pending direct appeal:

… the opinion’s suggestion that a claimant to property can plead around the statute of frauds and the Texas Trust Code by asserting nothing but an oral agreement for joint acquisition of land. Can a third party — who has no title, no signed writing, and no money at risk — become owner of real estate simply by convincing a jury that an oral promise of joint ownership was made many years ago? If that is Texas law, then claimants from Rome, Canterbury, or anywhere else might ask a jury to award interests in Texas church properties based on nothing but oral testimony about “understandings” from long ago.

The Court’s grant of rehearing in Ganim gives it a little more time to sort through the broader implications.

The amicus strategy here is also instructive. Although many groups have some interest in how this rule applies to partnerships or trusts, this amicus brief had the secondary (or perhaps primary?) goal of highlighting the importance of the diocese’s pending direct appeal. Nicely done.

Tags: Case Notes · Order Lists · Practice Notes

More about direct appeals to the Texas Supreme Court

January 6th, 2012 · 3 Comments

In light of today’s acceptance of the direct appeal in the Episcopal Diocese of Fort Worth case, I wanted to write a little more about how direct appeals work in the Texas Supreme Court.

When the Texas Supreme Court takes up a direct appeal, it uses the language that it “notes probable jurisdiction” — a phrase that parallels U.S. Supreme Court practice for its direct appeals. The Court only has limited power to take these cases, and when a litigant seeks a direct appeal, they file a “jurisdictional statement” urging the Court to accept jurisdiction. Once it has done so, the Court then requests merits briefs and can set the case for oral argument.

Generally, only injunctive relief against a state statute can support a direct appeal

What type of cases can support this narrow type of jurisdiction?

Looking for guidance, a litigant might turn to Texas Rule of Appellate Procedure 57 (“Direct Appeals to the Supreme Court”). The rule explains some of the procedure for handling “direct appeals … that are authorized by the Constitution and by statute.” Tex. R. App. P. 57.1. Discerning which appeals are “authorized” is left to the reader.

The Court’s appellate jurisdiction over a direct appeal flows ultimately from the Texas Constitution, which sets the outer boundaries for the Legislature and Court to work within:

Sec. 3-b. APPEAL FROM ORDER GRANTING OR DENYING INJUNCTION. The Legislature shall have the power to provide by law, for an appeal direct to the Supreme Court of this State from an order of any trial court granting or denying an interlocutory or permanent injunction on the grounds of the constitutionality or unconstitutionality of any statute of this State, or on the validity or invalidity of any administrative order issued by any state agency under any statute of this State.

Tex. Const. art. V, §3-b. That focus is quite narrow — just the handful of situations when an injunction turns on the constitutionality of a state statute or administrative order.

The Legislature, in turn, has further narrowed the boundaries. The statute describing the Texas Supreme Court’s appellate jurisdiction speaks only about cases in which a statute’s constitutionality is questioned — not mere administrative orders. See Tex. Gov’t Code §22.001(c) (“An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state.”)

Although administrative orders are omitted from this general grant of authority, the Legislature has sometimes made specific grants of power to hear direct appeals, such as during electric deregulation in the late 1990s.

Direct appeals are therefore very rare

While I was at OSG, I came across two situations in which the Texas Supreme Court heard a direct appeal — the state-level challenges to the 2001 redistricting process, and the 2004-2005 round of school-finance litigation.

To double check, I recently cranked up the docket database behind DocketDB and filtered it down to just direct appeals filed since 2000.

In those 10 years, I found just two other examples:

  • In 2000, a set of electric-deregulation appeals came before the Court under a statute specifying that direct appeals could be taken for that class of orders.

  • In 2002, the Court heard a direct appeal in an election challenge to the eligibility of a judge to be on the ballot for one party after running in the other party’s primary.

That’s it.

I did find one other time when the Court at least took the step of requesting briefing by the parties. But in that case, as in every other direct appeal in the past decade, the Court ultimately declined to hear the case.

When can private litigants file a direct appeal?

Notably, all of these successful direct appeals — before today, at least — involved the state on one side or the other. Each directly involved the legality of some state action.

The direct appeal in Episcopal Diocese of Fort Worth represents the unusual case where a dispute between two private litigants raises the right kind of constitutional question about a state law. The Court’s decision to accept jurisdiction may also have been motivated by the other pending cases in the state raising similar questions. By taking this direct appeal, the Court may hope to remove some broader uncertainty in Texas law.

So I would think twice (or more) about raising a direct appeal. Remember that the intermediate court of appeals can grant the same relief as the Texas Supreme Court, and (because of a quirk familiar to Texas appellate lawyers) those courts actually have more power to reverse when facts are disputed. If your concern is truly the speed of the answer, then having a direct appeal dismissed by the Texas Supreme Court doesn’t advance that goal.

Tags: Practice Notes

Which Texas Supreme Court Justices were the most prolific last Term?

December 1st, 2011 · 1 Comment

This seems as good a day as any to talk about the Justices’ output last Term.

We know how many signed opinions each Justice wrote as soon as they’re published. But the per curiam opinions are a mystery. It’s not until the Texas Office of Court Administration (OCA) releases its year-end report that we get a count of how many were credited to each Justice.

Now that OCA has released its report, I’ve updated my chart of opinion authors, which shows:

  • Justice Hecht led the way with 27 deciding opinions — 15 signed and 12 per curiams.

  • Justice Johnson (19 deciding opinions) and Justice Wainwright (16 deciding opinions) also exceeded the Court’s average of slightly more than 12 per Justice. (Justice Medina and Chief Justice Jefferson were very close to that mark.)

  • The most frequent author of concurring opinions was Justice Willett with 7, almost half the Court’s output of 16 concurrences. Chief Justice Jefferson was a strong second with 4 concurrences.

  • The most frequent author of dissenting opinions was Justice Johnson with 6, closely followed by Justice Lehrmann with 5. Justice Wainwright also had 5, if you fold in opinions that were both “concurring and dissenting.” Every Justice authored at least one true dissenting opinion.

  • No Justice wrote more per curiams than signed majority opinions. Only Justice Hecht authored more per curiams than separate (concurring or dissenting) opinions. The focus was very much on clearing out the signed opinions from the Court’s docket.

These OCA statistics focus on opinion authorship — the traditional (albeit imperfect) measure of output for appellate judges.

We might soon have some new measures, thanks to recent legislative demands for details about how individual Justices have been meeting the Court’s internal deadlines. And as it turns out, those reports are due on December 1st of each year. (( You can find the language on page 3 of this very large PDF, part of the appropriations bill in 2009. ))

Tags: DocketDB · Practice Notes

When during the year does the Texas Supreme Court issue the bulk of its opinions?

November 30th, 2011 · Comments Off on When during the year does the Texas Supreme Court issue the bulk of its opinions?

It’s been nearly three months since the start of the Texas Supreme Court’s fiscal-year term. How are things going at the one-quarter mark?

As of Monday morning, there were just two signed decisions this Term. With the opinions released Monday afternoon for Allcat, there are now three — and the Term’s first separate opinion. Along the way, there have also been five per curiam decisions. (The click-through table is on DocketDB.)

A slow start was to be expected, given the small number of cases carried forward this Term. (( Only one of those has been decided: Sharyland Water Supply Corporation v. City of Alton, et al., No. 09-0223. ))

But the conventional wisdom is that the Court always has a slow start in the fall (the first quarter), as it absorbs new law clerks. Similarly, the conventional wisdom suggests that the summer (the fourth quarter) is the busiest for opinions, as the Court tries to clear the decks before the end of the fiscal year.

Do the numbers bear this out?

I took a look at the last five years of opinions, distinguishing between signed opinions and per curiam opinions. I figured out what percentage of each year’s opinions fell into each fiscal “quarter” — 1Q (September to November), 2Q (December to February), 3Q (March to May), and 4Q (June to August). The table below represents the average of those years. (( Yes, it’s just five years. Appellate geeks — like sports nuts — often trade in sample sizes far too small to be “significant.” ))

  Q1 Q2 Q3 Q4
Signed Opinions 10% 21% 30% 39%
Per Curiams 20% 26% 27% 27%

As expected, the signed opinions increase as you progress through the quarters: roughly 10%, 20%, 30%, and 40%. By contrast, the per curiams show a slight dip in the first quarter and then are split almost evenly among the remaining three quarters.

Why the difference here?

The per curiams show a dip in the first quarter and then are fairly steady for the rest of the Term. That seems to bear out the idea that it takes a little time to get new law clerks up to speed.

Why do signed opinions show a much more pronounced pattern? One answer might be that signed opinions tend to follow argued cases and are thus dependent on the Court’s highly seasonal argument scheduling. (In recent years, arguments have been scheduled from September through March or April.)

Less obviously, the two types of decisions have different effects on the Court’s statistics if carried forward from one Term to the next. Signed opinions tend to show up as “causes” and thus are highlighted when they linger. By contrast, per curiam opinions usually result from petitions granted only at the moment the opinion issue issued — and that, before that time, were just part of the general petition pool. With those incentives, it is not too surprising if the Court prioritizes signed opinions as the summer winds to a close.

Tags: Practice Notes

How to Cite to Wikipedia in Appellate Briefs

November 17th, 2011 · 3 Comments

Our speaker at today’s Austin Bar Civil Appellate Lunch was Robert Dubose, whose topic was “Can I Cite Wikipedia? The Ethics of Citing Online Information on Appeal.”

This blog post shares a tip for how to cite Wikipedia, when you’ve already decided that you want to refer to the largest single compendium of human knowledge ever assembled.

Accuracy vs. Authority

Robert pointed out that Wikipedia tends to be very accurate, at least for topics that get a relatively high volume of community involvement. Studies show that it can be more accurate that a carefully peer-edited encyclopedia. On the other hand, the prose tends to be choppy and difficult to read in large doses — it’s a patchwork of styles from different contributors. So you probably don’t want to read the history of a major event (like World War II) on Wikipedia, even if there are a huge number of (accurate) facts.

When you think about writing a formal citation to Wikipedia, you confront the difference between authority and accuracy. It’s certainly not authoritative based on the identity of any particular author — you do not know who wrote an article, nor do you know who has contributed edits (or approved of the text and left well enough alone). But the fact that so many people have an editing pen creates a kind of distributed peer review. As Clay Shirky put it: “[Wikipedia] took one of the best ideas of the last 500 years — peer review — and expanded its field of operation so dramatically that it changed the way authority is configured.”

For a profession in the authority business — in how we cite cases, in how we pitch our own skills, in how we deal with expert witnesses — this disconnect can be hard to accept. But a crowdsourced reference can be extremely valuable as a place to start deeper research or for information more generally known.

When You Do Cite Wikipedia, How Should You Do It?

Let’s say you want to cite Wikipedia for a fact about the world. How do courts do it? Is there a better way?

The Beaumont Court of Appeals cited Wikipedia in a 2009 decision, In re K.E.L., No. 09-08-00014-CV (Tex. App. — Beaumont Feb. 26, 2009). Here’s footnote 3:

“MySpace is a social networking website with an interactive, user-submitted network of friends, personal profiles, blogs, groups, photos, music, and videos for teenagers and adults internationally.” Wikipedia, the Free Encyclopedia, MySpace, at http:// en.wikipedia.org/wiki/MySpace (last visited Feb. 3, 2009).

The Court chose this URL:

http:// en.wikipedia.org/wiki/MySpace

As has become standard for internet citations, it used the parenthetical “last visited Feb. 3, 2009.” Is that really helpful? For most websites, can you do anything at all with a “last visited” date?

If you follow the court’s link, you get the most current version of the article. On the current version as it appears today, the sentence quoted by the Texas court of appeals now reads: “Myspace is a social networking service owned by Specific Media LLC and pop star Justin Timberlake.” That’s an entirely different emphasis than it had in 2009. Indeed, there’s now a prominent section titled “Decline: 2008 – present,” explaining how it lost the social-networking wars to Facebook. In a few more years, the continually edited entry may look more like the GeoCities entry today. (“Yahoo! GeoCities is a web hosting service, currently available only in Japan.”)

It’s Not Impermanence. It’s Version Control.

That brings up a criticism you hear about Wikipedia: You shouldn’t cite it because it changes all the time, and you don’t know what your reader will see.

But with Wikipedia, as many of you know, there is a revision history. You can browse an article’s edits with its “View History” tab, right next to the search box in the top right.

This shows you a list of each edit, complete with the user name (or IP address) of the person who submitted each edit.

If you look back about 630 edits into the list, there’s a version from 5:49 AM on February 3, 2009. Some edits fall in the middle of the day, and other times the article is edited several times in one day. But we got lucky with this one. The “last visited” date might actually point us to the right place.

You Can Cite To a Permalink to Today’s Version

If you followed the links that I embedded above, you did see precisely the pages I wanted you to see — the older version from a specific moment in 2009, and the snapshot that appears right now as I’m writing this post. You can check back next week or next year, and you should see the same text.

Wikipedia uses the term “permalink” to describe this type of URL. The permalink to the current version (the one you’re citing) is listed in the left-hand column under the Toolbox menu. Click the word “Permalink” in that list, and the page reloads as itself to what your reader will see. You can then grab the URL and paste it into a brief.

You’ll notice a pink status bar when you load a page by its permalink. It tells you whether or not you are viewing the most current version. It also gives you the option to generate a diff between the link you followed and the current version — a very quick way for a reader to confirm whether the facts have changed in the intervening time. If you click on this “diff”:

The Diff Link

You get this:

As lawyers, we should be drooling with envy. We all know what needs this type of easy-to-link version control that lets the reader easily determine what has changed over time: statutes.

Legal citations for amended statutes devolve into the kind of soup seen in footnote 2 of this same opinion: “Although the Legislature amended certain aspects of the statute that provides the terms for standard possession orders after the possession order at issue here, the changes are not pertinent to this appeal. Therefore, we cite the current version. Compare Tex. Fam. Code Ann. § 153.312 (Vernon 2008) with Act of May 27, 2007, 80th Leg., R.S., ch. 1041, § 2, sec. 153.312(a), 2007 Tex. Gen. Laws 3594, 3595 (current version at Tex. Fam. Code Ann. § 153.312(a) (Vernon 2008)), and Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 12, sec. 153.312(b), 2005 Tex. Gen. Laws 3148, 3151-52 (current version at Tex. Fam. Code Ann. § 153.312(b) (Vernon 2008)).)”

Permalinks are Better Than “Last Visited.”

This is what the permalink URL looks like for the February 3, 2009 version of the MySpace wikipedia page:

http://en.wikipedia.org/w/index.php?title=Myspace&oldid=268197951.

When you are citing Wikipedia, you should be using a permalink URL that looks like that.

Last year, I was critical of the new Bluebook for how it treats URLs as if they were the names of volumes of books rather than pinpoints to specific pages. The emphasis seems to be on what the researcher did (i.e., “last visited” or “downloaded from”) rather than how the next researcher can quickly get to the right resource. As I wrote:

URLs are ugly in print, but they are “uniform resource locators.” They are built to do this job with precision. And an ugly citation that works is far superior to a pretty one that doesn’t.

When a site like Wikipedia gives you the gift of precise, persistent URLs, you owe it to your readers to take advantage of them. (( As a practical matter, you should also take a screenshot or make a good printout for your own records. On the Mac, I’m a fan of the program LittleSnapper, which lets you take an image of an entire webpage, including below the fold [1MB file]. The software is marketed to web designers, but it’s handy for archivists, too. ))

Tags: Legal Writing · Practice Notes