I agree with your sentiments. I just don’t know if the criticism of this opinion is really attributable to the Court’s internal process for handling per curiams.

From my (admittedly very quick) review of the briefs, neither party treated causation as a first-class issue. There isn’t even a subheading (or sub-subheading) that places focus on the element of causation.

When the Court was deciding whether to take up this petition and to draft an opinion, it was faced with a choice whether to speak to this element on its merits, to send this narrow issue back down, to decide it was waived in the briefing… or just to deny review of the petition. The Court chose the first option.

I’m not involved in this case, so I can’t really speak to the facts here.

But from an appellate strategy perspective, the question is how should Respondents best try to explain to the Court that there is a side issue that might impede the Court from reaching the juicy main question?

In the U.S. Supreme Court, the Respondent would point it out, explain how it undermines the petitioner’s claim on an unrelated ground (calling it either a “vehicle problem” or an “alternate ground to affirm”), and have reason to believe that the Court was too busy to really concern itself with fixing any incidental error in the case.

But the Texas Supreme Court takes up a significantly larger percentage of its petitions than the U.S. Supreme Court does. Perhaps as a natural result, it seems more willing to correct errors or perceived injustices in particular cases than its federal counterpart.

The challenge for Respondents is trying to find a good vocabulary to talk about truly legitimate reasons why the Texas Supreme Court should deny review — whether they are procedural “vehicle problems” or (as might be true here) relatively boring alternate grounds for affirmance that could obviate the need to make new law.

That’s what I’ll be thinking about in the wake of this opinion.