Comments on: Last Week’s Hearing on SB780 http://www.scotxblog.com/news-and-links/last-weeks-hearing-on-sb780/ Legal Issues Before the Texas Supreme Court Tue, 07 Sep 2010 17:03:49 +0000 hourly 1 http://wordpress.org/?v=3.0.1 By: Dylan Drummond http://www.scotxblog.com/news-and-links/last-weeks-hearing-on-sb780/comment-page-1/#comment-1179 Dylan Drummond Fri, 27 Mar 2009 19:14:34 +0000 http://www.scotxblog.com/?p=836#comment-1179 <p>I tend to agree with you Don. This bill and others that have preceded it in previous sessions perpetuate the jurisprudential fallacy that a vote to deny review has any precedential effect upon or can even constitute a comment on the merits of the denied intermediate appellate opinion. See, e.g., Loran Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006). The purpose behind both the Court's initial experiment with discretionary review from 1917-27, as well as its permanent investment with such powers in 1987 was to jurisdictionally allow the Court the ability to only review those cases so important to the jurisprudence of the state that they required correction. See TEX. GOV'T CODE ANN. § 22.001(6) (Vernon 2004). Perhaps this is too fine a juridical point for politicians and political advocacy groups to grasp.</p> <p>Although you are correct that the jurisprudential effect of any separate writing by a Justice when the Court has expressly declined to invoke its jurisdiction is precedentially null, that has not prevented various intermediate appellate courts from mistakenly citing to dissents from denial of review as precedential authored opinions. See, e.g., Vickery v. Vickery, 999 S.W.2d 342 (Tex. 1999) (Hecht, J., dissenting from denial of review) (cited incorrectly as a majority opinion by the Fifth Circuit Court of Appeals and every Texas intermediate appellate court save for the Eastland Court of Appeals). </p> <p>I fear this confusion will only worsen if SB 780 passes, and spurs a likely flurry of dissents from denial of review to explain the reasoning behind a given jurisdictional vote. Again, because the reasoning behind a jurisdictional vote has no jurisprudential value and has limited predictive value as compared to the current system, it can therefore only be for political benefit or detriment. And we already have far too much of that in our current judicial system as it is.</p> I tend to agree with you Don. This bill and others that have preceded it in previous sessions perpetuate the jurisprudential fallacy that a vote to deny review has any precedential effect upon or can even constitute a comment on the merits of the denied intermediate appellate opinion. See, e.g., Loran Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006). The purpose behind both the Court’s initial experiment with discretionary review from 1917-27, as well as its permanent investment with such powers in 1987 was to jurisdictionally allow the Court the ability to only review those cases so important to the jurisprudence of the state that they required correction. See TEX. GOV’T CODE ANN. § 22.001(6) (Vernon 2004). Perhaps this is too fine a juridical point for politicians and political advocacy groups to grasp.

Although you are correct that the jurisprudential effect of any separate writing by a Justice when the Court has expressly declined to invoke its jurisdiction is precedentially null, that has not prevented various intermediate appellate courts from mistakenly citing to dissents from denial of review as precedential authored opinions. See, e.g., Vickery v. Vickery, 999 S.W.2d 342 (Tex. 1999) (Hecht, J., dissenting from denial of review) (cited incorrectly as a majority opinion by the Fifth Circuit Court of Appeals and every Texas intermediate appellate court save for the Eastland Court of Appeals).

I fear this confusion will only worsen if SB 780 passes, and spurs a likely flurry of dissents from denial of review to explain the reasoning behind a given jurisdictional vote. Again, because the reasoning behind a jurisdictional vote has no jurisprudential value and has limited predictive value as compared to the current system, it can therefore only be for political benefit or detriment. And we already have far too much of that in our current judicial system as it is.

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