When the Texas Supreme Court started posting an online calendar, ((It’s possible that the Court will update its calendar after I write this post. With that in mind, here is the calendar as downloaded on 12-14-2007. Here is the link to the Court’s website version, which may well change in the coming months.)) I was excited. The calendar showed a full set of conference dates for the Court, which would give a clue to practitioners about when the Court might meet to evaluate petitions—and thus a clue about the practical deadlines for amicus briefs or other filings.

Examining the Texas Supreme Court’s practice this past fall shows the benefits—and limits—of looking to the public calendar for this purpose. Over the past few months, the Texas Supreme Court has only once requested briefing on the merits on any of the days indicated as “conference days” on the Court’s public calendar. ((The Court certainly has other things to discuss when it does meet for conference. For example, today’s order list showed a wide variety of opinions and orders—including the grant of a petition—after the public calendar showed two conference days on Monday and Tuesday.)) That one time was August 28th, right after the Court released its public calendar.Since then:

  • Three times (October 16th, November 12th & 14th, and December 3rd) the Court issued the orders requesting briefing on the merits while the Court was convening to hear oral argument in other cases that it had already granted on the merits. These briefing requests were made either the day before oral argument began or during the sitting itself. It makes sense that the Court would be convening on those days to discuss the cases being argued. It is somewhat interesting if the Justices were also spending time discussing pending petitions that have not yet even reached merits briefing.
  • Twice, the Court requested a batch of briefs on the merits in the days right before the calendar shows a conference (August 17th and September 18th). This may suggest that enough Justices indicated on their pre-conference vote sheets that they would request briefing that the Court simply made the request before conference as a matter of course, as it does when a single Justice requests a response to a petition for review. ((It may also suggest that the public calendar is slightly off.))
  • And once, it appears that the Court had a conference sitting that was not reflected on the public calendar. There are a flurry of briefing requests on October 22nd (11 requests) and one straggler on October 24th, a time that seems unconnected to any oral argument sitting and does not appear on the public calendar as a conference session. ((There was one other set of briefing requests that appear to have been an aberration. On November 2nd, the Court requested briefing in a series of related cases—and requested that the briefs be expedited. Given that the request was for expedited briefing, the fact that this request was made outside of a normal sitting of the Court seems simply to reflect an attempt to accommodate a time-sensitive petition rather than any departure from normal practice.))
If you are trying to guess when the Court might meet to evaluate a pending petition—such as if you want to submit an amicus curiae brief supporting the filing and to ensure the Justices see it before they make their initial decision—you may need to try to beat both any upcoming argument sittings and upcoming conference dates. All of this may suggest another reason to try to time the filing of your amicus brief to be no later than the Respondent’s response to the petition.