SCOTXblog

With the Texas appellate websites still down, I wanted to provide a blog post that collects in one place all the filings in the case being argued today in the Texas Supreme Court about mail-in voting, and, specifically, what flexibility the statute permits county officials in determining “disability” in light of the coronavirus.

There are two currently pending cases in the Texas Supreme Court on this topic, only one of which is (technically) set for argument today.¹ Today’s case is docket 20-0394, which is the Attorney General’s request for a writ of mandamus from the Texas Supreme Court directly compelling various county officials to act.

These briefs are arranged in the spirit of “You can’t tell the players without a program.”

Relator

The party seeking relief in the Mandamus Petition is “The State of Texas,” being represented by the Attorney General.

The AG also filed a short letter about the federal case in which an injunction was issued yesterday.

Real parties in interest

The AG brings this action against five county officials, each of whom has filed a response to the mandamus petition:

• Response Brief of Dana DeBeauvoir, in her official capacity as Travis County Clerk

• Response Brief of Remi Garza, in his official capacity as Cameron County Elections Administrator

• Response Brief of Toni Pippins-Poole, in her official capacity as Dallas County Elections Administrator

• Response Brief of Diane Trautman, in her official capacity as Harris County Clerk

• Response Brief of Lisa Wise, in her official capacity as El Paso County Elections Administrator

Attempted intervenors

Two sets of groups have sought to “intervene” in the case. (Normally, this type of intervention might happen in a district court, but the AG brought this action in a way that bypassed the district court.)

• Motion to Intervene by the Texas Democratic Party

• Motion to Intervene by League of Women Voters, et al. (the “Price Intervenors”)

The proposed intervenors also filed this joint mandamus response brief addressing the merits of the case.

The State filed a brief opposing these interventions. The Court has stated that it will treat these filings as being amicus curiae submissions rather than a formal intervention.

Amicus groups

Various groups and individuals have filed amicus briefs in this case. They include (as of the time of this blog post):

• Texas Public Policy Foundation (May 13)

• An emailed amicus submission from a citizen in Houston (May 14)

• Honest Elections Project (May 15)

• McCaffity for Congress (May 15)

• A group of Medical Doctors (May 19)

• A group of Healthcare Professionals and Institutions (May 19)

• A group including the National Medical Association

Argument day itself

The official submission schedule indicates that the State’s side will be argued by the Solicitor General, Kyle Hawkins.

The county officials will be represented by three attorneys. It appears from the submission forms that the lead role will be taken by Scott Brister, who is representing Harris County. He has also submitted a set of bench exhibits for the Court’s reference during the argument.

Travis County will be represented at argument by Sherine E. Thompson. Dallas County will be represented by Barbara S. Nichols.

With today’s orders list (PDF version), the Texas Supreme Court issued opinions in 4 argued cases and 1 case decided by per curiam without oral argument.

Update: Later on Friday, the Court issued an emergency stay in a mandamus action involving mail-in voting in Texas. It also set a related case for oral argument on May 20, 2020. That case is in Re State of Texas, No. 20-0394. More about it is available in this later blog post.

There are 17 argued cases remaining in which a decision is expected by the end of June.

EX PARTE E.H., No. 18-0932

Opinion of the Court

Dissenting

IN RE COLTON LESTER, No. 18-1041

Opinion of the Court

Dissenting

Dissenting

IN RE THE COMMITMENT OF MAURICE BLUITT, No. 18-1053

Opinion of the Court

IN THE INTEREST OF Z.N., A CHILD, No. 19-0590

Per Curiam

With the official Texas court websites down for the time being after a ransomware attack, you may be landing on this blog looking for information about an ongoing appeal or about one of the Texas Supreme Court's recent opinions.

Recent opinions

The good news is that this website hosts its own copy of the Texas Supreme Court’s PDF opinion releases, going back to the 2004 term. I’ll be keeping them current during this outage.

If you are looking for recent opinions from this Term, those are collected together on this page. If you'd like to see recent opinions organized a different way, you can do that through this chart.

If you want to find a specific older opinion from the Texas Supreme Court, I recommend you use the search box at the top right of this page to locate that case in my system. This particular search box only works by case name or docket number.

At least on a temporary basis, the Texas courts are publishing a list of (nearly all?) new appellate opinions on this page.

Recent orders lists

My version of the Texas Supreme Court’s Friday orders is available at this link. Beginning with the May 8, 2020 orders, I’ll be entering the key items by hand, so my list might take a short while to be updated each Friday.

I make previous sets of orders available through this Calendar of Orders page, which lets you navigate back to October 2003.

The Court is (temporarily at least) also publishing PDF versions of its released orders on this page.

Docket pages

My mirrored copy of the Court's docket was current through May 7. I'm working on a way to more reliably update my database with key case events since then. But for now, I would advise caution. The entries that are there, are there. But you should not assume that the lack of a docket entry on my website means there has been no activity on the Court's internal system.

Newly filed cases - still an open question

One open question is how to track newly filed cases -- such as short-fuse mandamus petitions that might have been filed after the official websites shut down on May 8. I'm working on a way to add those to my system, but (for now) they might only show up as docket pages on my site after the Court issues its first public order or opinion mentioning the case.

If this turns out to be a fairly short outage, that will work itself out. If the outage is longer — as the new cases start to become a bigger share of the docket — I will need to find a better way to track newly filed cases.

This was the first set of orders during the shutdown of the Texas court system websites. A PDF version of these orders was sent out and eventually posted to a temporary website. I’ve entered those orders into my system, so that they are connected to the other data tracked here.

With this week’s orders list, the Court issued opinions in 5 argued cases and 1 per curiam that was decided without oral argument. There are 21 argued cases in which opinions are still expected by the end of June.

WARNER BROS. ENTERTAINMENT, INC.; WARNER BROS. TECHNICAL OPERATIONS, INC. D/B/A WARNER BROS. ADVANCED DIGITAL SERVICES; TMZ PRODUCTIONS, INC.; EHM PRODUCTION, INC. D/B/A TMZ; TMZ.COM; AND ELIZABETH MCKERNAN v. ROBERT JONES, No. 18-0068

tcpa defamation

Opinion of the Court

Dissenting

EBS SOLUTIONS, INC. v. GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS; AND KEN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS, No. 18-0503

state taxes

Opinion of the Court

IN THE INTEREST OF D.S., A CHILD, No. 18-0908

Opinion of the Court

Concurring

THE CITY OF FORT WORTH AND DAVID COOKE, IN HIS OFFICIAL CAPACITY AS FORT WORTH CITY MANAGER v. STEPHANNIE LYNN RYLIE, TEXAS C&D AMUSEMENTS, INC., AND BRIAN AND LISA SCOTT D/B/A TSCA AND D/B/A RIVER BOTTOM PUB, No. 18-1231

Opinion of the Court

REGENT CARE OF SAN ANTONIO, L.P. v. ROBERT H. DETRICK AND CAROLYN DART DETRICK, No. 19-0117

Opinion of the Court

IN RE PRAVEEN PANCHAKARLA, No. 19-0585

Per Curiam

The Court’s new schedule seems simple enough. Cases argued in one term are decided before that term formally ends on August 31. The Court now treats June 30 as a self-imposed deadline, roughly mirroring the schedule of the U.S. Supreme Court (and leaving time for a meaningful summer break in July).

As advocates, the great benefit of having this single, fixed point on the calendar is that we now have a non-shrug-emoji answer to every client’s question, “When will my argued case be decided?” We can now confidently say “by June 30” (or slightly less confidently, “by the Friday before June 30, unless for some reason your case is abated”).

For cases argued in March and April, that’s super helpful. The median time for cases to be decided last term was 15 weeks; there are barely that many weeks between mid-March and the end of June. There just isn’t much room for variance. It’s hard to be wrong.

But for cases argued in September, the same fixed June 30 deadline is a school year away. Is there more precision we can offer? Does having more time remaining in the year allow the timelines to expand? Does having a relatively clean plate at the beginning of a term (with no cases carried over) allow at least some justices to write more quickly to get a head start?

The answer, it turns out, is yes and yes. Cases argued in September and October show a wide variance in decision time. The three fastest decisions of last term were argued in September. So, too, was the slowest decision of the term.

Some new Time to Decision charts

The small size of this data — and the varying gravitational pull of the June 30 deadline at different times of year — makes me reluctant to present a single summary statistic. Instead, I put together a new kind of chart¹ to illustrate what is going on. If you’ve read this far, it might be worth your time to look over these charts to get your own visual sense of the patterns.

On the Time to Decision chart, each argued case is displayed as a bar on the graph with the endpoints showing when during the year it was argued, when it was decided, and (implicitly) how long the decision took. You can hover your mouse over the bar to see exact dates. The rightmost column shows the authoring justice; multiple justices means there were separate opinions. The chart has buttons at the top that let you reorder things by argument date, decision date, or time to decide.

What’s striking is how different the 2019 term looks compared to the pattern just two years ago. In the 2016 term and 2017 term, the Court took a different approach to the same June 30 deadline. There was no burst of quick decisions early. Instead, the cases argued last were the ones decided most quickly, while the cases argued first took much longer to decide.

Something is different. A notable, visible change is that the Court has started to hold two argument sittings in each of September and January – its return from summer break and from the holiday break. The direct effect was to shift some arguments earlier in the term, leaving even more time before the deadline of June 30. Taken alone, this would allow decision times for those early cases to grow even longer. But what the data for 2019 shows is different. Cases argued in the September and January sittings were among the very fastest decisions.

This burst of fast decisions seems like the product of focused effort by the Court to finish some opinions quickly. Part of that might have been motivated by Justice Johnson’s scheduled retirement in the fall. But other justices also wrote quickly last fall, and I would not be surprised if this general pattern continues.

So, is there a more refined answer to the question of how long decisions argued in September and October will take? Based on last term’s data, the median time to decide all cases was 15 weeks after argument, with most cases taking between 10 and 21 weeks from argument.² And based on these charts, you can get a sense of how the time in the year a case is argued affects how quickly it might be decided.

If all that’s too much, you can just tell folks “by June 30” and rest easy knowing that you are unlikely to be wrong. If a decision does come quickly after argument, you can always break out that shrug emoji then.