In re Tex. Dep’t of Fam. & Protective Health Servs., No. 08-0391 (orig. proceeding)
Response Requested: May 28, 2008
This afternoon, the Court requested that the mothers file a response to the State’s petition for mandamus — by tomorrow at 9:00am. That short timeline is not incredibly unusual in mandamus actions (for which speed is often critical) and it doesn’t necessarily tip the Court’s hand.
What the Court has done is to expand its range of options. Typically, the Court will not grant mandamus relief until after it has at least requested that the party opposed to relief file a response. See Tex. R. App. P. 52.4 (“The court must not grant relief — other than temporary relief — before a response has been filed or requested by the court.”). Having requested a response, the rules now give the Court more latitude to grant the requested mandamus relief for the State in full, rather than just a temporary stay.
So does that signal that the Court is leaning one way or the other? Perhaps not. Typically, the Court will request a response if even a single Justice votes to do so, and it is easy to imagine the Court wanting to see what the mothers have to say about the merits before deciding how to dispose of this case.
Update 5/29: Here’s a link to the response, just filed, on the Court’s website.