Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

Category: 'Practice Notes'

Today’s grants and the shape of next year’s argument calendar [Jun. 1, 2018]

June 1st, 2018 · Comments Off on Today’s grants and the shape of next year’s argument calendar [Jun. 1, 2018]

With the first orders list of summer, the Texas Supreme Court issued opinions in four cases, chose twelve new cases to be argued in the fall, and formally dismissed a mandamus petition that was (very briefly) set for oral argument this past March.1

Next year’s argument calendar

At this week’s conference, the Court made grant-or-deny decisions about some of the pending fully-briefed petitions that had been studied by staff. The Court chose 12 to be argued this fall, and it denied review for 9 others. Other fully-briefed petitions remain pending (the blog tracks those, too), and I expect to see another round or two of “grants” later in the summer.

With this week’s additions, the total number of grants for next year now stands at 14, which could fill out the September argument sitting (even if no more grants were made).

What struck me, when I looked at next year’s calendar, is that the Court seems to be experimenting with front-loading arguments into September and January, leaving more calendar time for drafting of opinions.

For comparison, in recent years the Court has tended to only have one argument sitting in September (2017, 2016, 2015, 2014) and one in January (2018, 2017, 2016, 2015). The sole exception (Sept. 2015) had sittings in the first and last weeks of the month.

The Court hasn’t explained its thinking, but an educated guess is that shifting arguments earlier in the term could ease some of the internal scheduling issues created by having a single fixed June 30 “deadline” for getting opinions out the door.2 More time to deliberate, in more cases.

We may see other ripple effects of shifting arguments forward in the term. For example, there might be more time pressure to consider “grants” in November or December to fill out a January argument calendar. Or it’s very possible that some of these planned argument dates might, if not filled, quietly disappear as the Court updates its online calendar.

Today’s decisions

The Court issued opinions in four argued cases today, including one 5-4 decision.

There are now 18 argued cases remaining to be decided this term. (The blog tracks those cases here.)

Petitions chosen for oral argument

These are the 12 petitions chosen for future oral argument:

One of the petition denials today involved a dispute over whether Texas’s public-information laws require state officials to reveal which pharmacy has been providing Texas’s execution drugs. The Austin-American Statesman has coverage: “Court upholds ruling requiring Texas to reveal execution drug source” (Jun. 1, 2018)

  1. The mandamus petition was In re Ford Motor Company, No. 17-0264 . After receiving notice that this case had been set for argument, the plaintiff voluntarily non-suited Ford from the trial proceeding and filed a motion to dismiss the mandamus on the ground of mootness. Ford opposed that motion, arguing that exceptions to the mootness doctrine should apply. The Court removed the case from the argument calendar and, today, grants the motion to dismiss. 
  2. The change might also have been inspired by the U.S. Supreme Court’s practice of holding two-week argument sittings, instead of one-week sittings. But the math isn’t precisely comparable. The U.S. Supreme Court hears fewer cases per day (just two, with rare exception), so a five-day sitting of that Court might have the same number of causes as a three-day sitting of ours. 

Tags: Order Lists · Practice Notes

Are the SCOTX dissents coming in June?

May 30th, 2017 · Comments Off on Are the SCOTX dissents coming in June?

I’ve been publishing voting stats about the Texas Supreme Court since 2010, but my first project was a look back at four years in which the court had the same nine members (the 2006 to 2009 terms). Over that span, the court issued about 25 decisions with a dissent each year — and about 9 per year were 5-4 votes.

The 2010 term marked a recent low with only 11 cases receiving any dissent from the judgment. Since then, the totals have been 22, 23, 14, 19, 15, and (last year) 18 decisions with dissents. (You can poke through the details on the Texas Supreme Court voting patterns charts.)

With a month to go, the total for the 2017 term is only 5:

Dissents per term

As it happens, dissents saw a similarly slow start last year. Through May 2016, the court had issued only 7 decisions with dissents — before a surge of dissents in June pushed the year-end total to 18.

Should we expect this term to be similar? Or will this be the fewest dissents since at least 2005?

If placing a bet, I would take the “under.”

The short reason why: there are very few “older” argued cases yet to be decided.

For obvious reasons, it takes longer to to produce decisions with dissents than without. Some time is needed for an internal back-and-forth of drafts among the justices. The dissent reacts to what the majority writes, and often the majority makes improvements and adds a section respodning to the dissent. In rare instances, a dissent might even persuade enough other justices to win the day. (If you see a published “dissent” with an unusually detailed fact section and procedural history, that might be a tell.)

Most of the dissents published in June 2016 were from cases that had been argued the previous fall (or even earlier), so the court had plenty of time for its internal deliberations. Only three of last June’s dissents were for cases argued that spring.

In 2017, those older cases are already off the board. Only a single case remains from last fall’s argument calendar (Pagayon v. ExxonMobil, No. 15-0642). Only two remain from this January. The other sixteen cases were argued in the February or March sittings.

Although I wouldn’t bet on a large number of additional dissents, it’s always possible. The cases argued late this spring might prove especially contentious. What’s clear, however, is that if the court does release a significant number of dissents this June, they will have been written in impressively short time.

Tags: Practice Notes

A look at voting patterns and amicus practice in the Texas Supreme Court

April 21st, 2014 · Comments Off on A look at voting patterns and amicus practice in the Texas Supreme Court

Earlier this month, I made a presentation with Justice Willett about recent voting trends on the Texas Supreme Court — with a few extra slides included about the state of amicus practice in the Court.

Here are the slides (PDF):

This was in some sense an update of the talk we made to the Austin Bar appellate section in 2010. Then, we had focused on the unique 2005-2009 Terms of the Court, during which there was no turnover of Justices. The new presentation looks at the voting patterns as the Court’s membership has changed from 2010 to the present — including some of the diagrams of voting patterns that were so popular before.1

This time around, I also included two new kinds of graphs: (1) a look at how often each Justice tends to join in concurrences or dissents; and (2) a time-series showing how each Justice’s overall rate of agreement with the judgment moves year to year, and relative to similar peers.

The last section of the talk discussed amicus practice. The slides that seemed to make the biggest impression were the last handful, which show the correlation2 between response-request rates, briefing-request rates, and grant rates when at least one amicus brief is in the file.

  1. If anyone is interested in diving into that raw data, I’d be happy to share the scripts that generated slides 34 and 35. 
  2. Update: I’ve been asked if it’s correlation or causation. These slides are definitely correlation. They do not definitively answer whether amicus groups happen to like the same sorts of cases that interest the Justices, or whether the amicus briefs inform the Justices’ views of the cases. That, however, is a subject that came up in last week’s “Evening with the Supreme Court” event, which I’ll write more about soon. 

Tags: Practice Notes

Stop the presses! No more paper copies required in SCOTX

January 15th, 2014 · 1 Comment

I’ve been asked to pass along this happy news: Effective immediately, the Texas Supreme Court does not require any paper courtesy copies for e-filed documents.

That’s zero, none, zilch. No paper.

The only people sorry to hear this will be a few local print shops.

Tags: Practice Notes

A “statpack” about the Texas Supreme Court’s 2012-2013 term

September 12th, 2013 · Comments Off on A “statpack” about the Texas Supreme Court’s 2012-2013 term

I put together this deck with my statistics for the Texas Supreme Court’s latest term, which ended on August 31, 2013. The numbers are drawn from my own case-tracking database, so they are unofficial.

I’ve posted the slides on slideshare. For a full-screen display, look for the Fullscreen button.

Some of the slides show:

  • the voting patterns of the Justices (including the newest additions, Justice Boyd and Justice Devine);

  • which Justices are aligned with or against the judgment most often;

  • with the Court’s new emphasis on prompt decisions, how long cases are taking to reach a decision after oral argument; and

  • how the time to decision for a case may vary with argument date, with the number of split opinions, or by authoring Justice.

As always, I appreciate any feedback and questions.

Tags: Practice Notes

“Putting the ‘App’ in Appellate Practice”

June 18th, 2013 · Comments Off on “Putting the ‘App’ in Appellate Practice”

That was the title of a panel that I was asked to participate in last week at UT’s Conference on State and Federal Appeals here in Austin.

The other two panelists were Blake Hawthorne (the Clerk of the Supreme Court of Texas) and Rich Phillips (of Thompson & Knight). We spoke about some practical ways to use an iPad to get actual (and, yes, even billable) appellate work done.

Blake focused on ways to read and annotate PDFs, a topic of particular interest to judges adapting to Texas’s new e-filing system. Rich focused on ways to work with appellate records and do legal research. And I focused on how to use the iPad as part of the writing process.

Our presentation included live demonstrations and some video captures of using the iPad. The version below does not have either, but we have included a few screenshots to give you a flavor of what we discussed.

Find out more:

  • Download the full slidedeck.

  • Download the conference paper for this talk, which lists some of the apps we discussed.

Tags: Legal Tech · Practice Notes

Texas Supreme Court voting statistics for the most recent terms

April 10th, 2013 · Comments Off on Texas Supreme Court voting statistics for the most recent terms

At popular request, I’ve published a new set of voting charts for the Texas Supreme Court. These charts are tied directly to my court-tracking database, so they can be kept current.

If you just want a general sense of the voting dynamic, then the top-level percentage totals are what you need. But as an advocate, I want to know which types of cases and legal arguments led two Justices to disagree. To accomplish that goal, my system allows you to drill down and see the specific opinions that led to each set of agreements and disagreements.

As a bonus, this also makes my math transparent. By clicking through, you can see exactly which cases were rolled up to compute each percentage in the chart (and, I hope, will let me know if you see any data points that need to be adjusted).

How often do the Justices vote together?

The basic voting chart shows how often the justices on the Texas Supreme Court vote together.

If you want to change the time period or focus of the chart, just pick one of the options at the top of the main page:

Options for the Voting Chart

Those options show the pattern I look to most often: whether each pair of Justices agrees about the judgment in those cases where at least one Justice dissented.

Using that set of criteria, the pair of Justices with the closest voting record since September 2011 is Justice Johnson and Justice Wainwright at 84%. Focusing just on current Justices, (( The second- and third-closest pairs also involved Justices who have stepped down: the pair of Justice Wainwright and Justice Guzman was ranked second, and the pair of Justice Medina and Justice Lehrmann was in third. )) the closest pair is Justice Green and Justice Johnson at 70%.

Over the same time period, the pair of Justices who voted least often for the same judgment in divided cases was Justice Johnson and Justice Lehrmann, at 29%.

One of my favorite features of these charts is that you can click through to see a complete breakdown of how each individual pair of Justices voted — one a case-by-case basis:

Green-Johnson breakdown

From the detail pages, you can click on the words “Majority” or “Dissent” under each case to jump to the specific opinions about which they agreed or disagreed.

Who has written which opinions?

Each year, the OCA publishes a leaderboard of how many opinions each Justice has written, broken down by type of opinion.

I have a similar chart that shows the current count (through last week’s opinions): Texas Supreme Court opinions by Justice. You can click on the values in the chart to reach a backup page listing which specific opinions fall in each category. (( OCA does have one data set that outsiders don’t: knowing which per curiam opinions were penned by each Justice. For previous years, I have updated my chart to display the number of per curiam opinions that OCA has later reported were written by each Justice, but the backup pages don’t try to guess who wrote each of the per curiams. ))

So far, the 2013 Term has not been very contentious, with just 5 separate opinions in the partial term (just over seven months so far). By comparison, the full 2012 term had 26 separate opinions and the 2011 term had 45 separate opinions.

One factor, no doubt, is that the Court is still absorbing its two newest Justices. We’ll have to wait to see how the pattern plays out for the rest of the term. (These chart will continue to be updated as more opinions are released.)

Who has joined the opinions written by each Justice?

You can think of this third category of chart as a combination of the first two.

It shows how often each Justice joined the opinions written by each other Justice. Each row on the chart shows the opinions authored by a particular Justice. Reading across, you can see how many of the opinions were “solo” separate opinions and how many were joined by each of the other Justices with which they sat on that case.

Using the controls at the top of the chart, you can also narrow its focus just to dissents, just separate opinions (concurrences and dissents), or just deciding majority opinions.

Tags: Practice Notes

A new kind of report from the Texas Supreme Court about its internal efficiency in handling cases

November 28th, 2012 · 2 Comments

Last fall, I mentioned in passing the Legislature’s new requirement that the Court compile and submit a report about how each Justice has met the Court’s internal operating deadlines.

The Court has released the 2012 version of this report. (( I do not recall seeing a public release of the 2011 version, which would likely have been due the same day that I wrote that blog post mentioning it. ))

It includes the usual information, such as that only seven argued cases were carried over in August to the new fiscal year that started in September (the same count I reached here), (( As of today, all seven of those remain pending. They are the cases that (today) are highlighted on my list of outstanding argued Texas Supreme Court cases. You can click on the “Date Argued” heading to resort that list. )) as well as a breakdown of how many opinions each Justice wrote:

Opinions Authored 2012

As with the OCA reports, this reveals the count of per curiam opinions authored by each Justice. Last year, there was only one outlier. The Chief Justice wrote 9 per curiams, with the other Justices all writing between 3 and 5 per curiam opinions.

The new glimpse into the Court — the one demanded by the Legislature — is the “Number of Missed Internal Benchmarks” chart, broken down by Justice:

Missed Internal Benchmarks 2012

For 2012, five of the Justices had a perfect score on the internal benchmarks. The outlier was Justice Hecht, who was recorded as missing seven of them. (( For fiscal 2011, only two Justices met all the benchmarks. ))

For context, the report emphasizes that “the missed benchmarks did not hinder the Court’s or any Justice’s output in fiscal 2012. Of the thirteen benchmarks missed, only two items remained outstanding at the end of the fiscal year.” (page 3)

The Court and the Legislature

It is hard to read the report without thinking about the larger questions of the Court’s relationship to the Legislature. In the past, the Legislature has shown interest in why the Court’s decisions can take time, culminating in this more detailed reporting requirement.

And since the last legislative session, the Court has tangled with several direct actions brought under a special statutory provision requiring a decision within 120 days. In the first of those, In re Allcat Claims Service, L.P. and John Weakly, No. 11-0589 , Justice Willett’s separate opinion (joined by Justice Lehrmann) raised separation of powers concerns about that time limit and about legislative intrusions into the internal processes of the Court.

The language here is not so direct, but it does offer pragmatic reasons why particular deadlines might be missed in pursuit of “thorough and accurate declarations of law.” (page 2) The Chief Justice’s concluding paragraph promises that, “[i]n the coming year the Court will continue to handle cases efficiently, but not prematurely.” (page 4)

Tags: Practice Notes