The official notice from the Texas Supreme Court has now been posted. Justice Brister also spoke with Texas Lawyer about his reasons for leaving.

The most interesting tidbit: Justice Brister, who has been one of the Court’s fiercest questioners and most quotable opinion-writers, “has never actually filed a brief.” (He practiced trial law before first being appointed to the trial bench.)


Justice Brister is staying through the end of the Court’s fiscal year, now just two weeks away. That is traditionally a very busy time for opinions. If Justice Brister is making extra efforts to clear out his own pending opinions, it could be very busy indeed. (( In part, that’s because Justice Brister has been the most active Justice on the per curiam docket, according to OCA statistics. In the previous fiscal year, Justice Brister authored 18 per curiams, compared to 9 for the next most active Justice (a tie between Justice O’Neill and Justice Green).

The timing of Justice Brister’s departure also minimizes the effect on the fall argument calendar. He will not be sitting in on argument for the cases he will not ultimately be deciding. And, under traditional Court practice, his replacement will be able to cast a tie-breaking vote, if needed.

Procedure for Replacement

Because Justice Brister is leaving mid-term, Governor Perry will be able to appoint his replacement. That replacement will be able to serve — with the consent of the Texas Senate, when it returns — through the fall 2010 elections, at which time he or she will have to stand for reelection.

Let the speculation about the Governor’s choice for a replacement begin. (( Well, on Twitter it has already begun. Justice Pemberton of the Austin Court and Justice Sullivan of the Fourteenth Court have been mentioned so far. It’s also possible that the Governor could select one of the three sitting Justices who have already announced to run for Justice O’Neill’s seat, lessening the competition in that race.

In some alternative universe, perhaps the news will be announced by @GovernorPerry individually or officially @TexGov.

Effects on the 2010 Election

Justice Brister’s current term would have expired in 2010. So, his departure does not create an extra seat on the ballot. Justice O’Neill’s planned departure also does not create an extra seat.

At this point, there are three Texas Supreme Court seats up in 2010. One is the open seat vacated by Justice O’Neill, one will be the seat held by the person whom the Governor appoints to replace Justice Brister, and the third is held by Justice Green.