Limiting When Rules Can Be Made
Proposed House Bill 2702 tries to bring the Court’s rulemaking power under more fine-grained Legislative control. To keep the Court from taking actions the Legislature cannot immediately review, it restricts the Texas Supreme Court’s power to promulgate rules to “the first 95 days of a regular session of the legislature.”
The Court’s proposed rules would then go into effect only if approved by joint resolution of the legislature.
The latter change isn’t too big; the Legislature can always pass a statute in the next term to undo a rule change. But restricting the Texas Supreme Court’s rule-making power to such a short window could seriously impede its ability to manage the courts and make it even harder for the rules to keep up with the changing way litigation is conducted.
Making Permissive Interlocutory Appeal Easier
The federal courts have a procedure in 28 U.S.C. §1292(b) for a district court judge to single out the “controlling question of law” in a case to go up for early, interlocutory appeal if that would speed resolution of the case. This does not require agreement of the parties, but it does require the agreement of the court of appeals.
The Texas equivalent in Texas Civil Practice and Remedies Code §51.014(d) requires that everyone agree — the district court, both sides of the litigation, and the appellate court.
Proposed Senate Bill 1384 would loosen this requirement, removing the language saying all litigants have to agree.
I haven’t done a survey of these permissive interlocutory appeals in about two years, but at that time, they were extraordinarily rare in Texas state courts. Perhaps the requirement that all parties agreed to the interlocutory appeal removed the best candidates from the pool.
If Texas law is again amended to make that process even easier, it will be interesting to see if trial and appellate courts will accept more of them.