Don Cruse

The state bar appellate section invited me to speak in September 2025. As has become my own little Labor Day tradition, I updated my Texas Supreme Court stats and “What are the odds?” slides to include everything through the end of the term on August 31.

These are not only the most recent numbers covering a complete court term, they will be the last ones under the petition for review rules that had been in place since 1997. The Court has officially adopted very different petition rules effective January 1, 2026.1 So my next presentation about the court stats (in June 2026) will be trying to disentangle the numbers, about the old style of petitions and a half year of the new ones, to see what we can learn about the new system.

The continued use of freestanding concurring opinions

As reflected in the slides, one topic was the Court’s use of “concurrences from denial of review.” As discussed in my 2024 stats presentation, this really began in the past few years. Members of the Court now issue about ten of these a year, after having not done so even once in the decade before the pandemic. These have become an important window in the Court’s thinking, especially about procedural issues.

  • Megatel C90-2 v. Bank of Utah, No. 24-0206 - this case was dismissed as part of a settlement, and the parties asked the court for the extraordinary relief of also vacating the opinion below - two justices wrote to explain that these requests are common but put undue strain on the court and “going forward, I hope we’ll see fewer motions of this sort”

  • Accident Fund Ins. Co. v. TDI-DWC, No. 23-0273 - one justice wrote to explain that this issue might be better presented through an as-applied rather than facial challenge - “I would likely vote to grant a petition” where a party seemed able to show a specific fact pattern but, if one like that never comes, “then it would confirm the wisdom of declining to take it on as a facial challenge”

Per Curiam decisions without full briefing

The court also expanded its use of summary opinions, decisions issued without ever requesting merits briefs. There were several of these per curiam decisions issued based on petition-stage briefs alone:

  • In re S.V., No. 23-0686 - case about what is needed to justify an extension of the notice of appeal deadline - where there was an “absence of any argument” that a lawyer had disregarded rules or sought some advantage, “his unrebutted explanation that he merely misunderstood the rules satisfies the requirement” (slide 17)

  • Suday and Estate of Suday v. Suday, No. 24-1009 - the court of appeals had dismissed the appeal because an estate executor was proceeding pro se - court determined that the situation (the executor was the sole beneficiary) fit a narrow exception and thus “[w]e thus have no need to address the general rule” and the appeal should be reinstated (slide 18)

  • Borusan Mannesmann Pipe v. Hunting Energy Servs., No. 24-0183 - reversing a court of appeals that held an issue had been inadequately briefed - “there is no inherent minimum quotient of statutory or case-law citations that must be met before a brief can be found to adequately preserve an issue” - also noting that courts of appeals can order additional briefing, where they think it necessary

  1. I’ll be writing much more about the new petition rules later. ↩