Yesterday, the Texas Supreme Court resolved two motions to participate in oral argument by amici — granting one request and denying the other.

In Gail Ashley v. Doris D. Hawkins, No. 07-0572 (DB), the Court granted the State of Texas’s unopposed motion to participate in oral argument as amicus curiae. The order indicated that the State’s five minutes of argument time was taken out of the Respondent’s original twenty minutes, leaving a split of 20 minutes for the Petitioner, 15 for the Respondent, and 5 for the State.

Meanwhile, in In re United Services Automobile Association, No. 0871 (DB), the Court denied a “motion to expand argument time” and a “motion to participate in oral argument” also filed by the State.

As I mentioned in my recent post “When can amici expect to get oral argument time?”, Texas practice requires both a party’s consent and that the consenting party share its time. I mentioned that the Texas Supreme Court has, on occasion, expanded the overall time for argument — what I called “an awkward way to proceed.”

Yesterday’s order again signals that the Court is loath to give more time to parties who are unwilling to share. The order list contained this explanation:

Pursuant to Texas Rule of Appellate Procedure 59.6, upon motion to the Court and with a party’s consent, the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted to that party for oral argument.

That puts a little flesh onto the bones of Rule 59.6, which merely says:

With leave of court obtained before the argument and with a party’s consent, an amicus may share allotted time with that party. Otherwise, counsel for amicus curiae may not argue.

The Court has clarified that, with a motion and a party’s consent, “the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted…” (emphases mine) (( Update 12/9: On Friday, after the Court initially denied permission for the amicus to argue, a revised motion was filed that no longer sought the “expansion” of time. The Court granted that motion and the State appeared as amicus at oral argument this morning. ))

The Court mostly likely did not intend to limit its discretion to deny a motion to participate, which it surely can do. (( This discretion was why I suggested in my earlier post that an amicus should have something different to say than the party they are supporting. If the Texas Supreme Court truly does not intend to exercise discretion over whether particular amici can appear, then you can safely ignore my previous post. Then again, why would you want to appear at oral argument if you didn’t have something to say that warranted the Court’s attention? )) But it has made plain that it does not expect any amicus to need more than five minutes and that it does not expect parties to seek extra time to compensate.

The practice tip remains: If you have a helpful amicus, consider giving them five minutes of your time.