In today’s order list, the Texas Supreme Court broke some new ground in how it interacts with the executive branch.



THE STATE OF TEXAS v. $281,420.00 IN UNITED STATES CURRENCY; from Hidalgo County; 13th district (13‑06‑00158‑CV, _ SW3d _, 04‑03‑08)

The Solicitor General is invited to file a brief in this case expressing the views of the State.

This is a “CVSG” — a Call for the Views of the Solicitor General. The U.S. Supreme Court takes advantage of this procedure about a dozen times per term, asking if the United States thinks that review should be granted. Because this invitation is made in cases in which the United States is not itself a party, the Court gains the benefit of an (ideally) neutral perspective on whether the petition is the right vehicle to address a particular question of federal law.

The Texas Supreme Court has echoed the U.S Supreme Court’s language in framing today’s order.

Today’s CVSG is notable for a few reasons. First, the Texas Supreme Court has never formalized this practice. There are a handful of cases in which the Texas Supreme Court has asked the AG’s office to file an amicus brief. But it has done so quietly, by letter, rather than by issuing a formal order.

Second, the Court directed its request to the Solicitor General, not the Attorney General. The office of Solicitor General of Texas is nearing its tenth anniversary, so it does not have the long history of its federal predecessor. In fact, just a few years into its existence, the Court of Criminal Appeals doubted whether it was a real office at all. (( See Saldano v. State, 70 S.W.3d 873, 875 n.3 (Tex. Crim. App. 2002) (en banc) (“Solicitor General” is a title recently given to an assistant attorney general. In the government of Texas there is no office of solicitor general that corresponds with the solicitor general of the United States, who is appointed by the president with the advice and consent of the senate…”) )) Today’s order shows that the Texas Supreme Court is quite comfortable with the idea.

Third, this case is a civil forfeiture case. Why is that significant? Because the “State of Texas” was already a party before this request. The State as the petitioner is represented by a criminal district attorney who (in this case) chose to rest on the court of appeals brief rather than filing a fresh brief in the Texas Supreme Court. (( This is of course allowed by rule. But this particular court of appeals brief was the State’s brief as appellee below and is quite dismissive. It does not contain the sorts of prudential arguments that might help the Court decide whether to grant the case. ))

This last wrinkle comes up more often than you might expect. The Fifth Circuit has previously asked for the SG’s view on the construction of a Texas criminal statute in a case in which the State of Texas was already represented through the prosecutor’s office. (( See Rothgery v. Gillespie County, No. 06-50267, at slip op. 4 n.3 (5th Cir. 2007) (“We are indebted to the Solicitor General of Texas, Ted Cruz, who filed an amicus curiae brief in this appeal at our request…” )) Because of the way the Texas Constitution has divided prosecutorial power, the question sometimes arises of who really speaks “for the State.”

It will be interesting to watch future CVSG requests for clues about what issues interest the Texas Supreme Court, as well as what approach the SG’s office takes. The federal SG’s office has built its credibility with the U.S. Supreme Court by being willing to advise the Court not to take a case. A formal invitation for the Texas SG’s office to file a CVSG brief seems like an invitation for the office to take an equally evenhanded approach. (( This kind of objectivity may be difficult when one party is “the State of Texas.” Future cases may be a better measure. ))