In light of today’s acceptance of the direct appeal in the Episcopal Diocese of Fort Worth case, I wanted to write a little more about how direct appeals work in the Texas Supreme Court.

When the Texas Supreme Court takes up a direct appeal, it uses the language that it “notes probable jurisdiction” — a phrase that parallels U.S. Supreme Court practice for its direct appeals. The Court only has limited power to take these cases, and when a litigant seeks a direct appeal, they file a “jurisdictional statement” urging the Court to accept jurisdiction. Once it has done so, the Court then requests merits briefs and can set the case for oral argument.

Generally, only injunctive relief against a state statute can support a direct appeal

What type of cases can support this narrow type of jurisdiction?

Looking for guidance, a litigant might turn to Texas Rule of Appellate Procedure 57 (“Direct Appeals to the Supreme Court”). The rule explains some of the procedure for handling “direct appeals … that are authorized by the Constitution and by statute.” Tex. R. App. P. 57.1. Discerning which appeals are “authorized” is left to the reader.

The Court’s appellate jurisdiction over a direct appeal flows ultimately from the Texas Constitution, which sets the outer boundaries for the Legislature and Court to work within:

Sec. 3-b. APPEAL FROM ORDER GRANTING OR DENYING INJUNCTION. The Legislature shall have the power to provide by law, for an appeal direct to the Supreme Court of this State from an order of any trial court granting or denying an interlocutory or permanent injunction on the grounds of the constitutionality or unconstitutionality of any statute of this State, or on the validity or invalidity of any administrative order issued by any state agency under any statute of this State.

Tex. Const. art. V, §3-b. That focus is quite narrow — just the handful of situations when an injunction turns on the constitutionality of a state statute or administrative order.

The Legislature, in turn, has further narrowed the boundaries. The statute describing the Texas Supreme Court’s appellate jurisdiction speaks only about cases in which a statute’s constitutionality is questioned — not mere administrative orders. See Tex. Gov’t Code §22.001(c) (“An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state.”)

Although administrative orders are omitted from this general grant of authority, the Legislature has sometimes made specific grants of power to hear direct appeals, such as during electric deregulation in the late 1990s.

Direct appeals are therefore very rare

While I was at OSG, I came across two situations in which the Texas Supreme Court heard a direct appeal — the state-level challenges to the 2001 redistricting process, and the 2004-2005 round of school-finance litigation.

To double check, I recently cranked up the docket database behind DocketDB and filtered it down to just direct appeals filed since 2000.

In those 10 years, I found just two other examples:

  • In 2000, a set of electric-deregulation appeals came before the Court under a statute specifying that direct appeals could be taken for that class of orders.

  • In 2002, the Court heard a direct appeal in an election challenge to the eligibility of a judge to be on the ballot for one party after running in the other party’s primary.

That’s it.

I did find one other time when the Court at least took the step of requesting briefing by the parties. But in that case, as in every other direct appeal in the past decade, the Court ultimately declined to hear the case.

When can private litigants file a direct appeal?

Notably, all of these successful direct appeals — before today, at least — involved the state on one side or the other. Each directly involved the legality of some state action.

The direct appeal in Episcopal Diocese of Fort Worth represents the unusual case where a dispute between two private litigants raises the right kind of constitutional question about a state law. The Court’s decision to accept jurisdiction may also have been motivated by the other pending cases in the state raising similar questions. By taking this direct appeal, the Court may hope to remove some broader uncertainty in Texas law.

So I would think twice (or more) about raising a direct appeal. Remember that the intermediate court of appeals can grant the same relief as the Texas Supreme Court, and (because of a quirk familiar to Texas appellate lawyers) those courts actually have more power to reverse when facts are disputed. If your concern is truly the speed of the answer, then having a direct appeal dismissed by the Texas Supreme Court doesn’t advance that goal.