Last Friday was interesting for the Texas Supreme Court’s “submarine docket” — the set of cases that the Court resolves without oral argument and without a former prior order “submitting” the case for decision, as might happen in a court without discretionary review.

When a petition lingers, that’s valuable information

Some have complained that they need the Texas Supreme Court to create a formal “submission on written briefs” process so they can tell what issues might be of interest to the Court. But some clues are already there in how the Court handles its petitions. Cases that linger on the docket are likely to get more attention from the Court. And when the Court’s docket starts to accumulate a group of petitions that raise similar issues, it’s a safe bet that some part of the Court is thinking seriously about them.

This week, the Court answered an open question about using mandamus to review the 30-day extension of time on expert reports that trial courts can offer medical-malpractice plaintiffs. The Court resolved that question in In re Roberts (discussed here). This was a “submarine” decision — no formal submission was made, and the case was decided without oral argument after having been pending on the Court’s docket for some time. This one, in fact, was pending for about two and a half years after full briefing was completed. There should have been little doubt that this issued was on the Court’s mind.

And it was not the only petition that raised this question. In Friday’s order list, the Texas Supreme Court also resolved a few other long-pending cases that raised the same question. One of them — like Roberts itself — was among the Court’s very longest-pending fully briefed cases: In re Benavides, No. 05-0784. In Benavides, like Roberts, the defendant sought to use mandamus to review a trial court’s decision to grant a 30-day extension. Consistent with its decision in Roberts, the Court simply denied review in this case. The Court also denied review today in In re Temple, No. 05-0817, and In re Zimmerman, No. 05-0826, two cases out of the Sixth Court raising the same question. Both of those petitions were pending for more than two years after the petition briefing was complete but before any request for full merits briefing. (( The Court sometimes lets cases linger at that stage so that it can resolve some legal issue in the case through another pending case. That way, if the Court decides it does want to see merits briefing, the parties can write briefs more helpful to the Court that address the Court’s new guidance. Cases lingering at the petition stage can be an interesting indicator of what the Court is thinking about in other cases. ))

The odds are better, but they’re not perfect

Friday’s order list resolved six of the Court’s very longest-pending cases — five of which dealt with the same question about medical-malpractice expert witnesses.

But the very longest-pending case did not result in a merits decision at all.

Admiral Insurance Co. v. Westchester Fire Insurance Co, No. 05-0028, a case between two insurance companies raising questions under the Stowers doctrine, was (by my count) the longest pending petition that had not yet been granted, at about 2 years and 10 months since the Respondent’s Brief on the Merits. In Friday’s order list, the Texas Supreme Court denied review without comment, letting the case return for trial consistent with the court of appeals’s judgment.