A few days ago, the Texas Supreme Court requested full briefing in State of Texas v. Public Utility Commission, No. 08-0421 (DocketDB). Regular readers of the blog might have noticed this case appear as one of the “Recent Briefing Requests” in the sidebar.
Today, CenterPoint Energy released a press release about the status of the case. It mentioned the company’s earlier release about the filing of a petition in the case and then added:
Although the Supreme Court has not indicated whether or not it will grant review of the lower court’s decision, the Court’s request for full briefing on the merits will allow the parties to more fully explain their positions to the Court. Under the Court’s order, each party seeking review will submit its brief, and the other parties will be entitled to submit responses to those briefs. Any decision by the Court to grant or accept review is discretionary with the Court, and there is no prescribed timeline for action beyond the briefing.
I quote this rather dry paragraph to compliment it. The Texas Supreme Court’s process of requesting two stages of briefing before deciding whether to grant review is (perhaps) unique. (( I’m not aware of other examples. If you know of any, I’d appreciate hearing about them. )) At the least, it is different than the U.S. Supreme Court model with which more readers of the financial press might be familiar. This paragraph does a good job of explaining that the financial press should not get too excited about news that briefing is requested.
We, as appellate lawyers, like to try to read the tea leaves of what a particular briefing request might mean. We talk about the statistics — what percentage of cases get a briefing request; what percentage of those are granted or become “submarine docket” cases. Or we venture guesses as to what questions might have sparked the Court’s curiosity.
Thinking through these possibilities in detail can be very valuable. It can help shape the arguments or even inform settlement talks.
But what can you be certain of when the Court requests full briefing? The surest answer might the simple one given in that press release, namely, that it is another chance to make your best case to the Court.
How do you explain the Texas Supreme Court’s two-step briefing process to your clients?