Just as there are exclusive procedures and customs at the U.S. Supreme
Court, there are unique nuances to Texas Supreme Court practice as
well.1 In light of my experience in both courts (11 U.S.
Supreme Court arguments and nine Texas Supreme Court arguments), this
article will examine five unique aspects of practicing before the Texas
Supreme Court compared to the U.S. Supreme Court.
Pace of Questioning at Oral Argument
One of the most striking differences between oral arguments at the
Texas and U.S. Supreme Courts is the pace of questioning from the
justices, even though both are nine-member courts. The pace of
questioning that I have experienced in the U.S. Supreme Court (a
question/answer exchange about every 30 seconds) was essentially twice
as frequent as the questioning I received at the Texas Supreme Court (an
exchange of about every 60 seconds).2
Multiple commentators and advocates have recognized the rapid pace of
questioning in the U.S. Supreme Court.3 One recent study
showed that for the 10 advocates who made the most total statements at
oral argument throughout an entire term, these advocates made on average
about two new statements per minute (that is, they fielded about two
questions per minute).4 The statistics from my arguments at
the U.S. Supreme Court confirm this trend.5
In contrast, the pace of questioning in my recent arguments at the Texas
Supreme Court was about half that of the U.S. Supreme Court.6
Of course, this statistic from my own experience in the Texas Supreme
Court analyzes only a limited set of cases; in other types of disputes,
the Texas Supreme Court might give advocates even more time to develop
their arguments. But at minimum, this is some empirical evidence that
the Texas Supreme Court allows advocates more time to carry on sustained
explanation and develop their points in more detail than the U.S.
Supreme Court.7
Motions for
Rehearing
Motions for rehearing—to reconsider actions the courts have already
taken—are treated quite differently by the Texas and the U.S. Supreme
Courts. As the U.S. solicitor general recently explained in United
States v. Texas, “[o]rdinarily, it is exceedingly rare for [the
U.S. Supreme] Court to grant rehearing.”8
The Texas Supreme Court, in contrast, grants motions for rehearing a
few times each term. The overwhelming majority of rehearing motions are
denied: During the court’s last term (September 2017 to August 2018),
the court granted seven rehearing motions and denied 244—a grant rate of
about 2.8%.9 Over the past four years, the Texas Supreme
Court has an annual average of granting about seven motions for
rehearing of petitions for review plus one motion for rehearing on
causes (that is, after an opinion has issued).10
Over the past four years, the Texas Supreme Court granted 27 motions for
rehearing at the petition-for-review stage11—about seven per
year.12 After reinstating the petition for review, the court
then disposed of these 27 cases as follows:
Ten petitions resulted in overturning the court of
appeals;13
Eight petitions resulted in affirming the court of
appeals;14
Six petitions resulted in re-denials of the petition for
review;15 and
Three of these cases remain pending.16
What may be most notable about these statistics is that about two or
three times per year in this timeframe, the Texas Supreme Court granted
a motion for rehearing of an already denied petition for review and
subsequently overturned the decision of a court of appeals.
A few patterns emerge when examining the substance of the arguments
raised in these granted motions for rehearing. The majority of these
motions asserted negative statewide or widespread consequences if the
court of appeals decision was left in place17—especially in
the oil and gas context that the court frequently
addresses.18 Nearly half of the granted motions invoked
recent or intervening new authority from the Texas Supreme Court, the
5th Circuit Court of Appeals, state courts of appeals, or
statutes.19 And many asserted either governmental interests
or issues implicating the proper scope of governmental
power.20
Amicus support during the petition-for-review rehearing phase is not
necessary for the court to potentially grant this
rehearing.21 And just because the court already has full
merits briefing when it initially denies a petition for review that does
not foreclose the granting of a rehearing motion.22
Motions for Shared Oral Argument Time With
Amici Curiae
Both the Texas and U.S. Supreme Courts allow a party to consent to
share argument time with an amicus curiae.23 This practice,
though, has been much more prevalent at the U.S. Supreme
Court.24
The Texas Supreme Court has generously granted motions to share
argument time with amici curiae, although these motions recently have
only been filed about five times each year. In the past four years, 19
motions for sharing oral argument time with amicus curiae have been
filed, and all 19 have been granted.25 Once the supporting
party’s consent has been given,26 the court appears to accept
that party’s strategic decision and allows supporting amici to present
oral argument—even if the opposing party objects.27 Moreover,
the court has granted these argument motions for private parties as
amici and not just the state.28
The Texas Supreme Court’s sustained practice of granting the small
number of these motions that actually get filed suggests that sharing
oral argument time with amici curiae may be an underused facet of
appellate advocacy.
Calling for the Views
of the Solicitor General, or CVSG
Both the Texas and U.S. Supreme Courts have a procedure for asking a
particular solicitor general to submit an amicus brief—that is, “call
for the views of the solicitor general.”
The Texas Supreme Court has used its CVSG procedure29 far
less than the U.S. Supreme Court.30 Before 2016, the Texas
Supreme Court had gone a few years without a CVSG request. But the court
has returned to this practice, issuing a CVSG in each of the last three
terms.31
Given the limited number of cases in which the Texas Supreme Court has
issued a CVSG, it is hard to extrapolate how the practice will affect
any given case. But at the U.S. Supreme Court, a CVSG exponentially
increases the chances that the court grants the certiorari petition and
hears the case.32
Petition-for-Review Versus Merits-Briefing Phase
Finally, a significant difference between the Texas and U.S. Supreme
Courts is in their procedures to persuade the court to review a case in
the first place. In deciding whether to review a case, the Texas Supreme
Court, as a practical matter, considers two rounds of briefing—both the
petition- and merits-stage briefs.33 That is because the
Texas Supreme Court generally orders merits briefing before it
decides whether to grant a petition for review and hear oral
argument.34
In contrast, the U.S. Supreme Court only considers the petition-stage
briefs in deciding whether to review a case.35 This occurs
because the court only orders merits briefs if it grants the certiorari
petition, which also generally sets the case for oral
argument.36
According to the Texas Supreme Court’s internal operating procedures,
only about 1 in 3 cases where merits briefing has been ordered will
result in a granted petition for review or per curiam
opinion.37 So advocates must gear their arguments in a Texas
Supreme Court merits brief to both the underlying merits as well as
continuing to persuade the court to grant the petition for review and
resolve the case—which creates its own set of strategic issues that do
not arise in U.S. Supreme Court merits briefs.38
Conclusion
Appellate advocacy before the Texas Supreme Court—like practice before
the U.S. Supreme Court—has its own unique aspects. This article has
briefly outlined five aspects that stood out to me when comparing Texas
and U.S. Supreme Court practice. I hope these observations will help
advocates serve their clients well in litigating at the Texas Supreme
Court.TBJ
SCOTT A.
KELLER is a partner in Baker Botts’ Austin and Washington,
D.C., offices. He is chair of the firm’s Supreme Court and
constitutional law practice. Keller served as Texas solicitor general
from 2015 to 2018.