Before the Bench
Unique aspects of Texas Supreme Court practice.
By Scott A. Keller
From the July/August 2021 issue
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—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
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
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
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.