Texas Watch[ed]

Legally sufficient

I just posted a response to a thoughtful comment made regarding my earlier jeremiad aimed at Texas Watch‘s recent report entitled, “In the Shadows: A look Into the Texas Supreme Court’s Overuse of Anonymous Opinions.” Of course, after my recent discourse with someone purporting to be Adam “Bulletproof” Reposa, pretty much anything is–by comparison–civil, restrained, and respectful.

Please permit me to plagiarize myself and reprint some of my response here as I think it bears directly upon the merits–or lack thereof–of the most recent Texas Watch “study.”

[O]ne of the main thrusts of my argument is that the very jurisprudential purpose of a per curiam opinion negates the central tenet of Texas Watch’s argument that per curiams are being inappropriately used to dispose of legally complex cases that should be issued as an authored opinion.

Instead, I posit that the more likely cause of the undisputed rise in per curiam disposition of cases is attributable to the Court’s desire to clear its undenied backlog of cases—of which Texas Watch has previously complained. My point is that it wholly undermines what little credibility may be initially afforded Texas Watch to knock the Court for utilizing the only determinative tool at its disposal to address an urgent problem of which Texas Watch has publicly ridiculed the Court. Texas Watch can’t have it both ways.

To believe otherwise is not just to merely accuse the six Justices who vote to issue a given per curiam opinion of being complicit in flouting the very appellate rules they are charged with drafting, but it is to accuse all nine Justices of intentional malfeasance because every such per curiam opinion is authored en banc. No serious observer or critic of the Court would accuse every single Justice of being either so incompetent or malicious as that. That is why such claims cannot be taken seriously.

However, if your objection is really that I didn’t refute the individual merits of the fourteen cases incorrectly cited by Texas Watch in their report, let me indulge you.

At the outset, however, one should note that the political agenda (as opposed to legal analysis) of Texas Watch is revealed by their “[i]mpact” headings under each case’s discussion in the report. The political impact of any particular decision is, of course, constitutionally beyond the purview of the Court to decide. Indeed, that is why Texas has a legislative branch. But if the legal merits (or lack thereof) of a case demand a certain result, that result can very well have political impacts that are distasteful to the public at large. That is precisely how the system is supposed to work; so that the public can then go to their elected representatives in the Legislature and demand a change in the law to remedy the odious effect. But it is not constitutionally up to Court to masquerade as a super legislature. To assume otherwise is to reveal a basic and fundamental misunderstanding of not only remedial civics but of the constitutional function of the judicial branch.

Now to the cases, none of which are even vaguely legally controversial on their merits.

In In re RLS Legal Solutions, LLC, 221 S.W.3d 629, 630 (Tex. 2007) (per curiam), the Court hinged its holding on its earlier, authored opinion in In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001). Indeed, that is likely why this case was issued per curiam, because the central legal issue had already been decided by a previous, authored opinion.

In Schaub v. Sanchez, 229 S.W.3d 322, 322 (Tex. 2007) (per curiam), the “only theories under which the patient could recover were dismissed by agreed order in the trial court.” Error was not preserved by agreement of the parties; clearly a case hugely appropriate for per curiam disposition.

In Ed Rachal Found. v. D’Unger, 207 S.W.3d 330, 331 (Tex. 2006) (per curiam), the Court again referred to two earlier, authored opinions that resolved the determinative legal issue on appeal. See Austin v. HealthTrust, Inc.-The Hosp. Co., 967 S.W.2d 400, 401-02 (Tex. 1998 ); Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 723 (Tex. 1990.

In In re DuPont de Nemours & Co., 136 S.W.3d 218, 227 (Tex. 2004) (per curiam), the Court reversed a trial court’s discovery order as to one subset of withheld documents. While this opinion was a little more legally complex than those discussed above, it is far more likely that the Court issued it per curiam because it dealt with only a pretrial matter and involved some 530 documents out of the more than 55,000 pages produced.

In Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70, 72-73 (Tex. 2004) (per curiam), the Court held that driving a company truck to the house of the employee’s girlfriend, and then later some forty miles away to a night spot was a “material deviation from any implied permission he may have had to use the vehicle.” The facts aren’t even close here on the scope of the permission involved—hence the per curiam disposition.

In Dallas Metrocare Servs. v. Pratt, 124 S.W.3d 147, 149 (Tex. 2003) (per curiam), the Court again relied upon a previous, authored opinion’s holding that “mere incorporation of … [a] definition” from another statute “does not by itself manifest a clear legislative intent to waive immunity.” See Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003).

In Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 213 (Tex. 2003) (per curiam), the Court referenced several prior, authored opinions each of which that held a common carrier is an entity whose “business … is public transportation,” but not one to whom “such transportation is ‘only incidental’ to its primary business.”

In Tiller v. McLure, 121 S.W.3d 709, 714-15 (Tex. 2003) (per curiam), the Court held that a series of contentious, callous, and unprofessional contacts by the petitioner regarding two commercial construction contracts– while reprehensible–was not so atrocious as to qualify as “extreme and outrageous.” This one involved a little more legal analysis and might have been a somewhat closer question than those discussed above, but was clearly not so outside so the purview of the Court as to be labeled an “inappropriate” use of a per curiam opinion.

In Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 nn.7, 8 (Tex. 2003) (per curiam), the Court relied upon a multitude of previous, authored opinions that plainly held “some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence,” and “an inference stacked only on other inferences is not legally sufficient evidence.” No great jurisprudential stretch that.

In In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 208-11 (Tex. 2001) (per curiam), the Court vacated a pretrial consolidation order after relying upon the diagnostic framework established by a previous, authored opinion. In re Ethyl, 975 S.W.2d 601 (Tex. 1998 ). Once again, a pretrial dispute, the merits of which were plainly governed by a prior, authored opinion.

In Walls Regional Hosp. v. Bomar, 9 S.W.3d 805, 807 (Tex. 1999) (per curiam), the Court again relied upon several prior, authored opinions that established the record did not support the appellees’ contention that the conduct complained of originated and was then “transported into the place of employment from [their] private or domestic [lives],” or that the appellant intentionally injured the appellees.

As with many per curiam opinions, the Court in In Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156-57 (Tex. 1999) (per curiam) appeared to have rejected the proposed application of a well established recovery doctrine to novel yet simple fact-pattern.

In In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (per curiam), the Court hardly stretched its jurisprudential limits by relying upon a Fifth Circuit Court of Appeals case and the seminal authority on contracts that the mere fact the real parties in interest possessed “no bargaining power or ability to change the contract terms” is not, in and of itself, legally “automatically unconscionable or void.” See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Security Pac. Corp., 961 F.2d 1148, 1154 (5th Cir. 1992) (citing 6A ARTHUR CORBIN, CONTRACTS § 1376, at 20-21 (1962) & 7-9 (Supp. 1991)).

Finally, Texas Watch bemoans a per curiam opinion which is only six lines long. See Am. Home Assur. Co. v. Stephens, 982 S.W.2d 370, 370 (Tex. 199 (pre curiam). Moreover, the opinion itself is an answer to a certified question from the Fifth Circuit Court of Appeals, and defers to the lengthy legal analysis contained in a Fifth Circuit dissent—hence it’s brevity (and per curiam nature).

That’s it, that’s the sum total of juristic outrage of which Texas Watch complains. While Texas Watch has every right–and to the extent that it may even be correct–to complain of the political effect of these decisions, Texas Watch’s ire is misdirected. The legal bases for these per curiam decisions are sound and entirely appropriate for per curiam disposition. Texas Watch would do far better to publicly harangue and chastise the true arbiters of the perceived misery against which Texas Watch rails—the Texas Legislature.

Just don’t masquerade as legal experts presenting a sober and thorough analysis of the Court’s recent per curiam practice seriously testing what may indeed turn out to be a fair thesis. Instead, Texas Watch has manifestly either been incapable of attracting or hiring a seasoned appellate expert to conduct such an analysis, or they have more likely just not bothered to even attempt such an endeavor. Neither motive is a fair or rational basis to impugn the professional integrity and legal acumen of those who have garnered the electoral support of a majority of the voters in our Great State.

Thx to Lefty

Where the magic happens

Yesterday, I posted my own diatribe to counter the latest press release issued by Texas Watch, but noted at the end of my post that I was most concerned about the publication of the number of per curiam opinions issued per Justice by the Office of Court Administration (OCA).

Well, the OCA was kind enough to clarify for me the history of this practice which largely assuages my original concern–for whatever that’s worth.

The collection and publication of this per curiam data is hardly new, having been annually compiled for some twenty-seven years since OCA first began tracking the number of per curiam decisions issued by each Justice as early as 1981. Moreover, the OCA specifically sought input from SCOTX in both 2004 and 2006 regarding the contents of the OCA’s annual report, and the Court expressed no concern regarding publication of the per curiam statistics.

The OCA was also correct to point out that the identity of the opinions enumerated in the statistics is kept confidential, with only the number of opinions issued per chamber being made public.

So, at the end of the day, I am likely the only person to whom this one column of data jumped out as being slightly odd. Moreover, if neither the Court nor the OCA are troubled by the practice, than it is certainly beyond my purview to be.

Thx to the OCA for accurately, annually, and faithfully reporting the current statistical state of the Texas judiciary


SCOTX Blog has a great post today regarding the latest screed from Texas Watch in their ever-vigilant quest to find new ways to sound imbecilic (my description only).

Texas Watch has apparently prepared a new “report” which purports to shine the light of truth on SCOTX‘s “penchant for secrecy” by “using per curiam opinions inappropriately to avoid accountability for some of the tough decisions.

Before I delve into the nonexistent merits of Texas Watch’s revelation, there is something curious going on here. Both the Houston Chronicle and the AP have published news accounts describing a report that Texas Watch has not even yet issued. Does anyone else find it odd that supposedly objective news outlets would be writing articles concerning PR dossiers that haven’t even been released to the public yet?

As to the merits, as any lawyer knows (which perhaps explains Mr. Winslow‘s ignorance), per curiam opinions are a remedial tool used by SCOTX (and the courts of appeals for that matter) to more quickly dispose of cases that require only relatively straightforward error correction. See Hon. Robert H. Pemberton, One Year Under the New TRAP: Improvements, Problems and Unresolved Issues in Texas Supreme Court Proceedings, in State Bar of Tex. Prof’l Dev. Program, Advanced Civil Appellate Practice Course B, B-18 (1998).

In fact, SCOTX first began to increase its use of per curiam opinions as early as 1925, when–not coincidentally–the Court was suffering from such a severe backlog of cases that a separate judicial body was created to assist in the mass adjudication of pending cases. See David M. Gunn, “Unpublished Opinions Shall Not Be Cited as Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 ST. MARY’S L.J. 115, 117 (1992) (describing how, beginning in 1925, the Texas Supreme Court began to increase its issuance of per curiam opinions, “perhaps as a corrective device”); see also Act of Apr. 3, 1918, 35th Leg., 4th C.S., ch. 81, 1918 Tex. Gen. Laws 171 (made effective April 3, 1918, and reestablishing the Texas Commission of Appeals); Tex. S.J. Res. 8, 49th Leg., R.S., 1945 Tex. Gen. Laws 1043 (adopted at election held Aug. 25, 1945 eliminating the Texas Commission of Appeal).

Accordingly, per curiam opinions are used to more efficiently dispose of those cases upon which there is little or no disagreement, and which present fairly straightforward legal issues. In other words, if the Court is issuing more per curiam opinions, it is probably more accurately an indicia of an increased determination to reduce the Court’s backlog (previously bemoaned by Texas Watch) of appropriate cases than it is a Machiavellian attempt to shroud the deciding members from public scrutiny.

To the contrary, the use of such a jurisprudential mechanism actually INCREASES the scrutiny upon the Justices because a per curiam opinion is–by definition–issued by the entire Court. Every Justice is given equal praise/blame for the failings or triumphs of the decision, as compared to an authored opinion which can be attributed only to the majority of Justices who sign it.

Moreover, because the only type of case that is appropriate for per curiam disposition is one in which the legal issues are clear, straightforward, and non-controversial, Winslow’s claim that “[a]ll too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters” can simply not be taken seriously. Any decision likely to cause controversy or which demands the Court clarify a muddled or disputed area of the law is precisely the type of opinion least likely to be issued per curiam. And, as explained above, a per curiam opinion subjects every single Justice on the Court to elevated scrutiny, not just the authoring few.

Again, any basic analysis of the different types of opinions SCOTX is empowered to issue is a bit dry and legally complicated so I can’t really fault a group of non-lawyers (save for the one four-year lawyer Texas Watch recently hired) for failing to comprehend the finer points of the practice.

Most interesting to me is SCOTX Blog‘s noting that the official statistics published annually by the Office of Court Administration track the per curiam opinions written by each Justice (see page four of the .pdf file).

While it is of course obvious that a single Justice must be logistically tasked to author a per curiam opinion, the identity of that Justice should remain anonymous because it is the Court as a whole that is issuing the opinion. The fact that OCA tracks and publishes this data, tying these opinions to the chambers which issue them (by number of opinions only) is more troublesome than any flotsam trotted out by Texas Watch.

Thx to SCOTX Blog


We have diligently followed the recent spate of press reports stemming from “research” conducted by Texas Watch purporting to show massive and improper opinion delay at SCOTX. Unlike Texas Watch, we at SMSB do not pretend to be nonpartisan, we are admitted and unabashed fans of SCOTX and its jurisprudence.

That said, we will be the first to acknowledge that SCOTX opinions take an exceedingly long time to issue, and any justification for this less than impressive pace (the Office of Court Administration (OCA)‘s estimate for the average time taken to issue an opinion last term from the petition filing was 700 days) is hard to defend in light of SCOTUS‘s ability to turn around most–if not every–opinion it issues well within two years from the date of filing (by way of example, the oldest opinion issued thus far during the Court’s present term was handed down 557 days after cert. was filed, and the oldest opinion issued during the Court’s 2006 term took 703 days to issue from cert. filing to opinion issuance). One explanation for this discrepancy is that each SCOTUS Justice has double the amount of law clerks in his chambers than do SCOTX Justices.

Recently, the Executive Director of Texas Watch, Alex Winslow (who is not a lawyer but does possess a bachelor’s degree in government), responded to an excellent op-ed penned by the Court’s Staff Attorney for Public Information that called into question the methodology employed by Texas Watch in conducting its research. Specifically, the Court’s staff attorney pointed to:

One watchdog—using numbers and a methodology it did not explain—calculated the time the court took to dispose of petitions at a few days shy of a year in the 2007 term. The OCA report to the Legislature puts that figure at 158 days—about 40 percent of what the watchdog stated it was.

The organization’s calculations determined the court took an average of 852 days last term to resolve cases from the filing to the opinion. OCA determined that figure was 700 days.

In his op-ed, Mr. Winslow responded to the inaccuracies in his group’s report by stating:

[SCOTX’s] taxpayer-funded spokesperson has attempted to assail our methodology and questioned our motives (“Court watchdogs getting facts wrong,” Thursday). Clearly, the [C]ourt is uncomfortable with the public scrutiny it has received in recent months.

* * *

Our research found that it took an average of 28 months for the [C]ourt to resolve a single case. The [C]ourt’s spokesperson claims it was 23 months. We stand by our research as accurate, but no matter how the [C]ourt wants to slice and dice the statistics, the bottom line is that it takes far too long for the [J]ustices to complete their business.

Perhaps Mr. Winslow can indulge us a little more “slic[ing] and dic[ing],” but the data relied upon by the Court’s “taxpayer-funded spokesperson” was not his own, but the OCA’s, which is the state agency statutorily mandated under Chapter 72 of the Texas Government Code to keep accurate statistics regarding the efficiency of the Texas judicial system. See, e.g., TEX. GOV’T CODE ANN. § 72.082 (Vernon 2005). And the “spokesperson” to which Mr. Winslow dismissively refers is a former appellate attorney–something Mr. Winslow has never been–who has long served the Court both ably and faithfully despite being woefully underpaid and misguidedly rooting for an obscure basketball program in the Pacific Northwest.

The OCA has no vested interest in shading the data one way or the other, their only concern and statutory duty is to accurately convey the current statistical state of the Texas courts to the branch of government that funds them, the Texas Legislature. What accountability infrastructure is in place to ensure the accuracy of Mr. Winslow’s data? Oh, that’s right, Mr. Winslow. Or perhaps the one attorney on the Texas Watch staff, who has been licensed all of four [whole] years.

As to the length of time it takes to issue SCOTX opinions in general, while admittedly too long by most any measure, I’ll defer to Justice Scalia’s excellent explanation of the job of an appellate court of last resort: “I’m not about to do justice for your client at the expense of creating injustice in hundreds of other cases that will never come before me that I will never see.” His point–analogized to Texas–is that the citizenry of Texas would likely prefer their Supreme Court Justices to be deliberate and thoughtful in crafting their opinions so as to prevent the inadvertent imposition of injustice in numerous lower court decisions that would subsequently rely upon a quickly-drafted yet necessarily slapdash opinion.

For the third time, we’ll reiterate that we agree that SCOTX take a long time to issue its opinions. But in pointing to this obvious concern, if Texas Watch were truly “nonpartisan” as it claims, it would acknowledge–as the Court’s staff attorney did–that during FY 2007, the Court managed to issue the greatest number of opinions since 2000 and the second highest number of majority opinions since 1999, all while operating with the equivalent of eight justices for almost two years between December 2000 and August 2005 due to Court turnover. It might also point out that, while an average of 700 days pendency is nothing to brag about, that is much better than it has been historically–by over a 1,000 days. See Stayton & Eubank, A Study of Pendency in Texas Civil Litigation, 33 TEX. L. REV. 70, 81 (1954).

If anyone is interested in reviewing the actual, accurate, and vetted data regarding SCOTX’s docket, go here to the OCA’s publication page to view the annual reports going back to 1996.

Thx to SCOTX for continuing to address this concern, and the Texas Appellate Law Blog


Responding to a slew of recent press accounts regarding purported opinion delay at SCOTX, the Court’s Staff Attorney for Public Information–Osler McCarthy–published an editorial yesterday in the San Antonio Express-News that exposed the shoddy reporting and questionable methodology used by the press and self-styled nonpartisan “watchdog” groups who raised the allegations.

SMSB has been unimpressed with the hue and cry surrounding these accounts, and we’re glad to see Osler set the record straight.

The errata noted by Osler included: (1) a Dallas television station’s use of a watchdog’s backlog calculations, which curiously inflated the average time for issuing opinions by 152 days (some 40%) more than the Office of Court Administration officially reported to the Legislature; (2) two newspapers’ reports that almost doubled the actual number of causes carried over from the previous term; and (3) a watchdog’s fabricated use of a fiscal year ending in June, when the Court’s actual term naturally adheres to the State’s fiscal year, which concludes at the end of August.

Altogether, a fairly damning indictment of both the watchdog groups and the press that have long pretended to be nonpartisan.

Osler also notes that, despite having ten new Justices join the nine-member Court since April 2001, last year the Court produced the greatest number of opinions since 2000, as well as sixty-two signed majority opinions, the second highest number since 1999. Moreover, this productivity can only be improved by the addition of the new central staff attorney currently being sought by the Court.

Thx to Osler McCarthy for correcting the public record, the Texas Appellate Blog, and SCOTX Blog

Texas Watch, the “non-partisan, advocacy organization working to improve consumer and insurance protections for Texas families,” filed another complaint today against Justice Hecht of the Texas Supreme Court , alleging that a Texas Secretary of State election law opinion issued in 1985 and a State Commission on Judicial Conduct (SCJC) admonishment of former Justice Kilgarlin (the “Kilgarlin Admonishment”) (Justice Hecht’s predecessor in Place 6 on the Bench) somehow serves as “stirkingly similar” precedent underlying Texas Watch’s latest jeremiad against Justice Hecht.

Non-lawyer expert on precedent

About the only thing “strikingly similar” between the admonishment of Justice Kilgarlin and Texas Watch’s most recent complaint against Justice Hecht is that they both involve SCOTX Justices and the SCJC. Alex Winslow–Executive Director of Texas Watch, signatory to all the complaints filed against Justice Hecht, and non-attorney–thinks so much of a supposed distinction in the Kilgarlin Admonishment that he italicizes his strained attempt at a point regarding the “difference between using and soliciting funds for such a matter.”

Well, if you peruse page six of the Kilgarlin Admonishment where the SCJC explains its conclusion regarding the solicitation and use of campaign funds, it is plain the distinction the SCJC draws regards the type of action for which the funds were solicited. The SCJC itself said it best when it clarified that:

[W]hile it may be permissible to solicit and use such funds for the purpose of challenging the constitutionality of the issuance of the legislative subpoena, the [SCJC] is of the opinion that the solicitation of funds by the judge to prosecute the lawsuit against a former briefing attorney who had testified before the House Committee is an entirely different matter.

The SCJC defended the right of a judge to challenge the constitutionality of a sanction, but thought it a bridge too far to use those funds to finance the filing of a separate suit against persons tangentially-related to the sanction.

Here, Justice Hecht never filed a suit against anyone, he merely appealed the constitionality of the sanction levied against him by the SCJC. Hyper-ironically, the very wording of the Kilgarlin Admonition–upon which Texas Watch entirely relies–permits the very type of expenditure and solicitation of campaign funds that Texas Watch hollowly bemoans.

Bottom line is that this latest complaint has absolutely no merit, and further reveals Texas Watch’s utter buffoonery. However, as predicted earlier, Justice Hecht has already been forced to expend more funds in order to retain counsel to defend him in this latest round of partisan witch-huntery.

Thx to the Texas Lawyer

D.A. Earle confirms to Texas Watch that his office has already been looking into the discounted legal fees charged to Justice Hecht by Jackson Walker.

DA Earle

What a shocker.

Thx to Quorum Report

Next Page »