The Texas Supreme Court has directed the Supreme Court Advisory Committee (known as SCAC) to study and propose rules that would eliminate pre-grant merits briefing and prohibit central dockets like those used in Travis and Bexar Counties.

The Court has signaled its interest in the first potential change for a while now, but the second one is new. This post focuses on the merits-briefing issue.

How did we get here?

When I clerked at SCOTX in the mid-1990s, every case required full briefing through what was then called an application for writ of error. Any party asking SCOTX to invoke its discretionary jurisdiction and change the result had 50 pages to persuade the Court it had the power to decide the case and should do so by granting the application. This system was criticized then for requiring too much delegation to court staff because the justices couldn’t read and digest every application filed.

The 1997 appellate rules overhaul introduced the petition for review, a short brief designed to get the Court interested in the case and trigger a request for full briefing on the merits, which somewhat resembles the former application for writ of error. Grant decisions are made after full briefing, with the odds of a grant going up between the petition and merits-briefing stages. When adopted, this two-step system promised that the justices would read every petition, with staff assistance focused more on the back end.

Flaws in the system

Good intentions aside, the petition-for-review system has flaws. Justice Evan Young discussed many of them during a guest appearance on the Texas Appellate Law Podcast. For example:

1. Inefficiency and costliness of briefing before a grant decision

  • The current process requires parties to submit full-length merits briefs before the Court decides whether to grant review. This can lead to wasted time, effort, and expense since most petitions are ultimately denied, even after full briefing.
  • Advocates and clients may be reluctant to invest significant time and money in preparing merits briefs without knowing whether the case will be heard.
  • The Court must devote time to reviewing full-length briefs on cases it may never take. This consumes resources that could be directed toward cases that will receive full review.

2. Uncertainty and strategic constraints for advocates

  • Petitioners may avoid fully disclosing weaknesses or complexities in their case at the petition stage, fearing that too much detail might make the case appear less novel or significant, reducing the chances of a merits-briefing request and grant.
  • Petitioners’ merits briefs currently serve dual purposes: persuading the Court to grant review and addressing the case’s merits. This hybrid approach can limit strategic flexibility.
  • Respondents often frame their briefs to first oppose the grant of review rather than address the merits. This results in briefs where the lead argument is, “The Court should deny review,” which becomes irrelevant if the Court grants the petition.
  • The structure of these briefs may not serve either party well during oral arguments since their initial focus was on granting or opposing review rather than addressing the case’s substance.

3. Staleness of briefs by the time of oral argument

  • The time lag between submitting briefs on the merits and oral argument can be significant—often a year or more.
  • During this period, case law may evolve, rendering the original arguments and citations outdated.
  • Advocates may need to refresh their knowledge of the case, leading to additional preparation costs and time investment.
  • Justices rely on briefs to prepare for oral arguments and draft opinions. Stale briefs can negatively affect the Court’s work.

Moving to a certiorari-like system

Over the past few years, the Court has openly discussed changing the system to more closely resemble the U.S. Supreme Court’s petition for writ of certiorari process, in which grant decisions are made at the petition stage and only then followed by full briefing. Based on the Court’s charge to its Advisory Committee, I think this change is certain. It’s just a matter of when.

So what will the new procedure look like?

That’s for SCAC to study and work through, but these basic features are likely:

  • an expanded and more comprehensive petition, with grant decisions made at the petition stage; and
  • merits briefing called for after the grant decision, eliminating the need to further argue whether the Court should review the case.

As in 1997, this will be a major shift in Texas appellate practice. I’ll be watching the situation closely.