CHAPTER 14 Texas Supreme Court: Petition for Review, Response, and Reply

• Jurisdiction: United States

CHAPTER 14

Texas Supreme Court: Petition for Review, Response, and Reply

14-1 Introduction

In the Texas Supreme Court, the petition for review is the vehicle by which a party seeks discretionary review of an adverse decision by an intermediate court of appeals. Few petitions are granted—approximately one in ten. As a result, a petition for review to the Supreme Court is fundamentally different from a brief of an appellant to a court of appeals. Whereas the primary goal of an appellant's brief is to persuade the court of appeals to rule for the client on the merits, the primary goal of the petition for review is to persuade the Supreme Court to take the case.

This distinction impacts the crafting of not only the petition itself, but also the response to the petition (urging the Court not to take the case), and the reply in support of the petition. This chapter addresses each of these three filings, the basic requirements applicable to all of them, and the Supreme Court's internal procedures.

14-2 Petition for Review

14-2:1 Goal of the Petition

The petitioner's ultimate goal at the petition-for-review stage is straightforward: getting through the door. Persuading the Supreme Court that the client should prevail on the merits is a secondary consideration at this stage. The petitioner must persuade at least three justices that the case is worthy of review to get to the next stage—full briefing on the merits.¹ And, ultimately, for the Court to grant review, the petitioner must persuade at least four justices that the case merits exercise of the Court's discretionary jurisdiction.

14-2:1.1 Demonstrating Substantial Importance

Unless the petitioner is angling for a per curiam opinion to correct error on a narrow legal point, getting through the door requires persuading the Court that the case involves a legal issue of substantial importance to the jurisprudence of the state. The task is complicated by the fact that the sheer volume of petitions the justices must review each week means, in all likelihood, that very little time will be devoted by the justices to any given petition.

One former justice has observed that due to the sheer volume of petitions, "the review is necessarily cursory."² Another justice has remarked that in reviewing a petition, "the judge can look at it in 90 seconds and realize that there is not a chance in the world that anybody on this Court is going to be interested in granting this case."³ Although it may vary somewhat, most justices say they spend a maximum of 15 minutes per petition, which includes reviewing the petition, court of appeals' opinion, response (if any), and any amicus submissions. Some justices also rely on summaries of petitions written by law clerks.

14-2:1.2 The "Hook"—Grabbing the Supreme Court's Attention

With so little time being devoted by the justices to actually reviewing any given petition, the petitioner's initial goal must be to grab the Court's attention. This challenge is exacerbated by the fact that there is no guarantee that all of the justices will actually read every section of the petition or will read front to back. Some start with the court of appeals' opinion, since the Court is reviewing the opinion for error. Some start with the issue statements and then look at the court of appeals' opinion. Some start with the summary of the argument and then read only those portions of the court of appeals' opinion relevant to the issues presented. Some rely on summaries of petitions prepared by law clerks. The practical reality of this discretionary review process calls for a fundamental shift in strategy from briefing to the court of appeals, where there is an assurance that the case will be heard and that the entire brief will be read by at least one of the justices and, in all probability, by all three.

An effective technique to grab the Court's attention in the petition is the "hook." Developing a hook requires boiling down the principal argument to a simple statement, ideally a single sentence, which not only captures the argument but also reveals its importance. The hook is then incorporated into various sections of the petition, so that no matter which section a particular justice actually looks to, the chances are enhanced of the hook being set.

This technique will not appeal to those writers who rely on a thesaurus to avoid repeating themselves. It is nonetheless an effective technique for those writers whose practical goal is simply to grab the attention of justices who may give the petition no more than a cursory review.

14-2:1.3 Brevity Is the Soul of an Effective Petition

Above all, the petition should be short. The body of the petition for review (statement of facts, summary of the argument, argument, and prayer) may contain no more than 4,500 words.⁴ Because many required sections of the petition do not fall within that limit, the temptation to use the preliminary sections to circumvent that page limitation may be strong. Resist that temptation. On average, the justices will have about three petitions to review each weekday, 52 weeks a year, to keep up with the inflow of petitions. Their time is valuable, and an effective petition will reflect respect for that fact. Attaching briefing in the appendix to circumvent the page limitations will ensure that the appendix gets struck.

Since a given petition is likely to receive no more than a cursory review, it is ultimately counterproductive to file a verbose petition. A streamlined, tightly focused petition is more likely to grab the attention of the justices. A former chief justice of the Supreme Court has emphasized that the length limit "is a maximum, not a recommendation or suggestion."⁵ He has even gone Biblical in driving home this point:

My own view is that writing to the page limits does not increase your chances for review or send any indication to the judges as to the seriousness of your case. To paraphrase St. Luke, "What profiteth a writer to use all his pages, but to lose his audience."⁶

The chief justice's view is shared by the other justices: "I rarely heard from other members of the court that the petition was too short."⁷

Technically, on motion, the Court may permit a longer petition, response, or reply.⁸ As a practical matter, however, the Court routinely denies such motions. Accordingly, counsel should comply with the word limitations on the initial filing since, virtually without exception, these limitations will ultimately be enforced.

14-2:2 Anatomy of the Petition

With minor exception, a petition for review must contain the following sections, in the order listed and "under appropriate headings:"

• Identity of Parties and Counsel

• Table of Contents

• Index of Authorities

• Statement of the Case

• Statement of Jurisdiction

• Issues Presented

• Statement of Facts

• Summary of the Argument

• Argument

• Prayer

• Signature

• Certificate of Service

• Certificate of Compliance

• Appendix

Tex. R. App. P. 53.2. Only the italicized sections are included in the petition's 4,500-word limit.⁹

14-2:2.1 Cover

The cover should be clean and simple. The required cover contents for the petition are the case style; the case number; the title (e.g., "Petition for Review"); and the name, mailing address, telephone number, fax number, if any, email address, and State Bar number of the lead counsel for the filing party.¹⁰ Though the rules require that only the email address of lead counsel be included on the cover the clerk's office prefers that the email address of each attorney listed on the cover be included.

Though not required under the rule, the State Bar Number of each listed attorney should be included immediately beneath his or her name. The clerk's office enters a notation on the computer system next to the name of the first signer to indicate that he or she is lead counsel. Only that attorney will receive official notices from the clerk's office, although anyone who signs up can receive CaseMail. The name of the attorney should be the "bar card" name of the attorney, not some interesting nickname. The name is cross-checked against the State Bar database, and the clerk's office will investigate name variations.

When out-of-state attorneys are included on the cover, prudent practice dictates filing a pro hac vice motion prior to or contemporaneously with the filing of the brief.

Although not required, some justices prefer that the cover reflect that the matter is "On Petition for Review from the [number] Court of Appeals at [City], Texas, Cause No. ______" And the clerk's office appreciates including this information.

The cover of a petition should not request oral argument. Only in the court of appeals must a request for oral argument appear on the cover.¹¹

Now that e-filing is universally required in all appellate courts, the rule governing the colors and materials to be used for the cover has effectively been rendered obsolete.¹²

14-2:2.2 Identity of Parties and Counsel

Rule 53.2(a) requires a complete list of all parties to the trial court's judgment, and the names and addresses of all trial and appellate counsel.¹³ The clerk's office also prefers inclusion of the email address for each listed attorney. It is not necessary under the rules to provide the addresses of the parties to the trial court's final judgment; only the addresses of trial and appellate counsel must be provided. Counsel should also provide the addresses of any pro se litigants.

Although not required, it is helpful to the Court to indicate the parties' procedural posture in the trial court, the court of appeals, and the Supreme Court (e.g., defendant/appellee/petitioner).

Under the rule governing petitions for review, both trial and appellate counsel must be listed. Clearly designate whether listed attorneys served as trial counsel, appellate counsel, or both.

The identity of parties and counsel page need not contain a stock introductory sentence as suggested by some appellate form books (e.g., "This list is...