Open carry. Campus carry. The franchise tax. School funding. Fracking. Tuition for illegal aliens. These are the topics of current news stories about the 2015 Texas Legislature. Deadlines for appellate court rulings are conspicuously absent from the list. Yet a bill is pending that would impose stringent deadlines on such rulings, with significant and unpredictable effects on appellate practice and outcomes.
Senate Bill 64, by Huffines, is self-importantly styled the "Appellate Court Accountability Act." It requires Texas Courts of Appeals to announce within 60 days of the final brief (i.e., the reply brief) whether oral argument will be allowed, and to hold the oral argument, if any, within 120 days of the final brief. The court must decide the case within 90 days after oral argument or after the announcement that oral argument is denied. Various remedies for noncompliance are provided, including restrictions on noncompliant justices' participation in cases, prohibitions on new appellate filings and resultant transfer of such filings to other courts, denial of retirement service credit, and budget reductions.
The proposed restrictions at the Supreme Court level are equally severe. A petition for review must be denied within 90 days of filing if no response is requested, or within 180 days of filing if a response is requested but full briefs are not. And the petition must be granted or denied within 300 days of filing if full briefs are requested. The only exception is that a case related to one in which a petition for review has been granted may be held until 30 days after the original case is decided.
The bill also affects issuance of Supreme Court opinions in cases where petitions have been granted. All such cases must be decided during the term (September through August) when the petition was granted. The only exception is for petition grants in June through August; these cases may be carried over only under "extraordinary circumstances" and must be decided by December 31. Noncompliant justices may be restricted from participating in cases; they may also be referred to the Commission on Judicial Conduct.
The bill's unforgiving deadlines can produce some extreme results. Suppose, for example, that for whatever reason, justified or otherwise, a Court of Appeals gets behind on its work and begins to violate the statutory standards; its budget is cut, leading to staff and briefing attorney layoffs which in turn cause further delays and a resultant death spiral. Or consider the plight of a litigant whose case is scheduled for oral argument in a Court of Appeals on the 120th day after the reply brief, which turns out to be the day of the worst ice storm in a decade. Consider the likely quality of a Court of Appeals' opinion, issued 90 days after oral argument, in a complex commercial case with six parties, twelve issues, two cross-appeals, and a dissent. Or imagine a Supreme Court petition filed in July and granted the following May; the case must be argued and decided by August 31. And think about the effect of the bill on briefing extensions in the Supreme Court: a request for full briefing on Day 180 would produce a normal briefing schedule ending on Day 244, leaving almost no time for extensions if the petition must be granted or denied by Day 300.
The only similar restriction currently in existence (a requirement that motions for rehearing be decided by the Supreme Court within 180 days) was imposed by constitutional amendment. Scholars have begun pondering whether imposing such restrictions through legislation is an unconstitutional violation of the separation of powers. The Supreme Court may ultimately have to decide the question; perhaps we will find out the result of that case when the Court does or doesn't issue its opinion by August 31.
The bill has been referred to the State Affairs Committee; no hearing has yet been scheduled. Keep an eye out for it, and contact your legislators if interested.
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