Fourteenth Says Swapping Emails Does Not a Contract Make

In the last opinions of the 2012 term of the Fourteenth Court of Appeals in Houston, Justices Kem Thompson Frost, Charles W. Seymore, and Martha Hill Jamison, substituted opinions in the 2001 Trinity Fund v. Carrizo Oil & Gas case (No. 14-10-00604-CV, Dec. 28, 2012, no pet. h.). To make a long story short, Trinity Fund was supposed to buy into Carrizo Oil & Gas's drilling in the Barnett Shale, a truly huge natural gas formation that has been demonstrated to be under 10 Texas counties--including Fort Worth and its suburbs--and may well be under seven more. Trinity missed a payment deadline, which, under a prior agreement, was supposed to terminate that agreement, but the companies kept emailing each other. Carrizo eventually sued in Houston's 295th District Court, Trinity counter-sued. As might be expected in a multimillion dollar lawsuit by experienced oil-and-gas litigators in the energy capitol of the world, the case got complicated in a hurry. In their original opinions, the appellate justices, though, were able to agree on all but one point: why the question of whether or not the emails constituted a contract should not have been submitted to the jury. Justice Frost argued that the emails never got around to agreeing to enough to create a new agreement after the termination of the prior agreement and distinguished three cases that Carrizo cited. Justice Seymore argued that there was no evidence that the parties ever intended to finalize a new contract using only electronic means, that is, by way of the Texas Uniform Electronic Transactions Act, Tex. Bus. & Com. Code, tit.10, subtit. B, ch. 322, especially that the parties never intended by their actions to modify the rules laid out in the act itself. Justice Jamison basically agreed with Frost, but didn't want to discuss the other cases.
The justices ended up affirming in part and remanding to determine what part of an offset the trial court gave Trinity was related to income arising out of the contract that the appeals court held had never been formed in the first place, and ordering the trial court to disallow the offset to that extent.
The justices substituted the opinions after Carrizo pointed out that Carrizo shouldn't have to give up attorneys' fees awarded in a part of the trial court judgment that was in favor of Carrizo that Trinity did not appeal.
Trinity is in Chapter 11 bankruptcy.

It Takes a Heap o' Writing to Make a Jail Contempt Stick.

In Texas's First Court of Appeals in Houston, a panel of justices of justices Evelyn Keyes, Michael C. Massengale, and Harvey G. Brown decided Tammy Fountain's application for a writ of habeas corpus against a Houston family court. Justice Massengale wrote for the majority and Justice Keyes dissented. Fountain stipulated to violating an order in a suit affecting the parent-child relationship on October 18, 2011. On May 24, 2012, she was found in contempt of court and sentenced to 60 days in jail, but her jailing was suspended, conditioned upon her following the October 18 court order and some modifications dated May 24, 2012 from that point into the future. About a month after May 24, Katcher, the other party to this case, moved to jail Fountain. On July 31, 2012, the court Fountain jailed (She bonded out.). Her three violations were:

1. Failing to provide required notice timely to Katcher that Fountain was moving on June 22 by giving notice on June 18, 2012,
2. Failing to give notice to the child's school by May 15, that Katcher could pick the child up there, and
3. Failing to post information to a website that Fountain was obliged to.

Justice Keyes argued that the July 31 order failed to specify the manner in which Fountain had committed two of the three acts for which it held her in contempt and as for the third, the purported contemptuous act arose under the May 24 modification but took place before May 24. The majority held that the October 18 proceeding was all orderly, and that the procedures for the revocation of the suspension had been good enough in view of that fact.

Reading through the papers of this case I am reminded of an Italian proverb- that a lawsuit plants a tree in a lawyer's garden. At least five lawyers have worked on this case, not counting justices and staff at First Court. Still, jailing people is not to be done unless the rules are observed, that is, unless the alleged contemnor gets timely notice of what is complained of and the sheriff is given written notice of the basis for the commitment order. When a panel splits like this, it often behooves respondent's counsel to seek that the whole appeals court reconsider, and, if that does not free the client, to file an application with the higher court, in this case, the Texas Supreme Court.

Commitment orders are hard to write. They are generally drafted before the hearing and have to marked up after. The decision to commit someone to jail often comes at the end of a long day, often after the judge has been listening to testimony for hours. At some point the judicial belly just becomes full of this matter and everyone in the courtroom is exhausted, yet movant's counsel must be painstaking with the paperwork and get the judge to dot every "i" and cross every "t" so as to reduce the likelihood of months of expensive games of ring-around-the-rosie in appellate courts.
In re Tammy Fountain, No. 01-12-00704-CV(Tex. App.--Houston (1st Dist.), Dec. 28, 2012) (orig. proceeding).

Efiling Comes to Texas Civil Practice in Trial and at Appeal

Texas state appellate and civil practice is going electronic. The Texas Supreme Court has mandated electronic filing for cases in their court and for all civil cases in the Texas courts of appeals starting January 1, 2014.
Electronic filing will phased in Texas's trial-level courts, large counties first, from January 2014 through July 2016. That part of the order will apply to district courts, statutory county courts, constitutional county courts and statutory probate courts in the following order:

• January 1, 2014, in counties with a population of 500,000 or more (In your humble correspondent's world: Fort Bend and Harris Counties);
• July 1, 2014, in counties with 200,000 to 499,999 (Brazoria County);
• January 1,2015, in counties with 100,000 to 199,999;
• July 1, 2015, in counties with 50,000 to 99,999;
• January 1,2016, in counties with 20,000 to 49,999; and
• July 1, 2016, in counties with fewer than 20,000.

Once courts switch to mandatory e-filing, attorneys must e-file all documents in civil cases, except documents exempted by Court rules, through TexFile, the portal provided by the Texas Office of Court Administration. Attorneys must not file documents by any alternative electronic methods, including by fax, except in emergencies. Courts and clerks are ordered not to offer attorneys in civil cases any alternative electronic ways to file documents. Pro se litigants may e-file, but don't have to. Courts or clerks who believe they cannot set up electronic filing timely may petition the Texas Supremes for an extension for good cause.

The Parole Board Giveth, the Montgomery County Jury Taketh Away

The left hand of the State of Texas doesn't know what the right hand is doing when it comes to paroling sex offenders. Norman Lewis Evers was convicted of six counts of burglary with intent to commit rape. There was evidence each of these burglaries had culminated in a rape, and that, additionally, he had  raped another woman in California during the time of the Texas offenses. Evers came up for parole and obtained it under a super-intensive supervision program. The Sexually Violent Predator Multidisciplinary Committee, a screening expert, and the Special Prosecution Unit- Civil Division caused a petition to be brought against him that he was a sexually violent predator and should be civilly committed. Now in order to get parole, the parole panel must believe that the offender "is able and willing to fulfill the obligations of a law-abiding citizen." The trial jury committed him in spite of the panel's belief. He challenged the trial court's jurisdiction and the sufficiency of the evidence to support the jury's verdict. Justice David Gaultney wrote for a panel of the Ninth Court of Appeals sitting in Beaumont including Chief Justice Steve McKeithen and Justice Charles Kreger affirming the trial court judgment. Evers's goose was basically cooked by a holding in the prior case  In re Commitment of Nicholas (Tex. App.--Beaumont, pet. denied, 2010) that the sexually violent predator statute covered parolees as well as those about to be released from prison. Still, if Evers can jump through all the hoops to get a habeas corpus petition before a federal judge in this matter, that the jury found that he was, beyond a reasonable doubt, likely to re-offend despite a contrary belief of the parole panel, he might well prevail.
In re Commitment of Norman Lewis Evers, No. 09-11-00430-CV (Tex. App.--Beaumont, Dec. 13, 2012)

Corpus Says Mistake-of-Fact Merited Jury Issue in Sex Offender Registration Case

I've practiced in Texas counties with very few judges and in counties with many. In counties with many, there is a tendency, at least for the judges who are members of the same party, to pressure one another to conform to the majority's view. An interesting development in Montgomery County, Texas- county seat Conroe- where my mother-in-law and her people live- is the accession to the bench there of Mr. Kelly W. Case, a criminal defense lawyer, who was supported by the Tea Party over Judge Fred Edwards, who, back in the day, had been a very innovative jurist. Montgomery County has a well-deserved reputation as being very tough on crime and pro-prosecution. Mr. Case has been posting to Facebook as he has been at judge's school, where he was horrified by at least one judge's sense that all criminal defendants before his colleagues--he had no criminal jurisdiction-- were guilty.
This is the context for my case note about William Joseph Lee v. State of Texas, No. 13-10-00555-CR, (Tex. App.--Corpus Christi, Nov. 21, 2012)(mem.op.) out of the 221st Judicial District Court, Conroe, Montgomery County, Texas, brought to that appellate court by docket equalization. The charge: failure to register as a sex offender. Lee had begun the process of registration before he was released. he had made arrangements with the sex offender registration office in Conroe to come in, and this appointment was rescheduled more than once, apparently with no objection by the person he was supposed to report to.
Lee asked for a jury issue on mistake of fact that would allow the jury to find that he reasonably believed that he had, in fact, registered. The trial court refused, Lee got life, and the Court of Appeals reversed and remanded. I found out about this case through the case summaries of the Texas District and County Attorneys Association, whose commentator noted that Lee is 76 years old, suffering from cancer and Hepatitis C and will not likely survive to be retried. 

New Word-Count Rules and a Certificate of Compliance Form

Don't forget that the new word-count rules for Texas appellate documents go into effect on Saturday. Here is a form Certificate of Compliance suitable for lawyers using the word count functions of their computer software to comply.

(For counsel using the word count of a computer program)

Certificate of Compliance

          I, (name of lawyer, e.g. Bob Mabry), attorney for (party designation, then party name, e.g. defendant John Johnson ) certify that this document was generated by a computer using (the name of computer word-processing program, e.g. Microsoft Word 2007) which indicates that the word count of this document is (document word-count, e.g. 7,499) per Tex. R. App. P. 9.4 (i).

_________________

(name of lawyer, e.g. Bob Mabry)

Note that in calculating the length of document, every word and every part of the document, including headings, footnotes, and quotations, must be counted except the following: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix.

It's Good to Know the Law; It's Also Good to Know Your Judge

There is a witty Twitter account called The Times Is On It, which could be about nearly any newspaper, really. It's about how newspapers sometimes make stories about things that practically everybody already knows. It's funnier when the Grey Lady, the most famous newspaper in the world, really a fine newspaper, The New York Times does it, telling a story that displays mastery of the obvious.
The folks at the Twitter account should have a field day with "Judges' Rulings Follow Partisan Lines," about how the political-affiliation backgrounds of federal judges appear to be related to their decisions. The occasion for this piece appears to be a book by Lee Epstein, William M. Landes and our ever-provocative friend Judge Richard A. Posner, which I hope to get to read.
I hope it goes without saying that if you are ever doing an appeal, you should familiarize yourself with the personal, political and occupational background of your panelists. In my experience, the most important help you will glean from knowing a judge's background is to learn what they don't know about, viz., if you have a criminal case, a white-shoe transactional or civil defense lawyer risen to a bench is not likely to be in touch with the practical commonplaces of criminality and law enforcement and criminal justice as a former prosecutor or criminal defense lawyer would. . 

Chief of Texas Governor's Staff Appointed to Finish Unexpired SCOTX Term

Texas Governor Rick Perry appointed his chief of staff Jeff Boyd to finish the unexpired term of State Supreme Court Justice Dale Wainwright.
Before being chief of staff, he was the governor's general counsel. He was formerly a senior partner at the Austin office of white-shoe law firm of Thompson and Knight LLP, which would make him--as practically all of Perry's judicial appointments are--a business-oriented lawyer, apparently a civil litigation and business regulation attorney. He graduated from Round Rock High School in the now famous central Texas suburb- hometown of Dell Computer. His undergraduate degree is from Church-of-Christ-Campbellite Abilene Christian University; his law degree from similarly faith-affiliated Pepperdine University of Malibu, California. There's no indication that he has ever studied with or worked at close quarters with anyone out of his cultural-and-faith milieu, save that he was a president and board member of Volunteer Legal Services of Texas.
Dale Wainwright, an African-American former Houston-area state district court justice retired from the court to join Bracewell and Giuliani's Austin office, where the honor is less, but the money is much, much better. This will leave the Chief Justice as the only remaining African-American on the nine-member court.
Perry--whose name only has three syllables--chose one of the only people in the state who could possibly have a name shorter than his own. To appoint someone with a shorter name than Boyd's, Perry would have to name Prince to office--if only he would readopt his former name.

Don't Use an Unpersuasive Font

Don't miss this amazing pair of articles in the New York Times by Errol Morris--the filmmaker who gave us The Thin Blue Line, The Fog of War and Gates of Heaven--arguing that some fonts are more persuasive than others--Georgia more than most, and Baskerville most of all. I'm going to change my fonts as a result of this article, but need to decide how to do so most cost-effectively.
Thanks to Luke Gilman for bringing this to my attention.

The Courage of the Appellate Criminal Defense Lawyer

It takes courage to be a criminal lawyer, especially a criminal defense lawyer, especially a criminal defense trial lawyer, but sometimes it takes courage to be an appellate lawyer as here. This is not the whole hearing. Maybe there's something in the missing part that would, in part, excuse the judge's behavior, but the judge appears to be impatient with and discourteous to the public defender, which is contrary to Kentucky's Code of Judicial Conduct canon 3(B)(2).
Not everybody is going to be as lucky as David Barron, the public defender here, to have a video of judicial misconduct. In Texas, if there is going to be any chance that you are going to be in a situation like this (and I will grant that sometimes you cannot predict when trial judges are going to be hateful and obstreperous), you need to bring three disinterested witness to view the proceedings so that, if needful, they can swear to a bystander's bill, a way to make a trial court record when the judge or court reporter refused to make one or let you make one.
In the video, the judge complains that he wishes that a trial lawyer were before him instead of an appellate lawyer. There is a joke about a trial judge and an appellate judge duck hunting with a guide. They come upon some ducks. The guide tells the appellate judge to go first. Cocking the hammer, waiting for the birds to rise, the appellate judge fires when they do come off the water. The trial judge is next; when a group of birds fly by, that judge shoots a number of times, hoping that there was a duck somewhere.
I am a trial lawyer as well as an appellate lawyer. I have some sympathy for the trial judge who, from time to time, has to make momentous decisions on the spur of the moment in the heat of the courtroom, while appeals court judges get to take months to calmly ponder trial judges' decisions from cold records in the peace of appellate chambers.
But what a judge like the one in this video is complaining about, is that appellate lawyers get to (or have to, depending upon your point of view) judge trial lawyers and trial judges. They do that because appellate judges are in the business of correcting trial judges. Good appellate judges are not afraid to correct the errors of those siblings of the bench who are, formally, their juniors, and the best ones give some leeway to a trial judge who is physically at the trial, and needs much shoot from the hip to get a blast off at all. A trial judge who can't deal with being subordinate to the higher courts should get a different job-- perhaps try to be a high court judge.
Thanks to Martha Neil and the folks at the American Bar Association journal for bringing this to my attention.

Nines Won't Let Big Part of Case Be Decided by Sanctions Hearing Alone

Beaumont Texas's Ninth Court of Appeals conditionally granted a writ of mandamus in favor of Bank of America as against mortgagor Trudie Crutchfield after the trial judge sanctioned San Francisco's biggest $300,000 for breaching a settlement agreement with the lady. This was the third lawsuit between the parties about this matter. BoA argued that it should have the protections of a trial against this kind of forced payment, and the Ninth Supreme Judicial District agreed.
I've got a call into the Court Clerk's office to try to find out why the court's computer records call this per curiam opinion a majority opinion. There doesn't appear to be any dissenting opinion. The opinion's a majority opinion instead of a unanimous opinion?
Thanks to David Yates and the other great people at the Southeast Texas Record for bringing this case to my attention.

Highest New York's Court's Briefs Generally Not Improving Last 40 Years

The language in the briefs to the New York Court of Appeals-- that state's highest court-- have gotten less and less plain between 1969 and 2008, except for less use of the passive voice, according to an article pending for publication in the Suffolk University Law Review. Bryan A. Garner and I, among many others, have much work to do in this connection.

Copyediting is important.

Proofreading is important.

New Chief Judge of Fifth Circuit

United States Court of Appeals for the Fifth Circuit Chief Judge Edith Jones (Wikipedia still thinks she has her old job, and I don't have the time to fix it.) stepped down early from her term as chief judge, citing family reasons. She's still going to stay on the court. The new Chief Judge is Carl E. Stewart of Shreveport, Louisiana. Getting to be Chief Judge is a kind of seniority process. Immediately following admission to the Louisiana Bar Association in October 1974, he entered the Army and was stationed at Fort Sam Houston in San Antonio, Texas. He was a Judge Advocate General's captain until October 1977. After leaving the military, Stewart served as:

• a Staff Attorney with the Louisiana Attorney General's Office,
• an Assistant United States Attorney,
• a Special Assistant City and District Attorney, and
• a private practitioner.

In 1985, he became a District Judge in Caddo Parish, Louisiana, and was reelected without opposition five years later. In 1991, again without opposition, he was elected to the Louisiana Second Circuit Court of Appeal. President William J. Clinton appointed Judge Stewart as United States Circuit Judge on May 9,
1994. Judge Stewart is the second African American appointed to the Fifth Circuit.

Knowing Jim Sharp

The old joke is that it is better to know the judge than it is to know the law. Now, in truth, I don't ever recall the judge ever giving one of the lawyers in the room a wink and a nod, and plowing ahead against all fact and legal reason, but I have been in many a courtroom over the years where it felt like my underpants were showing all the time, because I was the one person among the attorneys and the staffers who did not know of some peculiar personality quirk, inclination of mind or pet peeve of the judge, and I have seen lawyers who did know those things manipulate them to the benefit of their clients, so keeping up with the news about judges is important.
I've got two pieces of judicial news to post today. I'll post them separately for the benefit of indexing, etc.

On August 30, 2012, the State Commission on Judicial Conduct publicly reprimanded Jim Sharp, a justice on the 1st Court of Appeals in Houston. The Commission found that Justice Sharp repeatedly contacted employees at the Brazoria County Juvenile Detention Center and identified himself as a Court of Appeals justice in his efforts to secure the early release of a friend's daughter from the facility. Even though told that Brazoria County had a policy of not releasing juveniles until they could be seen by a magistrate, Justice Sharp kept using his position and authority as an appellate judge to pressure, intimidate, and coerce Juvenile Detention employees into giving his friend’s daughter special treatment (letting her out early in spite of  County policy). Also, Justice Sharp reached out to several influential friends, colleagues, and other public officials to try to get their help to get special obtain specially favorable treatment for his friend’s daughter.
What Justice Sharp did is extensively documented in public records and by the media. In addition, Justice Sharp’s conduct, including his inappropriate and abusive treatment of Brazoria County employees, had the direct consequence of causing his recusal from all pending cases in which the Brazoria County Criminal District Attorney’s Office is counsel, thereby interfering with the proper performance of his judicial duties.(Somebody in the State Bar or the SCJC made a mistake- Brazoria County has no "County Attorney"; the CDA does the civil and misdemeanor work that a County Attorney would normally do, in addition to a D.A.'s work.)
Sharp is a Democrat living in a Republican world- Harris County is Republican; a majority of the Judicial Conduct Commission's membership is chosen by the Supreme Court of Texas (all Republican) and the governor (Republican); Brazoria County CDA Jeri Yenne is a Republican. I do not believe that there was anything partisan in any thing that happened to Sharp, but I'm sure it was at least a tiny bit easier for the players to slap down a political adversary than someone who is supposed to be a friend. You know that this is a man likely to draw an adversary in the next election. I daresay that the odds are against his being reelected to the job. You can also tell from this story that he's not the kind of judge who reveres legal process, but instead is likely to think more like a politician. He's never been a prosecutor, but has been a criminal defense lawyer. Appears to have represented some civil plaintiffs as well as having clerked back in the day for white-shoe Houston defense firms. I'd like to know all that stuff before writing my brief, etc., than to find out after I was hip-deep in my appeal.

Article on Citing Authority in Briefs, etc.

Good advice on citing opinions in your briefs are here.
Thanks to Raymond P. Ward, a kindred spirit from Nawlins, in The (New) Legal Writer blog.

To Appeals Courts, a Brief Is a Book, not a Newspaper

Wall Street Journal Law blog has a post on typefaces for appellate briefs that's worth your attention. Times New Roman, which was the most popular default typeface for many years until recently, was designed for the London Times to facilitate fast, once-over-lightly reading. It's better to use a font designed for book reading in a brief. They are designed for slower, careful, deep reading. (Just in case someone would think it would be cute to use Courier, a font designed for pre-computer-printer-age typewriters, be warned-- it's judge abuse.) Like SCOTUS itself and the Solicitor General, we're Century people at my place.
Hat tip to Sam Glover (Man, I could a good cup of coffee now.) and  Lawyerist.

On the Virtues of Brevity

" . . . [B]revity is the soul of wit,/And tediousness the limbs and outward flourishes . . ."- William Shakespeare, Hamlet, act 2, sc. 2
The capital defendant convicted in the American state of Georgia was up in the 11th Circuit federal court of appeals. One circuit judge--Ed Carnes-- wrote a 105-page opinion holding that although trial counsel's performance was deficient-- his lead defense lawyer drank a quart of vodka every night of the trial while also preparing to be sued, criminally prosecuted, and disbarred for stealing client funds-- that deficient performance did not produce an unjust result, and the conviction and sentence should be upheld. Another circuit judge on the panel--Rosemary Barkett--dissented: trial counsel's performance was so bad, the defendant was entitled to a do-over.

But what is most interesting in this case for our purposes is that the third circuit judge--senior judge and former chief judge Mr. J.L. Edmondson (a photo of Chief Circuit Judge Edmondson is above, with the other chief  judges of the other federal circuits, etc. of the federal courts)-- concurred with Carnes instead of joining the longer opinion because 105 was just too damned many pages, and likely would lead to confusion about which parts of the opinion were binding precedent and which parts non-binding dicta and further might have error hidden in its near-interminableness.
In defense of Circuit Judge Carnes, to determine whether or not trial counsel's performance fell so low that it was practically the same as no representation at all is a fact-specific determination to be made on the record as a whole. If that's the case, the advocates and the opinion writer seem to need to go through the whole record page by page and line by line.
However, the story of this case is a cautionary tale about the unpersuasiveness of long, legal documents, and, probably more importantly, the unlikelihood that they will be read (For the amount of time suitable for the preparation of a blog post, even I, leisured as I am, will not take the time to read the whole long opinion I am writing about here.). As to the relationship between unpersuasiveness and length, there are some documents of which great length in itself belies the argument within it. The classic examples are: a motion for summary judgment and a response to a motion for summary judgment. I have seen motions for summary judgment that are more than a hundred pages long, but think about it. A motion for summary judgment states that there is some point that has been established as a matter of law or some necessary point that, after reasonable time for discovery, has had no evidence at all adduced in its favor. Surely, one could state the elements of the cause of action, state which one is proved or utterly lacks evidentiary support and ask for judgment. If it takes a hundred pages to make such a claim, then it is highly likely that the point about which the motion is made is undecided and must be tried. A response works the same way, in mirror image. A respondent shows how the point in the motion is controversial or unproved. As to most motions, shortness is better even where it may not be absolutely required. Edmondson's comment shows that a long document is inherently suspicious--the longer it is, the more likely it is to hide mischief. A short motion or response is welcome in the hand and leaves the reader confident that, if it is correct, the reader will be able to find that out, just by examining it.
OK, but what is a writer to do when faced with briefs or motions or opinions as to the record as whole or balancing tests which appear to require copious scribation? It's tough, but there are a few tricks to help. I'll talk about one here and that is the use of tables or lists. In the case of this opinion, it might take too long to manageably list all the acts or omissions that might constitute ineffective assistance of counsel, in which case one would make up different short lists for each part of the trial, in a format that brings together alleged acts or omissions that:

1.  were, in fact, not wrong; or
2. did not cause an improper verdict or judgment.

At the end, one would have to write about the trial as a whole, but that's probably not more than a single paragraph.

Remember Matthew 6:7: "But when ye pray, use not vain repetitions, as the heathen do: for they think that they shall be heard for their much speaking." For about 2000 years, it's been known that long-windedness is bad advocacy whether addressing God or judges who are subject to the temptation to think that the power they wield is divine.
The case is Robert Wayne Holsey v. Warden, Georgia Diagnostic Prison,  No. 09-14257, (11th Cir. Sept. 13, 2012, no cert. h.).
This case was originally reported on by Bill Rankin of the Atlanta Journal-Constitution, which was in turn spotted in by Howard J. Bashman in his How Appealing blog, which was, in turn, picked up by Debra Cassens Weiss in the electronic version of the American Bar Association Journal.

Dangers of a Partial Summary Judgment

Prior posts of this blog have discussed that, except for certain statutory and possibly for some federal constitutional exceptions, only final judgments can be appealed in Texas practice. A real danger of summary judgment appellate practice is that a judgment, particularly a summary judgment, may appear to be final when it is not.
To explain why, let's start with a lawsuit with only one plaintiff, only one defendant and only one cause of action (As a practical point of plaintiff's trial advocacy, this normally would be a horrible idea. A wrong can normally be expressed under a number of rubrics, and a plaintiff's advocate would have a very unpleasant after-action meeting with a client in a case where the judge poured out the only cause of action where that judge might have let another cause of action to proceed to trial. If you have only one defendant, if that defendant can get dismissed, the whole case is gone. In most cases where there an individual-human-being defendant, there is also at least one other defendant, the individual-human being's employer.) Now, however, the case terminates, there is normally no doubt of what the final judgment is. If the judge rules that the case is finally dismissed, well, that's final. A summary judgment in which all relief not granted is denied is final. (This clause is called a Mother Hubbard clause--symbolically, the cupboard is left bare.) Alternatively, whatever judgment that results from a jury trial in such a case that is not subject to a new trial motion is final. Multiply the number of parties, causes of action or affirmative defenses, and you can see that partial judgments might arise that leave some parties or some causes of action or affirmative defenses undetermined. You might think that a Mother Hubbard clause would categorically solve the problem, but a judgment with a Mother Hubbard clause which clearly leaves some part of the case undecided is not final notwithstanding the clause. Yet, in a super-complicated case in which a judgment with a Mother Hubbard clause is rendered after a jury trial that the trial judge and all of the trial counsel understood to be a final judgment, that judgment might well be final notwithstanding one of a great many parties or a few of a great many causes of action clearly not being disposed of.
A fine discussion full of statutory and case cites on these points is here.
What's an appellate practitioner to do? Review the case file and account for the disposition of every party's causes of action and affirmative defenses, and move for the court to rule as to everything left unruled upon.  Sometimes part of a case can be severed such that that part of the case has a final judgment that can be appealed.

Beaumont's Ninth Court of Appeals Rejects State's Retrial Objection

Justice Hollis Horton, writing for a panel of Beaumont's Ninth Court of Appeals including Chief Justice Steve McKeithen and Justice Charles Kreger, affirmed District Judge John Stevens's granting of a motion for new trial in the case of James Cody Guedry.
In August 2007, a City of Beaumont patrolman sees a car fail to yield the right-of-way to another car at a controlled intersection. In the stopped car, two men were in the front.  One was  in the back.  After the stop, other officers arrive to prevent the driver of the car and the front-seat passenger, D.N., from interfering with the arrest of the back-seat passenger, who had an outstanding warrant. A fight started when Guedry tried to pat D.N. down.  An officer near Guedry, David Todd Burke, began hitting D.N. with his baton. Guedry then tased D.N. twice.
The State charged Guedry and Burke with official oppression, a Class A misdemeanor, and they were indicted. Burke was tried first. At Guedry's trial, he used the same lawyer that Burke had, and the same expert witness (He waived his lawyer's conflict of interest in also his also representing Burke.). Guedry's field training officer testified that Beaumont officers should provide a subject with an opportunity to avoid the taser's use if feasible before discharging the taser. D.N. said that he had made a rude comment when Guedry patted him down, but denied resisting the search by grabbing Guedry's hand. Guedry contradicted D.N., and offered the testimony of the expert who testified that if D.N. resisted, Guedry's use of a taser was reasonable.
Guedry was convicted, and filed a motion for new trial, which he amended the day before the hearing (more than 30 days after sentencing). The trial court granted the new trial in the interest of justice on the ground that Guedry had been denied effective assistance of counsel. The State appealed because:

• the court should not have held a hearing on a motion for new trial where it was not sworn and there were no affidavits and because relief should not have been granted on a new trial motion amended more than 30 days after sentencing; and
• Guedry did not prove ineffective assistance of counsel.

The Appeals Court held that new trial motions that do not assert newly discovered evidence need not be sworn nor have affidavits. It also held that the amended motion added no new legal grounds to the motion, implying that any error from the amended motion was harmless. Lastly, the Court of Appeals said that ineffective assistance had been proved. Guedry's being stuck with Burke's expert was incompetent.
The D.A.'s office was willing to set its face against Guedry and Burke and so was the police hierarchy, but the bench is not.
Thanks to KIII-TV, channel 3, in Corpus Christi, Texas  for bringing this story to my attention. I don't have any reason to think that the story made it into Beaumont media, but Corpus is all over it.
State of Texas v. James Cody Guedry, No. 09-11-00185-CR, (Tex. App.--Beaumont, Sept. 5, 2012, no pet. h.).

Comparison between Texas's Court of Criminal Appeals and SCOTUS as to Handling Last-Minute Death Appeals

If, God forbid, you ever find yourself working on a capital appeal, be aware of the practical details of filing last minute papers. Texas Court of Criminal Appeals Presiding Judge Sharon Keller famously let her court's office close so that a last minute appeal would not be accepted. You can search this blog for the struggle between Presiding Judge Keller (known as Sharon Killer to the death penalty defense bar) and those opposed to the death penalty, including, but not limited to, my old high school debate adversary University of Houston law professor David Dow. David Oscar Markus of the Southern District of Florida blog drew my attention to a New York Times article about the Supreme Court of the United States's "death clerk."

Texas Rules of Appellate Procedure Tweaked- Bigger Typeface, Word Count Limit for Computer Docs

The Texas Rules of Appellate Procedures have been changed effective December 1, 2012. Type is now bigger. Computer-generated documents have word limits. Non-computer-generated documents still have page limits.

Texas Supreme Court Says Anna Shursen Can Testify in SVP Case

Five months ago, I discussed the reversals of Texas sexually violent predator civil commitment trials by the court of appeals for such cases, this blog's court, the Ninth in Beaumont. At that time, one of those cases-- In re Commitment of Michael Bohannon-- had been taken up on petition for review to the Texas Supreme Court by the Special (Prison) Prosecution Unit for the State, accepted by that court, argued, but then not yet decided. The decision came down yesterday.
Justice Nathan Hecht wrote for a unanimous court, holding that an expert in a sexually violent predator civil commitment case need not be a physician or a psychologist, that Anna Shursen was struck merely because she was neither of those, that she was otherwise an expert, and that the Supremes respected Beaumont's finding that excluding her was harmful.
Yesterday's opinion assumed without deciding that a physician's testimony was not needed to civilly commit a sexually violent predator. The statute says it's not necessary. The Texas constitution requires physician testimony to commit a person. The point won't need to be decided unless the State was foolish enough to try to commit someone without physician testimony, which I have no reason to think they've ever done. The agency that represents respondents (defendants) in these cases doesn't have as much budget to pay for expert witnesses as the State does. Because of that, it is very rare that a respondent can get a physician to be an expert witness. To complain about that would have to be in an application for writ of habeas corpus, which the Antiterrorism and Effective Death Penalty makes difficult and for which one does not generally get a free lawyer. They'd have to complain about their own trial counsel.
Congratulations to Kenneth Nash and Andrea Medley, my old colleagues at the prison public defender office State Counsel for Offenders.

Computer Cut-and-Paste Can Be Bad for Appellate Lawyers and for the Rule of Law

Appellate courts may notice when a brief is recycled. I imagine that usually some staff attorney notices these kinds of thing. When such a thing is found though, the court will not hide its fury. The federal Ninth Circuit didn't in this case recently blogged about. People who live in glass houses, though, should not throw stones. A recent scholarly article points out that appeals courts' recycling nonprecedential opinions can give that recycled material greater influence than precedents.
That both of these issues arise as to immigration appeals is not accidental. I don't remember which immigration lawyer told me that much of immigration advocacy is to lose very slowly. Waiting lists in administrative processes can be more than 10 years long. In immigration proceedings, every additional hearing, review or appeal can slow an unwanted action or loss of a desirable status for months or years.
It should be no surprise that it is common for institutions in this system are crammed with cases, not infrequently of dubious merit. Client's counsels' offices sometimes see computer cut-and-paste briefs as an easy, cheap to do, yet large fee-bearing way to slow down bad results. Similarly, federal courts of appeals justices commonly refer the flood of appeals of Board of Immigration Appeals decisions to court staff attorneys who are expected to churn and burn through the load. They end up cutting and pasting copy from old non-precedential opinions into later ones. This copy may get outdated, but it may take a while before someone with the power to fix it may notice, viz. an appeals court justice, and by then, many cases may have been irretrievably wrongfully decided
Sometimes cases that do not have any outwardly visible immigration issues go through appeals because there is a collateral immigration benefit to someone associated with one of the parties for the case to keep pending.

Second Texas Bar Appellate Section Twitter Brief Contest Deadline Approaches

The deadline for the 2d Twitter Brief competition put on by the State Bar Appellate Section is September 3. How to enter is here. The winning entry from last year, and a link to the runners-up is here. It is open to anybody.

Harris County 208th Criminal District Court Judge Denise Collins Refuses to Credit Bad Urine Tests

The article is here.

Harris County Texas 177th Criminal District Court Judge Kevin Fine Resigns

The article is here.

Preserving Texas State Summary Judgment Error

A couple of weeks ago, I discussed appealing grants or denials of special exceptions of Texas state petitions.    As procedures for a special-exceptions-type problem in a criminal case are not the same as they are in a civil case, summary judgments don't exist in criminal cases.

Let's assume that special exceptions one way or another don't apply in your case. Now, the purpose of a trial is to find facts, but sometimes a case does not require a trial. Civil causes of actions consist of elements, as do affirmative defenses. In ordinary language, one might call a proof problem with an element of the plaintiff's case a defense, but strictly speaking, an affirmative defense is something that, if true, even if every element of the plaintiff's case is true, would cause the plaintiff to lose the case.A good, but not completely exhaustive, list of affirmative defenses is at Texas Rule of Civil Procedure 94. A defendant has to plead affirmative defenses in the answer, and certain suspect defenses have to be sworn to in the answer. That rule is TRCP 93.

For right now, I'm not going to talk about partial summary judgments. Just keep in mind here that, as a general rule, you can't appeal a partial summary judgment until the whole case has been disposed of by final judgment. More about that in a future post.

That a case does not have to be tried can come up four ways:

• There is no dispute that a plaintiff's facts are as the plaintiff says, and there is no affirmative defense;
• There is no dispute as to all the elements of an affirmative defense of a case;
•  One of the elements that a plaintiff needs to prove the case is demonstrably absolutely false; or
•  Proof of one of the elements of the plaintiff's case absolutely cannot be established.

For the first, the rule is TRCP 166a(a). For the second and third, the rule is TRCP 166a(b). For the fourth, the rule is TRCP 166a(i).

To preserve error in a summary judgment, first, make sure that you've done all your work with the special exceptions. You don't want to win a summary judgment only to have it overturned on appeal because the party resisting the summary judgment didn't get a right to replead, etc. Second, if you are fighting a motion for summary judgment, and it is unclear, you have a duty to file special exceptions on the motion. Now here's the best news of the post: in general, your written response to the motion to summary judgment is all the error preservation you need.

Also. be aware that summary judgments are relatively likely to be reversed on appeal. The standard of review for a summary judgment is de novo. Unlike trial judgments, summary judgments don't get a presumption that they are correct.

 

Passenger's Refusal to Consent of Search of Car Driven by Common-Law Spouse Upheld

Wayne Danish drives a car titled in his name. Shirley Copeland is a passenger. Sheriff's Deputy Jesse Garza, lacking a warrant and probable cause to search the vehicle, asks Danish for permission to search the car. Danish agrees, but Copeland strongly objects. Danish and Copeland both tell Garza that the two of them are common-law spouses. Relying on Danish's consent, Garza searches and finds drugs (I would hate to have been him once the two of them got back home.).
Copeland moves to suppress the drugs. The trial judge grants the motion. The State appeals.  Chief Justice Rogelio Vasquez, writing for a panel including Justices Dori Contreras Garza and Rose Vela, affirms.
The appeals court held that the statements of the couple were sufficient to evince their marriage notwithstanding that they had different last names- it appears that their marriage would in turn show that she had an ownership interest in the car (The prosecutor argued that their claim of marriage was less credible because Copeland didn't take Danish's last name?! Both of my ex-wives kept prior names and my current wife hyphenated half-heartedly and not always consistently.). The appellate court held that Copeland had standing to object to the search of her husband's car. It also held that Copeland's objection invalidated Danish's consent.
Hat tip to the Texas District and County Attorneys' Association for the case. They point out that the factual presumptions of this appeal are generally in favor of the defense.
It appears to me that the proof for the motion got only a lick and a promise. No investigation appears to have been done of the basis of their marriage claim. The State stipulated to lacking probable cause for the search.
State of Texas v. Shirley Copeland, No. 13-11-00701-CR (Tex. App.--Corpus Christi/Edinburg, Aug. 9, 2012, no pet. h.)

Houston's Fourteenth Court of Appeals Has New Anders Guidelines

An Anders v. California  brief is one in which an appointed counsel informs an appellate court that counsel cannot find any arguable basis for error in the trial court record. It is accompanied by a motion for counsel to withdraw. The individual party is offered a chance to file a brief without counsel (pro se), pointing out arguable error. The appellate court is supposed to make a careful, independent search of the record for arguable error.
Houston's Fourteenth Court of Appeals has posted new Anders guidelines 

First Court of Appeals in Houston Requires Ebriefs

Clerk's Records and Reporter's Records need to be electronic, too.

Special Exceptions Preservation of Error

Let's start at the beginning. In a Texas state civil case, what's a defendant to do when a plaintiff files a bogus lawsuit? A defendant would have many options. First, the petition should be examined for a missing or obscure element of something needful- a formal point or an element of the cause of action. Special exceptions to the petition would lie, or they would not. Also, if requested, the special exceptions might be granted, or might not be. That makes a matrix of four options:

1. justified exceptions granted;
2. justified exceptions not granted;
3. unjustified exceptions granted; or
4. unjustified exceptions not granted.

If justified exceptions were granted, generally, the petition would be struck. The striking order should give the plaintiff a chance to correct the problem. If the plaintiff does not, then there's no petition and the case should be dismissed. The plaintiff could appeal, but the appeal would fail.
If justified exceptions were not granted, the case would go on, but the exceptions would preserve appellate error for the defendant, giving a good basis for appeal.
If unjustified exceptions were granted, and repleading would not satisfy the court, the plaintiff should object to preserve error for appeal, and the plaintiff's appeal should be successful.
If unjustified exceptions are not granted, the trial goes on, and the defendant's appeal will not be successful.
Texas Rules of Civil Procedure

Beaumont Passes Along to Seiler what SCOTX Told Them

Under Texas law, a person convicted of a sex crime or sexually motivated murder, who has a behavioral abnormality: a paraphilia, a sexual weirdness, can be civilly committed and held interminably. The State was unsuccessful in committing the first person it tried to commit. After that, though, every respondent was either committed or there was a hung jury, and on retrial the person was committed. In the first few years, I knew of one case that had been reversed and remanded. That was the only one , except for one case that got sent to the Corpus Christi court of appeals instead of Beaumont's and was judged by a visiting justice instead of a regular justice (and which was reversed in favor of the trial court by the Texas Supremes). Other than that,
the appeals court always affirmed.
Last March I wrote about a string of reversals of the SVP trial court in Conroe by the Beaumont COA. There was another reversal in May that I wrote of here.
Now there's another--In re Commitment of James Anthony Miller, No. 09-11-00450-CV (Tex. App.--Beaumont (July 26, 2012, no pet. h.)   The trial judge appears to have been Michael Seiler. After the State and the defense had each taken a turn at questioning the panel from which the jury would be selected, the defense wanted to ask either: (1) “Can you set aside any bias if you find there’s an offense against a child?  Can you listen to all the evidence and follow the law?” or (2) “Is anyone unable to hear topics about children?  Can you listen to the evidence and follow the law?”  The trial court  refused Miller’s request to pose such questions to the jury panel.
Chief Justice McKeithen joined by Justice Charles Kreger held that a trial court’s refusal to allow proper questions during voir dire denies a party’s constitutional right to trial by a fair and impartial jury and is harmful, i.e., probably caused the rendition of an improper judgment, following In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011) (per curiam) and Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705 (Tex. 1989). The third panelist, Justice David Gaultney, argued in dissent that the trial judge was in his sound discretion not to allow additional questions after voir dire had been closed once, and that there was no indication that the trial judge's failure to allow the question or questions caused any biased veniremember to get on the jury. That is, the trial judge's action was either not error or was harmless error.

Interview of a Master, about a Master

One of the patron saints of this blog, Bryan A. Garner, is interviewed re his and Justice Antonin Scalia's new book Reading Law: The Interpretation of Legal Texts here.

Why Grammar and Usage Are So Vital in Writings to Appellate Courts

If you think that grammar doesn't matter in an appellate brief, you are beyond my help, but a post is trending all over the blogosphere from an internet CEO who says that he won't hire people who use bad grammar. This is a useful meditation for our purposes of why and how grammar and usage makes the players in the appellate process think better or worse of us. Sometimes in an appellate court, especially a state appellate court, the justices are not the most educated or picky members of the court community, but just because that may be the case, doesn't mean that other people who are vitally important to you aren't judging you by your grammar and usage-- the staff attorneys and senior clerks.

The Final Judgment Rule and Its Exceptions in Texas State Law

As a general rule, in Texas state law, one can only appeal a final judgment. There are a lot of civil cases for this, e.g., Qwest Communications v. A T & T, 24 S.W.3d 334 (Tex. 2000) (per curiam). The same rule applies in Texas state criminal law as in, e.g. Ex parte Apolinar, 820 S.W.2d 792 (Tex. Crim. App.1991), but see Taylor v. State, 268 S.W.3d 752 (Tex. App.—Waco 2008, pet. ref’d) (listing interlocutory appeals that may have to be allowed under federal law). An appeal not of a final judgment is an interlocutory appeal. In Texas state civil law, interlocutory appeals are controlled by Texas Civil Practice and Remedies Code § 51.014; one of those kinds of interlocutory appeals was discussed in an earlier post on this blog. All Texas criminal appeals are controlled by Texas Code of Criminal Procedure chapter 42, which provides for certain interlocutory appeals. The State can have them in very limited circumstances. Bail bondspersons, too, under very limited circumstances, but not defendants. Writs such as habeas corpus, mandamus and prohibition are not limited by the final judgment rule. If such a writ application is appropriate, it’s not invalidated because what is being sought relief for is not a final judgment.  

Texas Supremes Start with a System that Will Eventually Replace Paper with Ecommunication

The Texas Supremes adopt Texas Appeals Management and eFiling System (TAMES) after Houston's First and Fourteenth Courts of Appeals do. The Texas Court of Criminal Appeals and the other Texas state intermediate appellate courts will follow afterwards. Eventually, communication between counsel and the court and the courts internal communication will be all electronic, speeding up and simplifying procedures. This is from the Texas Lawyer's Tex Parte Blog.

For Student Loan Debtors, Bankruptcy Court Relief Can Exist for Some

Sometimes what civil plaintiffs want washes up against defenses like sea-waves against rock cliffs, and the defenses are generally unaffected, even after many waves, even after decades.

•  Sovereign immunity, the doctrine that the government is generally immune from a suit for damages was only washed away a bit by legislators, who didn't want to have to pass a private bill for relief every time a government vehicle got involved in a fender-bender.
• The rule of Feres v. United States, 340 U.S. 135 (1950), that military-service members on active duty cannot sue anyone for anything that could be attributed to a military order, was recently invoked in a case where a Green Beret survived war in Iraq, but didn't survive a  shower in one of Sadaam's old palaces in which an American military contractor likely grounded a water pump to the plumbing itself. One of the most pleasant pieces of work I ever did was-- as a young law clerk-- to help George W. Wilhite sue drunken doctors who botched the delivery of two service members's child on the ground that the mother had standing to sue as a dependent of the father (Nonservice member dependents can sue for medical malpractice where the service member personally cannot.).
• "Student loan debt cannot be discharged in bankruptcy." I put this one in quotes because it's not quite true. The Bankruptcy Code provides that such debts can be discharged if not to do so would work an undue hardship on the debtor or the debtor's dependents. Congress made student loan debt hard to discharge after a few infamous cases in which professionals filed for bankruptcy shortly after graduation from professional school.

Despite this clause in the law, discharge of a student loan has been somewhere between extremely difficult and practically impossible. Today's case, Bene v. Educational Credit Management Corporation (In re Bene), AP No. 08-1167 K (Bankr. W.D.N.Y. June 26, 2012) is one in which a debtor got such a discharge. Ms. Bene, without any prior higher education, went to Canisius College at age 33 in 1981. At age 64, facing job loss, lacking a profession, lacking any debt other than 24-year-old student loan debt, she gave up educational opportunities to care for her sick parents, two decades ago. She lives and lived an austere life She has no TV; I envy her.). She had worked on an assembly line for 12 years at less than $13.00/hr. leading up to trial. She never completed her education, and so has no options for higher income now. She paid little toward her student loans, but paid what she could. The $25,000 payment from her parents in 1986 could have paid off her student loans, but she used it to care for her parents. The judge held that is nothing culpable about that in the Bankruptcy Code.
To distinguish from other cases, Brunner involved a debtor starting out on her career. (So did DeRose, albeit at age 50.) Bene was at the end of her rope at age 64, facing job loss and no prospects other than Social Security. The 1978 legislative history regarding efforts to discharge student loan debt concerned “abuses” of the “bargain.” The court found that there was no abuse in Ms. Bene's case.
Student loans used to be dischargable. Over time, they have become nondischargable except for undue hardship. The William D. Ford program, which allows collection efforts to cease after a lengthy period of token payments (Bene was offered a 25-year-payment plan, terminating at age 89.) is an attempt to make undue hardship under the Brunner test impossible to show.
Bankruptcy Judge Michael J. Kaplan sounds like an interesting guy, and an outstanding jurist. I'd like to meet him.
One other note- I didn't vet this with my friend Rick J. Deal, the finest consumer bankruptcy lawyer I personally know serving Montgomery County, Texas. He's usually a very busy guy this time of day, so he is in no way responsible for the opinions above.
Thanks to the New York Law Journal for the news about the case.

Why Should You Care If Your Citations Are Right?

Criteria for a good citation from South Carolina appellate lawyer Robert Hill is here. Maybe I'm missing something, but he doesn't seem to have an RSS feed (or any alternative) set up for his blog.

Don't Make This Mistake in Your Hearings; or How to Get in Front of the CCA

Defendant moved to suppress meth and drug paraphernalia evidence seized after a traffic stop. Motion denied, the defendant pleaded out and appealed. The Texarkana Court of Appeals reversed, finding that the officer conducting the stop lacked reasonable suspicion to continue the detention until a drug dog arrived, which, when summoned, alerted to drugs within the vehicle. They didn’t address the State’s “cross-appeal” arguing that the trial court should not have applied the rules of evidence in a suppression hearing because the State failed to file its own notice of appeal.

Texas’s Court of Criminal Appeals heard the State’s petition for the CCA to resolve a split among the courts of appeals as to whether the State must file a separate notice of appeal when the defendant appeals and the State wishes to appeal a law ruling of law under Article 44.01(c), Texas Code of Criminal Procedure. The CCA held in an 8-1 decision that the State need not and remanded the State’s point back to Texarkana.

The officer on the scene said he stopped the defendant’s truck because it lacked needed mud flaps. The officer went on to say that the defendant seemed nervous and answered his questions vaguely. While waiting to hear back on a warrants check, the officer got a call from a county investigator (not clear from the opinions what precise agency the investigator was working for). Defense counsel consistently objected to the officer’s repeating what the investigator told him, and it does not appear that the State made an offer of proof.

In this case on remand, Texarkana, in an opinion written by Justice Bailey C. Moseley, held that though, with the exception of privileges, the Texas Rules of Evidence do not apply to suppression hearings because they involve only the determination of preliminary questions and even though hearsay is admissible at a suppression hearing to demonstrate the existence of reasonable suspicion or probable cause, the objection to the motion to suppress was properly overruled because even though the State did not get an adverse ruling, it did not keep going to reveal what was in the call which might or might not have given the officer cause to hold the defendant further. There is no evidence that the officer possessed sufficient reasonable suspicion to have detained the defendant for the period of time necessary to bring the drug dog to the site of the stop. This case can be distinguished from Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) and similar cases by the failure to limit or exclude admissible evidence.

Comments: Note here that the CCA takes the case not because Texarkana’s judgment is a gross miscarriage of justice (It might be; it might not be.), but to resolve a split among the state courts of appeals. On a petition for discretionary review to the Court of Criminal Appeals (or on a petition for review to the Texas Supreme Court or in an application for writ of certiorari to the Supreme Court of the United States), don’t just talk about whether the intermediate appellate court ruling is a triumph or miscarriage of justice but also emphasize how a ruling in your case will resolve splits between the appellate courts the court you’re making application to is supposed to be governing. Really, the way that the system is set up, that’s how the high courts are supposed to choose their cases.

Lavern A. Pfeiffer v. State of Texas, No. 06-11-00001-CR, (Tex. App.—Texarkana, July 6, 2012, no pet. h.) (on remand).

Some Oddities of Stare Decisis or Issue Preclusion

Of necessity, stare decisis or issue preclusion, is weaker in a final appellate court than in an intermediate appellate court. A final appellate court is one that which there is no higher. In the federal system, it's the Supreme Court of the United States. In Texas, as to Texas civil law, it's the Supreme Court of Texas; as to Texas criminal law, it's the Texas Court of Criminal Appeals. Intermediate appellate courts are the others.
It is not unreasonable to think that a legal rule adopted dozens or hundreds or years earlier, might become outmoded as technological or economic circumstances changes. While higher courts might change outmoded rules for the lower courts. The only court that can overrule the bad rule of the highest court of a system is that highest court.
A common law court can overrule its own rules, but most of them would probably leave changing important old rules to the higher courts.
An appellate court is generally also more open to changing rules on constitutional matters than on matters interpreting legislation, which may be counter intuitive. This is because as to constitutional interpretation only the appeals court can change its interpretation of the constitution. As to legislative interpretation, the legislature can change a statute. By comparison, changing the constitution is a lot more work.

What is a Code of Criminal Procedure 46.05 Review?

Texas's Court of Criminal Appeals issued opinions Wednesday, June 27, 2012 holding that Jonathan Marcus Green was competent to be executed Saturday, June 30, 2012. They changed their minds and reversed the stay on the 30th.
Let's start with a chronology.

• Christina Neal  disappeared around June 20, 2000.
• Green was convicted in July 2002 of her murder and was given the death penalty. 
• June 23, 2010 Green filed his first subsequent application for a writ of habeas corpus, claiming to be incompetent and requesting a Texas Code of Criminal Procedure article 46.05 hearing to determine his competence.
• June 28, 2010 the district court held a competency hearing and found him competent. Green appealed this ruling and also filed for a writ of habeas corpus accompanied by a brief arguing that competency-to-be-executed claim are cognizable on habeas corpus. The CCA stayed Green's execution and ordered the trial judge to file with them a written clarification of the standard she used.
• The CCA ruled June 27, 2012.
• They re-stayed the execution on June 30, 2012.

Judge Paul Womack delivered the opinion of the court in which Presiding Judge Keller, and Judges Meyers, Keasler, Hervey and Cochran joined. Judge Tom Price wrote a concurring opinion joined by Judges Johnson and Alcala. Everybody agreed that Green had not shown his incompetence to be executed, that Green did not deserve any relief on his habeas application, and that it was OK in a hearing on a motion to recuse the trial judge that the trial judge not be required to present herself as a witness. The majority believed that the review of the article 46.05 hearing was like a direct appeal, giving great deference to the trial judge. The concurrence argued that the 46.05 review was like a post-conviction habeas corpus review, giving less deference to the trial judge. It would follow from the majority's view that habeas would not lie for competence since a habeas is not appropriate where there is a remedy by direct appeal. The concurrence group agreed that habeas didn't lie in this case, but argued that there might be circumstance when it would, particularly if the incompetence manifested itself for the first time less than 20 days before the execution (46.05 requires that the defendant give at least 20 days' notice before execution to get a reviewable hearing). The majority ruled that the recusal matter was filed too late- you can't file a refusal complaint after you've submitted your appeal. The concurrence noted that on post-conviction habeas, defendants regularly brought up additional matters between the first submission of a writ application up until the habeas had been ruled on. The concurrence said that the recusal motion wasn't late, it was just unmeritorious.
Green v. State, Nos. AP-76,374, AP-76,376 & AP-76,381 (Tex. Crim. App. June 27, 2012).

It's Blue and It Makes Law Students and Lawyers Blue, Too

Another complaint from a working lawyer about the length and expense of the Harvard legal Bluebook. It aptly compares other academic style guides to the legal standard. The 19th edition has 511 pages, not counting 13 pages of frontal matter, a cover sheet and the printed, two-sided covers. The Unbearable Heaviness of Being the Bluebook.

The Texas Court of Criminal Appeals Vacations Like the U.S. Supremes Do

This news story about Kenneth Wade Boyd, Jr. shows how the endgame of an actual innocence case can work itself out, but I write about it here to get on record that the Texas Court of Criminal Appeals vacations like the United States Supreme Court does-- from June to October.

Mitchell substantiates habeas corpus request.

No Life without Parole for Offenders Younger than 18

To give good reader service and to keep you from having to go all over the net to keep up with what you read here, SCOTUS, in Miller v. Alabama, as might reasonably have been expected, ruled that life without parole is not a constitutional punishment for a person who commits the offense before attaining the age of 18. Thanks to the blog of the Austin American-Statesman for reminding me of the case and pointing me to the links, etc. Miller v. Alabama, Nos. 10-9646, 10-9647 (U.S. June 25, 2012).

Chief Justice Roberts May Be Indirectly Be Giving Away Some of His Thinking

For those of you who may have been or may be perplexed by Chief Justice Roberts's alliance with the left wing of his court, this blog post from the Wall Street Journal is damned interesting. How a 1927 Movie May Have Revealed the Roberts Defection

A Very Famous Legal Writer You Might Not Have Heard Of

Lord Alfred Denning wrote forcefully and clearly in favor of an old-fashioned morality particularly in matters related to marriage and was impatient with stare decisis (See prior post.) when the conditions that caused the old ruling to arise had changed. The link is to the episode about him on the British Broadcasting Corporation Radio 4 Network's series The New Elizabethans, profiling important figures of the present queen's reign. Alfred Denning.

Stare Decisis, or Everything Old Is New Again

Let's start at the top of the forensic food chain. As to federal law, once the Supreme Court of the United States makes a rule in a case, all the courts in America are supposed to follow it. Even it is supposed to follow its prior rulings unless it overrules itself. Sticking with federal law, the Courts of Appeals are supposed to follow their prior rulings unless they are overruled by SCOTUS or overrule themselves, and they require that all the courts below them in their respective regions follow their rules. Occasionally lower federal courts make rulings that are recorded that they are expected to follow- I have in mind decisions of district courts published in the West Publishing's Federal Supplement or the rulings of the Board of Immigration Appeals.
State law is supposed to work the same way. In Texas, the Supreme Court handles civil cases, the Court of Criminal Appeals, criminal. There are Courts of Appeals. Unlike the feds, Texas state District Court opinion are not ever published. In prior posts, I've discussed how state district courts in Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Gregg. Grimes, Harris, Hunt, Rusk, Upshur, Waller, Washington and Wood counties are subject to more than one Court of Appeals.
This is properly the place to discuss American International Ins. Co. v. International Business Machines, 933 S.W.2d 685 (Tex. App.--San Antonio 1996) (writs dismissed and denied). The insurance company was that of the first family of Galveston, Texas, the Moodys. The estimable Joe Jamail was one of the lawyers on the case for American National. The insurance company sued IBM at their home in Galveston, and got poured out on motions for summary judgment. On appeal, the case went up to the First Court of Appeals in Houston, but was transferred to equalize dockets to the Fourth Court of Appeals in San Antonio. As to one of the claims, the First and Fourteenth Court of Appeals had made rulings in other cases that would have required the case to be reversed and remanded to the trial court as to that claim, but San Antonio had a different rule.
An outstanding visiting justice wrote San Antonio's opinion: former Chief Justice of Fort Worth's Second Court of Appeals John G. Hill. He and one of the regular justices held that in a case transferred like that the court should rule according to what the court thought was the best rule for all of Texas. A dissenter ruled that the issue should have been decided according to the rule of the First Court, since that is where the parties had their right to appeal and since the trial court should have considered itself bound by the rules of its local courts of appeal. The Texas Supremes in Austin refused to mess with it.
I sympathize with courts of appeals not wanting to treat equalized cases differently from its other cases and go through elaborate and impractical choice of law exercises about them, but it seems to me that American International really didn't get the rule of law-- the trial court should have followed the rules of the Houston appeals courts, didn't and their appeals court didn't give them the benefit of the rules in the law books applicable to them, and the Supremes wouldn't fix it. The Supremes should have resolved the dispute-- their most important job is to harmonize the civil precedents of the fourteen courts of appeals into a single body of law, and I understand that they might well argue that they did-- harmonizing doesn't have to be done only with a you-win-you-lose Supreme Court opinion, but I don't buy it.
This principle that rules in one case have to be applied subsequently is called stare decisis or issue preclusion. In the next week or two, I'll follow up with a discussion of how this analysis can protect you from a common rookie mistake in getting your case before SCOTUS, the Texas Supremes or the Court of Criminal Appeals.

The U.S. Supremes Are Different.

In some ways the Supreme Court of the United States is a model. The clerks-- the people who really do the great bulk of the work-- are brilliant. The court can get away with things that no other court can; there is no court above them. It is a court that takes very few of its cases except at its own discretion. It is, for these reasons, the most politicized court. The rest of us have to do what a majority of them say, so they are important. A wonderful way to keep track of them as they finish up their term and get ready to take their three-month hiatus is a round table at Slate Magazine featuring Walter Dellinger, Dahlia Lithwick, and Justice Richard A. Posner, which I commend to your attention.

What "The Man on the Clapham Omnibus" Means

Lawyering is about language and power, and whatever lawyer lacks sensitivity to either of them, especially to the beauty of language, is missing much of the fun. Where we Yanks merely have "the reasonable person," the Brits, the Aussies and the Hong Kongers will tell you exactly on which mode of public transport this forensic fiction is taking.

Chief Justice McKeithen Gets with the Dominant Rule re Nonparent SAPCR Standing

Two women live together and share the care of a son of one of them. They break up, but still share the care of the boy on and off. Eventually, the nonmother sues for custody in a suit affecting the parent-child relationship. The mother seeks to have the case dismissed on the ground that the nonmother lacked standing to interfere with the custody of a fit mother, but the trial court granted the nonmother temporary possessory-conservator rights. The mother took the case up on mandamus on these two issues, and the Nines ruled for her. Justice Hollis Horton wrote for a panel including Justice Charles Kreger and Chief Justice Steve McKeithen. The Chief Justice concurred that although he had dissented in In re K.K.C., 292 S.W.3d 788 (Tex.App.-Beaumont 2009) (orig. proceeding), he felt that he had to recognize the majority opinion in that case as precluding him from taking the same view in this current case.
In re Stephanie Wells, No. 09-12-00158-CV (Tex. App.--Beaumont June 14, 2012) (orig. proceeding).

A Cheap (For Some, Free) Comprehensive Set of Advance Sheets

Fastcase, an innovative electronic legal publisher, offers, for no additional charge to their subscribers, advance sheets for e-readers. Fastcase is a member benefit of some state bar associations, though not Texas's. Thanks for this news to the estimable Pris Streightoff of the Montgomery County Texas Law Library and to the 3 Geeks and a Law Blog.

Bracewell & Giuliani Partner and Republican Nominee Brett Busby on 14th COA

Bracewell and Guiliani partner and Republican nominee Brett Busby has been appointed to Houston's Fourteenth Court of Appeals by Governor Rick Perry. This is the seat that John S. Anderson used to occupy.

Texas Criminal Trial Court of Record Deadlines

The clock starts running for an appeal of a Texas state criminal trial court judgment when the judgment is signed.  Usually its the defendant who appeals. If the defendant does not file a motion for new trial or a motion in arrest of judgment,a notice of appeal must be filed thirty days or less after judgment in the trial court. (Motions in arrest of judgment are very rare nowadays, because by statute, rule or precedent, all errors that I am aware of that would justify arresting a judgment either have to be objected to before judgment or would be open to correction by a motion for new trial or a writ of habeas corpus.). If a motion for new trial is filed, it must be presented to the trial court ten days or less after it is filed, unless the trial court gives permission for it to be presented sometime 75 days or less after the judgment is signed. If a motion requires a hearing, as it would if it were based on jury misconduct about which evidence would have to be taken, that hearing must take place 75 days or less after the judgment is signed. The notice of appeal may be filed 90 days after judgment if a motion for new trial, etc. was filed 30 days or less after the judgment was signed.
The State has 20 days to appeal if it wants to appeal a judgment no matter what else gets filed.
A docketing statement should be filed in the Court of Appeals when the notice of appeal is filed. Also, if the defendant be indigent, the defendant should file a motion for a free record and an affidavit of indigence.
The clerk's record is usually prepared relatively quickly, often a couple of weeks. Preparation of the reporter's record is usually a very time-consuming part of the appellate process, often taking months. The appellant's brief is due 30 days or less after the reporter's record is ready.