I'm in Austin tonight. Drove in this morning to attend the first day of the CLE. I'll be attending the second day of the CLE tomorrow. I'll blog on some of it later. Had a good visit with fellow law blogger Todd Smith. For now, I've got a boatload of Tyler cases to look at.
I checked out the Interim Report of the Task Force to Ensure Judicial Readiness in Times of Emergency. Basically, it calls for counties to sign a Memorandum of Understanding (MOU) with the Supreme Court of Texas. If you sign up, you promise to provide facilities for nearby counties when they're out of commission. In return, you'll be paid rent, and you'll have the comfort of knowing that other signatory counties will house your courts if the need arises. But don't sign up unless you mean it. When the time comes, the decision won't rest in the hands of your county officials. Instead, a judicial authority will come knocking with the MOU in hand saying: "We're here!"
Here's a key part of the thirteen page report:
In the event that the Supreme Court or the presiding judge of the _________ Administrative Judicial Region designate in writing that the assistance of __________ County is required to ensure the continued operation of the courts in a designated county, or assistance is requested by any Local Administrative Judge __________ County agrees to provide the following to enable the Appellate, District, Statutory, and Constitutional County Courts of designated county to continue court operations:
A. adequate facilities for court sessions;
B. adequate office space for judges and essential administrative staff, including essential county and district clerk staff; and
C. adequate telecommunication and information management tools necessary for the judges and essential administrative staff to conduct court business.
_________________ County agrees to provide assistance within 24 hours of notice of a designated county requiring its assistance.___________ County agrees to provide assistance under this MOU without any further contractual requirements for a period of up to seven working days. If it is anticipated that assistance will be required beyond seven working days, _____________ County and designated county will negotiate an interlocal agreement for the additional support.
The plan sounds reasonable enough. But here in Smith County, the debate is over whether we have enough room for our own courts. If the judges, clerks and bailiffs from some other county came knocking, I don't know where we'd put them. I sure would like to know how many counties have signed up for this plan.
Gustav, thankfully, wasn't as bad as feared. He was plenty bad enough, especially in Louisiana and Mississippi. Texas has been spared the brunt. Still, I'm very glad to say that my wife's grandparents got out of Beaumont and came up here to Tyler. Being prepared is the sensible thing.
On the subject of preparedness, today seems like a good day to post on the Task Force to Ensure Judicial Readiness in Times of Emergency. It was formed in November 2007. The name accurately tells you what the committee is about. But the name is bureaucratic and, well, lifeless. Don't let that fool you. Chief Justice Jefferson put the work of the Task Force in very human terms in his opening comments at a May, 2008 meeting:
And first, let me start with just an apology. It seems to me I should have been thinking about this from the very beginning. We all should anticipate, be thinking about anticipating emergency situations. But it came most clear to me when I was watching what transpired after Hurricane Katrina and the devastation that New Orleans suffered as a result of it.
And looking at the families on TV standing on rooftops and floating in the lakes that were caused by the levees breaking.
And I wondered, at that time, what are the children going to do? Some of them have lost their parents. How are they going to find them? And you need a judicial system to introduce them into, if necessary, foster care on the road to permanent adoption if their parents are lost.
What happens to those who are involved in the criminal justice system? There were no courthouses open. There were no judges to take arraignments. That has an impact on the safety of the community.
And it seemed to me that judges ought to have a plan in place to take care of that sort of contingency.
And then right after Hurricane Katrina came Hurricane Rita. And we saw the impact of Rita and we saw the impact of Rita on Texas and the devastation it caused. There were so many lawyers that called us after Hurricane Rita hit saying, “What do we do? The courthouse is closed and there is a statutory deadline coming up. How do we protect our client’s interests?”
And so at that point we convened an Emergency Task Force of our Rules Advisory Committee to look at modifying the rules to accommodate that situation.
All of this led me to think the judiciary needs to work and needs to be prepared for not only natural disasters like the hurricanes I mentioned but terrorism. A health pandemic. With the goal that the rule of law is maintained. After all, judges here, members of the armed forces, we swore an oath to preserve, protect and defend the Constitution and laws of the United States.
And to do that, we have to have access to justice for our citizens, especially our most vulnerable citizens. And so in the end this is not about courthouses, it is not about judges. It is not even about court personnel. It is about the citizens of the State of Texas and doing our best to ensure that their civil rights are protected.
The work of the Task Force is ongoing.
Update: on a related note, Todd Smith at TexasAppellateLawBlog has posted on the Gustav-related closure of the Fifth Circuit until next week.
Twenty two decisions today out of the Supreme Court of Texas. None in Tyler cases. There was, however, a case involving a Brookshire's employee out of the Texarkana court. I may post on that one later.
Even though there were no decisions, there was a fair bit of action on Tyler cases.
The Collins case is set for oral argument on November 12th.
The Geiger v. Williams petition for rehearing was denied.
The Walter mandamus out of Smith County was denied (that one had bypassed the Tyler court and gone straight to Austin).
Addicks has expressed an intent to file a petition for review of the Tyler court's decision in his prisoner's civil rights case.
Sembera's petition for review has been filed in the PetroFac case.
And though it's not a Tyler case per se, it's definitely worth noting that the Entergy case is set for oral argument on October 16th. The outcome of Entergy could impact Tyler's Petrofac and City of Athens v. MacAvoy cases.
Odds are extremely high that the last word on your case will come from the Cotton Belt Building. If you are thinking that you can always take your case to Austin if you don't like the result in Tyler, it's time for a reality check. You certainly can take your case to the Supreme Court of Texas, but as a court that gets to pick and choose what they hear, they may not choose you. What prompted me to say this? The Supreme Court of Texas took action on 19 cases in today's orders. None of them were from Tyler.
But it's about more than one week. Let's put some numbers on it:
Out of all the 525 cases currently pending before the Supreme Court of Texas, only 11 are from Tyler. Bear in mind that the SCoTX has not decided to hear all 11 of those cases. In fact 10 of them are in various stages of asking to be heard by the SCoTX. There is only one Tyler case -- one --- that the SCoTX has said it will hear and decide.
Here is a chart I've pulled from a project that Don Cruse at SCOTXblog has in the works. The project is under wraps right now, but from my sneak peek, I can already tell you I’ll have good things to say about it when he releases it to the public. These numbers are based on petitions on the active docket of the SCoTX. The total cases are in parentheses next to the court of appeals name.
For a more detailed analysis, the plain language breakdown of the colors is: gray = something's been filed, but no initial briefs yet. green = initial briefs filed begging the SCoTX to hear the case. yellow = the SCoTX wants more briefing, but hasn't taken the case. orange = the SCoTX has taken the case but hasn't heard oral argument yet. red = the SCoTX has taken the case, all the briefing and arguing is done, and everyone's biting their nails waiting for a decision. purple = more begging, this time for a do-over after the SCoTX has either declined the case or issued a ruling someone doesn't like.
Think of all the resources you'd consider using in your case "if it came to that." If you've got a case going before the Tyler court, you've reached "that" point.
Think a 75th anniversary gala for a bar association in East Texas sounds dull? How about this: Former Congressman Charlie Wilson will be the speaker. Yes, that Charlie Wilson. Blunt, colorful, and disarmingly funny. For example, when asked if he was concerned that the movie might oversimplify his legacy, Wilson responded: I'm not a stickler. I'll take the movie. It should be a packed house on November 22nd here in Smith County.
If you want to understand East Texas juries, understand this man, and why we elected him time and again. Seriously, there are others whom I could accept as "The Quintessential East Texan" but I could make the case for Charlie Wilson over all of them.
Congressman Wilson's address will be given in honor and memory of Judge John H. Hannah, Jr..
Photo credit: Congressional Pictorial Directory, 104th.
Pause for a second to estimate how much attention the trial judge will give your case. Now look at the average time Texas trial judges actually spent in 2007:
Felony Group A: 186 minutes
Felony Group B: 39 minutes
Misdemeanors: 12 minutes
Injury or Damage - MV: 126 minutes
Injury or Damage - Non MV: 122 minutes
Contract: 53 minutes
Other Civil: 27 minutes
Divorce: 47 minutes
Modifications/Enforcements: 33 minutes
Other Family Law: 48 minutes
Delinquent Conduct: 54 minutes
Need for supervision (CINS): 14 minutes
Puts a premium on clear and precise briefing, doesn't it?
I got these figures from Scott Henson's Grits for Breakfast blog, where he offers his analysis of the National Center for State Court's June 2008 publication, Measuring Current Judicial Workload in Texas, 2007.
As the trial courts get busier, the paper side of the practice becomes more important. I posted earlier about the political aspects of Judge Russell's presentation at the Smith County Bar Association meeting. Now here's the "practice pointers" post.
Judge Russell presented the "Top Ten Things Lawyers Could Do Better!" Number 3 is "Fully research the law." Under that heading, he recommends that attorneys "Deliver Briefing and Case Law to the Court". In case the handout wasn't clear, Judge Russell spent some time talking about this point. Judge Russell appreciates bench briefs. Good ones. Not short and conclusory, but not too long either. One page, if possible. With cases attached. And get them to the Judge a reasonable time before the hearing or trial -- it doesn't do much good to hand him something in the heat of battle. Judge Russell actually likes to read these things beforehand.
"Beforehand" may be misleading. It implies that there's something after the paper briefing, something more. "Oral argument" is probably what you're thinking. Think again. Oral argument isn't automatic. Under Smith County Local Rules 2.3 & 2.7, it must be requested. Even if it is requested, it may be denied. Local Rule 2.3 provides that: "The Court will not actually hear oral argument on a motion for summary judgment unless [it is requested] and the Court determines that oral argument will substantially aid the Court in ruling ...." [the underlining is in the Local Rules!]
Smith County politics are heating up. There have been talks of a new jail and a new courthouse. But the Commissioner's Court recently issued a "Statement of Purpose and Commitment" which shows that it's not their purpose to build a new courthouse, and their only commitment is to remodeling a courthouse that's already fifty years old. The jail comes first.
Judge Russell of the 7th District Court spoke at Friday's Smith County Bar Association meeting. It was a packed house. (Quite sensibly, attorneys tend to show up and listen when a judge has something to say.) Judge Russell had some very interesting practice pointers that I'll cover in another post. But this post is about the politics.
At the end of his presentation, Judge Russell asked the members of the bar if they were happy with the Statement of Purpose and Commitment, and urged those who weren't to share their feelings with the Commissioner's Court. Judge Russell's handout included his own handwritten notations on the Statement of Purpose and Commitment. Judge Russell left the impression that the courthouse judges had not been consulted before the Statement of Purpose and Commitment was issued. That was the same impression an earlier newspaper article had left. It's going to take a lot of work for the commissioners and the courthouse judges to get to a consensus approach, if that's even possible.
Editorial note: Any time there are big goings-on at your local bar association meetings, I'd be glad to know, and glad to post about them here.
As soon as the Fourth of July is over, I'm ready for some football, football, and more football. There's nothing surprising about that -- lots of people feel the same. What's surprising to me is that lots of people (OK, not "lots" by NFL standards, but more than you'd think) have room in their hearts for appellate blogs, appellate blogs, and more appellate blogs. So in the spirit of those game-to-game segues:
For those of you now joining us from D. Todd Smith's Texas Appellate Law Blog, welcome to Tyler Appeals!
As Todd indicated in his post welcoming me to the blogosphere, he was a huge help in getting me off the ground. He generously shared his time and thoughts on blogging. He put me on to LexBlog, the folks who designed and host what you're looking at right now. Thanks, Todd.
While I'm handing out thanks, I also need to thank Don Cruse at his Supreme Court of Texas Blog. Like Todd, he's been at this longer than I have. It really helped get my blog going when he alerted his readers to the appellate outpost in the Pineywoods.
Most of all, thanks to all of our faithful readers.
The "special rule of privilege in criminal cases" found in Tex. R. Evid. 503(b)(2) has a new lease on life. As discussed in a previous post, it was slated to be erased from the book on September 1 of this year. But public comment saved the provision. According to a June 23 article from Texas Lawyer,
[T]he state's highest criminal court unanimously decided June 16 to defer the proposed deletion of Texas Rule of Evidence 503(b)(2) at least six months to allow ample opportunity for all interested parties to draft a proposed substitute for that rule or to draft a rule or statute to govern the attorney work-product doctrine.
As someone who offered comments on the proposed change, I am very grateful and encouraged that the Court of Criminal Appeals would respond this way to public comment. Check out Grits for Breakfast for a summary of this issue. Kudos to those listed on Grits, especially to Robert Guest, who first sounded the alarm in the blogosphere, and to Judge Cochran, whose blogging on the subject via Grits was a landmark event.
Tom Ramey, who served as Chief Justice of the Twelfth Court of Appeals from 1989 to 2000, and President of the State Bar of Texas for the 1984-85 term, is one of the Texas Bar Foundation's 2008 honorees as an Outstanding Fifty-Year Lawyer. I don't see the 2008 announcement yet on the TBF''s page. But the announcement of the 2007 honorees has this description of the award:
The Outstanding Fifty-Year Lawyer Award was the first award established by the Texas Bar Foundation and is its most prestigious award. The award recognizes attorneys whose practices span fifty years or more, and who adhere to the highest principles and traditions of the legal profession and provide service to the public.
That says it. A well-deserved congratulations to Chief Justice Ramey. Coverage from the Tyler Morning Telegraph is here.
Defense counsel for the third defendant in a child sex ring case in Tyler has filed a motion to transfer venue. The first two defendants had been convicted in highly-publicized trials. So nothing unusual yet in the motion to transfer venue. In the motion, defense counsel alleges that news coverage has been biased against his client because the assistant DA set to try the case has been in relationships with local print and television reporters. Ah, there's the unusual.
Tex. R. Evid. 614, aka "the Rule" comes into play because all of the reporters in town know about the relationships and are potential witnesses. Defense counsel invokes "the Rule" and asks that all of these reporters be excluded from the hearing on the motion to transfer venue. Which would mean that no one could cover the story. Which is why the trial judge (the former Smith County DA) lifts the Rule as to the reporters, regardless of any knowledge they have of the assistant DA's personal relationships.
Print stories here and here. TV coverage here.
As you might imagine, the Smith County legal community is debating the wisdom of defense counsel's approach. I'll save my comments, if any, until I know more than what I read in the newspaper.
The Supreme Court of the United States of America ruled today in Rothgery v. Gillespie County (07-440). At issue was whether the right to appointed counsel attaches at arraignment or indictment. Texas operated on an indictment model. Rothgery believes that, if he had had counsel, counsel could have intervened with the DA before the case was presented to the grand jury, and he never would have been indicted.
SCOTUS held that (from the syllabus): "A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."
Update: County commissioners don't need to be scrambling to figure out how they're going to pay for an expanded indigent defense program, at least not yet. Justice Souter, writing for the majority, says that:
Our holding is narrow. We do not decide whether the 6 month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this.
And then there's the concurring opinion of Justice Alito, which is joined by the Chief Justice and Justice Scalia:
Texas counties need only appoint counsel as far in advance of trial, and as far in advance of any pretrial “critical stage,” as necessary to guarantee effective assistance at trial. ... The Court expresses no opinion on whether Gillespie County satisfied that obligation in this case. Petitioner has asked us to decide only the limited question whether his magistration marked the beginning of his “criminalprosecutio[n]” within the meaning of the Sixth Amendment. Because I agree with the Court’s resolution of that limited question, I join its opinion in full.
So it's back downstairs to the Fifth Circuit to figure out what it means in the real world when the Supremes says that the right to counsel "attaches" at the first appearance before a judicial officer.
(Thanks to Grits for Breakfast, and the SCOTUSBlog for their early posts on this decision.)
The 2008 Smith County Judicial Poll is out. It was based on anonymous comments submitted by Smith County attorneys. The three Justices of the Tyler court all come in with scores in the range of 3.83 to 4.19 out of 5.
The entries were tabulated by a local CPA, Barbara Bass, who just happens to be Tyler's newly-elected mayor. I have no idea how many ballots went out, or how many were returned. I don't vouch for the poll's reliability from a statistical standpoint. I see some trends, but what they really mean, if anything, is hard to say. For example, the federal judiciary seems to be more highly ranked than the Tyler court, the Tyler court more highly than the state district courts, and the district courts more highly ranked than the county courts-at-law. Why is that? Your thoughts are as good as mine. I present the poll with the Parcells caveat: "It is what it is."
Back in March, the Supreme Court of Texas overturned the Tyler court in a med mal case, In re Jorden. The issue was whether medical malpractice tort reform statutes trumped the rule of civil procedure permitting pre-suit depositions to investigate claims. The Tyler court said "No." But the high court said "Yes." Actually, they said: "Unquestionably, requiring an expert report without much discovery makes it harder to pursue a health-care liability claim. But allowing health-care claims to be pursued before anyone knows whether something was done wrong has costs too. These competing concerns were once left to the discretion of each trial judge, but the Legislature has withdrawn that discretion after finding that the costs of unrestricted discovery was being afforded too little weight." So no more investigatory depositions in med mal cases.
In Friday's orders, the Supreme Court granted oral argument in another med-mal case out of the Tyler court, In re Collins. Date and time TBA. In its 2007 decision, the Tyler court held that med-mal plaintiffs are entitled to seek protective orders narrowing the statutorily-required medical records release so as to prevent the defendant doctors and/or hospitals from having ex parte contact with the plaintiff's non-party doctors. Doctor Collins contends in the Texas Supreme Court that the required medical records release is a full and complete waiver of the physician-patient privilege, allowing the doctor who gets sued to talk to any of the plaintiff's other doctors whenever he wants -- and there's nothing the courts can do about it.
Reading tea leaves is always dangerous, but the fact that oral argument has been granted is not an encouraging sign for the Tyler court's decision. It's hard not to anticiapte another Jorden situation, where the Tyler court's carefully balanced judicial approach is set aside on grounds that the Texas Legislature has enacted sweeping, "one size fits all" laws that take away the the judicial branch's ability to weigh these issues on a case-by-case basis.
When I checked my RSS reader this morning, I saw this from Don Cruse's Supreme Court of Texas Blog: Justice James Baker died in his sleep Sunday afternoon. He had been battling cancer. I echo Don's statement that our thoughts and prayers are with the Baker family.
While we're on a kick about rule changes, everyone in the counties of Wood, Upshur, Gregg and Rusk needs to know that there's a new rule that will impact where your appeal gets heard. For reasons that defy a short blog post, those counties are in the jurisdiction of both the Tyler and Texarkana courts of appeal. That part isn't changing. What is changing is the method of figuring out what happens when one party appeals to the 12th Court (Tyler), and another party appeals the same case to the 6th Court (Texarkana). As of September 1, 2008, there won't be much point in a race to the appellate courthouse. Instead, the parties must agree on which court will hear the appeal. Failing that, the trial court clerk will literally pick a number (6 or 12) out of a hat.
Here's the order of the Supreme Court of Texas amending the Rules of Judicial Administration. Public comments will be received until June 30th. I don't expect much comment, nor do I expect the rule to change based on the comments. It's a sensible accomodation for a less-than-sensible situation.
Time for another kudos to Scott Henson at his Grits for Breakfast blog. Texas Court of Criminal Appeals Judge Cathy Cochran sought out Grits to weigh in on the deletion of the "special rule of privilege in criminal cases" currently found in Rule 503(b)(2) of the Texas Rules of Evidence. It gives a criminal defendant the right to prevent his lawyer or his lawyer's assistant "from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship." Before going further, it should be said that Judge Cochran made it a point to note that she was posting "not as a judge on the Court of Criminal Appeals, but as an attorney who has studied and written about our rules of evidence for 25 years." Duly noted, your honor.
Pursuant to the CCA's March 4, 2008 order, the deletion will take effect September 1, 2008, unless public comments made on or before June 30th persuade the CCA to take a different approach.
The pending change has stirred up a bit of controversy.
According to Judge Cochran's post, UT's Professor Stephen Goode has called the special rule of privilege "a 'deceptive little sentence' which is confusing, misleading, and does not have any known independent meaning." In Judge Cochran's own words, "the deletion was intended to eliminate a vestigial tail that had no wag to it." Very generally speaking, they take the position that the special rule is no longer meaningful because there haven't been any recent appellate cases relying on it.
Richard Anderson, the Federal Public Defender for the Northern District of Texas wrote this letter asking that the provision be retained. He turns the lack of appellate cases argument on its head. In his view, there aren't any cases because the current rule is so clear -- when "[f]aced with a black letter admonition that clearly covers a privilege that encompasses both privileged communications and work product, the reasonable prosecutor pursues other avenues of investigation other than attempting to penetrate the privilege." The Texas Criminal Defense Lawyer's Association also favors keeping the provision.
Judge Cochran's rebuttal is that any concerns about an erosion of the work product privilege can be addressed by a new work product rule that would apply to both the defense and the prosecution.
My view: I'm for streamlined writing and efficient machines, but once words are put into operation as law or rule, fine tuning those operations on the fly is no longer a matter of clean blueprint draftsmanship. Instead, it's more akin to working under the hood of a NASCAR vehicle as it circles the track. With that in mind: 1. If it ain't broke, don't fix it. 2. What's the rush? After all, another side of the "no recent cases" argument is that there are no troubled waters to be stilled. Which leads to ... 3. Unintended consequences/Newton's Third Law/Strategic Uncertainty. If you set about to destroy something that you say really isn't there but others say is, you are destroying the equilibrium surrounding the uncertainty and creating the need for a new equilibrium to account for a new and now demonstrably certain vacuum. Judge Cochran's rebuttal acknowledges that a new equilibrium will need to be created around the vacuum. But at the moment, nobody can say what that equilibrium will be. So, 4. let's not jump out of the frying pan into the fire. Unless and until there is agreement that the post-vacuum equilibrium will be better than what we've got now, maybe the best thing to do would be to postpone the deletion of the "rule of special privilege." Doing anything else has the feel of taking away the defense bar's chips before everyone sits down at the table.
OK, this is a little outside of the scope of TylerAppeals, but I couldn't pass it up. Over lunch I came across some rankings of Texas law schools from a return-on-investment standpoint. They aren't kind to Baylor. In East Texas, where Baylor lawyers (like me) are everywhere, these are fighting numbers. Thanks to the Sophistic Miltonian Serbonian Blog (crazy name, great "inside the game" Texas law stuff) for bringing this to my attention, and to Res Ipsa (a 3L at Tech) for expanding on the numbers from the Princeton Review's survey of annual starting salaries and giving us the chart below:
The submission docket is out for June. No oral arguments -- just submissions on the briefs. Two submission dates, the 12th and the 25th. Altogether, there are
In the future, I may not post about submission dockets. But since we're just getting started, I figured this was a good way to give you a feel for what's going on. Many of the cases on this submission list won't turn into posts later on. For example, in several of the criminal cases, appointed counsel has determined that any appeal would be frivolous. See this recent CCA decision on the Anders process. But don't mistake Anders cases for "no brainers." The Tyler court conducts its own review of the record, and sometimes finds an error that no one else saw.
East Texas is a unique place. So here's a uniquely East Texan blog focusing on our regional court of appeals in Tyler. My goal is to provide a summary of every case decided by the 12th Court of Appeals. So far, I've done that for 2008. (I have, however, omitted cases that were dismissed for procedural or jurisdictional reasons.) The decisions are categorized on the right. Once a month or so, I'll devote a good bit of time to a "Case o' the Year Contender." In those posts, I'll try to put a decision of the Tyler court into a broader context of statewide and nationwide trends.
To the extent possible, I'll keep the posts light and humorous. By no means do I intend for that tone to cause offense to the Tyler court, the trial courts, the attorneys who practice before them, or the parties to these cases. There's hard work being done on all sides. My goal is to give readers an interesting "going forward" take on how the Tyler court's decisions impact the day-to-day practice of law in East Texas.
Now, about the Cotton Belt. The Tyler court is housed in the Cotton Belt Building. I don't think I'm speaking out of school to say that it's not much to look at. But it's ours. So the picture of the Cotton Belt is front-and-center on this blog -- despite the blog designer's concerns about "aesthetics." I figured I'd lose credibility with my fellow East Texans if I went with a generic "pretty" building. On the one year anniversary of this blog I'll let the readers decide if the Cotton Belt stays or goes. As to the blog designers, I'm glad to put the Cotton Belt issue aside and recommend the folks at LexBlog wholeheartedly.
I hope TylerAppeals will be beneficial to attorneys in the area, across Texas, and even beyond.
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