While reviewing his court’s most recent term for the State Bar of Texas board of directors on Sept. 20, Texas Supreme Court Justice Phil Johnson felt he had to note that the court’s backlog of work has increased.

The court left 11 cases undecided after completing its 2012-2013 term, and he and his eight colleagues are acutely aware of that fact, Johnson recalls telling the board.

That acknowledgement hardly came as news to one of the Bar’s directors, Houston solo Scott Rothenberg. He argued the court’s oldest backlogged case, In Re Stephanie Lee, on Feb. 28, 2012.

“I could see out of the corner of my eye that one of the directors is vitally interested in one of those cases,” Johnson says of the meeting.

So, Johnson says, he explained to the board, “We’re working hard on those cases. But when you’re working with nine justices, sometimes things don’t go as smoothly as they’d like.”

The court’s backlog — cases in which the court has heard argument but has carried over undecided from term to term — is a sensitive subject for the justices. At the end of 2007, some lawyers criticized the court after it left 57 cases pending without a decision. Many of those cases had been pending for years. But after adding more conferences and adhering to internal deadline procedures, the court knocked that backlog down to four cases by the end of 2011. Yet, by the end of their most recent term, that backlog had crept back up. [See "Backlog: Argued Cases Carried Over," page 23].

Rothenberg says he understands why In Re Lee — a petition for writ of mandamus, which the court normally disposes of in a matter of months — is taking the court an unusual amount of time to resolve.

“That case, from a judicial standpoint, is a nightmare,” says Rothenberg, who represents Lee in that case.

The question presented in that family law case — whether a trial court judge can overturn a mediated settlement — is a huge one, Rothenberg says. The case puts two judicial public policy interests at odds, he says: a trial court’s fealty to the alternative dispute resolution process versus its duty to decide cases in the best interest of children as mandated by the Texas Family Code.

“This case potentially is going to affect every case in the family courts from this point forward. And they want to make sure they’re going to get it right,” Rothenberg says of the high court.

Roger Townsend, a partner in the Houston office of Alexander, Dubose & Townsend and current president of the American Academy of Appellate Lawyers, says the bar always watches the court’s backlog. But he considers the recent spike a “minor bump in the road,” most likely due to the court gaining two new justices during its term. New judges, no matter their experience, always take time to get up to speed with the court’s business, he explains.

“A year from now, if it’s gone up, people may freak out,” Townsend says of the backlog. “But I think it’s too soon to man the life boats.”

“Let’s see what the new chief will do,” he says of Justice Nathan Hecht, who Gov. Rick Perry appointed to replace Wallace Jefferson. Jefferson is leaving the court Oct 1. “Maybe he’ll crack the whip a little.”

Turnover

Hecht says he intends to keep the court running efficiency as possible, something that was a priority of Jefferson. Yet one of the primary reasons for the court’s backlog is out of his control.

“The court continues to be determined to keep up. And I still maintain, and I think history has shown, that the backlog back at the early part of the decade was due to turnover. We got a new judge every four-and-half months for four or five years. Now, we’re having a little more turnover,” Hecht says. “But we now know it can affect output, and we’ll have to be more careful to see that it doesn’t.”

The court welcomed two new justices to the bench during its last term. Gov. Rick Perry appointed Jeff Boyd on Dec. 3, 2012, to replace Dale Wainwright, who returned to private practice. John Devine joined the court in January 2013 after defeating Justice David Medina in the 2012 Republican primary election.

Boyd says the court’s more senior members made very clear to him and Devine that keeping the court’s backlog low is a top priority — within reason — because Boyd notes that he and his fellow newcomer have to familiarize themselves with those cases before they vote or, in some cases, write a concurring opinion.

“We sat down in early June and looked at all of the cases still pending on the docket, and we’re determined to make that a single digit. In the end it was 11 instead of a single digit. The court’s commitment to keeping that number low remains very strong,” Boyd says. “The reason you ended up with 11 is because, I would say in part . . . some of it is because of the turnover with two new members. We have to come up to speed and write a concurring opinion. Others have been up to date. And we have some complicated cases that are going to wind up with separate opinions.”

“From my observation, the only thing that is stronger than the court’s desire to getting the opinions out on time is getting them right,” Boyd says.