Just last month, the Texas Supreme Court issued rules governing expedited actions, which caused consternation for many Texas trial lawyers. A new bill would require the high court to create rules for expedited appeals.
House Bill 3032 by Rep. Ana Hernandez Luna, D-Houston, directs the high court to adopt rules for "the prompt, efficient, and cost-effective resolution of an appeal in a civil action."
Chief Justice Wallace Jefferson and several appellate lawyers voice concerns about the bill, which sets deadlines for appeals and requires appellate courts that miss the deadlines to automatically uphold lower-court decisions.
Jefferson says it’s "disturbing" to require an appellate court to affirm a lower-court ruling arbitrarily, asking what would happen in a case that calls for reversal on the merits.
But Carlos Salinas, who lobbied for the bill on behalf of the Alliance for Texas Families, a nonprofit advocacy group for middle- and low-income families, asks, "Why can’t Texans expect shorter appeals? This is something, obviously, the Legislature took on last session: getting more prompt resolution to disputes."
Salinas adds, "Folks with less means find it more difficult to wait it out, the appellate process. We think this is good law. It’s good for both sides. The prompt resolution benefits everybody."
The bill says the rules would apply to all courts of appeals and the Supreme Court. The rules would have to set deadlines for an appeal from "the date a party perfects the appeal" to the "full and final disposition." Courts would have one year for a regular appeal, and three months for expedited and interlocutory appeals.
If an appellate court failed to dispose of a case in those time periods, the rules would have to "establish a procedure to uphold, without opinion, a lower court’s judgment or order."
Jefferson says he would be "concerned" because sometimes appellate courts experience "turnover on the bench," which always slows down cases. Some cases just take longer to decide, adds Jefferson.
He notes that two years ago, the Supreme Court carried over just four cases on its docket from the previous term.
"The cases carried over have gone down dramatically because of technology improvements and stability on the court," says Jefferson, adding about HB 3032, "This sort of thing may be a solution in search of a nonexistent problem."
Austin appellate solo Don Cruse says he understands the desire to make appeals faster, but he opposes the proposal to set a "clock" for an appellate court to decide a case. He notes that it can take five months or more for an appellate court to receive a trial record and the briefs for an appeal. The court may still want to hear an oral argument, and it needs time to write its opinion.
"I feel like some aspects of the process could be accelerated, but I’d be against any limits on how long they think about our cases," explains Cruse, author of The Supreme Court of Texas Blog. "I don’t think any type of clock like that is going to ultimately be helpful."
Smith Law Group shareholder D. Todd Smith questions whether a case would have to finish both the intermediate and high-court appellate processes within the one-year deadline. If so, the time frame would be "impractical," he says.
Smith adds that he sees "serious due process concerns" with requiring courts that "don’t decide cases quick enough" to affirm the lower courts’ judgments.
"It raises constitutional issues that would have to be settled through further litigation," says Smith.
Jason Steed, associate with Akin Gump Strauss Hauer & Feld in Austin, says that in general it’s a good idea to try to speed up appeals. But the provision requiring the upholding of lower-court judgments is unfair to clients.
"You’ve paid for that appeal and waited. Then you lose for no meritorious reason? You lose just because the court was slow; that’s terrible," says Steed.
But Salinas says the bill gives "flexibility" so the high court can implement the rules to enable quicker appeals, while still ensuring "just rulings" and "good holdings." Maybe there could be exceptions for cases that take longer, he says.
"I think bringing the Supreme Court in and getting their thoughts on how to speed up the appellate process would be a very constructive thing," says Salinas. He adds, "At the end of the day, if there is a workable solution to get through this, and I suspect there is, if everyone comes to the table and has this discussion, I think that’s what we — the Alliance for Texas Families — would like to see."