Just last month, the Texas Supreme Court issued rules governing expedited actions, which caused consternation for many Texas trial lawyers. Now, a 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, 4th Court of Appeals Chief Justice Catherine Stone and several appellate lawyers voice concerns about the bill, which sets deadlines for appeals and requires appellate courts that miss the deadlines to uphold automatically 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.
Hernandez Luna of Carrigan McCloskey & Roberson in Houston did not return two telephone calls or a Facebook message seeking comment.
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.
Among other things, the bill says 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."
According to the January 2013 Annual Statistical Report for the Texas Judiciary, in fiscal year 2012, the Supreme Court’s average time for all cases from filing to disposition was 189 days. Active cases were pending an average of 170 days. It took an average of 232 days from the date of an oral argument to disposition. The average time from granting a petition, to hearing an oral argument, was 109 days.
In fiscal year 2012, according to the report, the intermediate appellate courts’ average time from filing to disposition was 7.9 months. The average time from submission to disposition was 1.6 months.
Stone says she thinks it’s "intimidating" to impose an "artificial timeline" for appellate courts to decide cases.
"I don’t believe there’s any statewide problem with cases languishing in the courts of appeals. . . . On the whole, there are very few cases that pend for very long," adds Stone, chairwoman of the Texas Council of Chief Justices. The council includes the 14 intermediate appellate courts’ chief justices, who discuss policy and budgetary issues.
But, if the Legislature decided to accelerate appeals, the courts would need funding for additional judges and staff, she says.
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.
Texans for Lawsuit Reform spokeswoman Sherry Sylvester writes in an email that TLR hasn’t "carefully analyzed" the bill yet.
"[W]e believe the current Texas timetable for appeals is workable and fair and that a proponent of changing the current structure bears the burden of persuasion," writes Sylvester.
Brad Parker, president of the Texas Trial Lawyers Association, says he doesn’t have a position on the bill but he can see "both sides." It’s frustrating for a case to "languish" in an appellate court, but sometimes courts hold cases for good reasons, like when an opinion in a similar case is likely to resolve the issues in others.
"It’s a great conversation starter and something that needs to be talked about," he said.
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."