Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

The following is a guest post from Roger Hughes of Adams & Graham, LLP:

Lawyers, and perhaps appellate attorneys, now face a new problem if their briefs or pleadings stretch facts or are flat wrong about them.  That problem is indictment and jail.  This week, the Texas Court of Criminal Appeal decided round two of Vasilas v. State ( PD-1473-06) (May 7, 2008).  The Court reversed the trial court’s ruling that quashed the indictment against an attorney who allegedly made a false statement in a civil pleading.

Vasilas was an attorney for a criminal defendant who beat the criminal charges; Vasilas then filed an expunction suit.  The petition he prepared contained factual error.  Unamused, the DA indicted Vasilas under Texas Penal Code § 37.10(a), which prohibits making false entries in a “government record.”  This is a felony if there is an intent to defraud.  The trial judge quashed the indictment.  Still unamused, the DA appealed.

In the first round, the Court held that a petition in a civil case was a “government record” for the purpose of Section 37.10.  Vasilas v. State, 187 S.W.3d 486 (Tex. Crim. App. 2006).  It remanded to the Dallas Court of Appeals, which determined that the civil rule about frivolous pleadings, TRCP 13, did not supplant the Penal Code and remanded for trial.  Vasilas returned to Court of Criminal Appeals, joined by amici TTLA and TADC.

In Vasilas II, the Court decided that the doctrine of in pari materia did not apply.  Because TRCP 13 was a court rule, not a statute, it doesn't trump the Penal Code for false statements in civil case pleadings.  The Legislature did not write TRCP 13, so there was no reason to use it construe or control Section 37.10.

The upshot is that, no matter what the judge in a civil case does, the DA can still indict and prosecute for arguably false statements in a brief or pleading.  It's a bit scary to think that you can defeat a motion for sanctions over a statement in your brief, but your opponent can still get you indicted.

Think about going to jail for something in your factual statement the next time you write a a brief.  Your ultimate audience may be the DA and a criminal jury.

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As mentioned in my last post, I've been tied up getting ready for an oral argument I had today before the Third Court of Appeals here in Austin.  The case is not the kind you would usually get that excited about, but we have a couple of good legal issues, and it got a fair amount of media attention when it was tried.  (I wasn't involved at that stage.)  More media coverage could be coming, depending on what happens with the appeal.

As I prepared, I was reminded of the things that make oral argument great.  Today, a big part of it was getting my client her day in court.  Then there is the thrill of back-and-forth dialogue with the appellate justices on narrow legal issues that wouldn't interest most people.

But one of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements.  As the appellant, if you can't persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you're probably going to lose.  As the appellee, the key is to identify and emphasize the reasons why the court should leave well enough alone.  Whichever side I'm on, it's a process I always enjoy.

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I am preparing for an oral argument tomorrow, which explains my silence on a number of issues worthy of commentary, including media coverage of the Perry Homes v. Cull decision and Ted Cruz's new position at Morgan Lewis.  The Supreme Court of Texas Blog  and others have covered these issues well.  I'll get back to more regular posting soon.

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From an article in yesterday's Houston Chronicle:

Five years after Texas insurance regulators ordered State Farm to cut homeowners' rates by 12 percent, the insurance company's legal battle to avoid the reduction continues to languish.

The latest delay came this week, when nearly three years after the case was submitted to a three-judge panel of the Third Court of Appeals, it was assigned to a new panel.

Chief Justice Kenneth Law [pictured] said the reassignment was rare but was done so that the same judges will hear the 2003 rate case and two later appeals involving rate disputes between State Farm and the Texas Department of Insurance.

"In this case, it is to make sure those three opinions are consistent by assigning them to very similar or the same panel," said Law, who was a member of the previous panel and remains on the new panel.  The other two panelists are different.

He said the court may decide to rule on all three appeals at one time and does not expect the assignment to a new panel to cause a significant delay.

But the six justices at the Third Court are already struggling to reduce the biggest case backlog of any of the 14 intermediate appeals courts.  Law said it is taking the court so long to resolve appeals because of judicial turnover, budget cuts and the complicated administrative law cases that make up a significant part of the Austin-based court's workload.

State Farm won a district court ruling that part of a 2003 law that allows for immediate refunds was unconstitutional because it didn't give the company due process.  The Insurance Department appealed to the Third Court.

The other appeals are related to the initial dispute and involve questions of whether State Farm is charging excessive rates and whether Insurance Commissioner Mike Geeslin had evidence and authority to require the company to get prior approval before raising rates. . . .

The lead case is Commissioner of Insurance v. State Farm Lloyds (No. 03-05-00067-CV).  The reassignment order does not appear on the court's released orders list.

I practice in the Third Court and am mostly sympathetic to the explanation Chief Justice Law gave for the slow-moving docket.  Four of the court's six seats were on the ballot during the 2006 election cycle,  The Chief is up in November, and he has drawn a strong opponent in former Justice Woodie Jones.  The judges must campaign in a large and diverse 24-county district.  If they want to keep their jobs, they have to spend a lot of time away from the court's day-to-day business.

But to change two of the three judges three years after the initial panel heard argument?  I'm not sure I see the point in that.  The other two cases were filed after No. 03-05-00067-CV.  One of them was argued nine months after the lead case, and the other was argued six months later (seven months ago).  Is the case going to be re-argued before the new panel?  Without a compelling reason, and with an already slow-moving docket, it is difficult to see the benefit to this move.

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The Texas Supreme Court issued one new decision and one substituted opinion with this week's regular Friday orders.

In Perry Homes, a Joint Venture v. Cull (No.  05-0882), the Court held that the plaintiffs waived their right to arbitration by substantially invoking the litigation process, including "request[ing] hundreds of items of merits-based information and conduct[ing] months of discovery under the rules of court" before changing their minds "only four days before the trial setting . . . and decid[ing] they would prefer to arbitrate after all."  The Court vacated an $800,000 arbitration award and "remanded the case to the trial court for a prompt trial."

This is a significant decision that warrants further study and analysis.  I will likely post about it further when time permits.

In Igal v. Brightstar Information Technology Group, Inc. (No. 04-0931), the Court withdrew its December 7, 2007 opinion, substituted a new one in its place, and denied the parties' motions for rehearing.  The votes and the result remain the same.

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Wayne Schiess, the head of UT's legal-writing program and author of Wayne Schiess's legal-writing blog, spoke to the Austin Bar Association's Solo & Small Firm Section last week.  Following the premise that lawyers are professional writers—an observation that applies with even greater force to appellate counsel—Prof. Schiess suggested a three-step process for improving one's legal-writing skills:

1. Practice:  I suppose it's a truism that you can't become good at anything without performing the task repeatedly.
    
2. Study:  Prof. Schiess recommends that we consult and rely on the best resources.  Aside from a good dictionary, The Chicago Manual of Style, Strunk & White's The Elements of Style, and his own Better Legal Writing, among others, Prof. Schiess praised Bryan Garner's The Red Book:  A Manual on Legal Style as a resource aimed directly at lawyers.
     
3. Open Yourself to Honest Critique.  Though self-explanatory, this step might be the most difficult of the three.

I felt pretty good after hearing what Prof. Schiess had to say.  I don't lack for practice, and I'd like to think I'm fairly open to honest critique, especially since clients and other lawyers review my work product on a regular basis.  (One might ask whether lawyers are good judges of effective legal writing, but that's the subject of another post.)  Where I need improvement is in the "study" phase.  Although I enjoy that part of the process—I have been a Garner disciple since I attended one of his seminars before I started my Big Law job more than 10 years ago—like everything else, it's a challenge to find the time.

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By this order, the Third Court of Appeals has canceled the oral argument on the application for emergency stay in In re Sara Steed, et al. (No. 03-08-00235-CV) and has summarily denied the stay.  The court also denied the stay sought in the companion case, In re Faithann Jessop, et al. (No. 03-08-00236-CV).

Before you rush to criticize this decision, consider the reason the court of appeals gave for it.

The court explained that the application for emergency relief complained about a two-page order signed on April 22 and alleged that this order failed to comply with Section 262.201 of the Family Code.  Following its own investigation, however, the appellate court learned that the district court had, on April 21, signed an eight-page Temporary Order Following Adversary Hearing and Notice of Hearing, which the relators neither referenced in nor attached to their emergency motion.  The April 21 order "makes explicit findings with respect to the requirements of section 262.201, temporary conservatorship of the children, possession of and access to the children, temporary child support, temporary medical support, access to medical records, the acquisition of information regarding alternate caregivers who are relatives of the children, and the best interest of the children."

The court of appeals concluded that the April 21 order, "on its face, addresses statutory requirements" and based its denial of temporary relief on that conclusion.  Whether the order—which requires the children to remain in the possession of the Department of Family and Protective Services—"is supported by sufficient evidence, is the product of a sufficient "full adversary hearing" as required by section 262.201, or is an abuse of discretion are questions for determination on the merits of Relators' Petition for Writ of Mandamus."

Moral:  When presenting a motion for temporary emergency relief to an appellate court, be sure and tell the whole story, not selected parts of it.  I don't know if the relators intentionally omitted the April 21 order or just made a mistake—I'm hoping the latter—but an appellate court's discovery that you have omitted significant or potentially dispositive facts can only harm your client.

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The Texas Supreme Court issued no opinions with this week's short set of regular Friday orders.  The Court has been quite productive lately, as a number of the justices have mentioned at various bar functions, though several cases have been decided per curiam and merely follow a signed opinion on a particular issue.  The word remains that some long-pending cases will be resolved soon.

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It turns out that Tuesday's post about FLDS appeals coming to Austin was timely.  According to this press release and what I can gather from the Third Court of Appeals' web site, lawyers for Texas RioGrande Legal Aid filed a mandamus petition yesterday asking the court to order District Judge Barbara Walther to hold hearings at which each family would be able to respond to allegations of abuse before the children are placed in foster care in locations throughout the state.

A panel consisting of Chief Justice Law and Justices Pemberton and Waldrop will hear argument in In re Sara Steed, et al. (No. 03-08-00235-CV) on April 29 at 2:00 p.m.  The house should be packed.

Update:  The Supreme Court of Texas Blog and a commenter to this post point out that the order setting argument is addressed to the motion for temporary relief, rather than the mandamus petition itself.  It's an unusual development for an extraordinary case.

4/25/08 Update.  The oral argument has been canceled.  The court has taken no action on the mandamus petition.

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