The Texas Supreme Court issued four opinions with this week's orders. I am still tied up on a large matter, but Osler McCarthy, the Court's staff attorney for public information, has granted me permission to "borrow" his detailed summaries. I am posting them here.
Steve Merican over at the Illinois Appellate Lawyer Blog recently posted some interesting comments about the role of oral argument to the appellate decision-making process. Within that post, he linked to an article he wrote entitled How to Write an Appellate Brief That Judges Want to Read and Answers Their Questions.
Like most appellate advocates I know, I'm a fan of oral argument in appropriate cases, such as when the law is unsettled. But as a rule, to rip from Steve's observation while paraphrasing a Pat Riley quote, "your brief is the main thing." The importance of presenting a persuasive, well written brief that anticipates the questions appellate justices might have can't be emphasized enough.
Judging from today's orders, it's been a very busy week at theTexas Supreme Court. Having just returned from out of town, I'm not sure I'll be able to provide the usual links and synopses, at least not right away. I'm glad to be busy, but my blogging is suffering for it.
Authoritative enough for the Fifth Circuit, apparently. Last week, in Exxon Mobil Corp. v. Commissioner (note 1), a circuit panel cited the online encyclopedia for its definition of the accounting term "accrue." (Hat tip to Appellate Law &Practice.)
Are internet-savvy clerks are showing their influence? Should the Fifth Circuit rely on a wiki of uncertain authorship to define a term of art?
The Texas Supreme Court issued no opinions with this week's orders.
The Texas Supreme Court denied one petition for review and issued one per curiam opinion this week with what must be close to the shortest set of orders ever issued. The Court issued the orders on Thursday, instead of the usual Friday, because of the Good Friday holiday.
In State of Texas v. Precision Solar Controls Inc., another in a long series of soveriegn immunity cases, the Court held that the plaintiff should have an opportunity to establish waiver in light of the "new" opinion in Reata Construction Corp. v. City of Dallas. In its one-paragraph analysis, the Court stated:
The court of appeals relied on our first opinion in Reata Construction Corp. v. City of Dallas, which we have since withdrawn and replaced. 197 S.W.3d 371 (Tex. 2006). We held that a governmental entity that brings an action waives immunity from suit for claims that are germane to, connected with, and properly defensive to its action, to the extent of an offset. Id. at 373. The State argues that it has not by its action waived immunity for an intentional tort claim like Precision's. Such arguments should be further considered by the lower court in light of Reata.
The supreme court vacated the court of appeals' judgment and remanded the case to the trial court for further proceedings.
In its occasional efforts to "ride the circuit," the Texas Supreme Court will hear arguments tomorrowApril 12 at Austin College in Sherman, Texas. The arguments are part of the fourth annual Austin College Law Symposium. No video webcast will be available.
Source: Osler McCarthy, Staff Attorney for Public Information.
UPDATE: Thanks to Osler for pointing out my mistake on the date, which is corrected above.
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