Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : Smith Law Group, P.C. : Appeals, Sanctions, Summary Judgment : Austin, Texas

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Following up on this post, about 300 Texas lawyers have petitioned the Court of Criminal Appeals to adopt a rule permitting the e-filing of petitions, motions, and other documents in death penalty cases.  (UPDATE:  Per this news report, the CCA has agreed to allow e-mail filingfor emergency motions in death penalty cases and other "extraordinary matters.")

As mentioned here, the Texas Supreme Court allows parties to e-mail documents in emergency situations, although it doesn't consider them filed until it receives paper copies.  Change is on the horizon, however, as the state legislature appropriated $2.3 million in the current budget cycle for the State Office of Court Administration to start working on the Texas Appeals Management and E-Filing System.  As with anything government-related, it won't happen quickly, but it will happen.

(Hat tip to the Tex Parte Blog.)

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The Texas Supreme Court issued no opinions with today's short set of orders.  Happy weekend!

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In In re Volkswagen of America, Inc. (No. 07-40058), the Fifth Circuit has held that a district court sitting in the Eastern District of Texas, Marshall Division, abused its discretion by failing to transfer this product liability case to the Northern District of Texas, Dallas Division.  The Fifth Circuit granted mandamus relief, concluding that the district court incorrectly applied the private and public interest factors relevant to transfer motions brought under 28 U.S.C. § 1404.

Update:  Per this order, the Fifth Circuit will rehear the case en banc.

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Austin Lawyer Chuck Herring is circulating a petition to be submitted to the Court of Criminal Appeals (download PDF here), along with the following message:

RE: Rule-Making Petition To Permit E-Filing in Death Penalty Cases

You may have seen the extensive press reports concerning the recent actions of Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.  In a death-penalty case (Richard), she allegedly refused to permit Mr. Richards lawyers to file papers after 5:00 p.m. on the very day when he was scheduled to be executed.  The lawyers computer had crashed, and they asked for only a twenty minute extension of time to permit the filing which ordinarily the Court grants routinely in death penalty cases when execution is imminent.  On that same day the United States Supreme Court had granted certiorari review on the same point that Mr. Richards's lawyers attempted to raise on his behalf concerning the constitutionality of lethal injection.  Thus, almost certainly a stay of execution would have been granted if Judge Keller had permitted the filing.  She also concealed her unilateral ruling from other judges on the Court, some of whom have publicly criticized her conduct.  As a result, Mr. Richard was executed at 6:00 p.m.on a day when he should have lived.

The press has reported that some twenty prominent Texas lawyers—including a former Bar president and various law professors—have filed a judicial disciplinary complaint against Judge Keller.  Press coverage and editorials across Texas, the country, and even in other nations, have condemned both Judge Keller's actions and the Texas system of justice. . . .

The Richard case dramatizes a glaring deficiency in the Courts procedures:  the Court does not permit e-filing (filing by electronic means).  Many courts and agencies, of course, permit e-filing.  Some require e-filing.  If the Court of Criminal Appeals had permitted e-filing in the Richard case, his lawyers would have been able to file the papers even by the 5:00 p.m. deadline that Judge Keller unilaterally imposed.

Therefore, to help avoid a recurrence of such a tragic, unnecessary execution, lawyers across Texas are joining together to petition the Court to adopt a rule to permit e-filings in death-penalty cases.

Please take a moment to review, sign, and return the attached petition, so that we can help avoid another similar malfunction of justice—and please circulate this petition to other attorneys who may be willing to sign the petition.

Please mail or email (pdf) completed petitions for delivery by Wednesday, October 24th, to:

Chuck Herring
Herring & Irwin, L.L.P.
1105 W. 12^th Street
Austin, Texas 78703
email: cherring@herring-irwin.com

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The Texas Supreme Court issued one opinion with today's orders.  In Yancy v. United Surgical Partners Inc. (05-0925), a summary judgment case, the Court held that the two-year statute of limitations in the former Medical Liability Act did not violate the Texas Constitution's open courts guarantee on the record presented.  Although the Court concluded that the court of appeals erred because the record contained some evidence of continuous mental incapacity, it nevertheless affirmed after concluding that the petitioner failed to raise a "fact issue establishing that [petitioner] did not have a reasonable opportunity to discover the alleged wrong and bring suit within the limitations period or that she sued within a reasonable time after discovering the alleged wrong.  Thus, the open courts provision does not save [petitioner's] time-barred negligence claims."

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The Texas Supreme Court issued four opinions with this week's orders.

In In re U.S. Home Corp. (No. 03-1080) (per curiam), a dispute between a homebuilder and purchasers, the Court conditionally granted mandamus relief from a trial court order refusing to compel arbitration, holding that no evidence supported any of the asserted defenses to enforcement of the arbitration clause.  The Court declined the defendants' invitation to reverse the trial court's class certification order because the court of appeals had not yet ruled on that request.

Answering certified questions from the Fifth Circuit in Mid-Continent Insurance Co v. Liberty Mutual Insurance Co. (No. 05-0261), the Court held under the facts of the case that one insurer owed a second insurer no duty (directly or by subrogation) to compensate the second insurer for paying more than its proportionate share of a settlement to which both contributed.  Justice Willett delivered a concurring opinion providing his additional thoughts on why Texas law should not recognize such a claim.

In In re SCI Texas Funeral Services, Inc. (06-0385) (per curiam), the Court conditionally granted mandamus relief from discovery and sanctions orders in a putative class action because the court of appeals' reversal of class certification "render[ed] the class-wide discovery superfluous and the class-wide sanctions incongruous."

In BFI Waste Systems of North America, Inc. v. North Alamo Water Supply Corp. (No. 06-0602) (per curiam), the Court denied both petitions for review, but indicated that the court of appeals (in footnote 6 of its opinion) had improperly commented on the validity of a discharge permit, an issue not before that court.  The supreme court agreed with petitioners' argument that the court of appeals' comments should not prejudice future litigation over the discharge permit.

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I don't practice criminal appellate law, and I don't ordinarily follow the the Texas Court of Criminal Appeals, but even I notice when the CCA makes front-page news for the wrong reasons.

In case you haven't heard, the media is lambasting the CCA (more specifically, Presiding Judge Sharon Keller) for refusing to keep the clerk's office open past 5:00 to accept a last-minute filing in a death penalty appeal.  Earlier the same day, the U.S. Supreme Court granted certiorari in a Kentucky case challenging lethal injections as cruel and unusual punishment, and Texas death row inmate Michael Richard was scheduled to die by lethal injection that evening.  The media coverage provides the details, but because of Presiding Judge Keller's decision, the Richard execution went forward without the possibility of court intervention on potentially meritorious grounds.

The Texas Supreme Court doesn't make life-or-death decisions, and it is receiving its share of negative press these days.  But one of the things that court does right is allow electronic or after-hours submissions (with an advance call to the clerk's office, as apparently occurred in the Richard case) to get emergencies in front of the Court when its decisions can still make a difference.  One would think that if a civil court can accommodate litigants when money is the only thing at stake, a criminal court could do the same in matters of life and death.

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The State Bar of Texas has contacted a number of law bloggers for assistance in promoting its YouTube contest, "Lone Star Stories:  Texans on Justice."  I am happy to oblige.

The SBOT is touting this contest as the first of its kind by a bar association.  Follow the links for a copy of the press release and an upcoming article in Texas Lawyer.

The contest is part of President Gib Walton's public education initiative on the justice system and is intended to give all Texans a venue to share their vision of the promise of justice for all.  Two winners will receive $2,500 prizes and a trip to the January State Bar board meeting in Grapevine.  Entries will be accepted between October 15 and December 15.

Congratulations to the SBOT for taking on such a worthy project in such an innovative way.

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The Texas Supreme Court issued no opinions with today's orders.  Ho-hum.  Now, back to work.

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Within the past couple of weeks, I have been contacted by two different lawyers about their clients' respective appeals, both of which appear to be on a collision course with the Texas Supreme Court.  Sounds promising, right?  Not so fast.

Rather than calling to discuss hiring me to handle their matters, both lawyers wanted me to recommend someone "politically connected" (i.e., someone with a firm that is a big financial contributor to the individual justices' electoral campaigns) to take over the proceedings.

I don't blame these folks for calling.  They are merely doing what they think is in their clients' best interest.  But what does this say about lawyers' confidence—not to mention the public's—in our elected judiciary?  It's more important to hire someone who has given large sums to political campaigns than someone qualified to do the job (and, in my case, as a sole practitioner with much lower overhead than the "politically connected" firms, do it at a considerably more favorable rate).

Chief Justice Jefferson has tried to pick up the mantle of judicial selection reform and carry on the fight started by his immediate predecessors.  The legislature keeps saying no.  Don't give up, Chief.  Don't give up.

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In this commentary, Law.com's Howard J. Bashman discusses the pitfalls of having multiple advocates present oral argument for the same side on appeal. As usual, his observations are dead on. Simpler is better, and one advocate per side is best.

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