My previous blog post briefly outlined the Texas Supreme Court’s jurisdiction and the soon-to-be-effective legislative changes. As the title of these posts suggests, the next step is to examine the potential effects, if any, that these changes will have on courts, practitioners, and clients. Admittedly, by doing so, I tread into uncharted territory armed solely with surmise and experience.

Expanded Jurisdiction?

It’s difficult to predict the effect that the likely expanded jurisdiction will have on the Texas Supreme Court. Overall, HB 1761 appears to have expanded the Supreme Court’s jurisdiction over all appealable orders and judgments. HB 1761 confers the Supreme Court with broader jurisdiction over interlocutory orders. (Note: the changes only apply to interlocutory orders rendered on or after September 1, 2017.) As a result, the Supreme Court should be able to review more intermediate appellate-court and trial-court decisions.

Or Narrowed?

But in some ways, jurisdiction may have narrowed. HB 1761 traded more concrete, explicit bases for appealing final orders and judgments for a more subjective one: importance to the state’s jurisprudence. For example, the previous standards allowed for explicit bases of appeal, like matters in which the Railroad Commission is a party, regardless of their importance to the state’s jurisprudence. The Supreme Court may soon decide that some cases involving the Commission are not important to the state’s jurisprudence. However, a quick review of the previous bases, like validity of statutes, suggests that many would meet the new standard. In addition, the bar is currently very low when it comes to what constitutes conflict jurisdiction. For conflict jurisdiction, there must only be an inconsistency that should be clarified to remove uncertainty in the law and unfairness to litigants. The Supreme Court may find that certain inconsistencies between courts of appeals’ decisions do not meet the jurisprudential-importance standard. One thing is relatively certain: the changes will likely increase the Supreme Court’s workload

The Supreme Court Decides

The other relative certainty is that the Supreme Court controls its own destiny when it comes to its jurisdiction and its future workload. At least initially, litigants will likely file more petitions for review to test the new jurisdictional standards. The expanded jurisdiction now allows the Supreme Court to review more interlocutory appeals, which should generate more petitions. Although tougher to predict, because a similar importance-to-the-state’s-jurisprudence standard was already part of a catchall basis when reviewing final orders or judgments, the new jurisdictional standards will likely have little effect on appeals concerning final orders or judgments. The new standards also may attract more amicus briefs as amici try to establish that reoccurring issues affecting them are sufficiently important. The Supreme Court, however, can mitigate any increase by exercising its discretionary powers in the petition phase. It can also narrow or expand what constitutes presenting a question of law that is important to the state’s jurisprudence. For example, the Supreme Court may hold it lacks jurisdiction over fewer no-evidence questions. That being said, there is a risk that an increased workload (even at the petition stage) will, at least at first, bog the Supreme Court down and force it to adapt.

What Effect on Courts, Practitioners, and Clients?

Like the Supreme Court, practitioners and their clients will be affected by and will have to adapt to the legislative changes. The expanded jurisdiction should, at least initially, provide attorneys with more legal work. It will also provide clients with more opportunities to appeal unfavorable rulings involving appealable interlocutory orders. On the other hand, guaranteed bases of jurisdiction have evaporated. Practitioners and clients will, therefore, face more uncertainty regarding jurisdiction. Because Texas Rule of Appellate Procedure 53.2(e) prohibits argument in a petition’s “statement of jurisdiction,” practitioners and clients will also have to dedicate more of their petitions’ limited word count arguing that their questions are important to the state’s jurisprudence.

The Supreme Court’s expanded jurisdiction over appealable interlocutory orders might also lengthen the time for litigating these matters and increase client’s costs. Come September, appeals that once ended in intermediate appellate courts will now potentially make their way through the more time-consuming petition-for-review and briefing-on-merits processes. While beneficial if an appealing party wins in the Supreme Court, these appeals will increase all the litigants’ costs. More appeals might also increase the time in which the Supreme Court, which has been very efficient lately, decides matters.

The legislative changes should also affect lower courts. Although not entirely certain, the legislative changes should allow the Texas Supreme Court to review more appealable orders. This could lead to more matters lingering in the trial courts while certain issues make their way through the Supreme Court. And, for better or for worse, the trial courts will experience another level of appellate scrutiny.

In the third and final installment of this series, we’ll take a closer look at the jurisprudential-importance standard.

Image courtesy of Flickr by Jim Linwood.