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

Let's be honest.  Most state-court appellate practitioners find the Fifth Circuit a little byzantine.  But one thing the Fifth Circuit does right is allow the clerk's office to grant short unopposed briefing extensions—up to 15 days—over the telephone.  The circuit court has even done away with the requirement that the requesting counsel send a confirmation letter to the clerk, with a copy to all parties.

Briefing extensions are pretty easy to come by in state appellate courts, but they're not just a phone call away.  I can think of one or two other federal rules that the Texas Supreme Court ought to consider emulating when considering future rules changes.  For example, why not adopt some variation of FRAP 28.1 to deal with cross-appeals?

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Dealing with the ever-present problem of conflicting deadlines, I recently filed a motion for extension of time to file a reply brief in the Third Court of Appeals here in Austin.  My opponent kindly agreed to a 30-day extension, which I determined would be more than sufficient to get the brief done and manage my other cases.

Several days later, I was surprised to receive a notice from the Court that my motion had been granted "in part" and that I would be receiving an additional 20 days—rather than the 30 I had asked for—to file my brief.

I happened to speak to a long-time acquaintance in the clerk's office today, and he explained that the Court is tightening up on extensions somewhat.  In the past, the clerk's office had authority to grant first and second extensions for up to 90 days total.  That authority has been scaled back to 60 days—apparently in an effort to keep the Court's docket moving.  Further extensions are possible, but will require that one of the justices grant the additional time.

I don't quite understand this move.  From everything I've seen and heard, the speed at which documents are coming in isn't an issue; it's the pace at which decisions are being put out.  Nevertheless, Third Court practitioners should be aware that the extensions we so often take for granted might not be as certain under this new policy.

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The Texas Supreme Court issued no opinions with today's orders.  Interestingly, the Court denied the motion to recuse filed in In re Columbia Medical Center, Subsidiary, L.P. (No. 06-0416) (previously discussed here and  here), which reportedly had been set for oral argument with the mandamus petition next Thursday.

UPDATE: The Court's spokesman, Osler McCarthy, has confirmed that reports of a hearing on the Columbia motion were mere rumors.  Accordingly, I have taken down today's earlier post on that subject.  Ugh!

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Appellate geeks like me are already interested in In re Columbia Medical Center, Subsidiary, L.P.  (No. 06-0416), a case in which the Texas Supreme Court will re-examine whether a trial court's decision to grant a new trial is reviewable by mandamus.  (Oral argument is set for September 27.)  But the real parties in interest have filed a recusal motion that will lift more than a few eyebrows.  Texas Lawyer provides the details here.

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