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

A number of judicial races affecting civil appellate matters took shape following yesterday's primaries.  Here are the November major-party matchups.

Texas Supreme Court, Place 3:  Rick Green and Debra Lehrmann have emerged as the top two vote-getters in a six-way Republican primary that was not final as of this morning.  If the numbers hold true as expected, they will face each other in a runoff next month.  The winner will go up against Democrat Jim Sharp to fill an open seat being created by Justice Harriet O'Neill's departure.

Texas Supreme Court, Place 5:  Republican incumbent Paul Green versus Democrat Bill Moody.

Texas Supreme Court, Place 9:  Republican incumbent Eva Guzman versus Democrat Blake Bailey.

First Court of Appeals, Chief Justice:  Republican incumbent Sherry Radack versus Morris Overstreet.

First Court of Appeals, Place 4:  Republican incumbent Evelyn Keyes versus Democrat Michael Gomez.

First Court of Appeals, Place 8:  Republican incumbent Michael Massengale versus Democrat Robert Ray.

Third Court of Appeals, Place 4:  Republican Melissa Goodwin will face Democrat Kurt Kuhn in a race for the seat being vacated by Justice Jan Patterson.

Fourth Court of Appeals, Place 2:  Republican incumbent Marialyn Barnard versus Democrat Rebecca Martinez.

Fifth Court of Appeals, Place 4:  Republican incumbent Lana Myers versus Bonnie Goldstein.

Fifth Court of Appeals, Place 12:  Republican incumbent Robert Filmore versus Democrat Lawrence Praeger.

Sixth Court of Appeals, Chief Justice:  Republican incumbent Josh Morriss narrowly defeated challenger H.D. Bailey.  Because he has no Democratic opponent in the general election, Chief Justice Morriss will be elected to another six-year term.

Ninth Court of Appeals, Place 2:  Republican incumbent Charles Kreger versus Democrat Ron Mangus.

Tenth Court of Appeals, Place 3:  Republican incumbent Felipe Reyna lost to Al Scoggins, who lacks a general election opponent and will therefore take office in January.

Thirteenth Court of Appeals, Place 3:  Democratic incumbent Linda Yanez versus Republican Greg Perkes.

Fourteenth Court of Appeals, Place 2:  Republican incumbent Leslie Brock Yates lost to Sharon McCally, who will face Democrat Norma Venso in the fall.

Fourteenth Court of Appeals, Place 5:  Republican Martha Hill Jamison faces Democrat Wally Kronzer in a race for a seat being vacated by Justice Kent Sullivan.

Fourteenth Court of Appeals, Place 9:  Republican incumbent Tracy Christopher versus Democrat Tim Riley.

Uncontested Races:  Those candidates listed below were unopposed in the primary and likewise have no opponent in the general election.

Second Court of Appeals, Place 3:  Republican incumbent Anne Gardner.

Fourth Court of Appeals, Place 6:  Republican incumbent Sandee Bryan Marion.

Fifth Court of Appeals, Chief Justice:  Republican incumbent Carolyn Wright.

Fifth Court of Appeals, Place 7:  Republican incumbent Michael O'Neill.

Seventh Court of Appeals, Place 4:  Republican incumbent Jim Campbell.

Eleventh Court of Appeals, Place 3:  Republican incumbent Terry McCall.

Twelfth Court of Appeals, Place 2:  Republican incumbent Brian Hoyle.

For more detailed coverage of the Texas Supreme Court races, visit the Supreme Court of Texas Blog.

(Post updated at 2:20 p.m. to reorganize and add further results.)

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On the heels of Chief Justice Woodie Jones's presentation to the Austin Bar's Civil Appellate Law Section last week, the Austin American-Statesman has published an article discussing the Third Court of Appeals' backlog problem and how the Court is addressing it.

The Chief spent some time at the beginning of his talk discussing the backlog situation and what is being done to rectify the problem.  In short, the oldest cases have been given priority and reassigned to justices who are caught up on their own workloads.  In just one year, with the help of some temporary staff attorneys, the Court has made significant progress and no longer has the biggest backlog of the fourteen intermediate appellate courts.

The Chief devoted the remainder of his time to TAMES—the Texas Appeals Management and E-filing System—which will begin implementation this year.  TAMES and appellate e-filing generally will be the subject of another post.

The Statesman article placed much of the blame for the backlog on former Chief Justice Kenneth Law, whom Jones replaced following the last general election, but also recognized that an eight-month vacancy produced by Justice Mack Kidd's death and Justice Bea Ann Smith's retirement were significant factors.  The article acknowledged that the Court has made progress, disposing of 82 of its oldest cases within the past year.

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As reported in the Houston Chronicle, Governor Perry has selected 14th Court of Appeals Justice Eva Guzman (pictured) to fill the seat recently vacated by former Justice Scott Brister.

Justice Guzman will be the first Latina to serve on the Court.  Because she is filling an unexpired term, she will stand for election as the incumbent in 2010.

The Governor's press release can be found here.

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It seems like something this newsworthy happens every time I go on vacation and unplug for a while.

In the wake of Justice Harriett O'Neill's decision not to stand for re-election in 2010, Justice Scott Brister (pictured) has announced that he will be leaving the Texas Supreme Court in a few weeks to re-join Andrews Kurth and head the firm's appellate practice.  Whereas Justice O'Neill's departure will create an open seat, Justice Brister's decision to leave before his term expires will allow the governor to appoint a replacement, who will then have the privilege of running as the incumbent in 2010.

The candidates are already lining up for both spots.  In addition to Justices Jim Moseley (Dallas) and Rick Strange (Eastland), Justice Jeff Brown (Houston), Justice Rebecca Simmons (San Antonio), Justice Rose Vela (Corpus Christi), and Judge Debra Lehrmann (Fort Worth)—all Republicans—are in the mix.

The Democrats have not been as quick to throw their hats into the ring, but Judge Bill Moody (El Paso) and Justice Jim Sharp (Houston) have been mentioned as possibilities.

Rumors are circulating that as many as two more vacancies could be announced in the coming weeks.  I'll leave debate on that topic to the political and gossip blogs, but it's worth mentioning that the supreme court may be entering a period of instability unlike what we've seen in recent years.  High turnover during the first half of this decade is frequently cited as contributing to what some perceive as a very slow-moving docket.

Update:  Tex Parte is reporting that Judge Tracy Christopher (Houston) intends to apply for a gubernatorial appointment to replace Justice Brister.

9/14/09 Update:  Justice Tom Gray has joined the mix as well.

9/29/09 Update:  Add Justice Bob Pemberton to the list of potential appointees (via Tex Parte).

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In a news release issued today, the Texas Supreme Court has announced that Justice Harriet O'Neill (pictured) will not seek re-election when her term ends at the end of 2010.  Justice O'Neill has not confirmed her post-Court plans, although rumors have swirled that she may run for Attorney General.

Two intermediate appellate justices Jim Moseley (Dallas) and Rick Strange (Eastland) have already declared their intention to run for Justice O'Neill's seat.  Both are Republicans, so it appears they will face off in the primary.

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This morning's release of the U.S. Supreme Court's 5-4 decision in Caperton v. A.T. Massey Coal Co. (No. 08-22) could open the door to more recusal motions in Texas appellate courts (and possibly trial courts).

In Caperton, the Court held that due process required a West Virginia Supreme Court of Appeals justice to recuse himself from a case in which his largest single campaign contributor was a party.  The story reads much like John Grisham's The Appeal (discussed here and here) in which a litigant set out to purchase a state supreme court seat to swing the necessary votes its way.

Texas also elects its judiciary, and the issue of judicial campaign finance is an ongoing source of controversy.  I'll leave more detailed analysis of Caperton to the SCOTUS pundits, but it is difficult to imagine that this decision won't have a significant trickle-down effect.

Update:  Don Cruse has reviewed the case in more detail over at The Supreme Court of Texas Blog.

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Today marks the beginning of the 81st Texas Legislature.  A number of bills that would affect litigators and appellate practitioners are expected, many of which failed to pass during the last session.

I will be keeping an eye on noteworthy bills as they are introduced and will comment on them as my workload permits.  With the House relatively balanced among party lines and a change in Speaker, we could be in for an interesting time.

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Shortly after the election, I mentioned having heard rumblings that a sitting justice on the Third Court of Appeals may be leaving.  I haven't brought it up again because I hadn't confirmed it directly with the judge in question, but with this story, the news has been broken.

Congratulations to Kurt Kuhn on declaring his candidacy to replace Justice Jan Patterson (pictured), who has announced her intention to run for the district bench in Travis County.

Now that Kurt has begun the campaign process, I suspect others may be making similar announcements.  The last open-seat race in that court was quite interesting, with both parties fielding several primary candidates.

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Incoming Third Court of Appeals Chief Justice Woodie Jones won't take office for a few more weeks, but he is already showing up on the Court's January oral argument calendar.

After next Wednesday (when I happen to be arguing a case), the Court's next oral submission date is January 14, 2009, with the Chief presiding over the morning panel.  His public investiture ceremony will be held at 4:00 p.m. on Monday, January 12, in the Third Court of Appeals courtroom.

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Despite speculation that Democrats might pick up at least one spot, no Texas Supreme Court seats changed hands yesterday.  Chief Justice Jefferson and Justices Wainwright and Johnson each handily defeated their opponents, so the Court will remain all-Republican a while longer.  The Court of Criminal Appeals remained all-Republican as well.

The big news around these parts is former Justice Woodie Jones's (pictured) defeat of incumbent Third Court of Appeals Chief Justice Ken Law.  The media has covered this race thoroughly, so I'll just say that the Third Court will now be evenly divided, with three justices from each party.  (But rumor has it that one of the sitting justices might be leaving; I'll report on that when confirmed.)

With one exception (Eighth Court incumbent Kenn Carr), other intermediate court justices on the ballot kept their jobs, including recent Fourteenth Court appointees Jeff Brown and Bill Boyce.  Many of these races were very, very close.

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From his evacuation site in Montgomery, Alabama, my blogging colleague Tad Bartlett of The Bartlett Blawg reported that the Fifth Circuit will be closed following the passage of Hurricane Gustav.  As he wrote this morning:

The U.S. Court of Appeals for the Fifth Circuit is officially closed September 2 & 3 (oral arguments for this week have been moved to Texas courthouses), and all filings due between September 1 and 5 have been automatically extended to September 8, 2008. At 10 a.m. on September 2, a team will inspect the New Orleans courthouse and clerk’s offices and make further determinations regarding closure and reopening. Expect further updates to be posted at the Court’s website.

Since then, Tex Parte has reported that the Fifth Circuit was spared from any damage.  The Court will remain closed this week, but will open for business on Monday, September 8.

Of those who did not evacuate, Ray Ward of Minor Wisdom and the (new) legal writer has posted by Blackberry that all is well.  And Ernie the Attorney has taken citizen journalism to a whole new level with his frequent Twitter updates.

9/3/08 Update:  Jeff Rambin at Tyler Appeals took Gustav as an opportunity to discuss the Texas Supreme Court's Task Force to Ensure Judicial Readiness in Times of Emergency.  Read Jeff's comments here.

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I attended the Texas Supreme Court Historical Society's annual John Hemphill Dinner last night.  I believe all the justices were there, and the big ballroom at the Four Seasons here in Austin was packed as always.

Professor Mark Steiner from South Texas College of Law was the keynote speaker, and he talked about his new book An Honest Calling: The Law Practice of Abraham Lincoln.  We don't often think of Lincoln as anything but the President who gave the Gettysburg Address and issued the Emancipation Proclamation.  It was interesting to learn more about Lincoln the lawyer.

In particular, Professor Steiner addressed Lincoln's proclivity as an appellate practitioner.  The joke of the night, paraphrased as best I can remember it this morning, went something like this:  "Lincoln even handled an appeal in Texas.  Rumor has it that the Texas Supreme Court will issue its opinion in the case this summer."

The room erupted with laughter.

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On the heels of a hotly debated study declaring that California has the top state high court (see discussion here, here, and here), another paper has reached the same conclusion.  At least this time the authors are from other states.

Neither the Texas Supreme Court  nor the Texas Court of Criminal Appeals fared particularly well.  The paper contains several different categories of data, the foundations of which are not always clear.  In a composite of all the categories, ranking a total of 52 courts (Texas and Oklahoma each have separate high courts for civil and criminal matters), SCOTX came in 39th, and the CCA came in 43rd.

Thanks to the Legal Theory Blog, via How Appealing.

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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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Believe it or not, I'm a sucker for lawyer TV shows, in part because they're so unrealistic they make me laugh.  I'd pretty much given up on ABC's Boston Legal this season; for various reasons, I thought the show had jumped the shark.  But I couldn't help noticing Tuesday's episode entitled "The Court Supreme," in which James Spader's character, Alan Shore, argues an appeal to the U.S. Supreme Court on behalf of a mentally challenged man facing the death penalty for raping a child.

If you have ever watched the show and have seen one of Alan's politically tinged, closing-argument rants, you can imagine what happened.  (Pssssst.  Hey Alan.  One of the first rules of appellate practice is to save the impassioned jury argument for a jury.  To that, I would add that it's generally a bad idea to insult the Justices from the lectern.)  A 10-minute video clip is available on YouTube.  It's worth watching not only as a reminder of what not to do at an appellate argument, but also for ABC's amazing casting of look-alikes for the High Nine.

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The West Texas town of Eldorado is more than 200 miles from Austin.  So imagine my surprise when I realized that any appeals coming out of the drama surrounding the Fundamentalist Church of Jesus Christ of Latter Day Saints "Yearning for Zion" Ranch (which the ABA Journal describes as "what surely will be among the largest child custody cases in U.S. history") will be heard by the Third Court of Appeals, right here in the Live Music Capital of the World.

Surprisingly few Texas family law bloggers have weighed in on the FDLS matter.  I'm sure some of them were among the hundreds who volunteered to serve as court-appointed ad litems in more than 100 child removal cases the State filed in the 51st District Court (which serves Schleicher County and nearby Tom Green County, among others).  What an incredible effort.

It will be interesting to see how the appeals will be handled logistically.  Some of the attorneys involved have identified Judge Barbara Walther's decision to hear the State's evidence en masse, rather than child-by-child, as a potential ground for reversal.  I suspect the challenges arising from the sheer numbers will carry over into the appellate court to a significant degree.

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The Tex Parte Blog is reporting that former Dallas district judge Catharina Haynes (pictured) has been confirmed to the United States Court of Appeals for the Fifth Circuit.  She joins Judge Jennifer Elrod (previously discussed here) as Baker Botts alumna recently taking seats on the court.

One can't help but notice that three of President Bush's last four Fifth Circuit appointments (see Judge Priscilla Owen) have been Texas women.

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The "quiet trickle of a rumor" that Gibson, Dunn & Crutcher's James C. Ho (pictured) will succeed Ted Cruz as Solicitor General of Texas is true.  Attorney General Greg Abbott's press release is available here.

I have had the privilege of serving with Jim on The Appellate Advocate's editorial board for the past two years.  His credentials speak for themselves.  General Abbott has made an excellent choice.

4/11/08 Update:  Additional reports and commentary are available at the Supreme Court of Texas Blog and Above the Law.

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Last night, the web version of the San Antonio Express-News ran a commentary by Osler McCarthy, the Texas Supreme Court's Staff Attorney for Public Information, addressing watchdog groups' recent claims regarding alleged ethics violations and docket backlog.  McCarthy gives another view based primarily on official Court statistics, and he makes some interesting points.  Those following these stories should take into account what he says.

3/28/08 Update:  Sophisitic Miltonian Serbonian Blog and The Supreme Court of Texas Blog  provide further analysis.

3/30/08 Update:  Texas Watch spokesman Alex Winslow responds to McCarthy here.

This debate seems to have hit a dead end.  I'll follow up again only if there's something new.

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A blog associated with The Dallas Morning News and KVUE-TV here in Austin have both run new stories on the Texas Supreme Court's "backlog problem."  As near as I can tell, neither has unearthed any previously unreported information, so the timing is something of a mystery.  Yesterday's blog entry refers to a Texas Watch report issued February 20, and this evening's KVUE broadcast shows some of the same footage used in the WFAA-TV story (discussed here) from February 27.  Political rehash, anyone?

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Last night, WFAA-TV in Dallas ran a news feature (entitled "Justice Delayed?") addressing the "backlog problem" at the Texas Supreme Court.  Investigative reporter Byron Harris took the lead, and Austin public interest group Texas Watch contributed.

The story centered around Sharon Boyd, who died of cancer shortly before the December 2006 oral argument in her failure-to-diagnose case (previously discussed here).  Rather than address the merits, the Court ultimately dismissed the health care providers' petition for review as improvidently granted.

The report also discussed the Court's 6-week "summer hiatus," the speed with which Justice Hecht and Justice Wainwright turn out opinions, and those justices' travel habits.  Chief Justice Jefferson and Justice Wainwright were interviewed.

The news video, as well as an online article, are available through this link.

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As reported in The Houston Chronicle, a group of 11 plaintiffs have brought a putative class action in federal district court in Marshall seeking to have the Chapter 74 medical malpractice damage caps declared unconstitutional.  Among the plaintiffs is former Dallas Cowboy Ron Springs, who has been in a coma since late last year following surgery to remove a cyst.

The lawsuit, styled Watson et al. v. Harrison County Hospital Association et al. (Civil Action No. 2:08-CV-00081), has been assigned to U.S. District Judge John Ward.  A copy of the complaint is available here.

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Following up on this post, I finished reading John Grisham's The Appeal this past weekend.  As some reviews have noted, the story is more about the politics of judicial elections than the actual appellate process, which is barely mentioned at all.  I laughed out loud, though, when I read the following passage:

In Atlanta, Jared Kurtin passed the file to the firms appellate unit, the eggheads, as they were known, brilliant legal scholars who functioned poorly in normal circles and were best kept in the library.  Two partners, four associates, and four paralegals were already hard at work on the appeal when the massive transcript arrived and they had their first look at every word that was recorded at trial.  They would dissect it and find dozens of reasons for a reversal [at 103].

This reminded me of my big firm days, although no one referred to our group as "eggheads" (more like "nerds," I think).  We also didn't staff even the largest matters with two partners, four associates, and four paralegals.  At current rates, that kind of coverage would ring up about $3,000 an hour.

I didn't find the book to be as much a "bully pulpit for reform" as some, though the Author's Note does speak out in pointed opposition to judicial elections.  It's classic Grisham—David versus Goliath with political undertones, but withGoliath reversing his fortune 5 votes to 4.  The timing is interesting, but I wouldn't take it for anything more than an easy, fairly entertaining read.

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If you haven't already heard, John Grisham has a new legal thriller out.  It's called The Appeal.  Here's an excerpt from Charles Taylor's review at Bloomberg.com:

[The defendant's] next step, of course, is to appeal the verdict.  Knowing that it will take several years for the case to reach the state Supreme Court, the company decides to buy a seat.  Judges are elected in Mississippi, so they target a victim—a female justice who can be made to sound like a liberal harridan—and groom a decent, conservative young lawyer to run against her.  Then the smear campaign begins.

Sounds a little like an appellate version of The Runaway Jury, with some commentary on judicial elections thrown in.  According to USA Today's review:

More than a novel, The Appeal is an exposé of how highly organized special-interest groups, loaded with cash, can manipulate the judicial system.  It's Grisham's bully pulpit for reform.  "There's a lot of truth in this story," Grisham writes in an author's note.  "As long as private money is allowed in judicial elections we will see competing interests fight for seats on the bench."

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The following chart from the Houston Chronicle depicts how long argued cases have been pending before the Texas Supreme Court and the number of deciding opinions each of the justices wrote in Fiscal Year 2007.  Though intended to expand on recent controversies, it provides some perspective nonetheless.

 

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The Texas Supreme Court issued no opinions with this week's orders.  In other Court news, however, Chief Justice Jefferson has issued a statement expressing the Court's dismay concerning Justice Medina's indictment in Harris County in connection with the fire that destroyed his Houston-area home last summer.  Several news outlets have reported that Harris County District Attorney Chuck Rosenthal (Justice Medina's fellow Republican, who is having his own well publicized troubles these days) will move to dismiss the indictment.  The political firestorm (no pun intended) has begun.

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I'm quite behind on posting, especially with respect to recent Texas Supreme Court goings-on.  That's to be expected this time of year, I suppose, but some personal issues have pulled me away even more than usual.  I plan to pick up the pace and perhaps refocus things a bit as we head into 2008.

Anyway, this post at the Perlmutter & Schuelke Blog reminded me that Austin has been named as the #1 blogging city for lawyers (ahead of Seattle, thank you very much Kevin O'Keefe, whose report on this story I saw first).  While I'm not one to question Austin's greatness in all things technological, Brooks Schuelke rightly asks where all of the Austin law bloggers are.  Maybe the survey criteria were geared to law blog readers rather than writers.

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According to this report from Legal Trade, the State Bar is considering a policy change that would prevent campaigning judges from participating as course directors, planning committee members, or speakers at bar-approved CLE courses.  As a regular attendee of the two major appellate CLE programs, both of which feature appellate judges as speakers, this idea seems silly.  I have never heard a judge make political remarks in this situation.  What evil is the proposed rule intended to cure?

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As reported in the Tex Parte Blog, the race for chief justice of the Austin Court of Appeals is shaping up.  The incumbent, Chief Justice Kenneth Law (R) (pictured) recently announced his plans to seek re-election, following some speculation that he would not run again.  Former Justice Woodie Jones (D) previously announced his candidacy and is gearing up for a strong bid.

Travis County remains a Democratic stronghold, but a number of the 24 counties in the Third District are primarily Republican.  This race won't match the drama of the last election cycle, but it should be interesting nonetheless.

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Per How Appealing, an article entitled The Irony of Judicial Elections (abstract with link for download) will appear in the March 2008 issue of the Columbia Law Review.  The article's abstract reads as follows:

Judicial elections in the United States have undergone a dramatic transformation.  For more than a century, these state and local elections were relatively dignified, low-key affairs.  Campaigning was minimal; incumbents almost always won; few people voted or cared.  Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm.  In the new era, as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries.  In revisiting this classic debate, the Article aims to make three main contributions.  First, it offers an analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central normative concerns from the more contingent, empirical ones.  Second, applying this taxonomy, the Article shows how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever.

Third, the Article explores several deep ironies that emerge from this cleavage.  Underlying these ironies is a common insight:  As judicial elections achieve greater legitimacy as elections, it will tend to undermine the judiciary's distinctive role and our broader democratic processes.  There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary, the Article posits, that can help recast the controversy over the new era.

Sounds like something members of the Legislature ought to read before taking up judicial election reform again in 2009.

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In this post, I asked how "tort reformers" are responding to the Baylor Law Review-sponsored survey of Texas judges, which has been championed as helping to "clear the air" about the state of our court system.  In a commentary recently published in the San Antonio Express-News, Austin lawyer Lee Parsley does just that.  In addition, Texans for Lawsuit Reform has issued a press release (picked up by MSNBC) touting the Parsley article.  Parsley and TLR read the Baylor study much differently than previous commentators, contending that it actually shows a need for further lawsuit reform.

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The Baylor Law Review-sponsored survey of Texas judges regarding the need for tort reform (previously discussed here) received further press this week. In a San Antonio Express-News guest column, Houston lawyers Peter Kelly and Jeffery Nobles discussed the survey and described it as "an important step in clearing the air about the court system."  Kelly and Nobles concluded:

Most of the political myths that gave birth to the conventional wisdom about runaway juries have now been exposed as urban legends, and the Baylor survey of anonymous judges from around the state disputes what openly partisan politicians have said in every political campaign for the past 20 years.  When it comes to jury trials, Texans should ignore the politicians and consultants and heed the data.

The results of this survey were released back in August.  How do the "tort reformers" respond?

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The U.S. Supreme Court heard argument in a particularly interesting and (I think) important case today.  In Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989), the Court will decide whether contracting parties may agree to expand the grounds for vacating arbitration awards beyond those recognized under the Federal Arbitration Act.  The Fifth Circuit and others have said yes—see Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993 (5th Cir. 1995)—but the Ninth Circuit disagreed.  The merits briefs, amicus briefs, and a transcript of the argument are available here.

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According to the Tex Parte Blog, Tenth Court of Appeals Justice Bill Vance (pictured) has announced that he will not seek a fourth term in 2008.  Justice Vance apparently dismissed any notion that his ongoing conflict with with Chief Justice Tom Gray played any part in his decision.

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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 Texarkana Gazette has published this nice article on the 100th anniversary of the Sixth Court of Appeals.  The article quotes Chief Justice Josh R. Morriss III as saying that the intermediate appellate courts "are the final deciders of well above 90 percent of [all] cases."  The Texas Supreme Court gets most of the press coverage, but we need to pause and remind ourselves that it's not the only forum in which justice is meted out.  Though often overlooked, the 14 intermediate courts play a critical role.

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The Tex Parte Blog is reporting that the Senate has confirmed 190th District Court Judge Jennifer Elrod's nominationto the Fifth Circuit (discussed previously here).  As the post points out, there are some interesting contrasts between Elrod's confirmation process and former Texas Supreme Court Justice Priscilla Owen's.

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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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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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The Texas Supreme Court has added links to its calendar (in Microsoft Word and PDF form) as a new feature on the Court's web site.  Advocates and others now have ready access to the Court's schedule through August 2008, including dates for oral argument, conference, orders, and holidays.

Thanks to Elana Einhorn for the tip.

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I haven't intended to jump on any tort reform bandwagon this week, but I saw another article of interest to litigators on both sides of the docket.  (Hat tip to Trial Ad Notes.)  In Texas Plaintiffs Practice in the Age of Tort Reform:  Survival of the Fittest—It's Even More True Now, the authors overview the politics of tort reform, address the business of representing plaintiffs, and discuss key changes in plaintiffs' practice in recent years.  The article, part of a symposium on plaintiffs' practice published by the New York Law School Law Review, concludes that tort reform has forced difficult economic choices on Texas plaintiffs' lawyers and threatens access to legal remedies for some clients with legitimate claims.

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In this post, the Permutter and Schuelke Blog reports on a new article in the Baylor Law Review following a two-year survey of Texas district judges' views on the "litigation crisis."  Of the 78 percent of all Texas district judges responding, more than 80 percent do not think further tort reform is necessary.  Interestingly, more respondents thought that juries had awarded damages that were too low rather than too high.

UPDATE:  Click on the "comments" link for electronic access to the article, courtesy of Brooks Schuelke and the Baylor Law Review.

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Directorship magazine has put out a defense-oriented guide ranking the states by current and future liability risks in light of political, legislative, and judicial dynamics.  According to the guide (which has backing from the American Justice Partnership), Texas ranks 18th, but is likely to move up if "fairness and predictability return to the Judicial Hellholes in the Rio Grande Valley and the Gulf Coast."

Hat tip to PointofLaw.com.

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The Austin American-Statesman is reporting the death of former Texas Supreme Court Chief Justice John Hill, the only Texan to have served in that capacity, as attorney general, and as secretary of state.  Chief Justice Hill was a giant in Texas jurisprudence and continued working on causes he believed in—most recently, judicial election reform—to the end.

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The following comes from Jerry Bullard of Adams, Lynch & Loftin, P.C. in Bedford, who co-chairs the State Bar Appellate Section's Bench-Bar Liaison Committee:

Dear Friends and Colleagues:

As many of you know, the final days of a legislative session are often characterized by political posturing and gamesmanship that ultimately lead to the demise of key pieces of legislation.  We saw it in 2005 when a parliamentary maneuver killed the judicial pay raise bill in the waning hours of the regular session (of course, the bill ultimately passed in a subsequent special session).  Well, this session appears to be no exception as a House member raised a point of order that effectively killed SB 1204.  Also, critical deadlines passed this week without the House or Senate acting on many of the other bills that I have been tracking, thereby virtually ending any chance of passage this session.  The following is a status of [certain] bills that have appeared on my updates this session:

SB 1204 - Court Reorganization/Complex Courts

• Bill Analysis:  Senate Research Center
• Status:  On May 21, 2007, a point of order was raised on the House floor and was sustained.
• Summary:  Rep. Senfronia Thompson (D- Houston), a solo practitioner, stopped the House's debate of CSSB 1204 with a point of order.  Thompson complained that the analysis of S.B. 1204 did not conform to the changes that the House Judiciary Committee had made in the bill.

SB 1167 - Appeals Under Federal Arbitration Act

• Bill Analysis:  Senate Research Center
• Status:  On May 21, 2007, SB 1167 was placed on the Houses General State Calendar.
• Summary:  SB 1167 appears to have died as the House deadline to consider Senate bills has passed.  SB 1167 would have authorized an interlocutory appeal of a court order denying a motion to compel arbitration under the Federal Arbitration Act (FAA).  The law currently requires a party to file a petition for writ of mandamus to seek review of orders denying motions to compel under the FAA while similar orders under the Texas General Arbitration Act are subject to interlocutory appeal.  This bill attempted to eliminate confusion relating to the appeal of such orders.

HB 3095 - Disposition of Appeals

• Status:  Pending in the House Judiciary Committee as of May 7, 2007.
• Summary:  HB 3095 has died in committee.  The bill's author, Rep. Corbin Van Arsdale (R-Houston), told the House Judiciary Committee that HB 3095 was filed because certain appellate courts were dragging their feet on certain rulings, and he wanted to start a conversation about speeding up the disposition of appeals.  Van Arsdale expressed a desire to see the issue studied between sessions.

HJR 89 - Board Certification for Appellate Justices and District Judges/Increases in Age and Experience Requirements for District Judges

• Status:  Pending in the House Judiciary Committee as of April 16, 2007.
• Summary:  HJR 89 has died in committee.  It is my understanding that the bill was filed in order to increase the qualifications of Texas judges.  Supporters of the bill believed it would be easier to pass than a merit selection bill.

SB 806 - Judicial Appointment/Retention& SJR 32 - Constitutional Amendment for Judicial Appointment/Retention

• Status:  Referred to the Senate Jurisprudence Committee on March 7, 2007.
• Summary:  SB 806 and SJR 32, which were authored by Sen. Duncan, never got off the ground and died in committee without a hearing.  This legislation related to the appointment of certain judicial offices and a nonpartisan election for the retention or rejection of a person appointed to those offices.

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Per the Austin Bar Association's E-Bulletin, the ABA Civil Litigation Section will host a debate on SB 1204 at noon on Tuesday, April 10, between Lee Parsley (representing Texans for Lawsuit Reform, whose position paper is available here) and Jay Harvey (President of the Texas Trial Lawyers Association, whose position paper is available here).  This one should be interesting.

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In follow-up to this post, the Senate State Affairs Committee has scheduled another hearing on SB 1204 for April 2 at 9:00 a.m.  In addition, the witness list from this past Monday's hearing and the Legislative Budget Board's fiscal note are available.

UPDATE:  Per a revised notice, SB 1204 has been removed from Monday's Senate State Affairs Committee agenda.

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As reported by Howard Bashman at How Appealing:

President Bush has nominated Jennifer Walker Elrod to serve on the U.S. Court of Appeals for the Fifth Circuit:  Currently, Elrod serves as a state district judge in Houston.  She has been nominated to fill the vacancy created when Circuit Judge Patrick E. Higginbotham took senior status.  A brief biography of Elrod can be accessed here (scroll down).

Update: The official notice from the White House is now available at this link.

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I wasn't able to attend yesterday'shearing on SB 1204, but the debate was apparently lively.  According to this morning's report in the Austin American-Statesman, legislators, trial lawyers, and judges bristled at the bill's scope during more than four hours of testimony before the Senate State Affairs Committee.  Much of the criticism focused on the proposal to adopt special rules and procedures for "complex cases," which some fear would disenfranchise local judges implicitly deemed incapable of adjudicating such matters.

The Texas Trial Lawyers Association and the Texas Association of Defense Counsel don't agree on much, but both organizations oppose SB 1204. The bill seems to be losing momentum.

UPDATE:  Video of this hearing is now available through the Senate RealMedia site.  It is split into Part I andPart II(RealPlayer required).

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The Senate State Affairs Committee will hear SB 1204, the court reorganization bill previously discussed here and here, on Monday, March 26, at 9:00 a.m.  The proceedings will be webcast on the Senate's web site through this link.  The bill analysis was filed today and is available here.

Senator Kirk Watson e-mailed members of the Austin Bar Association today encouraging them to participate in the debate on this bill and welcoming them to contact him or his staff with feedback.  According to Senator Watson's message, those attending the hearing maybe allowed to testify orally or in writing.

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The Austin American-Statesman reports that the sponsors have pulled the House and Senate bills that would have allowed Justice Nathan Hecht to seek compensation for $340,000 in attorney's fees he incurred defending against state ethics charges.  Apparently, the sponsors were no longer willing to support the cause once they learned that Justice Hecht had raised enough money to pay the bill through private contributions.

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Before last Friday's deadline, Representative Dan Gattis filed House Joint Resolution 89, which addresses qualifications of Texas appellate justices (and district judges).  In addition to age and practice experience requirements, HJR 89 would require board certification in at least one practice area recognized by the State Bar.  Justices sitting on November 6, 2007 (the proposed date for submitting the measure to voters for the necessary constitutional amendment) would be grandfathered in.  The measure is currently pending before the House Judiciary Committee.

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While trolling through the Texas Legislature's web site over the weekend, Jerry Bullard, Co-Chair of the State Bar Appellate Section's Bench-Bar Liaison Committee, discovered an interesting bill that he (and I) originally overlooked.  With Jerry's permission, I am posting excerpts from a message he sent his colleagues about the bill, House Bill 3095.

HB 3095, authored by Rep. Corbin Van Arsdale (R-Houston), relates to the periods for disposing of certain actions and petitions by appellate courts in this state.  As its caption suggests, the bill seeks to establish deadlines for the appellate courts to dispose of all cases.  Specifically, HB 3095 would . . . [r]equire the Supreme Court . . . to rule on a regular cause not later than the first anniversary of the date the court agreed to grant review of the cause and grant or deny a petition not later than the expiration of the six-month period after the date the petition was filed.

For Supreme Court proceedings, a regular cause is defined as:  1) a case in which four (4) or more justices decide that a petition should be reviewed; 2) a direct appeal that the Court has agreed to review; or, 3) a certified question that the Court has agreed to review.

A petition means:  1) a petition for review; 2) a petition for writ of mandamus; or, 3) a petition for writ of habeas corpus, prohibition, or injunction.

[HB 3095 would also] [r]equire the intermediate appellate courts to rule or otherwise dispose of an appellate case not later than the expiration of the 18-month period after the date the case was filed with the court.  The term appellate case appears to encompass all cases filed in the courts of appeals.

[Jerry's] initial reaction to HB 3095 is to question whether the deadlines are realistic given the caseload and IOPs in some of the larger intermediate courts, the Supreme Court and the CCA, and whether the bill has the backing to pass.  [Jerry] suspect[s] we'll learn the answer to both questions as the process moves forward.

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More than once, I heard the 78th Legislature's now-infamous House Bill 4 described as "the Full Employment Act for appellate lawyers."  Considering how inaccurate that forecast was, I am approaching Senate Bill 1204, the latest proposed overhaul to the civil justice system (originally mentioned here), with some trepidation.

SB 1204 focuses largely on reforming our state's judicial structure and practice at the trial-court level, primarily by converting Texas's statutory county courts into more than 40 new district courts.  This change would take effect on January 1, 2011, with most of these offices standing for election in 2010.  Another major change would be the creation of a "complex case" judicial panel that would operate much like the multidistrict litigation panels created in 2003.

From an appellate lawyer's perspective, other provisions are potentially significant.  For example, the bill would allow mandamus to the supreme court to challenge a complex case panel's determination that a matter is not in fact "complex."  The bill would also authorize permissive appeals from certain interlocutory orders in complex and multidistrict cases.

Of broader interest, the bill would significantly alter Texas Government Code § 22.001, the statute defining the supreme court's jurisdiction, by deleting all references to specific types of cases (i.e., "dissent" or "conflict" jurisdiction) and recognizing what is now subpart (6) (jurisprudential importance) as defining the supreme court's jurisdictional reach.  This amendment would settle the debate about whether the supreme court must accept certain types of cases by providing true discretionary jurisdiction subject to one exception:  the supreme court "shall grant a petition for review in a case in which a court of appeals has declared void a statute of the state."

Another noteworthy feature of SB 1204 is that it would expressly grant "the supreme court [power to] act on a petition for review when the court deems it expedient."  This provision's purpose is not apparent.  Except for motions for rehearing of causes, the supreme court already works on its own timetable.

We will be hearing and reading a lot about SB 1204 over the next couple of months.  Some of the folks who participated in drafting this bill think it stands a fairly good chance of passage.  From what I understand, an initial hearing on the bill has been set for March19, 2006.  No doubt, this is the beginning of an interesting debate.

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This morning's Austin American-Statesman reports that "the Legislature is considering two bills [House Bill 2725 and Senate Bill 1301] that would erase a $340,000 legal debt owed by Texas Supreme Court Justice Nathan Hecht" because "he challenged an ethics rebuke that stemmed from his support of friend Harriet Miers' 2005 nomination to the U.S. Supreme Court."

In fairness, the bills would allow all judges who successfully challenge ethics charges from the State Commission on Judicial Conduct to recover legal fees from the State.  However, the legislation would apply to successful challenges launched since January 2006, including Justice Hecht's.

Update:  The Fort Worth Star-Telegram has some very interesting coverage here.

Another Update:  Through the Associated Press, Law.com has picked up the story here.

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Senator Robert Duncan has filed Senate Bill 1204, which would effect massive changes in the Texas judicial system.  The bill is quite lengthy and warrants close study.  Texans for Lawsuit Reform has issued a press release touting the bill.  Representative Dan Gattis has filed an identical companion bill, House Bill 2906.

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According to this week's State Bar Friday Update, Representative Myra Crownover has filed two companion bills (House Bill 1908 and House Joint Resolution 78) to the Senate judicial selection legislation mentioned here.  Both have been referred to the House Judiciary Committee, but have not been set for hearing.

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The State Bar's Friday Update reports that Senator Robert Duncan has filed two judicial selection bills.  The first, Senate Bill 806, allows for appointment of certain judicial offices and nonpartisan retention elections.  The second, Senate Joint Resolution 32, proposes a related constitutional amendment.

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Chief Justice Jefferson's State of the Judiciary address has been posted at the Texas Supreme Court's web site.

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I can't wait to see what Texas Lawyer has to say about Chief Justice Jefferson's State of the Judiciary address.  I'm sure there will be some interesting quotes about how the Chief has gone over to the dark side or has seen the light, depending on where the interviewee stands on what now passes for tort reform.

I am skeptical of any cause advanced by Texans for Lawsuit Reform, the same happy people who brought you House Bill 4 two sessions ago.  The face of civil litigation has changed tremendously since then.  Most litigators I know would say that the change has not been for the better.

As I read Chief Justice Jefferson's comments, however, they make a lot of sense.  Our multi-level, overlapping court system is confusing, even to practicing lawyers.  If the legislature can streamline the system and make it more efficient, should we fear that result, just become TLR advocates it?

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The online version of The Austin American-Statesman has this report on Chief Justice Jefferson's State of the Judiciary address to the Texas Legislature today.  According to the article, the Chief called upon lawmakers to review the state's judicial structure and "the growing use of private dispute resolution to settle legal disputes outside the public courts."  In keeping with his platform from last session, the Chief also urged the legislature to establish a commission to review judicial salaries.  The article suggests a connection between the Chief's agenda and changes "being pushed by Texans for Lawsuit Reform, a lobby group with considerable political clout, through Jefferson said his were unrelated."

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With the legislature in session here in Austin, the buzz has begun.  A number of potential bills, if filed and passed, would affect appellate practitioners dramatically.  Here is a summary of what could be on the agenda for this session:

• an amendment to the general interlocutory appeal statute authorizing appellate review of all controlling questions of law at the will of any party;
• an amendment to the Texas Arbitration Act providing for a meaningful appeal on questions of law or fact in arbitration proceedings;
• an omnibus court reorganization statute that would combine the Texas Supreme Court and the Court of Criminal Appeals or reduce the number of justices from 9 to 7 on each court;
• appellate redistricting (which could include the demise of the Corpus Christi, El Paso, and Texarkana appellate courts) and elimination of overlapping appellate districts; and
• providing the Texas Supreme Court with discretionary jurisdiction in appeals of all final judgments and appealable interlocutory orders.

Texans for Lawsuit Reform is aggressively pursuing many of these measures.

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Today's State Bar Friday Update reports that the chief justices of all Texas appellate courts presented their budgets to the Senate Finance Committee yesterday.

The report also mentions that Chief Justice Jefferson will give the State of the Judiciary address at 11:00 a.m. on February 20, 2007.  This event will take place in the House Chamber and is open to the public.  A live audio link is available here.

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