Sometimes the earth shifts along the ocean floor creating tsunamis that flood unsuspecting coastal areas. Sometimes the shifts amount to unnoticed ripples silently traveling alongside flowing waves. Like the quaking seabed, will the recent changes to the Texas Supreme Court’s jurisdiction lead to any amendments to the rules of appellate procedure? In Part II of this series, I predicted the jurisdictional change would force petitioners to cede valuable real estate in their argument sections to prove jurisdiction. I based this prognostication on Texas Rule of Appellate Procedure 53.2(e)’s prohibition on argument in a petition-for-review’s statement of jurisdiction.
At this point, you may be asking yourself what is Rule 53.2 or 53.2(e) and why might it need amending? Rule 53.2 concerns petitions for review (the initial filing to appeal reviewable orders or judgments). It prescribes certain headings and establishes rules regarding their respective content. In particular, Rule 53.2(e) requires a heading labeled, “Statement of jurisdiction.” It further mandates that “[t]he petition must state, without argument, the basis of the Court’s jurisdiction.”
New(ish) Jurisdiction and Possibly Amending Rule 53.2
So, does the rule require amending? Before the jurisdictional change, practitioners typically (utilizing the kitchen-sink or the more-the-merrier approach) identified multiple bases of jurisdiction in this section. The new, solitary importance-to-the-state’s jurisprudence standard, however, has eliminated this need. In fact, it may be enough to now simply state that the legal issues are important to the state’s jurisprudence. There are, as I will detail more below, reasons why petitioners might still need to present argument in their statements of jurisdiction. In turn, the need may necessitate at least removing Rule 53.2(e)’s “without argument” language.
That being said, the jurisdictional change could have a de minimis (lawyers love Latin phrases) effect on Rule 53.2 or it may lead to more sweeping changes in the rules. For example, Rule 53.2(e)’s jurisdictional statement might, like the dinosaurs, go extinct. Some speculate that the Texas Supreme Court will amend the rules to eliminate the statement of jurisdiction. They contend there’s no need to identify what amounts to the only remaining basis for jurisdiction. Further, because the Court’s reasons for granting review in Rule 56.1(a) all seem to involve issues that would be important to the state’s jurisprudence, it’s conceivable that the Court’s decisions on jurisdiction and granting discretionary review will be intertwined. Therefore, petitioners would naturally advocate jurisdiction concurrently when trying to convince the Court to grant their petitions. The more apt comparison may then be to answering machines, which voicemail has made obsolete.
The jurisdictional statement’s obsolescence and demise, however, might be premature. Rule 53.2(e) currently mandates that petitioners state their bases for jurisdiction in their statements of jurisdiction. The statement of jurisdiction, therefore, seems to be a suitable and useful spot for arguing jurisdiction. While the importance-to-the-state’s-jurisprudence standard will not vary, the reasons supporting that jurisdiction can be myriad and unique to each case. Moreover, because conclusory statements are generally not a substitute for legal analysis, petitioners would likely need to explain why their issues meet the standard. Allowing them to do so in the statement of jurisdiction could conserve space for practitioners to adequately argue the legal issues in their argument sections. Petition space is valuable, and conserving it should be important.
Would the Respondent Suffer?
Unfortunately, this change would require amending the rule in a way that might prejudice the respondent (the party opposing the petition for review). The Court could remove the “without argument” language from Rule 53.2(e), allowing petitioners to advocate for jurisdiction. In doing so, it might also have to establish a separate word limit to prevent parties from presenting voluminous jurisdictional arguments. Such a change, however, would force respondents to expend more of their own limited word count in addressing the separate jurisdictional arguments.
Riding the Wave to a New Petition-for-Review Process?
New jurisdiction may also spur more wholesale changes in the petition-for-review process. Over the years, there’s been some discussion regarding altering the process to align it more closely with the United States Supreme Court’s certiorari process. The new jurisdictional change may provide a renewed impetus to restructure how practitioners seek Texas Supreme Court review. Think of this as wind in the sails of process change.
Or, this blog post might functionally amount to much ado about nothing. The Court could decide that petitioners can satisfy Rule 52.3(e) by merely stating that the legal issues are important to the state’s jurisprudence. While this exercise would have little utility outside of satisfying the rule as currently written, it would save the Court from amending the rule or altering the process.
Image courtesy of Flickr by Kevin Dooley.