As lawyers, we love rules (and by “love” I mean memorize, apply, hopefully comply, argue, and at times strive to change them). We don’t, however, amend rules until they somehow fail or become obsolete. Granted, failure/obsolescence can be in the beholder’s eye and must present itself before we strive to change the rule.

In light of the Texas Supreme Court’s streamlined jurisdiction, the following question naturally arises (likely only for dedicated appellate professionals): will the Court continue to utilize Texas Rule of Appellate Procedure 56.1 similarly or will it have to revamp the rule? Perhaps because in some ways the Court’s new jurisdiction doesn’t appear to change the status quo, its new jurisdiction doesn’t seem to be generating much attention. So, it’s not surprising that rules promulgated under the old jurisdictional bases are not yet receiving noticeable attention. This includes Rule 56.1 titled, “Orders on Petition for Review.” Although not heavily cited in case law, the Texas Supreme Court employs the rule every time that it considers a petition for review. Consequently, it’s worth considering whether the jurisdictional change will affect the way the Court utilizes the rule or whether it chooses to amend the rule. Any meaningful discussion regarding Rule 56.1 (or any rule) must begin with the rule itself.

(Almost) Everything You Wanted to Know About Rule 56.1, But Were Afraid to Ask

Rule 56.1 contains four subsections that guide the Texas Supreme Court when it considers petitions for review. Rule 56.1(a) states that the Court has judicial discretion to grant review and lists the following six factors to consider when exercising its discretion: “(1) whether the justices of the court of appeals disagree on an important point of law; (2) whether there is a conflict between the courts of appeals on an important point of law; (3) whether a case involves the construction or validity of a statute; (4) whether a case involves constitutional issues; (5) whether the court of appeals appears to have committed an error of law of such importance to the state’s jurisprudence that it should be corrected; and (6) whether the court of appeals has decided an important question of state law that should be, but has not been, resolved by the Supreme Court.” Rule 56.1(b) empowers the Court to deny or dismiss a petition on file for thirty days—regardless if there was a response—with either the following two notations: (1) “Denied”; or (2) “Dismissed w.o.j.” (shorthand for “Dismissed for Want of Jurisdiction”). Rule 56.1(c) allows the Court to refuse a petition after a response is filed or requested, using the notation “Refused.” This notation serves as a proverbial rubber stamp and indicates that the court of appeals’ opinion supplies equivalent precedential value as a Texas Supreme Court opinion. Lastly, Rule 56.1(d) permits the Court to, without opinion, set aside its previous order granting review and dismiss, deny, or refuse review as if review were never granted.

New(ish) Jurisdiction and the Effects on Rules 56.1(a) & (c)

The jurisdictional change should not have a noticeable effect on Rules 56.1(a) & (c) or how the Court employs these subsections. There is some overlap between the new jurisdictional standard and Rule 56.1(a)’s importance-to-the-state’s jurisprudence language that might suggest that the Court should grant every petition over which it has jurisdiction. Jurisdiction and grant decisions, however, are separate inquiries. And at the end of day, the Rule 56.1(a)’s considerations serve as a nonexclusive guide, not mandatory bases for granting review. Further, there was similar overlap between Rule 56.1(a) and the previous jurisdictional standard. There should be no change to Rule 56.1(a) as the Court can, like before, possess jurisdiction and not grant review. If the opposite were true, the Court would largely lose its discretionary powers, and appeals would overwhelm the Court. This didn’t happen before and it will not now. As for Rule 56.1(c), the modern Court rarely refuses petitions. Even if this were not the case, the jurisdictional change does not appear to affect the rule or its use in any discernible way.

Still a Do-Over in Rule 56.1(d)?

The jurisdictional change should have no effect on Rule 56.1(d)’s use or utility. Labeled “Improvident Grant,” Rule 56.1(d) has long provided the Court with a do-over when it comes to reviewing petitions. Seduced by its eye-catching exterior, a buyer may feel remorse after thoroughly inspecting a newly procured classic car and finding that the engine won’t run properly or that hidden rust permeates. The Court is no different. Good lawyering and excellent briefing can sometimes obscure a case’s infirmities, which leads the Court to wonder—on later inspection—why it granted the petition. Rule 56.1(d) does not seem to have any language that affects or will be affected by the jurisdictional change. And, its utility as a do-over (or an antidote to buyers’ remorse) persists.

Do More Options Under Rule 56.1(b) Lead to Substantial Changes?

The jurisdictional change appears to provide the Texas Supreme Court with more options under Rule 56.1(b), but it might not amount to any real change in practice. Under the revised jurisdiction, Rule 56.1(b)(2) may provide the Court with more discretion to dismiss cases. The old jurisdictional standard contained some enumerated bases of jurisdiction like cases in which the railroad commission is a party. The Court could not dismiss a case like that for want of jurisdiction. When operating under the new jurisdictional standard, it appears that the Court is no longer constrained from employing its dismissal power under Rule 56.1(b)(2) when the matter falls under one of those previously enumerated cases. This probably makes little difference, however, as the Court can still simply deny petitions under Rule 56.1(b)(1) without resorting to 56.1(b)(2).

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