TALP 2 | Reviews And Decisions Process

 

For lawyers with cases before the Texas Supreme Court, effective advocacy requires an intrinsic understanding of the petition-for-review and decision process. Todd Smith and Jody Sanders sit down for a conversation with Justice Jeff Boyd, who has served on the Court since 2012. Justice Boyd discusses his background, life at the Texas Supreme Court, and advocacy tips for appellate lawyers appearing before the Court.

Listen to the podcast here:

SCOTX Petitions for Review and Decision Process | Justice Jeff Boyd

We’re here with Justice Jeff Boyd from the Supreme Court of Texas. Welcome Judge.

Thank you. It’s good to be here.

We’re glad to have you here. This is a brand-new show about Texas appellate law, and we thought it would be great for our readers to learn from some of their Supreme Court justices, and you graciously accepted our invitation to join us. It would be helpful just to set the stage and tell the readers a little about yourself. Most of them will know you, I hope, but one thing I thought might be interesting is to remind people how you got on the Court and what your experience was before you joined the Court.

I’ve been on the Court since December 2012. At that time, I was serving as a Chief of Staff to Governor Perry. Before that, I had spent eight years at Thompson & Knight in the Austin office and then left and spent three years as head of civil litigation for John Cornyn when he was attorney general. I went back to Thompson & Knight and was there for another eight years, then left in 2011 to become general counsel to then-Governor Perry at the Governor’s Office. About 8 or 9 months later, I became his chief of staff. I was serving as his chief of staff for 15 to 16 months when he appointed me to the Court in December 2012.

We hope that most of our readers are familiar with the Texas Supreme Court, but Texas does have a unique court system where the Supreme Court isn’t supreme for everything. Can you tell us about the Supreme Court’s role in the Texas judiciary? 

For one thing, I always host these tour groups that come in and a lot of them are 4th grade and 7th grade, when they’re studying Texas history. I always tell them to imagine an old historic courthouse down in New Braunfels or Williamson County. The picture is a three-story building and all of your trial courts are on the first floor. And if you don’t like what happens there, you can go to the second floor and that’s where you find your courts of appeals. And then, if you don’t like what happens there, you can go up to the third floor.

We’re unique in Texas because when you get off the elevator on the third floor, there are two courts up there. So there are two highest courts in Texas. One is our court and the other is the Court of Criminal Appeals, so that if it’s a criminal case, even though you will be in the same district court in some counties and you’ll be in the same court of appeals, when you get to the third floor, you go to one court or another. If it’s criminal, you go across the hall. Everything else comes here. That’s one limitation. Texas and Oklahoma are the only states that have twin high courts. That’s the biggest limitation on what we do. Also, we’ve got jurisdictional limitations in terms of the kinds of cases that we are allowed to hear, Although the boundaries are gray on that. If it’s important to the jurisprudence, we have jurisdiction to hear it, and we get to decide what’s important to the jurisprudence.

I remember that was a fairly recent change. There used to be a list of about 5 or 6 things that the Supreme Court had jurisdiction of and then they were all consolidated into what was already there. The importance to the jurisprudence of the state. 

Right. You had all these other optional hoops you had to jump through. You had all this block copying going on and these opinions, where from one to the next would be, “Are we going to go under door A, door B or door C?” We’re going to go under door C. Find the last opinion we wrote that said, “We’re going under door C” and block copy that because those didn’t necessarily impose much more of a limit than the general importance to the jurisprudence. Practically speaking, the Court could almost hear any case. There were some limitations, for example, some interlocutory appeals and others where you had to show a conflict between two or more courts of appeals. And you couldn’t make it up. You had to have a conflict, but defining conflict became creative I think for the Court on some occasions.

Your point raises a question for me, having handled a number of matters in your Court and seeing how some people, in their petitions for review, you’ve got to have the jurisdictional statement in there. I still see from time to time people arguing about whether a case is important to the jurisprudence of the state and making more or less a legal argument in that section of the brief. How does the Court view that? 

TALP 2 | Reviews And Decisions Process

Review and Decision Process: It’s not unusual to see a three-page or more statement of jurisdiction trying to argue why a case is important, and that’s not often effective.

 

Honestly, if we’re talking about a brief, the petition is one thing, a brief is another only because I am almost certainly not to read it in your brief. By the time we’re getting briefs, I’m not concerned. I want to hear your argument. Don’t put your argument in the jurisdictional statement and not in the argument part because it may get overlooked. In the petition maybe, I’ll definitely read the petition, but it’s not unusual to see a three-page or more statement of jurisdiction trying to argue why this is important. To me, it’s not effective. I’m not going to read all that. It may be that this is important because the court of Appeals’ opinion undermines the clear law of the state that the Court has finally developed to the point it is, and now it undermines it. Maybe it’s important because it creates a conflict, or maybe it’s important because it’s a brand-new statute and we need to hear the Court’s view on it or whatever. You can say that in a paragraph and I would definitely encourage advocates to say it in a paragraph.

As you’ve mentioned, there are two different steps to get to the Supreme Court. You have the initial petition for review, which is the one that tells the Court why they should take the case, and then there’s the brief on the merits that tells the Court here’s why the court of appeals got it wrong or why they got it right, depending on which side you’re on. It sounds like maybe there are different things you look for in each one or different parts that you focus on. What do you do when you’re looking at a petition or a brief on the merits? What’s your process?

You guys know this. Maybe not everybody does, but certainly, everybody that knows how this Court operates knows.  The petition, all you’re trying to do is get us interested in the case. I fact, lots of people think the real purpose of the petition is to convince us to grant the petition and hear the case. Honestly, the purpose of the petition as we currently do things, I think, should be to convince us to want to study the case. The first step is after we get the petition, before we grant, we’re going to ask for full briefs on the merits if we think it’s worth studying the case. When those briefs come in, one of the law clerks will prepare a full-fledged study memo circulated to all nine members of the Court, not just for their judge but for the whole Court. That study memo is going to flesh out what’s argued in the briefs. The petition, you want to get us to that point because then you get to file your brief, and then we’ll make the decision whether to grant it or not. With the petition, you want to focus on, it takes three votes in most cases to get us to ask for full briefing and do a study memo. You just want to get our attention enough to get three people to say, “We should look at this more.”

That’s a function of the word count limitation in petitions. I find that’s all I have time to do in a petition is try to get the Supreme Court interested. You mentioned three votes to request briefs on the merits, but I know in talking and preparing a little for this episode, I believe there have been some instances in which the Court has skipped past asking for a response.

So we asked for full briefs, even though we did not ask for a response?

That actually happened. We had several parties had filed petitions on a number of things and the Court sent us an order and said, “Instead of responses, we just want to go straight to briefs. Set up an agreed briefing schedule and send it to us, and we’ll enter the order.” Is that something that may be happening more commonly? It’s the first time that had ever happened to me.

I don’t remember that case. I’m sitting here and if I knew which one it was, I could look it up and would know and could tell you why we did that. It seems to me if you’re the respondent, you’d sure like a chance to come back and say, “You shouldn’t even make us do full briefs.” I was a practitioner before. I argued numerous cases in this Court, and what always made the client the angriest was having to pay a lawyer to write a full brief and then it gets denied anyway. Even if you’re the respondent, to write a full brief only to have it denied.

On the other hand, if we’re interested in it and we know we’re interested in it, we’re going to look at that. I don’t know what your case was, but there are some that are obviously study cases. We’re going to do a study memo in this case. Why make your client pay you to do a response if we’re still going to study the case no matter how you respond. Maybe that was our thinking. I don’t remember that ever happening, but I don’t dispute that it may have. But would be unusual. We certainly wouldn’t grant a case without hearing from you. The fundamental rule is we’re not going to grant a petition and agree to hear a case without giving you a chance to respond. I guess the thinking on that would have been by asking for a full brief, you’ve responded.

It’s interesting because practitioners who are here often know that when we ask for a full briefing—Todd, you said the difference between a petition and a full brief is in the petition, you want to convince us why to take the case, whereas in a full brief, the purpose is to convince us the court of appeals was wrong if you’re the petitioner. But in a sense, and a lot of the advocates get this, we’re still trying to decide whether to take the case when you send your brief. So a lot of briefs will start off by saying, “You need to grant this case because of all of these reasons.” They’re still arguing that, and a lot of response briefs will respond and say, “You need to deny this case for this reason.” They don’t take for granted that we’ve already decided to grant. We get a lot of cases where we get a full briefing andstudy memos and still deny the case.

The Texas Supreme Court gets to decide what's important to the jurisprudence. Click To Tweet

I think an advocate who knows what they’re doing in this Court, that advice I believe has put forward in the Advanced Appellate Seminar and the UT Appellate Seminar. It’s not a gimme at that point. Your odds increase as the petitioner of getting your petition granted, but they only go up to about 1 and 3 or 30%. I was always under the impression that, you might want to argue the court of appeals got it wrong, but you’re still arguing about why it’s important and that the Court should grant it because it’s not a laydown at that point.

I always tell people that there are two factors we’re looking at primarily. Did the court of appeals appear to get it wrong? Because if it looks like they got it right, we’re much less likely to take the case. Occasionally, we’ll take one thinking we’re going to affirm this, but we need to resolve a conflict between two courts of appeals, and this is the best case to do that in. But usually, you’ve got to show us the court of Appeals was wrong. The second factor is you’ve got to show us why this is important beyond the parties to this case. I would say, of the nine of us, our scales tip slightly differently on that. There are some that if it looks like there was court of appeals error, then they’re going to want to study the case at least and maybe take it. The main reason is that we have the per curiam process that allows us to fix errors.

We’re not an error correction court. You’ve still got to show us it’s important, but if there’s clear error and it’s truly unjust, even if it’s only important to these parties, there are some on the Court who are going to say, “Let’s do a per curiam and fix this.” Others are going to say, “No, it’s not important, and that’s not the kind of court we are.” You’re going to have that balance. As a practitioner, you’ve got to speak to both sides of that. You’ve got to get the ones that want to see error, and you’ve got to get the ones that want to see importance.

On that topic, you’d mentioned you’ve got to have three votes to get briefs on the merits and issue a study memo. What are the other vote levels that you have to have to take the case to issue a per curiam?

You’re going to challenge me now. Four to grant, unless it’s a mandamus, then five for mandamus, and six for a per curiam? I’ve got to go back and look. Here’s what’s funny about that. I’ve been on the Court eight years, but you sit there in conference and you take the votes, and it takes three for a study memo, four to grant, and is it five for a mandamus?

I guess that begs the question of whether mandamus procedure differs from a petition procedure. You’d have to have five to have your majority. Is it still four to hear it? Because my experience with mandamus is a little different. To me, the courts of appeals treat those completely differently than the Supreme Court does.

The beauty of being on this Court and sitting around, whether it’s in chambers or in the conference, is there are appellate experts all around you all the time. So when you’re sitting there at the conference table and you’re like, “How many more votes do we need for that?” All you’ve got to do is ask and there will be seven people who know the answer off-hand.

I may be showing my own ignorance, but I believe that it’s seven votes for a PC. For some reason, it is stuck in my brain that to issue a per curiam opinion, it requires seven votes.

I think you are right. People know this but rarely think of it this way. I think you’re right because what’s unique about a per curiam is that it’s going to come out without the author named by the Court, and there will be no dissenting or concurring opinion. So you think it’s unanimous, but it may not be. In fact, we may have internally registered a dissent in the conference and said, “I’m not with it. I vote no.” You can have as many as two people. It could be a 7 to 2 decision per curiam, but there’s no public record of the fact that the vote was 7 to 2. You’ve got to pick and choose which one of those, because if you’re one of the two and you choose, “No, I’m going to have to write and dissent on this,” it’s no longer a per curiam. The author of the per curiam adds his or her name and it becomes an authored opinion even without oral argument.

How often does that happen with the opinion without an oral argument?

TALP 2 | Reviews And Decisions Process

Review and Decision Process: Regarding opinion drafts, there’s value in communicating the analysis in writing besides just a bench memo summarizing the arguments.

 

Rarely. Since I’ve been here, that’s probably happened two or three times in eight years, if that many. Twice probably.

We know those are former per curiam drafts that didn’t get the votes. They got the votes, but someone decided they were going to write separately and that’s what kicked it over to the signed opinion.

That’s right.

One thing we were curious about is how cases get to your chambers particularly. You mentioned reading the petitions for review that come across, and mandamus is probably treated a little differently. I don’t know if you see every mandamus petition that comes in or if those were screened initially by the mandamus attorney, but for the average lawyer who may not know, what is the general process that the Court goes through when petitions come in and how they’re circulated?

For petitions, they’ll all come in through the clerk’s office and the clerk’s office will file them. All the ones that come in, for example, this present week will be batched up as this week’s set of petitions. It’s usually four weeks later is the date on which for that batch our votes will be due. Every Thursday at noon, I have to have my votes in on 20 to 30 petitions, motions for rehearing, or petitions for writ of mandamus. Each week that’s a large part, it could be up to a couple of days a week dealing with that week’s set of petitions and getting your votes in by noon on Thursday. That Thursday, when your votes are due, that batch of petitions are the ones that were filed usually four weeks earlier because, for one thing, you’ve got to give the other side a chance to file a response or waive a response. If everybody votes deny, and this is what we call the conveyor belt system, the next day on Friday, it’s on orders as denied. The conveyor belt is this imaginary picture of all the cases being set on a conveyor belt. It’s the conveyor belt of death or denial because at the end of it, on that Friday, it’s going off unless one of us reaches down and picks it up. If even one of us votes to discuss or study that petition, it will be pulled off the conveyor belt and it won’t be denied that next day. It will be put on the conference agenda.

You get the conference and that’s when you have the discussion to see if you can come up with three or more people willing to study it. If you do, then you get to study memos. At that point, you’ll ask for full briefing. You’re going to be two or three months later because of the briefing schedule, then the study memo will be done by one of the law clerks and then we’ll come back at the conference and discuss it again. It’s usually at that point when we’ll either deny or grant it and agree to hear it. Sometimes we’ll have some further study, but it will be denied or granted at that point. If we have at the end of the day of the conference, we’ve granted nine or more cases, then Nadine, our administrator, literally writes the style of a case on a blue index card. For each of the nine or more, we’ll shuffle those cards and go down to the end of the table to the junior justice and she will pull one blindly out of the stack. That’s the one she’s assigned to write the Court’s opinion in. And then we move to the next junior justice and so on. That’s how we randomly divvy up the writing assignments.

You’re still using old-school cards.

It’s a fun thing. I still have upstairs in my chambers every blue card that I’ve drawn. Sometimes it’s flipped. You drew it, but what I thought was the right answer, five or more disagreed with me. So one of them became the majority writer. I became the dissent writer, but it’s still my blue card. You don’t have to give the blue card away when it flips.

A case gets assigned to you, you take your card back to the chambers. What happens then? 

My chambers is a little unique on this. My second or third year, my clerks came to me and they said, “Judge, we want to write the first draft of a majority signed opinion.” My staff attorney and I were divvying them up to write first drafts. I was a little hesitant about that but I thought, “I’ll let you do it. You get one and about halfway through the year, we’ll pick one and give it to you.” The two rules are one, I want the draft before oral argument instead of a bench memo. Two, you’ve got to have thick skin because draft two is not going to look anything like your draft, and it just doesn’t.

If I write the first draft and give it to my staff attorney, she wants to make a lot of changes and they’re almost always good. It’s the same thing vice versa if I’m the one who looks at her first draft. It’s the same with the law clerks. They agreed to that and so they did it and did a good job. That’s the practice we’ve retained, but it also led to my staff attorney, when she does the first draft on a case, she has it by oral argument. So if I’ve drawn the case, I’m going to come to the bench at oral argument already having a draft. It doesn’t look anything like what the final draft’s going to look like, but there’s value in trying to communicate the analysis in writing besides just a bench memo that summarizes the arguments.

When you sit down, just like writing a brief, trying to communicate to somebody what you’re thinking is, you’re in a much better position to know what questions need to be asked. In my chambers, unless I’m doing it, we get the first draft before oral argument in every case that either one of my law clerks or staff attorney is doing. That’s not true with everybody, and I don’t usually circulate that first draft to the rest of the judges. I use it for oral argument. And then I’ll do a short post-argument memo to the rest of the Court saying, “Here’s where I think we’re going.”

After oral arguments, the next week usually, we’ll sit down and conference and whoever that case was assigned to, we’ll say, “Here’s where I think I’m going.” We’ll go around the table and get feedback. You may leave that day knowing that eight people disagree with where you think you’re going, and now you’ve got that fish or cut bait situation. Are you going to stick with what you think is right? Are you going to go their way? You’ve got two months at that point to circulate a draft in a non-expedited case. While you’re doing that final research and writing to come up with the final draft to circulate, you figure out whether you think they’re right or not. Then you’ll circulate your draft before that conference two months after oral argument.

The Supreme Court’s per curiam process allows the Court to fix errors without issuing a signed opinion. Click To Tweet

You mentioned having a draft prepared in advance. Are there any other justices who do the same and circulate those drafts before argument? 

Nobody circulates before oral argument. Typically our oral arguments are all in the same week, Tuesday, Wednesday, and Thursday, three or four cases each day. A week later, on Tuesday, we have a conference. When you finish your oral arguments on Thursday, you’ve got Friday, Saturday, Sunday, Monday, and Tuesday until the conference. The tradition is, if it’s your case, you’ll circulate a memo to the Court before the conference saying, “Here’s what I’m thinking.” We call it a post-sub, a post-submission memo. The Chief circulates a post-sub in every case, whether he drew it or not, which we love. They’re great. It may be one paragraph, but he loves doing it, and we love getting them. If it’s your case, you circulate your post-sub and let them know, “Here’s what I’m thinking.”

Occasionally people will circulate a first draft in lieu of a post-sub. I’ve done that a few times because I do have a first draft, and sometimes the cases are simple enough you can do that, honestly. It’s one discrete issue. It’s either the grass is green or it’s brown. You’ve just got to make that call and move on. Occasionally that happens. I would assume when others do that, they’ve been working on the analysis at least pretty heavily before you get to oral argument, but I don’t know whether any others do drafts before oral argument.

Let’s switch topics a little bit. Supreme Court justices wear different hats. Most of your time is spent with the voting on petitions, opinions, all that kind of stuff, but you do other stuff with regard to the state judiciary. Can you talk about what your roles are and some of the other justices’ roles are? 

We all have what we refer to as liaison roles where we serve as liaisons for various organizations. The chief has been the liaison to the Supreme Court Advisory Committee forever. We also have a deputy liaison to that committee, and I served as that for several years. When Justice Bland joined us last year, she’s been a member of the Supreme Court committee even longer than I had, and I had been since 2001. When she joined the Court, I deferred and gave that up and said, “I don’t want her to have to leave SCAC.” I don’t want them to lose her. I miss it. I enjoyed SCAC for many years, but I gave her seniority for that.

Justice Lehrmann is the liaison to the State Bar. I’m the liaison to the Texas Young Lawyers Association, so I get the fun events. I’ve been the liaison the whole time to the Judicial Committee on Information Technology, JCIT, which is the committee that Justice Rebecca Simmons chairs that has overseen the recommendations for implementing the process of eFiling and electronic access through the Research Texas website. They’ve done a phenomenal job, and it’s been a pleasure to be the liaison to that group and a part of what they’re doing.

I have also been the liaison to the Judicial Task Force on Emergency Preparedness or Readiness in Times of Emergency, which is interesting because when I first joined the court in 2012, I got appointed to do that. It was an inactive group and had been since Olen Underwood had helped lead a process of putting together an emergency plan back after the hurricanes in the first decade of the 2000s. I called them together, and when there’s no emergency that you need to be preparing for an emergency, so let’s see what we can do. They did a good job and put together a new report. It kept getting bumped off our agenda to approve it because there wasn’t any urgency. We were literally having our big conference in August when the hurricane was hitting down on the Gulf in 2013 or 2014. It was on our agenda, and we didn’t bump it that time. Well now here we are. We’ve got the Coronavirus scare, and that can affect, if it turns out to be widespread and you end up with these situations where you’re shutting down businesses and schools. It can affect how courts operate. We’ve got that plan in place and we’re implementing it. That’s been fun to do as well. We’ve all got different assignments like that.

It’s certainly in the news and it’s good to know that there is a plan. A lot of work from home arrangement, I would imagine. The Court is well fixed technologically to be able to be remote.

It works for us, but it doesn’t work as well for the district court that has a bail hearing or a TRO for domestic violence. You’ve got to be in a position for courts to keep operating through whatever the challenge may be, whether the hurricane destroyed the courthouse or you’ve got quarantine. They are implementing that.

As we’re wrapping up, we hope every episode maybe end with an anecdote or a war story. I wondered if maybe you had a good one either from practice or your time on the bench that you’d want to share with the readers.

My favorite experience being on the Court was the first week that I had joined the Court. I was officially sworn in on Monday evening, and we had oral arguments Tuesday morning, Wednesday morning, and Thursday morning. One of those was the infamous “dead dog” case, Strickland v. Medlen, where the family’s pet shelter rescue dog had gotten out during a storm. The dad had gone around hunting for it and finally found it at a shelter late in the day. They needed $45 or whatever to get him out. He didn’t have it with him. He said, “Hang on and you’re all about to close. I’ll come back in the morning.” He goes back with these little boys and shows up the next morning. An employee had put the wrong tag on the cage, and they had euthanized the dog. Terrible case.

TALP 2 | Reviews And Decisions Process

Review and Decision Process: The questions you ask at oral argument may send a message one way or another, and it may not be the message you want to send.

 

The issue was how you value that loss. Because a dog is historically property like this table is. If you steal my table, we figure out the market value. Maybe we have depreciation, appreciation, or whatever. What is a shelter dog worth to those two little boys? I have Bailiff the Shepadoodle in my chambers today. I got him the month after I won election in ‘14. It seemed like a good name at the time, but it’s gotten cornier as the years go by. So, do you get loss of companionship, sentimental value? It was an interesting case. We ended up unanimously saying, “We’re not going to recognize a change in the common law that allows you to do that“ because it’s such a policy choice.

In fact, the animal rights groups filed amicus briefs urging us not to allow those kinds of damages because it would increase the cost of veterinary care. They’d have to get bigger insurance and all of that. During the oral argument, I asked the lawyer for the plaintiff, “If we go your way, where do we draw the line? What about cats, fish, or birds?” The lawyer gave the answer you would expect, which is, “You’ve got to draw a line somewhere, but in the end, the plaintiff has to show that there truly is sentimental value, and juries are smart enough to figure that out.” That’s a good answer.

The next morning, it was such an interesting case, the AP wrote a story that got published and it said, “The Court did not seem inclined to go with the plaintiff’s theory here. In fact, new Justice Jeff Boyd asked, ‘Where do we draw the line? What about cats, birds or fish?’” It was the next day or maybe that afternoon, Blake, our court clerk, comes in and calls me and he says, “I just want you to know, I just got off the phone with a woman from Fort Worth and spent 45 minutes. She’s mad and wants to know why you hate cats.” So I learned my first week, you’ve got to be careful, the questions you ask. They’re going to send a message one way or another, and it may not be the message you want to send.

Justice Boyd, it has been a pleasure to have you. We’re grateful for you taking the time to join us.

Thanks. It’s fun to be with you guys.

Thanks for everything you do.

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