I’m often asked about responding to a petition for review filed in the Texas Supreme Court. My first advice to trial lawyers facing this situation is not to spend time working on a substantive response unless the Court has requested one.
The Supreme Court uses a “conveyor belt” system for its incoming cases. Once a petition for review is filed, it is placed on the figurative conveyor belt and will ultimately be denied unless a justice pulls it off the belt. A case is pulled off the conveyor belt when at least one justice votes to request a response.
In most cases, though, no action is required on the respondent’s part. Absent notice that a response has been requested, respondent’s counsel need only wait for the conveyor belt to do its job and for the petition to be denied.
That process can take a few months. To speed things up, I generally advise filing a waiver of response.
Waiver of Response
The waiver is a non-substantive document, often submitted as a letter, letting the Supreme Court know that no response to the petition for review will be filed unless the Court requests one. I’ll provide sample language to use in a waiver letter at the end of this post.
Here’s the advantage to filing a waiver: In any case, under the appellate rules, a response can be filed within 30 days after the petition. (The Court will set a different date when requesting a response.) Under the conveyor-belt system, a petition is not forwarded to the justices until after the 30 days is up. When a response waiver is filed, the petition is forwarded immediately, which will likely result in the petition being read, considered, and (hopefully) denied several weeks earlier than it would be otherwise.
I can’t think of a situation in which filing a response without a request from the Court can lead to any good. On the whole, respondents are better off playing the odds that the petition will be denied without a response. And filing a waiver letter when the petition comes in can help speed the process.
Sample Language for a Waiver Letter
Respondent does not intend to file a response to the petition for review unless the Court so requests. See Tex. R. App. P. 53.3.
Respondent therefore asks that the petition be forwarded to the Justices promptly according to the Court’s internal operating procedures.
The appellate rules don’t provide for a waiver of response in mandamus or other original proceedings, but I have followed the same practice in that context with success.