Ch-ch-changes
Amendments to the Texas Rules of Appellate Procedure bring SCOTX closer to SCOTUS
Welcome back to 14th & Colorado!
If you felt a seismic shift in Texas on Friday afternoon, it was the Supreme Court’s administrative order preliminarily approving changes to the Texas Rules of Appellate Procedure dropping on their website. The fact that many of us “knew” (on the outside looking in, it seemed pretty much certain) there would be a change doesn’t make the significant procedural changes any less jarring. With these rule changes, the Court moves a little bit closer to doing things the way the U.S. Supreme Court does.
Perhaps the smaller aftershock, and well-timed given the rules shift towards a SCOTUS-like SCOTX, was Governor Abbott’s appointment of former-Solicitor General Kyle Hawkins to the Supreme Court. Justice Hawkins was a widely respected advocate before both courts. And he is the third member of the Supreme Court to have clerked for the U.S. Supreme Court (Justice Alito). As most of you know, his colleagues Justice Busby and Justice Young clerked for Justices Stevens and White and Justice Scalia, respectively. Justice Hawkins’s appointment ties the Texas Supreme Court with the D.C. Court of Appeals for most judges on the “state” high court to have clerked for the U.S. Supreme Court (Judge Joshua Deahl - O’Connor and Kenndy; Judge Roy McLeese - Scalia at the D.C. Circuit and SCOTUS; Judge Corinne Beckwith - Justice Stevens). California trails with two judges (Justices Liu and Kruger).
In today’s post, I break down some of the Supreme Court’s rule changes, look back at how these changes came to be, and consider some big looming questions.
Studying the issue
Earlier this year, the Supreme Court asked the Supreme Court Advisory Committee (SCAC) to study and propose rules that would eliminate pre-grant merits briefing.
Since 1997, parties petitioning the Court for review filed a “petition for review” of, at most, 4,500 words. If the Court was interested, after receiving a response (either by request or because the respondent simply elected to file one), it would request full briefs on the merits of, at most, 15,000 words. About 50% of cases where full briefing was requested would ultimately result in a grant.
One of the big selling points of the 1997 change was ensuring that the Justices reviewed every petition, rather than rely on memos from their law clerks. This year’s directive, however, was not the first time the Court evaluated changing the process since 1997. In the late-2010s, a three-member subcommittee, composed of then-Houston Court of Appeals Justice Busby, then-private practice attorney Evan Young, and then-staff attorney Mellissa Davis, also studied the issue. The subcommittee sent a memo to then-staff attorney Martha Newton with their conclusions. And at some point Justice Young sent a separate memo, which largely tracks the views he shared on the Appellate Law Podcast.
The previous subcommittee made a variety of recommendations:
Increase the length of petitions for review to at least 7,500 words and perhaps as many as 9,000 words (the maximum length of a U.S. Supreme Court petition for writ of certiorari)
Eliminate unbriefed issues
Require a 1,000 word “elevator pitch” summary
Require citations to the record showing where each issue presented was preserved in the courts below
A short deadline for the respondent to notify the Supreme Court whether they will file a response (7 days) to allow petitions to be forwarded to the Justices more quickly
SCAC noted that these recommendations were made before Justices Busby and Young joined the Court and may not reflect their current views.
Justice Young generously shared his views more recently with my friends over at the Texas Appellate Law Podcast, and he was very much in favor of the move to a SCOTUS-like petition system. Indeed, he raised good points (to no one’s surprise) about the legal issues with waiting up to a year before hearing a case, including the staleness of the law discussed in the petition and briefs and the fact that issue number one in many respondents’ briefs on the merits is “do not take this case” (which means a good chunk of the brief is unhelpful to the resolution once the case is taken).
On October 24, the Supreme Court issued an administrative order preliminarily approving amendments to the Texas Rules of Appellate Procedure to effect a big change—eliminate pre-grant briefing. For anyone who has had a chance to read the rules, the recommendations above should give you de ja vu (and per Yogi Berra, all over again). The rules are anticipated to take effect for any petition filed after January 1, 2026.
2026 Amendments to the Texas Rules of Appellate Procedure
The amendments make the following big changes:
Petitions for review and responses are now capped at 6,500 words (2,000 word increase) and replies are now 3,250 words.
Interestingly, while petitions and responses are 2500 words shorter than at the U.S. Supreme Court, the reply brief is now 250 words longer than it is at that court.
Motions and response, other than motions and responses for rehearing, are now limited to 2,500 words.
This limitation makes some sense. Perhaps the longest motion the Court typically sees is a motion for stay. As I’ve discussed in a previous post, the merits of the case are now the chief concern when evaluating temporary relief. There is, therefore, a bit of redundancy in the motion that is usefully limited by this rule.
An introduction summarizing the reasons to grant review and why the petitioner should prevail or, in a response, why the Court should deny review. The introduction is limited to 1,000 words and must come before the identity of the parties and counsel.
In Justice Young’s interview he noted the attractiveness of having this “elevator pitch”
If you cannot persuade a justice of the Supreme Court with that type of an invitation to turn the next page, the petition should be denied. I think that would discharge the court’s promise to the bar.
On the other hand, in the instances in which, “That sounds pretty good,” I am going to turn the next page. I don’t have to call for more briefs in order to find out what the answer to this unbriefed issue is because it is now in this document that has been filed.
That promise Justice Young refers to is the promise, noted above, to the bar that the Justices will read every petition. This promise may be the reason this new introduction section comes even before the identity of parties and counsel necessary to determine recusals, though it is confusing why a justice would spend even the few minutes to read the introduction if they cannot weigh in on the case.
Issues presented must now be accompanied by citation to the record demonstrating that the issue was preserved for review (in both the petition and the briefs on the merits).
The Supreme Court has historically been more relaxed about preservation than the federal courts. The Court aims to find preservation whenever reasonably possible. The Court has repeatedly “instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.” Verburgt v. Dorner, 959 S.W.2d 615, 616- 17 (Tex. 1997). And the Court has rejected narrow and technical interpretations of error preservation requirements. Thota v. Young, (Tex. 2012). Indeed, the Court sometimes goes out of its way to signal its disapproval of any “hypertechnical” interpretation of rules that leads to waiver. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991).
Could we see a shift? The Court is, overall, moving towards the federal courtsthough the Court also frequently notes that it need not simply follow the federal courts when it interprets similar laws. Indeed, Justice Young has called on lawyers to focus on and elucidate where a divergence in interpretation may be warranted based on slightly different statutory/constitutional language. If the Court shifts toward more stringent preservation requirements, it could take some getting used to for Texas appellate lawyers, especially in cases where they are brought on after the record is already made.
Additionally, the Court has eliminated the practice of “unbriefed issues.” This approach—listing an issue in the “issues presented” section, but not addressing it in the petition for review—had the virtue of saving space on less important issues that may not merit the Court’s attention but may be important and warrant preservation. Now, parties will have to commit on issues.
Issues v. Cases
A big, open question about the “issues presented” section is whether the Court will grant review of one or more specific issues, rather than entire cases. Currently, the Court takes the whole case. It may not thoroughly address some issues. As Justice Young noted in his podcast interview,
there are some cases in which you will see the court will say perhaps in a footnote or a paragraph, ‘This issue is also raised, but we find no reversible error in it without endorsing the reasoning of the Court of Appeals, affirm as to that ground.’
It is a sort of issue grant, but it is a less satisfactory one in some ways. I always would have loved as an advocate to know what is it that motivated the court to take this case? An issue grant is one way to do that. There may be other ways, it is logistically tricky.
In contrast, the U.S. Supreme Court grants to examine questions. That court will explicitly tell the parties when it is not taking a question presented. For example, in its most recent Second Amendment case, Wolford v. Lopez, the Petitioners posed two questions:
Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?
Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen’s text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits
The Supreme Court’s order limited certiorari to the first question. Now, in that case, the second question, which is the subject of great academic debate and has plagued Second Amendment decisions around the Country, may be subsidiary to the first. So it may not make any difference in Wolford—the Court could still resolve the question as part of its decision on Question 1. But in other cases, it may more clearly make a difference. This practice has the benefit of focusing the parties’ briefs on the issue the Court is prepared to decide.
Grants cases presents an important...issue...for parties drafting briefs on the merits at the Texas Supreme Court. Without the kind of guidance the U.S. Supreme Court provides when it limits certiorari, parties at SCOTX may not focus their attention on the issue of interest to the Court. This presents similar problems to requesting briefs before grants. As Justice Young noted, the parties’ briefs may be less helpful to the Court. True, the parties will no longer dedicate parts of their brief to an issue that is truly moot by the time of grant (whether to grant the petition), but there is still significant virtue, from my perspective, in issue grants. We’ll see how the Court handles this!
Changing internal operating procedures
To facilitate faster review, the Supreme Court has also modified its internal operating procedures.
Shortening the time for distribution
A petition for review is currently circulated on Tuesday following the filing of a response waiver, a response, or the time for a response elapsing. Under the new process, petitions will be circulated the Tuesday following filing. Currently, the Justices have four weeks following a petition’s circulation to vote. If a response is requested, the order is issued on the Friday orders list following those four weeks. The Clerk of Court no longer needs to wait for the four weeks to elapse. If a Justice requests a response, the Clerk will immediately send the request to the respondent.
Fewer extensions
The Supreme Court has also historically been very relaxed about extensions. Currently, petitions and responses are permitted three extensions. Briefs on the merits (including reply briefs!) are permitted two extensions.
Because the Court will now operate more like the U.S. Supreme Court, with the potential for a relatively short turnaround between grant and argument, the Court is limiting each side to one full extension and will deny any extension if it would push the briefing deadline to within two weeks before the oral argument.
This is a big change for lawyers juggling a number of cases at once, particularly those who do a mix of “pure appellate” and trial support work. The U.S. Supreme Court’s small, highly professionalized bar (with teams of associates), who likely focus mostly on the appellate courts, are less likely to encounter some of the logjam that Texas attorneys may encounter, especially with the number of solo and small firm practitioners who regularly argue at SCOTX. Indeed, this problem (and distinction with SCOTUS practice) was highlighted at the March 7, 2025, SCAC meeting. See page 37038-39 (Comments by frequent SCOTX advocate Lisa Hobbs) (Yep, I read the SCAC transcripts so you don’t have to!) We’ll see how this ends up playing out and whether it causes increased professionalization of the SCOTX bar. That is, will it be even more advantageous for clients to hire someone who, to borrow from a panel from the State Bar’s Advanced Appellate Seminar, speaks “SCOTX-ese.” Truthfully, even under the old system, clients benefitted from having someone very familiar with the Court.
Per curiam (error correction) without briefs
The U.S. Supreme Court issues per curiam opinions without full briefs on the merits. The Court is moving to that model—it may dispose of a petition without hearing oral argument and without requesting merits briefing. The Court notes that it in this situation, the Justices may rely in part on the briefs from the Court of Appeals. But the Court may also request merits briefs before issuing a per curiam opinion.
The Court notes that the need for flexibility is the reason it left language in Rule 55.1 permitting the Court to order merits briefing before granting review.
Parting thoughts
These rule amendments are a significant sea change. And there are certainly pros and cons to the changes.
There are strategic questions for cases that could be filed on either side of the proposed cutoff. The rules are scheduled to take effect in the middle of the term. Should a party that could file before January 1 or after wait? Which way is better for the client? The new rules may be slightly more cost-friendly (though the petition is now of even greater importance, so it may warrant more time). But the old rules may be more favorable for marginal cases.
How will the change effect grants? The Court could be (indeed, will likely be) dealing with petitions filed under two different rules for a while. How will that impact the scheduling of oral arguments in the remainder of the 2025-2026 term and the 2026-2027 term? One of the big stats I’ll be tracking is how the new system affects which conferences yield the most grants. Under the old system, the Summer’s “long conference” and the conferences in June yielded the most grants (each individual June conference did not, but in sum). That was driven, at least in part, by how the argument calendar was filled. June filled the first sittings and the long conference filled out the fall. The December conference was often just behind these big conferences, allowing the Court to fill out its Spring calendar. With the timing change for petition circulation and the speed to grants, it could be a whole new world. A quote attributed to many people, from the Nobel prize-winning Quantum physicist Niels Bohr to hall-of-fame baseball player Yogi Berra: “It is difficult to make predictions, especially about the future.”
I look forward to keeping track of how things shake out. If you have any thoughts, feel free to send me an email or leave a comment.
Until next time...
I think SCOTX has already started issuing per curiam opinions after only petition-stage briefing. See Kuo v. Regions Bank, Case No. 24-1039 ("The petition for review is granted. Without hearing oral
argument, see TEX. R. APP. P. 59.1, and without full briefing on the merits, see TEX. R. APP. P. 55.1, we reverse the judgment of the court of appeals and remand the case for further proceedings consistent with this opinion."