Delays in resolving appeals are frustrating, but a bill filed this legislative session to set mandatory deadlines for deciding appeals looks like it would create more problems than it would solve.
One of the first questions clients often ask me about new appeals is "how long will it take to get a decision?" And while I can talk about averages, I always have to emphasize that each case is different and that there really is no way to know how long it will take. I once had an appeal where we waited almost two years after argument before we got the four-page unanimous opinion.
Apparently attempting to address these types of delay, a member of the Texas House of Representatives has filed HB 3032. The bill would require the Supreme Court to adopt rules requiring all appeals to be decided within one year of perfection and all interlocutory appeals to be decided with three months of perfection. If the case is not decided within those time frames, the bill would require that the judgment of the lower court be summarily affirmed.
It seems to me that the bill's approach to the issue raises more problems that it solves. First, the very notion of directing that the appeal must be decided within a defined time period seems to raise some separation of powers issues. Second, even if such time periods are appropriate, having them run from the time of perfection seems problematic because there are several events between perfection and submission that affect timing and are not in the control of the parties or the court of appeals, such as the preparation and filing of the record. Third, the three-month deadline for interlocutory appeals is not even close to reasonable, given deadlines in the rules for briefing. Fourth, the automatic affirmance provision seems to implicate due process, due course of law, and perhaps open courts concerns.
The bill has been referred to the Judiciary and Civil Jurisprudence Committee, but has not been scheduled for a hearing.
I would be interested to see if any of you have any thoughts on the issue. Is HB 3032 a solution looking for a problem? Are there better ways to address the court of appeals' backlog (such as providing funding for additional staff)? Let's hear it in the comments.
-- Rich Phillips, Thompson & Knight
After seven months as a law clerk at the Second Court of Appeals, I know enough to agree that this bill is a misguided attempt to solve the perceived problem. Tightening deadlines and toying with due process will only further frustrate the process of analyzing issues on appeal and drafting comprehensive opinions. This bill merely treats the symptoms, not the cause, and the implication is that court staff are to blame for the delays. Nothing could be further from the truth. Speaking only from my experience at the Second Court, there is no shortage of diligent work being applied to our cases. Indeed, the staff here takes great pride in getting it right and everyone respects the fact that parties are awaiting the court's opinion in every case.
As for more viable solutions, you suggested more staff and, while that sounds like a simple solution, it might just fill the bill in this case. Given the nature of legal research and writing as primarily a solo endeavor, more people should equal more production. This of course begs the question, who will pay for them? That is a question for the legislature.
Posted by: Chuck Hill | Apr 11, 2013 at 01:23 PM