Potential Changes Ahead: Texas Supreme Court Considers Rule Amendments to Petition for Review Process

Current Practice for Petitions for Review

Under the current practice, the Texas Supreme Court employs a two-step briefing process before deciding whether to grant a petition for review: (1) the petition-stage briefs and (2) the merits-stage briefs. Specifically, parties are first given an opportunity to provide a short brief — limited to 15 pages — explaining why the Court should or should not be interested in reviewing a court of appeals’ decision.³ After reviewing a petition for review and the response and reply thereto, the Court then generally requests full merits briefing before deciding whether to grant the petition.⁴ It is this stage of briefing that the Committee is tasked with studying.

Nothing in the Texas Rules of Appellate Procedure or the Supreme Court’s Internal Operating Procedures precludes the Court from granting a petition before requesting briefing on the merits. As a practical matter, however, the Court tries to avoid this, and it rarely occurs.⁵ Indeed, the Court has not granted any petitions in the 2024–2025 term, thus far, without first requesting merits briefing.

Texas’s pre-grant merits briefing procedure marks a notable difference between how the Texas Supreme Court and the U.S. Supreme Court review cases. In the U.S. Supreme Court review process, grant decisions are made at the petition stage, followed by full merits briefing only if the petition is granted.⁶

Arguments for Pre-Grant Merits Briefing

Proponents of Texas’s current pre-grant merits briefing system argue that the process — as contrasted with its predecessor, the writ of error procedure — ensures more fulsome argument and thorough consideration of each petition. Proponents contend that the shorter page limit of the petition for review guarantees that the Justices read every petition for review, which they posit leads to more considered outcomes. Many advocates also appreciate that the current procedure allows the parties to file more substantive argument with the Court in merits briefs that have longer page limits than allowed at the initial petition stage of the review process.⁷

Proponents of the current procedure also point out that the Court issues approximately thirty per curiam opinions a year, which are unsigned opinions issued without hearing oral argument.⁸ Per curiam opinions are used for error correction or when the case involves the application of well-established legal principles.⁹ In such cases, the Court typically grants the petition and issues the opinion at the same time. Pre-grant merits briefing helps ensure that the Court has the full arguments on the merits of the case — rather than those focused more toward persuading the Court to grant review — prior to issuance of a per curiam opinion.

Arguments Against Pre-Grant Merits Briefing

On the other hand, critics of the pre-grant merits briefing system point to the significant resources and time expended on merits briefing for petitions when most are ultimately denied. Indeed, the Court agrees to hear only about 10 percent of the cases filed.¹⁰ Extensive merits briefing that leads to an ultimate denial in 90 percent of cases can present a significant burden on both the Court and the parties involved. The time and resources necessary for pre-grant merits briefing may also implicate access-to-justice concerns for litigants without the resources to devote to pre-grant advocacy. Instead, those in favor of eliminating pre-grant merits briefing envision a Texas Supreme Court petition process similar to that of the U.S. Supreme Court’s petition for writ of certiorari process. This shift has the potential to streamline the petition process, reduce costs, and expedite the Court’s decision-making. If paired with an expansion of page limits for the initial petition briefing, a rule change may still be able to meet the needs that animate the Court’s requests for pre-grant merits briefing under the current practice.

Potential Impact on Appellate Practice

The elimination of pre-grant merits briefing would mark a substantial change to the state’s appellate practice. As the Committee studies and makes recommendations on this issue, it is crucial for practitioners and parties to stay informed and ready to adapt to any new rules. This development underscores the importance of staying current with procedural changes and understanding their implications for appellate practice and strategic decision-making in Texas’s highest civil court.

¹See Letter from James D. Blacklock, Chief Justice, Texas Supreme Court, to Tracy E. Christopher (Chief Justice, 14th Court of Appeals), Chair, Supreme Court Advisory Committee, regarding Referral of Rules Issues (Feb. 7, 2025), available at scac-referral-_february-2025-1.pdf.

²Id.

³See Tex. R. App. P. 9.4(i)(D).

⁴See Tex. R. App. P. 55.1.

⁵See Blake Hawthorne, Supreme Court of Texas Internal Operating Procedures, at 13 (2014). 

⁶See Sup. Ct. R. 16.

⁷Tex. R. App. P. 9.4(i)(2)(B), (D).

⁸Tex. R. App. P. 59.1.

⁹See Hawthorne, note 5 above, at 19. 

¹⁰State of Texas Judicial Branch, Annual Statistical Report for the Texas Judiciary 98 (2023), https://www.txcourts.gov/media/1459429/ar-statistical-fy23.pdf.