COMMENTARY BY WOLFGANG P. HIRCZY DE MINO
Much of the regularly aired criticism of the Texas Supreme Court is well-founded, in particular its proclivity to rule in favor of certain types of defendants, which is easily shown with empirical data on disposition patterns. The allegation that the Court "hides behind unsigned per curiam opinions", however, is a dubious charge, for a number of reasons.
Many of the cases disposed of with per curiam opinions present legal issues previously decided or decided in a signed opinion released on the same day. Thus, one need look no further than who wrote and signed on to the deciding opinion in the leading case, and who did not. If a justice broke ranks, the dissenting opinion will shed light on the reasons and show that the court is not monolithic on that particular issue. If there was no dissent, all justices are equally responsible unless they Court indicates that a particular member did not participate.
While a per curiam opinion may not require the affirmative support of all members of the Court (the Court's rules call for six votes), it can nevertheless be treated as unanimous. After all, if a member of the court did not wish to acquiesce, he or she could have made that point and gone on the record with the different view. It is not unheard of that a justice goes so far as to write a lone opinion on a motion for rehearing, or on denial of a petition, to make a point he finds necessary to get across.
Quite simply, per curiam opinions can and should be attributed to the court in its entirety, not just a majority. Thus there is little basis for the proposition that anything is being hidden. While the internal deliberations over cases and issues are indeed secret, the results of the process are not. All opinions are freely available on the court's web site (though not in convenient tables or lists of cases.)
Each member of the Court should be seen as equally responsible for the result, unless the case was decided pursuant to newly established precedent and the minority simply acknowledges that fact. In those instances, the case that controls the disposition will be cited in the per curiam opinion.
Since all members of the current court are Republicans, it should come as no surprise that there is less ideological diversity and a higher incidence of agreement on which cases/issues to hear, and how to decide them. In Fiscal Year 2007 the Texas Supreme Court released 170 opinions. Per Curiams accounted for 40.6%, - a higher percentage than majority opinions, which made up 36.5% of the total.
As for the current calendar year, by my count, the Texas Supreme Court issued 45 per curiam opinions from January 1 through the end of June 2008. The projected annual figure would thus be 90. (The number of signed Texas Supreme Court Opinions, and break-down by authoring justice, is the subject of another post.).
Texas Supreme Court Appeals decided with per curiam opinions are listed in reverse chronological order below, with a descriptor of the the type of case or issue (HCLC stands for health care liability claim aka medical malpractice; ILA denotes an interlocutory appeal).
January 2008 - June 2008 Per Curiam Opinions Handed Down by the Texas Supreme Court
[45] In Re Chambless, No. 07-0767 (Tex. June 27, 2008) (per curiam) (family law, grandparent visitation suit)(mandamus granted)
[44] In re OAG, No. 08-0165 (Tex. June 27, 2008) (per curiam)(mandamus) (TRO against Office of Texas Attorney General in dispute over child support collection set aside by mandamus as void due to procedural deficiency).
[43] In Re Fleetwood Homes of Texas, LP, No. 06-0943 (Tex. June 20, 2008)(per curiam) (original proceeding)(motion to compel arbitration, no waiver found, mandamus granted)
[42] In re Lyon Financial Services, Inc., No. 07-0486 (Tex. June 20, 2008)(per curiam) (orig. proc.)(mandamus, forum selection clause, motion to dismiss improperly denied)
[41] In Re Roberts, No. 05-0362 (Tex. Jun 6, 2008)(per curiam) (med-mal, grant of 30-day extension to cure deficiencies in expert report was proper, mandamus granted against court of appeals which rule otherwise)
[40] In re Methodist Healthcare System of San Antonio, Ltd, No. 05-0575 (Tex. Jun 6, 2008)(per curiam)(HCLC, sufficiency of expert report, court below instructed to apply new mandamus standard)
[39] In Re Zandi, No. 070919 (Tex. May 30, 2008)(per curiam) (family law, child support contempt, habeas corpus granted, due process violated, insufficient notice of charges)
[38] In re TDFPS (CPS), No. 08-0391 (Tex. May 29, 2008)(per curiam) (CPS case against FLDS sect) Justice O'Neill delivered an opinion concurring in part and dissenting in part, in which Justice Johnson and Justice Willett joined.
[36] In Re CitiGroup Global Markets, Inc., No. 06-0886 (Tex. May 16, 200)(per curiam)(arbitration compelled, no waiver found)
[35] City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, plea to the jurisdiction)
[34] Chau v. Riddle, MD, No. 07-0035 (Tex. May 16, 2008)(health care liability, Good Samaritan defense fails,substituted per curiam opinion on motion for rehearing)
[33] Barrera, MD vs. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curia m)(appealability of order denying doctor's motion for sanctions after plaintiff nonsuited HCLC suit and court dismissed without prejudice)
[32] Regent Care Center of San Antonio II, LP vs. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
[31] UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability, dangerous condition, ostrich defense)
[30] In Interest of KCB, a Child, No. 07-1068 (Tex. Apr. 18, 2008) (per curiam) (family law, right to appeal in termination of parental rights case, procedural requisites for appeal)
[27] Center for Neurological Disorders, P.A. v. George, No. 07-0174 (Tex. Apr. 11, 2008)(per curiam) (HCLC, ILA)
[25] Graham Oaks Care Center, Inc. v. Farabee No. 07-0228 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)
[21] Ansell Healthcare Products, Inc. v. Owens & Minor, Inc., No. 06-0386 (Tex. Apr. 4, 2008)(per curiam) (product liability, indemnification for litigation costs)
[20] County of Dallas v. Sempe, No. 05-0022 (Tex. Mar. 28, 2008)(per curiam)(no conflicts jurisdiction, petition ungranted)
[19] Lowenberg v. City of Dallas, No. 06-0310 (Tex. Mar. 28, 2008)(per curiam)(illegal fee, tax refund suit, takings claim, declaratory judgment, UDJA attorney's fees)
[18] Trend Offset Printing Services, Inc. v. Collin County Community College District (CCCCD) No. 06-0525 (Tex. Mar. 28, 2008)(per curiam) (governmental immunity, breach of contract, statutory waiver)
[17] City of Dallas v. DeQuire, No. 06-0543 (Tex. Mar. 28, 2008)(per curiam)(local governmental entities, immunity waiver)
[16] Bushnell v. Mott, No. 06-1044 (Tex. Mar. 28, 2008)(per curiam) (animal law, dog bite liability)
[15] City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous condition, drowning)
[14] O’Neil v. Ector ISD, No. 07-0084 (Tex. Mar. 28, 2008)(per curiam) (public employment disputes, teacher contract dispute, exhaustion of administrative remedies, limitations)
[13] Hamilton v. Wilson, MD, No. 07-0164 (Tex. Mar. 28, 2008)(per curiam) (HCLC, sufficiency of expert report)
[12] Murff, MD v. Pass, No. 07-0294 (Tex. Mar. 28, 2008) (jury selection, juror confusion, disqualification)
[11] Alfonso v. Skadden, No. 07-0321 (Tex. Mar. 28, 2008)(per curiam)(child custody jurisdiction, international family law, service by publication)
[10] Grimes Construction, Inc. v. Great American Lloyds Ins. Co., No. 06-0332 (Tex. 2007)(per curiam) (liability insurance coverage for defective work by contractor)
[9] Chau v. Jefferson Riddle, MD, No. 07-0035 (Tex. Feb. 15, 2008)(first per curiam opinion) (HCLA, medical malpractice, Good Samaritan defense rejected, summary judgment improperly granted)
[8] In the Interest of D.N.C. (Tex. Mar. 8, 2008)(child protection, DFPS suit, termination of parental rights, natural parent presumption, award to conservatorship to child protection agency properly reversed along with termination of parental rights in the absence of independent basis for rebutting parental presumption)
[7] Living Centers of Texas, Inc. v. Penalver, No. 06-0929 (Tex. Jan. 25, 2008)(per curiam) (wrongful death, nursing home negligence, improper jury argument, value of life, Nazi comparison)
[6] In re BP Products North America, Inc., No. 07-0119 (Tex. Jan. 25, 2008)(Gaultney, sitting by assignment)(discovery dispute, apex deposition, Rule 11 agreement, motion to quash notice of deposition, protective order, discovery mandamus granted)
[5] Nueces County v. San Patricio County, No. 07-0166 (Tex. Jan. 25, 2008)(per curiam) (governmental immunity, county vs county dispute over wrongfully collected property taxes)
[4] Warwick Towers Council of Co-Owners v. Park Warwick LP, No. 07-0384 (Tex. Jan 25, 2008)(per curiam)(insurance law, sufficiency, effectiveness of notice of appeal in insured's name, rather than insurer's)
[3] In Re Torry, No. 08-0057 (Tex. Jan. 25, 2008)(per curiam) (election mandamus against Democratic Party chair)
[2] Houser v. McElveen, No. 06-0504 (Tex. Jan. 11, 2008)(per curiam)(appellate procedure, timeliness of notice of appeal, prisoner suit)
[1] Levine v. Shackelford, No. 06-0553 (Tex. Jan. 11, 2008)(per curiam)(default judgment, motion to set aside, standard, motion for new trial, Craddock test)
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