Who Files Amicus Curiae Briefs in the Texas Supreme Court? – 2020 Edition

Abstract

The ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY provides detailed information on caseload and dispositions for the Texas Supreme Court (SCOTX), but does not shed any light on amicus curiae participation in such cases.

This paper endeavors to fill the void with quantitative data and identifying information on amicus curiae filings and filers. The friend-of-the-court activity data was extracted from the electronic docket management system of the Texas appellate court system (TAMES) and was processed into more user-friendly formats (tables and lists).

Over the 12-month observation period, a total of 236 amicus submissions were received and docketed in a total of 134 state supreme court cases, consisting of two major categories: amicus briefs and amicus curiae letters.

Relative to the entire SCOTX caseload of about 1,200 per year, amicus filings are relatively rare, occurring in about 10% of cases. The most common pattern is the submission of a single amicus brief (N=89 in 2019). In cases that the supreme court agrees to hear, however, friend-of-court activity is higher.

Like the U.S. Supreme Court, the Texas high court exercises discretionary review. The legal disputes that receive a final merits review in the state’s court of last resort for civil matters are atypical: they are either important to the jurisprudence of the state, involve challenges to a high-dollar trial court judgment, or are otherwise salient.

The greatest amici magnet in 2019 was No. 17-0862, styled Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P., a high-stakes dispute over a failed pipeline development project. It received 13 amicus curiae submissions that year, in addition to two already e-filed in 2018. The Supreme Court issues its opinion on January 31, 2020.

The case with the second highest number of amicus filings was Barrow-Shaver v. Carrizo Oil & Gas, No. 17-0332, but ten (10) of them were submitted in 2018 and thus fall outside the study period. With three additional amicus filings in 2019, however, this oil & gas contract case still ranked in the top 20 in the dataset for the calendar year on which this report is based.

Keywords: Amicus Curiae Brief, Friend of the Court, Texas Supreme Court, Appellate Litigation, Judicial Politics

JEL Classification: K10, K20, K30, K41