53 S.W.3d 308 | Tex. | 2000
This is an interlocutory appeal from the denial of petitioner’s special appearance. Petitioner asserts that this Court has jurisdiction over the appeal because the court of appeals’ decision conflicts with six prior decisions of other courts of appeals on material questions of law.
First: petitioner’s jurisdictional statement does not violate Rule 53.2. The rule prohibits diverting argument on the merits into the jurisdictional statement, thereby circumventing the fifteen-page limit on argument.
Second: even if the petitioner’s brief were not in compliance with Rule 53, striking it now serves no purpose. The Court has already requested a response based on the petition as filed. The response is due the day after the redrawn petition is due, leaving the respondents only a few hours to review the new petition before filing their response. Requiring petitioner to redraw helps neither the Court nor the respondents.
Third: the Court’s enforcement of Rule 53 is arbitrary. I am not aware that the Court has ever ordered a petition redrawn because of the statement of jurisdiction. That is not because jurisdictional statements are never as long or as explanatory as petitioner’s in this case. For example, in a case in which the Court heard argument yesterday, Apex Towing Co. v. Tolin, No. 99-1165, the jurisdictional statement in petitioner’s brief was three pages long and gave an explanation of an asserted conflict among the courts of appeals, even though appeal was from a final judgment. I cannot imagine that the difference in the Court’s treatment of that case and the present one comes down to two pages. My sense is that several petitions would be struck each month on account of their jurisdictional statements if the Court were to apply today’s standard uniformly. I predict this will not happen, not because petitions will change, but because today’s action is purely arbitrary. The Court will continue to act on petitions that do not comply with Rule 53, and occasionally, depending on the mood of a majority on a given day, will strike one here and there, for no better reason than that it can. I do not regard such whimsical rulings to be a fair administration of the procedural rules. I do not say, of course, that the formal requirements of Rule 53 should not be enforced, but enforcement should be consistent and uniform, not haphazard.
Roscoe Pound observed in 1906 that this kind of nonproductive focus on “fine points of appellate procedure” is “sheer waste, which a modern judicial system would obviate.”
. See Tex. Gov't Code §§ 22.001(a)(2) and 22.225(c).
. All references to rules are to the Texas Rules of Appellate Procedure.
. See Tex.R.App. P. 53.6.
. City Nat. Bank in Childress v. Phillips Petroleum Co., 124 Tex. 456, 78 S.W.2d 576, 579 (1935, opinion adopted).
. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. Rep. 395, 410-411 (1906), reprinted in 8 Baylor L.Rev. 1, 19-20 (1956).