New Amendments to TRAP urge simplicity.

Recently, the Supreme Court of Texas released the final version for amendments to the Texas Rules of Appellate Procedure, namely Rule 53.2-.3, which provides the required contents of a petition for review and response to a petition for review. The Court added a new mandatory requirement that parties must include an introduction section. The Court added the following language: “[t]he petition must contain an introduction summarizing the reasons the Court should grant review.”  See Tex. R. App. P. 53.2(g). The Court likewise added the same requirement for any response to a petition for review, except that the response should summarize the reasons to deny review, of course. See Tex. R. App. P. 53.3(e). In addition, the Court changed one word in the requirements for the Argument section, also related to the inclusion of support for granting or denying the petition.

Argument. The petition must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. The argument need not address every issue or point included in the statement of issues or points. Any issue or point not addressed may be addressed in the brief on the merits if one is requested by the Court. The argument should state explain the reasons why the Supreme Court should exercise jurisdiction to hear the case with specific reference to the factors listed in Rule 56.1(a). The petition need not quote at length from a matter included in the appendix; a reference to the appendix is sufficient. The Court will consider the court of appeals’ opinion along with the petition, so statements in that opinion need not be repeated.

See Tex. R. App. P. 53.2(j) (emphasis added).

                While the amendments themselves are not revolutionary, they do perhaps reveal a desire, or even perhaps a frustration, related to what the Court perceives has been lacking in petitions up to this point. In other words, keep it simple (stupid) and get to the point—why should the Court take your case? And while petitions often include the bald assertion that the “court of appeals appears to have committed an error of law of such importance to the state’s jurisprudence that it should be corrected,” the Court really wants us to explain why that is the case (and not just “state” it).

                Sometimes, after spending years of briefing and arguing the issues on a particular case, we, as advocates, can get caught up in the weeds and forget that the purpose of a petition for review is not actually to win your case. . . just yet. We risk complicating the issues to the point that the Court may not see the case as an “ideal vehicle” to consider the greater issues of importance to the State. The goal at the petition stage is to grab the attention of the Court with a strong explanation of why it should consider your case to be one that not only has the magnitude of importance that would place it in the top ten percent or so that are eventually decided, but also operates as a good case to reach that decision.

                Problematically, sometimes a petition for review will not explain the reasons that the Court should take the case at all. Instead, it will simply contain a dry recitation from Texas Rule of Appellate Procedure 56.1, such as “blah blah importance to the state’s jurisprudence blah.” And that’s exactly what the justices hear from the petition: “blah blah blah.”

                That’s a problem when the petition is already significantly limited in word count. If you do not get to the point early and let them know the why for granting the case, you will run out of words. Then, you may soon see your case under the dreaded list of denied petitions on Friday morning. So, consider what the Court is communicating through these amendments. Reframe the theme of your petition through the introduction section to truly focus on why the Court should take your case and make it simple. After all, the Court is telling us it not only wants this section, but it wants it prior to your statement of facts or summary of the argument. Does your case involve the interpretation of a statute? Can you point to disagreement amongst the courts of appeals on an important point of law? Is it a matter of first impression that the Supreme Court has not yet decided? Consider what Justice Young wrote in a recent denial of review in a not-so-simple case regarding a city’s ban on short-term vacation rentals.

This case, therefore, starts out as a less-than-ideal vehicle for resolving the constitutional issues that are presented. But I think there is even more, because it may also be premature for us to render a final decision that binds all our cities, the legislature, and the lower courts. Given the seeming prevalence of short-term rental bans, and of the opposition against them, I am confident that other cases—unburdened by potentially dispositive collateral questions—will lead to a better vehicle for this Court to address the bans’ constitutionality.

See City of Grapevine v. Muns, 671 S.W.3d 675, 677 (Tex. 2023) (Young and Blacklock, JJ., concurring in the denial of the petition for review).

                The goal, therefore, of your introduction is to draft it in such a way that does not leave the Court with the impression that your case is a “less-than-ideal vehicle.” Keep it simple. Frame it as an ideal vehicle. And maybe, just maybe, you’ll be able to reach the briefing stage and fight another day.

For further review of the amendments that are effective as of March 1, 2024, see 249003.pdf (txcourts.gov).