Houston Chronicle - "Texas high court operates in secrecy, group claims"

News Article

By:  Wallace Jefferson
Date: May 8, 2008
Location: Austin, TX


Houston Chronicle - "Texas high court operates in secrecy, group claims"

A growing number of opinions issued last year by the Texas Supreme Court were anonymously written, a practice that enables the elected body to operate in secrecy and without public accountability, according to a scathing report to be released today.

Texas Supreme Court Chief Justice Wallace Jefferson called the secrecy claim a "relatively frivolous allegation."

The report by judicial watchdog group Texas Watch shows that 57 percent of the opinions issued in the court's 2006-07 term were anonymous and unsigned. In contrast, 5 percent of the opinions issued by the U.S. Supreme Court were anonymous in a similar time period.

Anonymous opinions, known as per curiam, are typically used for opinions that are brief, not controversial and for relatively obvious legal answers.

A shield?
"All too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters," the group wrote in the report. "By relying too heavily on unsigned per curiam opinions, the court operates in the shadows, allowing little public scrutiny and failing to light the way for future jurists."

Jefferson said the spike is not a cause for concern, but rather an expected effect of circumstances in the legal community at the time.

"It's a higher number when there are dozens of opinions waiting on the issuance of a single case," Jefferson said, noting much-awaited opinions on medical malpractice and a government immunity case that settled dozens of other pending cases. Fifty-seven percent is "neither high nor low to me, just a peculiarity of how those cases were decided in that term."

More transparency
The number of per curiam opinions issued by the state's top court has more than doubled since the panel's 2002-03 term.

"I think that this court has a penchant for secrecy," said Alex Winslow, executive director of Texas Watch. "I feel that they're using per curiam opinions inappropriately to avoid accountability for some of the tough decisions."

Jefferson said he's worked to make the court more transparent, publishing opinions online and broadcasting arguments so the public can watch.

"The court operates through its opinions and those who disagree with the results in those cases can criticize the court," he said. "I welcome criticism ... from those who are objective. It helps in our review of the law."

Doug Alexander, chairman of the appellate section of the Texas State Bar, said the spike is not alarming and can probably be attributed to legitimate judicial practices.