Excerpt from TCJL Journal Summer 2026 (full Journal pdf):
The year 2025 was a fairly standard year for the amicus program. We filed seven briefs, five in the Texas Supreme Court, one in the Texarkana Court of Appeals, and one in the Superior Court of Pennsylvania. (For frame of reference purposes, we filed five briefs in 2024, a whopping 11 in 2023, and 10 in 2022.) Since we started this part of the business in 1995, we have filed 107 briefs (for which we have a record) in federal and state courts, with the lion’s share in the Texas Supreme Court.
If we look at the last four years in the aggregate, the range of issues we have written about pretty much cover the waterfront of Texas tort, contract, and public law. These include:
•The constitutionality of statutes (public adjuster regulation; Ch. 33 settlement credits; constitutionality of SB 8’s no injury cause of action);
•Statutory construction (government standards defense; cap on supersedeas bonds; Dram Shop statute; PUC jurisdiction; Ch. 542A, Insurance Code, attorney’s fees);
•Contract interpretation (insurance policies; joint operating agreements; damages; oil and gas leases/produced water);
•Contract enforcement (forum selection clauses; arbitration provisions; indemnity provisions);
•Eminent domain/easements (transmission lines, evidence of private sales, court jurisdiction);
•Workers’ compensation (OCIPs, statutory employer, third-party liability);
•Tort duties (electric utilities, owners and general contractors, negligent entrustment);
•Employer liability;
•UI/UIM claims (abatement, bifurcated trials, extracontractual claims);
•Product liability;
•Non-economic damages;
•Class actions;
•Discovery disputes (apex depositions; corporate representative depositions; electronic discovery; in-person jury trials; shared discovery orders; paid or incurred/medical bills);
•Jurisdiction (subject matter jurisdiction, standing).
Our general criteria for accepting a brief request have not changed over the years. First, the issue must implicate businesses or health care providers in general. That means, for example, if we write on the interpretation of an oil and gas lease or an insurance policy, we do it to defend the principle that sophisticated parties should have the freedom to contract as they please and that courts should honor the plain text of the parties’ agreement. Second, we cannot write in a case if we are asked to take a position inconsistent with a previous brief, our legislative policy statement, or other prior expression of opinion. Nothing would destroy our credibility more than speaking out of both sides of our mouth, either with the courts or the Legislature. Third, we do not join other amicus briefs or (with a very few exceptions) allow other parties to join ours. That means we don’t write “me too” briefs that simply parrot a particular party line, and we only write if we think we have something to say that the court won’t hear anywhere else.
One of the great benefits of membership in TCJL is access to the amicus program. Time and time again our members have requested our participation in cases involving not only a lot of money, but important legal principles that, if the appeal does not succeed, could substantially and adversely affect their business practices and everyone else’s to boot. We like to think that in most cases, the courts welcome our participation and take into consideration what we say (and it appears that the evidence from the justices and appellate attorneys with whom we work bears that out). That doesn’t mean that our position prevails every time, but it does prevail most of the time. That should come as no surprise, given the incredibly successful appellate counsel and in-house lawyers with whom we ordinarily work. If we can provide that extra element—the voice of the business community as a whole—we have done our work well.
