What Is An Amicus Brief? Your Voice In The System

The Amicus Curiae Brief

Entities or individuals that want to have their opinion heard by a court deciding an important issue can do so. Both the Federal and Texas rules of appellate procedure allow nonparties to file briefs, called amicus curiae briefs. “Amicus curiae” is Latin and means “friend of the court.” “A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). Essentially, an amicus brief is filed by a nonparty to assist the court in deciding an issue that is before the court.

The main purpose of an amicus brief is to call the court’s attention to some aspect of substantive or procedural law that is raised in the case. Typically, an amicus party will write on the “big picture” aspects of an issue. It may give the court guidance as to the result of a particular ruling on an industry. The end result is that if a court will decide an issue that impacts a nonparty, the nonparty can prepare a brief and have a say in the justice system.

The Rules

Texas Rule of Appellate Procedure 11 provides that a nonparty can serve an amicus brief on the court and the other parties to the case, and the normal rules of briefing apply. There is no time limit as to when a party can file an amicus brief. In fact, nonparties routinely file amicus briefs after a court has decided a case and one of the parties seeks a rehearing.

Federal Rule of Appellate Procedure 29 states that an amicus brief should be filed with a motion for leave that states the nonparty’s interest, why an amicus brief is desirable, and why the matters asserted are relevant to the disposition of the case. See FED. R. APP. P. 29(b). The normal briefing rules apply, except that the nonparty only has half of the length of a party’s brief.

Timing Issues

There is one important difference between Texas state procedure and Federal procedure: timing. In Federal court, an amicus party must file its brief and motion for leave no later than seven days after the principal brief of the party being supported is filed. Of course, the court can grant leave for filing later. The Fifth Circuit Rule does not change this. It provides that: “Those wishing to file an amicus brief should file a motion within [seven] days after the filing of the principal brief of the party whose position the amicus brief will support.” The Fifth Circuit has certainly allowed late filed amicus briefs. And most of the cases where a court of appeals has struck an amicus brief because it was too late were filed after the panel’s decision.

The following are example amici briefs handled by Winstead PC (click links to read).

University of North Texas (Appellant) v. City of Denton, Texas
Brief of Amici Curiae: University of Texas System, University of Texas A&M System and University of Houston System

Town of Flower Mound, Texas v. Mockingbird Pipeline, L.P
Brief of Amicus Curiae: CenterPoint Energy Resources Corporation

Monte J. Land et al v. Palo Pinto Appraisal District
Brief of Amici Curiae: Patterson PK Land Partnership, LTD

Dallas Area Rapid Transit v. Oncor Electric Delivery Company LLC
Brief of Amicus Curiae: CenterPoint Energy Houston Electric, LLC

Lexington Insurance Company et al v. Carole Keeton Strayhorn and Greg Abbott
Brief of Amici Curiae: American Insurance Association, National Association of Professional Surplus Lines Offices, Property Casualty Insurers Association of America, St. Paul Surplus Lines Insurance Company, Gulf Underwriters Insurance Company and General Star Indemnity Company