We’ll need to keep an eye on this.
Justice Bonnie Sudderth
Justices on the state’s 14 intermediate appellate courts are talking—some are concerned—about a pair of bills filed in the Texas Legislature that propose redistricting the courts’ boundaries.
House Bill 339 by Rep. Phil King, R-Weatherford, and Senate Bill 11 by Sen. Joan Huffman, R-Houston, currently only propose minor tweaks to the Fifth, Sixth and 12th Courts of Appeal to remove their overlapping jurisdictions over five rural Texas counties.
However, multiple sources told Texas Lawyer that the current versions are only “placeholders” or “shell bills” that would change during the legislative session to make bigger changes to the appellate court boundaries.
King and Huffman each didn’t respond to phone calls seeking comment.
But the uncertainty about what the bills will wind up doing is leading to concern among justices.
“I can’t speak for 80 justices across the state, but I’d say there are certainly justices who are talking about it,” said Chief Justice Bonnie Sudderth of Fort Worth’s Second Court of Appeals, who is chairwoman of the Council of Chief Justices. ”What is there to talk about, until we see what it is?”
David Slayton, administrative director of the Texas Office of Court Administration, said that staff for the House and Senate committees that handle bills about the justice system have requested data from his office about the courts’ workloads and the number of appeals that are transferred between appellate courts.
“I think they are looking at it for those reasons,” he explained, adding that his office isn’t taking any position about redistricting. “We haven’t seen a plan. It’s hard to read or think of how it would affect the administration of justice, without seeing a plan.”
He added that the idea to redistrict the appellate court lines did not come from inside of the Texas judiciary.
“There’s some proposals out there from groups like Texans for Lawsuit Reform that reduce the number of appellate courts,” said Slayton.
[…]
That plan proposes:
- First District: Merger of current First and 14th Courts of Appeal in Houston with 18 justices.
- Second District: Merger of Third, Fourth and 13th Courts of Appeal in Austin, San Antonio and Corpus Christi with 19 justices.
- Third District: Merger of Fifth and Sixth Courts of Appeal in Dallas and Texarkana, but without four counties that overlap in another district, with 16 justices.
- Fourth District: Merger of Second, Seventh, Eighth and 11th Courts of Appeal in Fort Worth, Amarillo, El Paso and Eastland, with 16 justices.
- Fifth District: Merger of Ninth, 10th and 12th Courts of Appeal in Beaumont, Waco and Tyler, with 11 justices.
The other proposals in the paper would create different mixes based on mergers of existing appellate districts.
The paper in question is here, and TLR’s priorities for the appellate courts are here. It should go without saying that Texans for Lawsuit Reform is a villain, and while some of their ideas in this instance may have merit, everything they do should be viewed with extreme suspicion.
George Christian, senior counsel with the Texas Civil Justice League, another tort reform advocacy group, said that the current districts aren’t in line with modern Texas. Redrawing the boundaries could make the judiciary more efficient. Yet he acknowledged redistricting involves politics and stirs up intense debate.
In recent elections, appellate courts in Travis, Harris and Dallas counties were swept by Democratic candidates. The discussion about redistricting the appellate courts now may lead to questions.
“There is a very legitimate question people will ask,” Christian said. “Why the sudden interest in the appellate courts, now that a lot of Democrats are winning those elections?”
I think we know the answer to that question. I’ve raised this point before, and it’s just another thing we have to watch out for. In theory, this could be done during the regular session, as these court districts are not based on Census data and don’t have a mandate to have equal sizes. We’ll know when and if HB339 and SB11 get committee hearings.
Doing away with the overlapping jurisdictions is actually a good idea (for deep in the weeds geeky reasons about persuasive vs. non binding precedent). I could get on board with moving a couple counties here and there from a busy district to a less busy one. However, the ol’ Spidey Sense starts twitching when these particular people start talking about combining massive swaths of the state.
My understanding is that for years the two Appellate Courts based in Houston have farmed out cases to other courts with lighter dockets. If this is true, reallocating boundaries might make the courts more efficient.
RE: “It is my understanding … ”
Commendably, the Office of Court Administration (Mr. Slayton) reports this data and any serious debate about the merits of alternative approaches can therefore be based on actual data, rather than based on hypotheticals or presuppositions.
WHAT DOES THE DATA SHOW?
In Fiscal Year 2019 both Houston Courts of Appeals were *net recipients* from other court of appeals.
The First COA received 51, the Fourteenth 38 (for a net total of 33 if the 5 transfer-out cases are subtracted). This is a small number.
Statewide the total of transfers was 443 while the grand total of added cases for the year was 10,395. View the data here: https://www.txcourts.gov/statistics/annual-statistical-reports/2019/ (Court of Appeals / Activity Detail) [spreadsheet file]
HOW ARE COA DOCKETS BALANCED OUT ?
The SCOTX effects these transfers for docket-equalization purposes in batches without regard to what the specific cases are about (with a few exception for specific case types, such as mandamus proceedings and parental rights termination appeals), and the transferee court must then apply the precedents of the sending court in the event of a conflict. Occasionally, transfers are done for case-specific reasons. Both types of administrative transfer orders are posted on the SCOTX website.
MERITS OF THE CURRENT DOCKET-EQUALIZATION SYSTEM
It is a better method to manage workload imbalances because it can be deployed rapidly on an as-needed basis. The same cannot be said of proposals to tinker with appellate district lines and changes in the number of positions (ergo, number of justices) of any one court of appeals.
Docket equalization transfers can be fine-tuned commensurate with a surge in need (or backlog) on some courts and spare capacity on others. Institutional reform approaches, by contrast, are static and fixed, not dynamic.
Note that the need (future workload) of any one COA cannot be perfectly predicted, and certainly not for the next 10 or 20 years. Why? – It’s because the number of appeals is driven by the decisions of attorneys and parties, and responds to trends in caseloads in the trial courts (which likewise cannot be predicted). Unlike the SCOTX, the COAs do not have discretionary review powers, and therefore cannot easily control/restrict the number of cases requiring a reasoned opinion.
Additionally, the de facto processing capacity of appellate courts is adversely affected by vacancies (when they are not immediately filled through gubernatorial appointment) which occur when an incumbent resigns early, or dies, or never takes office because of a pending criminal/disciplinary against the newly elected justice. All of these scenarios recently occurred. These contingencies can’t be anticipated for planned for, but any workflow effects of such occurrences can or could also be addressed through customized SCOTX docket equalization orders.
BOTTOM LINE: The current system to equalize workloads among COAs is up to the task. The onus to show that the current mechanism is bad and in need of “structural repair” is on the would-be reformers.
I’ve had cases sent to another district. Aside from some minor clerical matters it hasn’t made any perceptible difference. If you have oral argument, the panel from the remote court will come to the transferring courtroom to hear it, and as Lobo pointed out the transferee court follows the transferor court’s precedent if it’s different.
SIZING UP THE *ALLEGED* PROBLEM JUSTIFYING APPELLATE COURT GERRYMANDERING
So how many appeals are actually affected by the two appellate redistricting bills as filed?
The OCA reports the appellate caseload data by county and court of appeal (COA). Here are the numbers for fiscal year 2019 for the counties covered by the bill (text of Senate version pasted below) whose appeals were split among two appellate courts:
Hunt County: 19 (COA5) + 23 (COA6) = 42
Gregg County: 47 (COA6)+ 20 (COA12) = 67
Rusk County: 18 (COA6) + 10 (COA12) = 28
Upshur County: 10 (COA6) + 6 (COA12) = 16
Wood County: 7 (COA6) + 9 (COA12) = 16
Given that the total caseload was 10,395 statewide (N of new cases added in FY 2019), the number of appeals affected by the tweaking bill is minute. And it’s not even a problem for the affected parties or their attorneys because no litigant loses any substantive right. Regardless of whether the plaintiff or defendant files the notice of appeal, both sides will know promptly which COA they are in because all documents must be served on the opposing party (and on all parties by the clerk of the court, such as a docketing letter). They can then prepare their briefs accordingly, and the appellee has more time in any event.
As for the implications of conflicting precedents on trial courts, it’s a small problem likewise because of the small number of COA conflicts on questions of law (jurisprudence) overall, not to mention the fact that small COAs produce fewer opinions that could be subject to a conflict with other COAs. And a large proportion of appeals in the intermediate courts of appeals do not hinge on question of law in any event, but on legal or factual sufficiency of evidence, or on whether the summary judgment standard was or was not satisfied.
When there is a genuine COA conflict on a question of law, that will create an opportunity for the dissatisfied party to seek further review in the SCOTX, and will generally increase the chance of the SCOTX granting a petition for review (to resolve the stateside equivalent for a “circuit split” and thereby make the jurisprudence of the State of Texas uniform).
TEXT OF SENATE VERSION OF COA REDISTRICTING / REAPPORTIONMENT BILL
By: Huffman S.B. No. 11
A BILL TO BE ENTITLED
AN ACT
relating to the composition of the court of appeals districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The purpose of this Act is to make a statewide
reapportionment of the court of appeals districts into which this
state is divided under Section 6, Article V, Texas Constitution.
SECTION 2. Sections 22.201(f), (g), and (m), Government
Code, are amended to read as follows:
(f) The Fifth Court of Appeals District is composed of the
counties of Collin, Dallas, Grayson, [Hunt,] Kaufman, and Rockwall.
(g) The Sixth Court of Appeals District is composed of the
counties of Bowie, Camp, Cass, Delta, Fannin, Franklin, [Gregg,]
Harrison, Hopkins, Hunt, Lamar, Marion, Morris, Panola, Red River,
[Rusk,] Titus, Upshur, and Wood.
(m) The Twelfth Court of Appeals District is composed of the
counties of Anderson, Angelina, Cherokee, Gregg, Henderson,
Houston, Nacogdoches, Rains, Rusk, Sabine, San Augustine, Shelby,
Smith, Trinity, and [Upshur,] Van Zandt[, and Wood].
SECTION 3. Cases and other matters pending before a court of
appeals from a county that is transferred by this Act to another
court of appeals may be transferred as necessary to carry out the
purpose of this Act and ensure the efficient administration of
justice.
SECTION 4. This Act takes effect September 1, 2021.
[bracketed counties to be deleted]
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