In less than a month, Texas’ new Fifteenth Court of Appeals will go live while a lawsuit that alleges the court’s creation violated the state’s constitution is still pending with the Texas Supreme Court.
Three amicus briefs — from Disability Rights Texas, the Texas Business Law Foundation and Texans for Lawsuit Reform — have been filed in the case. While the groups seek different outcomes, Disability Rights Texas and Texans for Lawsuit Reform agree on one issue: the Texas Supreme Court should take the case and issue a decision on the constitutionality issue.
“The constitutional question will have to be resolved by this court sooner or later,” Texans for Lawsuit Reform told the court. “It is a pure question of law. No fact finding is required. No lower court record will make any difference. And denial of the petition for review, as sought by the Office of the Attorney General, does no good because it is not a ruling on the merits. It simply leaves the issue alive for another day.”
“The issue has been adequately briefed by the parties. If this Court does not take this case, it will receive identical briefs in the next case, and the next, and the next, until it finally resolves the issue. Nothing will change over time, except the number of briefs this Court is required to review.”
The Texas Business Law Foundation, like the attorney general’s office, has urged the high court not to take the case.
In the underlying suit, Dallas County accuses the Texas Health and Human Services Commission of failing to comply with obligations to transfer inmates who have been determined not competent to stand trial or not guilty by reason of insanity from the county jail to state hospitals. The county, which filed a petition with the court in May, is asking the Texas Supreme Court to declare the Fifteenth Court of Appeals unconstitutional in a bid to prevent its lawsuit against the HHS — currently pending with the Austin Court of Appeals — from being transferred Sept. 1 when the new court opens for business.
In June 2023, the governor signed into law S.B. 1045, which created the Fifteenth Court of Appeals and granted it exclusive, statewide jurisdiction over certain cases involving the state or state officials. The jurisdiction of the state’s other 14 intermediate appellate courts is tethered to the district and county courts within its geographic region, which Dallas County argues is constitutionally required.
And while this constitutional challenge remains pending, some logistics of how the court will function are still being worked out.
Megan LaVoie, administrative director of the Texas Office of Court Administration, told The Texas Lawbook on Friday that the Fifteenth Court of Appeals’ chambers and the clerk’s office will be located in the William P. Clements state office building, which is on W. 15th Street in downtown Austin, across from the Capitol.
“At this time, the 15th COA does not have a dedicated courtroom, but will be utilizing other courtrooms in Austin and across the state for oral argument,” she said in an email.
Disability Rights Texas argued that the lawmakers who had a hand in the creation of the court “unilaterally circumvented the constitutional requirement for regional appellate courts by instead statutorily creating a statewide appellate court untethered to any regional district.”
“The sweep of S.B. 1045 is expansive and will include not just cases seeking statewide injunctions, but nearly any dispute between private entities or local actors and a state agency, as the case at bar aptly illustrates,” the group argued.
“Proposing a statewide intermediate appellate court is not a novel suggestion in Texas history,” DRT told the court. “Yet S.B. 1045 uniquely attempts to bypass the constitutional amendment required to implement this change. In every prior effort to create a statewide appellate court, proponents acknowledged that it could only be done through a constitutional amendment. And after public debate and consideration, Texas legislators repeatedly declined to so amend the constitution, instead retaining the constitutional requirement for regional appellate districts.”
The Texas Business Law Foundation told the court it had been advocating for the creation of the court for about a decade — including by “drafting legislation, presenting expert testimony, and preparing reports addressing the policy and legal implications of such a system.” The organization focused much of its amicus brief defending the constitutionality of the Fifteenth Court of Appeals and explaining why the court will facilitate a “favorable business climate in Texas.”
“Many of the Foundation’s members and their associates regularly litigate business disputes in Texas courts,” the foundation argued. “Their experience underscores that the State’s size, geographically dispersed business community, and complex economy demand the efficiency and consistency that only a uniform, statewide business court and associated appellate court with judges experienced in resolving complex business disputes can provide.”
In its amicus brief, TLR also reminded the court that it has been the “primary outside-the-Capitol advocate for creation of the Fifteenth Court of Appeals, as demonstrated by TLR providing the only live committee testimony in either chamber in favor of the bills to create the new court of appeals.”
Clarity on the constitutional issue is imperative, TLR argued, because that court will soon begin issuing orders and judgments that could be clouded by uncertainty.
“Whether the new court was constitutionally created was questioned during the legislative hearings and is being questioned by attorneys in practice,” TLR argued. “The efficacy of orders and judgments the court renders while its constitutionality is in question will be disputed, creating uncertainty. An order or judgment is supposed to create certainty, not leave uncertainty.”
Dallas County is represented by Chad W. Dunn and K. Scott Brazil of Brazil & Dunn and E. Leon Carter and Ana Jordan of Carter Arnett.
HHSC is represented by Allison M. Collins and William Wassdorf of the Texas attorney general’s office.
Texans for Lawsuit Reform is represented by its general counsel, E. Lee Parsley.
Texas Business Law Foundation is represented by Bradley G. Hubbard, Kathryn M. Cherry, John S. Adams, Elizabeth A. Kiernan, Stephen J. Hammer, Jessica A. Lee, Zachary R. Carstens and Jaime R. Barrios of Gibson, Dunn & Crutcher.
Disability Rights Texas is represented by Ashley Harris, Thomas Buser-Clancy and Adriana Piñon of the ACLU Foundation of Texas.
The case number is 24-0426.