This week, the Texas Supreme Court transferred the first set of cases that the newly created Fifteenth Court of Appeals will decide.
In an administrative order issued Aug. 26, the Texas Supreme Court sent 88 cases to the Fifteenth Court of Appeals, which will go live Sept. 1. The transfer order came just three days after the Texas Supreme Court unanimously rejected a constitutional challenge to the creation of the court.
Opponents of the court’s creation have argued it was a Republican initiative to undermine the authority of the Democratically-controlled Third Court of Appeals in Austin. About 56 percent of the cases transferred this week are from the Third Court of Appeals.
In June, the Legislature passed and 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. Gov. Greg Abbott has appointed Scott A. Brister to serve as the inaugural Chief Justice of the new court, alongside Justices Scott K. Field of Liberty Hill and April L. Farris of Houston.
Among the first batch of cases transferred is Exxon Mobil Global Services v. State Office of Administrative Hearings, a tax dispute that presents an issue of first impression, George v. Barbers Hill ISD, which alleges the district has violated a new state law prohibiting discrimination on the basis of hair texture or discrimination against certain protected hairstyles, such as locs and braids.
A few of the cases transferred are part of the Winter Storm Uri litigation, such as Oncor Electric Delivery Co. v. Public Utility Commission of Texas, and there’s also a case where tech giant Google is in a discovery dispute with Texas in a lawsuit accusing it of violating the Deceptive Trade Practices Act with its collection of Texans’ data.
Challenges to the transfer order may be few, said David Coale of Lynn Pinker Hurst & Schwegmann, because of the clarity of the statute that allows for the move.
“I’d be surprised if there was really much dispute,” he said.
The Lawbook reached out to some attorneys handling the newly transferred cases to inquire about any planned challenges.
Tab Urbantke of Hunton Andrews Kurth, who represents Oncor in the PUC case that was before the Third Court of Appeals in Austin, declined to comment. Stephen McConnico of Scott Douglas McConnico, who represents Google in the DTPA case that was at the Thirteenth Court of Appeals, didn’t respond to a request for comment and the Texas Attorney General’s Office also did not respond to messages seeking comment.
But John Brusniak of Brusniak Turner, who is representing Exxon Mobil in the tax dispute that was transferred from the Third Court of Appeals, said he won’t be challenging the transfer order and also sees benefits to it.
“I am hopeful that we will be able to have a decision made quicker since the new court does not have any backlog,” he said. “The Austin court of appeals has a very busy docket and it typically takes a while to get a decision issued. From my perspective, an appellate court is an appellate court, and we are glad they are available to review our case and make a decision. This is not any different than when an appeal is transferred to another court of appeals in the state because the court of appeals in which the case was filed has too many cases.”
Dylan Drummond of Langley & Banack, who represents the high school student in the Barbers Hill case that had been pending with the First Court of Appeals in Houston, hasn’t made a decision yet, he said.
“We are considering whether and how to challenge the initial transfer,” he said.
Here’s the breakdown of the number of cases transferred from each intermediate court of appeals:
- First Court of Appeals: 7
- Second Court of Appeals: 1
- Third Court of Appeals: 49
- Fourth Court of Appeals: 2
- Fifth Court of Appeals: 5
- Sixth Court of Appeals: 1
- Seventh Court of Appeals: 2
- Eighth Court of Appeals: 3
- Ninth Court of Appeals: 1
- Tenth Court of Appeals: 7
- Eleventh Court of Appeals: 2
- Twelfth Court of Appeals: 0
- Thirteenth Court of Appeals: 2
- Fourteenth Court of Appeals: 6
The Lawbook is interested in following any challenges to the transfer orders. If you or someone you know is planning a challenge, you can let us know at tlblitigation@texaslawbook.net