Texas’ new system of business courts came with the kind of “fear and trembling” that often accompanies change on such a grand, institutional scale. “What else are courts created for business supposed to do besides favor business,” many worried. But our new business courts have spent the last several months both dispelling those fears and proving why these courts are a smart investment — as much for the public as for litigants.
Start with the business courts’ uniform rejection of every invitation from Texas businesses to aggressively assert or expand business-court jurisdiction as some openly feared they would. Indeed, given that business courts have dismissed or remanded up to a third of their initial docket, some might say business courts have been downright stingy with their jurisdiction.
Beginning with Judge William Whitehill’s October 2024 opinion in Energy Transfer LP v. Culberson Midstream LLC in the Dallas division and continuing through Judge Sofia Adrogué’s February 2025 decision in Cypress Towne Center, Ltd. v. Kimco Realty Services in the Houston division, Texas’s business courts have consistently construed their jurisdiction narrowly. They will not, for example, exercise jurisdiction over any action filed before Sept. 1, 2024, the effective date of their enabling act, even if new claims or even new defendants were added after that date. In fact, business courts will remand any case filed before last Sept. 1, even if the parties agree to business court jurisdiction (as happened recently in Bestway Oilfield, Inc. v. Cox). These courts are sticking to the plain language of the jurisdiction the Legislature provided and are rejecting all invitations that businesses are making to stray from that text, such as on grounds of judicial economy, legislative history, or other “pro-business” policy arguments.
Incidentally, the Fifteenth Court of Appeals (the court of appeals with exclusive jurisdiction over business-court appeals) has been no less stingy with its appellate jurisdiction. In Regency Field Services, LLC v. Tema Oil and Gas Company, for example, the court recently dismissed several business-court appeals challenging remand to district court from business trial courts. Such remand orders, the court held, are not final judgments and thus cannot be appealed (because appellate jurisdiction exists only over final judgments). So businesses who lose a motion to remand in business trial courts shouldn’t expect special treatment on appeal either — another encouraging sign for business court critics. (Note: erroneous remand orders may be subject to mandamus review under In re ETC Field Services, LLC—at least for now.)
There are other reasons, however, that these rulings should be encouraging to commercial litigants and critics alike. For one, these rulings show that business courts are meeting expectations to apply the law as it’s written and not as the court — or a business — may want it to be written. The opinions mentioned here make that point emphatically and expressly, as do the many authorities each decision collects from other business court divisions.
These rulings also show that business courts are meeting expectations to rule quickly and work efficiently. As the procedural histories in each written opinion show, business courts are taking extensive and quality briefing, holding oral argument and issuing reasoned opinions — again, a rarity for Texas trial courts — at a very efficient clip of 90 days or less.
On that note, business court litigants should be mindful that business courts see efficient work going both ways. As business court judges have canvassed the state, one theme they have consistently emphasized is how they expect litigants to pursue their claims and defenses as efficiently and diligently as the courts intend to dispose of them. Indeed, their view on granting continuances may be the only thing stingier than their view of their own jurisdiction.
Finally, the quality of the opinions resulting from these early days show how business courts will help develop the law and with greater predictability in its application — statewide and in every Texas forum. Rulings now are focused mainly on issues of business court jurisdiction, as one would expect of a new court system. But even in those jurisdictional rulings, it’s easy to see the benefits that will likely flow to all Texas litigants from the work business courts will do.
Taking time to parse statutory language and other authority cautiously and apply it prudently to the parties’ arguments in each case is a function business courts share with their district court counterparts. Where business courts stand apart, however, is in providing the kinds of reasoned opinions that Texas courts typically provide only on appeal. And as shown in their early decisions, business courts are producing high-quality opinions with a clarity that would make Brian Garner or Ross Guberman proud. It is reasonable to expect that, once these courts start disposing of actions on their merits, the benefits of their reasoned opinions will extend to litigants in district courts and county courts alike. (Note: That may be especially true in the Rule 91a context and with important implications for mandamus review — relief that may be available if trial courts erroneously refuse to dismiss claims foreclosed by clearly established law. The Texarkana court of appeal’s decision in In re Shire PLC provides an excellent summary of when that kind of review is available for orders denying Rule 91a motions.)
Large issues still loom, of course, for business courts. The Legislature left several key jurisdictional terms undefined (e.g., “trade regulation law”), which await adjudication. And at least as of the date of this column, we’re still waiting for the first business court decision wading into the quagmire of supplemental business court jurisdiction (e.g., does a business court have to dismiss or remand the entire action if it dismisses a claim over which it has original jurisdiction and is therefore left merely with supplemental jurisdiction?). But what we see so far is a system working as intended and not just for businesses.
Josh Bennett is a partner at BakerHostetler in Dallas. He focuses his practice on trademark infringement, unfair competition, false advertising, copyright, patent infringement, antitrust, theft of trade secrets, First Amendment and civil rights, data security and more.