A bill that would create a new, statewide appellate court with exclusive jurisdiction over disputes involving the state or state agencies has been advanced, days after testimony on the proposal was dominated by voices opposing the bill.
In a 3-2 vote on Friday, the Senate Jurisprudence Committee referred S.B. 1045, which would create the Fifteenth Court of Appeals, to the full senate for further consideration. State Sens. Nathan Johnson, D-Dallas, and Juan “Chuy” Hinojosa, D-McAllen, voted against the proposal while state Sens. Brandon Creighton, R-Conroe, Bryan Hughes, R-Mineola, and Mayes Middleton, R-Galveston, voted in favor.
Strange bedfellows united to oppose the bill, with representatives from the Texas Association of Defense Counsel, the Texas Chapters of the American Board of Trial Advocates and the Texas Trial Lawyers Association offering testimony and signing onto a joint letter that argued there was no data to support the creation of the proposed appellate court.
Grace Weatherly, who practices at Wood Weatherly in Denton, testified on behalf of all three groups before the Senate committee, urging lawmakers to listen to the trial lawyers who oppose the bill.
“A lot of cynical people would say if it’s bad for trial lawyers then it’s good for Texans,” she said. “It’s good for lawyers because it increases litigation costs tremendously. But it’s bad for our clients … small businesses that have a dispute with any governmental entity that gets sucked into the 15th Court of Appeals makes the cost of litigation almost too much to bear.”
Weatherly said the elected justices of the Third Court of Appeals in Austin, who typically hear state administrative cases, are “competent to hear those matters.”
Testifying in favor of the bill were representatives from the tort reform group Texans for Lawsuit Reform, who told lawmakers the proposal would bring Texas courts in line with the federal system, where the U.S. Court of Appeals for the Federal Circuit has specialized jurisdiction over certain cases.
“It’s not a unique concept,” said Lee Parsley, general counsel of TLR. “For people supportive of [TLR], we think the ability of a single court to hear administrative cases and develop expertise in a body of law is important.”
State Sen. Joan Huffman, R-Houston, authored the bill that proposes the creation of a court where four justices and a chief justice, initially appointed by the governor, would sit in Austin to hear disputes involving the state. It would cost taxpayers about $6.2 million through August 2025 to fund the court. In introductory comments to the Senate Jurisprudence Committee explaining the bill, Huffman said currently the Third Court of Appeals is hearing cases that impact the entire state despite being elected by voters who mostly reside in Travis County.
“These are issues of statewide concern,” she said. “Judges elected statewide should be deciding them.”
Sen. Johnson noted that the creation of a court whose justices are initially appointed by the state’s Republican governor would “result in a dramatic shift of partisan affiliation of the court deciding these cases.”
All six of the justices currently sitting on the Third Court of Appeals are Democrats.
A Democrat has not won a statewide election in Texas in nearly 30 years.
Because the state’s Office of Court Administration doesn’t keep case-specific data that would show the number of state administrative cases the Third Court of Appeals hears each year, that court’s staff culled numbers to present to lawmakers during hearings last week.
According to the Third Court of Appeals’ analysis of its cases, there have been 406 state-issue cases appealed within its jurisdiction since 2016, making up less than 10 percent of that court’s docket.
Third Court of Appeals Justice Gisela Triana testified that based on that data, the proposed Fifteenth Court of Appeals would hear about 130 cases a year, which breaks down to 26 per justice.
“Currently, the 80 justices we have statewide carry a load of 130 cases each,” she said. “That means this court would be doing the work of one justice.”
Justice Triana said the Third Court of Appeals has a 7 percent reversal rate on state-issue cases that are reviewed by the Texas Supreme Court.
Fourth Court of Appeals Justice Patricia Alvarez wrote her master of judicial studies thesis at Duke Law comparing the proposals in Texas to create a Fifteenth Court of Appeals and a separate proposal that would see a specialty business court established to judicial changes made in Hungary and Poland that she argued eroded democracy in those countries.
She circulated the thesis to lawmakers before offering testimony and urged them to read it before advancing the bill.
Testifying against S.B. 1045’s companion bill, H.B. 3166, she told a House committee it was a “potential threat to our democracy.”
“Let me tell you, the independence of the Austin Court of Appeals is at stake and it is at stake because you’re taking away jurisdiction from it,” she said. “You’re taking away its power to review. And when you take away the power of a judiciary, of a judge, to review, then you threaten the rule of law. And that is what I really urge you to consider.”
A Texas lawyer of 30 years, Elizabeth Miller testified before the House Judiciary and Civil Jurisprudence committee against the bill on behalf of herself.
“Let’s just be honest,” she said. “Republicans are frustrated that cases against the state are landing in Democrats’ hands, and this is a battle between blue and red elites who control the government.”
“Now you’re not just forum shopping, you’re forum birthing and forum guaranteeing,” she said. “You’re choosing the judges.”