Justice Rosa Lopez Theofanis originally thought she could be an English professor because she loved to read.
“But increasingly, I started to feel I wanted to do something a little more practical or concrete, and something where I could help other people,” Justice Theofanis told The Texas Lawbook, sitting in her Austin chambers.
She earned her bachelor’s degree in comparative literature from Brown University in 1997 and then her law degree from the University of Texas School of Law in 2002.
During her last year of law school, she had the opportunity to work in the International Criminal Tribunal for the former Yugoslavia.
“I chose to work in the appellate section because I was already interested in appeals, and it was just really cool,” Justice Theofanis said.
The Austin-native joined the all-female Third Court of Appeals in January 2023 after serving as assistant district attorney in Travis County for nearly 13 years.
Theofanis recently sat down with The Lawbook to discuss what she is seeing from the bench. The following conversation has been edited for length and clarity.
Texas Lawbook: What surprised you when you first joined the bench?
Theofanis: One of the things I loved about being a prosecutor was that I felt like I was sort of in touch with my community, in touch with Austin. Cases would come up from all over town, and different kinds of people, different socioeconomics, and I liked feeling connected to my community in that way. And then joining the bench at this court … one of the things that’s surprised me is just how much our docket is driven by current events. So if there’s a natural disaster in our district or a major political event, it ends up shaping the kind of cases that we hear. It’s been interesting and sort of surprising to me how much is sort of driven by what’s happening on the ground.
Lawbook: What are some of your pet peeves that lawyers do in either briefing or oral argument?
Theofanis: I would say that the number one thing that bothers me is if someone sort of misrepresents the record. An example of that might be in a criminal case, you’ll read the appellant’s brief, and you’ll be like, “Wow, that does sound bad.” And then you turn to the appellees’ brief, [you see that] they left out one extremely pivotal and important fact that would change your whole way of looking at the case. It’s a pet peeve, because we’re going to find that. If your briefing doesn’t acknowledge a truth, even an ugly truth that you want to get away from, then it doesn’t help us. We need to know the full set of facts. Anytime someone tries to sort of slant the record or hide some kind of fact, that’s something that really bothers me.
Lawbook: What is a memorable moment in your career so far?
Theofanis: Probably the most memorable case I had as a prosecutor was a case called State v. Kleinert, and that case involved prosecution of an Austin police officer serving on a joint task force with the federal government. He ended up shooting a local man, and there was a prosecution of him for manslaughter. That case was then removed to federal court, so he was able to assert a federal officer immunity defense. That case was really unusual in terms of criminal prosecution in general and procedurally novel, and it had some really meaty substantive issues, too, that, in some ways, are increasingly relevant — with the issue, for instance, of immigration enforcement and federal officers acting in the community. It was a really interesting case and gave us the opportunity to litigate in federal court, which is something that you don’t usually get as a state prosecutor. So I got to argue at the Fifth Circuit, and that was probably one of the most memorable moments in my career.
Lawbook: You’ve given oral arguments when you practiced. What is it like to be on the other side of that now?
Theofanis: I remember serving on a panel with another judge, and I thought he put it really well, which was, as an advocate yourself, there’s a certain amount of nerves. You want to get your case across. You want to answer the question as well. You want to represent your client and our position well. It’s a little nerve-racking being there and wanting to make sure that you make the most of your time. I loved getting the chance to argue, and it was exciting. It felt more like you just didn’t want to make any errors or miss out on presenting something that you needed to say. As a judge, it’s been enjoyable, because you get to really focus the conversation on what you want to hear answers to, and you can direct the argument according to the issues that you think matter the most in the case. It’s been nice doing it from this side and getting that opportunity.
Lawbook: What is a trend you are seeing in appellate practice?
Theofanis: I think it’s probably almost any field, but the impact of AI has been something that’s noticeable right now. The AI revolution, or whatever you want to call it, is definitely appearing in law. The research tools are incorporating AI, and then we see its use by litigants. In some cases, people may be using AI, and it’s done so well that we can’t discern that they’re using AI. There have been really high-profile cases where AI has caused real problems because it hallucinated authorities, and people relied on fake authorities in their briefs and arguments to the court. We have had cases where you can tell that they relied on AI to draft it, including cases where, apparently, there is no case that you’re citing. But I would say the biggest way that it’s impacted us is from pro se litigants. We have a lot of petitions that are filed [using] AI that have affected us in volume. You can kind of tell it’s almost like a template when certain AI documents are generated that were probably written by, I don’t know, ChatGPT or something like that. That’s one of the biggest trends that’s changed just during the short time that I’ve been on the court.
Lawbook: What is a misconception you think people have about judges or the court of appeals?
Theofanis: I would say one misconception is that most of your work is accomplished on the bench. I think for a trial judge, they do spend a lot more time on the bench than we do, where they’re hearing cases and hearing motions, all kinds of things directly from the bench. In our court, we do hear cases orally, but it’s a very small minority of our cases that are actually decided that way. It’s more fun to think of the judge on the bench, holding a gavel or wearing their robe. We get to do that, but most of what we do is accomplished reading and writing at our desks, and talking with staff, talking with our fellow justices, but not as much actually sitting up on the bench.
Lawbook: What was your experience working in international legal systems?
Theofanis: The chance I got to do work in international criminal law was in law school, my last year, my third year of law school. It seemed like for a period of years that there was this internship where you could work in the prosecutor’s office of the International Criminal Tribunal for the former Yugoslavia. It was like a six-month internship for your last semester. For me, it was the last semester of law school, and it was incredibly exciting. We were, as I said, assigned to the office of the prosecutor, and you’re working there with lawyers from all over the world — so there are people from different legal systems. I learned that at the formation of the tribunal, they had to come up with new rules and procedures. And there had been a federal judge, Patricia Wald, who’d been there early on and was part of the elaboration and development of those rules. And so it was very inspiring to me that it was so creative and new. I was proud that the United States had been such a contributor. I guess people don’t necessarily always think of the law as being a creative thing, but that’s what I really liked about it — you could be creative and think about, why do we have these rules of evidence? And why do we have these procedures? How do they do it in another place? It was very rewarding.
Lawbook: What’s a book you’ve recently read?
Theofanis: One book I read recently that was interesting was Marianne Faithfull’s autobiography. It’s called Faithful. Marianne Faithfull is a singer, and she was involved with the Rolling Stones. I like biography because it’s a very approachable way of learning history. You can just get a snapshot of an era or a moment in time, and do so through a person’s life. I feel like it’s somehow easier for me to get into, and so she was just a very interesting person of her time. She lived a really extreme life, but I thought it was a way of understanding the mentality of that era. It was an interesting book.
If you or someone you know would like to be profiled in a future edition of Asked & Answered, please let us know at tlblitigation@texaslawbook.net. Check out our other Asked & Answered interviews below:
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