At least one party in the 88 cases that were recently transferred from various intermediate appellate courts to the new Fifteenth Court of Appeals is challenging the move.
On Wednesday, lawyers representing a student at Barbers Hill High School — who 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 — filed an objection to the transfer.
The case that pits Darryl George and his mother, Darresha George, against the Barbers Hill Independent School District was one of the dozens of cases transferred to the newly created court Aug. 26. The transfer order came 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 in the first batch are from the Third Court of Appeals.
George’s case had been on appeal at the First Court of Appeals in Houston, where seven of the nine justices are democrats. The three justices on the Fifteenth Court of Appeals were all recently appointed by Gov. Greg Abbott.
The objection to the transfer of George’s case is also alternatively presented to the court as a motion to transfer the case back to the First Court of Appeals. George argues the Fifteenth Court of Appeals doesn’t have the necessary exclusive jurisdiction to hear his case.
“That is because, unlike the First Court of Appeals and its thirteen other sister intermediate courts of appeals, this court uniquely possesses exclusive intermediate appellate jurisdiction over certain matters,” the filing reads. “Because this appeal is not subject to the court’s exclusive intermediate appellate jurisdiction, it never should have been transferred to the court and the court has no jurisdiction to adjudicate it as a pure matter of law.”
George argues there are three issues precluding the Fifteenth Court of Appeals from having exclusive jurisdiction over this case: It doesn’t present a constitutional question, the attorney general isn’t a party, and the district isn’t “an agency of the executive branch of the state government or a state board, commission, department, or office.”
“Absent exclusive intermediate appellate jurisdiction, the Court should sustain the Georges’ Objection to their Appeal’s transfer to this Court and disagree to the transfer,” George argues.
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.
Dylan O. Drummond of Langley & Banack, who represents George, told The Texas Lawbook in an interview Friday that he conferred with opposing counsel prior to filing the challenge and they indicated they were not opposed to the requested relief and may file their own challenge to the transfer.
Opposing counsel did not respond to a message seeking comment Friday.
Because some kinks are still being worked out regarding the functionality of the new court’s website, The Lawbook could not discern whether Drummond is the first or only lawyer to file a challenge to the transfer. Drummond said he also was unable to tell if his challenge was the first filed.
“We were trying to file that motion for several days and finally were able to two days ago,” he said of other technical difficulties parties have encountered in accessing the new appellate court.
A message at the top of the Fifteenth Court of Appeals’ website Friday indicated its phone line was not in service. In place of that, the clerk of the court publicly posted his cell phone number so parties could contact the court.
It’s also unclear what next steps in the case may be.
“It’s up to the court,” Drummond said of whether a response from the other side might be requested or if oral arguments on the issue were a possibility. “The thing that makes this interesting and fascinating is it’s truly a matter of first impression.”
Drummond said he pursued this appeal because of his firm belief that the case does not belong in the Fifteenth Court of Appeals.
“My perspective is a court can’t hear a case that it doesn’t have jurisdiction to hear,” he said. “The Texas legislature has been very specific about the types of cases [the Fifteenth Court of Appeals can hear], and ours just flat out isn’t one of those types of cases. That’s why we challenged it.”
George is also represented by Allie R. Booker of Booker Law Firm.
Barbers Hill ISD is represented by Sara Leon, Michelle Alcala and Hans P. Graff of Leon Alcala.
The case number is 15-24-00023-CV.
The Lawbook is interested in following any challenges to the Fifteenth Court of Appeals transfer orders. If you or someone you know is planning to challenge the move, let us know at tlblitigation@texaslawbook.net.