AUSTIN — The new Fifteenth Court of Appeals has no permanent courtroom, but that won’t stop the justices from hearing inaugural oral arguments later this month, in space borrowed from the Court of Criminal Appeals.
A little more than a month after the Sept. 1 launch of the statewide business courts and appellate court, the judiciary is still working out some logistics and hiring staff, but the Office of Court Administration and lawyers who have begun practicing in the courts are upbeat about the progress that’s been made. The launch has been “so far, so good,” OCA Director Megan LaVoie told The Texas Lawbook.
“On the basis of this experience, the business court will absolutely be a preferred choice for anything that qualifies for the court’s jurisdiction,” said Timothy McCarthy, Dykema senior counsel who appeared via video conference for the first ever substantive hearing before the business court earlier this month.
McCarthy and colleagues Cliff Riley and Christopher Kratovil represent TuSimple Holdings Inc. which accuses Bot Auto TX Inc. of misappropriating trade secrets. At the historic first hearing, TuSimple asked Judge Sofia Adrogué of the Houston-based Eleventh Business Court Division for a temporary restraining order.
McCarthy said there was a technical glitch when filing some case documents, which ultimately had to be sorted out by a third-party filing service provider, but the court staff was easily accessible and helpful, he said. That hiccup aside, McCarthy said the judge and court staff were “exceedingly sharp, exceedingly helpful at every step along the way.”
The hearing was initially scheduled to take place in person in the Harris County Civil Courthouse in downtown Houston, but the Dykema lawyers requested it be handled remotely to save both sides out-of-town travel, which the court granted.
The courts have made “tremendous progress” and are anticipated to be fully staffed by the end of the month, LaVoie said.
“The infrastructure to make the court operate is in place,” LaVoie said, noting the case management system is running and judges are authoring their local rules. “So the judges are full speed ahead and working really well.”
The outstanding question for the business courts and Fifteenth Court of Appeals has been about location. The Fifteenth Court of Appeals still faces potential legislative roadblocks to public funding for a permanent courtroom. The justices included funding in its legislative appropriations request to the Legislative Budget Board.
LaVoie said the legislature did not design the business court divisions to have their own physical courtrooms, which has led some lawyers, such as Enoch Kever’s Amy Leila Prueger, to refer to the courts as a “traveling road show.”
Lawmakers directed counties within the division regions to accommodate the business court proceedings in existing courtrooms “to the extent practicable.”
“The business courts are never going to look like the county courthouse,” LaVoie said.
Texas A&M University School of Law in Fort Worth, for example, is housing the Eighth Division of the business courts. But even still, trials will likely be held in courtrooms within the division, LaVoie said.
Robert Ahdieh, dean of the A&M law school, said the campus has the resources to host most trials in spaces shared for mock trials and moot court competitions, though he said some cases involving large legal teams may need a formal courtroom.
Hosting the business court on campus means students have more opportunities to observe real court proceedings, Ahdieh said.
“What we have managed to create so far is this pretty robust partnership in terms of trying to both get the courts off the ground but also facilitate their growth and success over time,” Ahdieh said.
Notices of case hearings and trials will be published online and include the location, LaVoie said. But wrinkles are still being ironed out — earlier this month notice of oral arguments in a Fifteenth Court of Appeals’ case was sent to the attorneys but wasn’t publicly posted until a reporter reached out to the clerk’s office.
Without a permanent location, lawyers won’t have the chance to observe the judge’s courtroom demeanor in advance of a hearing, noted Bell Nunnally partner Heath Cheek, who holds the distinction of filing the first-ever case in the business courts.
“There is something to be said about going to a hearing and there’s five or six other hearings on the docket and you get to watch the judge and see how he or she is ruling and see what kind of mood they’re in,” Cheek said. “But when I’m thinking about the cost to the client, and our goal here is to reduce the overall cost of litigation, then I think, especially on smaller matters … it doesn’t make sense to send one or two attorneys down to the courthouse an hour in advance … for a 30-minute hearing.”
Cheek has yet to have a hearing since filing Sept. 1, but he said everything seems to be functioning like the regular district courts.
The Fifteenth Court of Appeals’ first oral arguments will be heard in Crowley ISD v. Stoneham regarding a teacher’s firing over use-of-force allegations; Texas Department of Public Safety v. Texas Tribune, seeking public records regarding the May 2022 mass shooting at Robb Elementary School in Uvalde; and two cases 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. Those cases are being consolidated for oral arguments.
The Lawbook discovered another hiccup: Access to the business court and Fifteenth Court of Appeals clerks who office in the William P. Clements Jr. building in downtown Austin. An attorney general’s office security guard turned away a Lawbook reporter who told him she was there to visit the business court clerk. That should not have happened, LaVoie said; Security guards have been told visitors are welcome to the business court and 15th Court offices. By contrast, the reporter was greeted but not stopped by security at the Price Daniel Sr. building, where the Third Court of Appeals is located, about a block away.
Riley, of Dykema, is betting the “growing pains” will be worth the economic impact the business courts will have on Texas. “This is not a minor procedural development,” he said. “This is actually a big story in the growth of Texas.”