After two years in operation, the Texas Business Court has proven to be a nimble, sophisticated venue for resolving complex business litigation.
But there’s one issue that represents an “existential” threat to the continued success and growth of the court, Administrative Presiding Judge Grant Dorfman recently told The Texas Lawbook: a shortage of permanent courtrooms.
“We’ve solved all the logistical hurdles to date, but the one real serious one is courtroom space. That is existential,” Judge Dorfman said. “That’s the one that I sometimes lie awake at night thinking about.”
The courts have found creative solutions to the space issue, borrowing spaces from state district court judges, using of rooms offered by Texas law schools and, in some instances, even renting a hotel ballroom to administer justice. The very first jury trial in the Texas Business Court took place in February before Judge Sofia Adrogué. Logistical challenges, including a valve failure that caused widespread water damage and forced the parties out of the Family Law Center in Houston (which has previously been tagged for demolition), meant that initial jury trial turned into a traveling show — occupying five different courtrooms before a verdict was reached.
The trial, intended to showcase the new court, became an exercise in crisis management. Roland Garcia of Greenberg Traurig, who represented the plaintiff during that trial, told The Lawbook at the time it was “not sustainable to conduct business this way with such a high-level, specialized court,” adding that he hoped lawmakers would fund a permanent solution. Former appellate justice Bill Boyce, now with Alexander Dubose & Jefferson, was embedded appellate counsel in that trial and said it was “like practicing law in a MASH unit.”
Competing with the Delaware Court of Chancery
For Chief Justice Scott Brister, who presides over the Fifteenth Court of Appeals that hears all Business Court appeals, the lack of courtroom space undercuts the selling point of the Business Court.
“To my mind, one of the things the Business Court and our court were established to do is compete with Delaware, specifically — especially with businesses moving their headquarters to the state,” he said. “That’s a concern. That’s what we’re being compared to, and at least facility-wise, we’re not in the same ballpark.”
The Fifteenth Court of Appeals has chamber space in the William P. Clements State Office Building in downtown Austin, but there are currently not enough desks for everyone there. That problem will only get worse when another jurist and three staff are added in September 2027 — and again in September 2028. If a larger space cannot be secured, Chief Justice Brister said the court may explore moving the clerk’s office “a block or two away.”
“It would just be a mess,” he said.
Recently, an Austin law firm phoned the chambers, explaining they were decorating new office space and wanted to incorporate photographs of Texas courtrooms and chambers, Chief Justice Brister said. They asked for permission to take a few photos of the Clements building space.
“We said no. You wouldn’t want to use them,” he said. “No law firm would want to use pictures of our chambers.”
The chamber space issue is also “a little embarrassing” when the Fifteenth Court of Appeals is courting “very good law students” interested in a clerkship, he said, and they get a tour of the sixth-floor space.
And when the time comes for oral arguments, a new set of logistical headaches arise, Chief Justice Brister said. If they can borrow space from the Court of Criminal Appeals, that just requires a quick walk across the street. But if it’s the University of Texas School of Law that has space instead, that requires a van to take all the justices to the venue. Other times, they hear oral arguments in other parts of the state, such as Houston, Amarillo or San Antonio, requiring flights and other travel accommodations.
“And with this moving around, courtroom to courtroom month to month … it doesn’t create the feel of a first-class court system,” Chief Justice Brister said. “It’s got a bit of an ad hoc feel to it.”
Will the Legislature Act?
The Texas legislature will convene next year, but there are already discussions ongoing between lawyers, jurists and lawmakers about possible solutions to the problem. Chief Justice Brister said he and other judges have had meetings with the Texas Facilities Commission about securing permanent space. He added that members of the Senate Committee on Finance have initiated conversations with him and other judges on the topic, too.
Judge Dorfman said he and Chief Justice Brister met with state Sen. Judith Zaffirini, one of four legislators who serve on the Texas Judicial Council.
“She was very helpful with suggestions and clearly was interested in finding solutions,” Judge Dorfman said. “We will certainly be meeting with senators and state representatives on the topic.”
Judge Dorfman said it would be “more dignified” if the court had dedicated courtrooms and wasn’t forced to “beg and scrape” for real estate suitable for trials and hearings. Having access to a courtroom, he said, is key to being able to push cases to quick, final resolution.
“It’s all worked out so far, the occasional hotel ballroom notwithstanding. But I don’t think it’s undermined the acceptance of the court, the willingness to file with the court,” he said. “But at some point, yes, I think it could undermine the desirability of filing. And I’d hate to see that.”