Will the 2018 Judicial Elections Breathe New Life into Factual Sufficiency Review?

Newly elected judges on courts of appeals may soon find themselves at odds with the steadfastly conservative Texas Supreme Court. As the intermediate courts of appeals grapple with their role in shaping Texas jurisprudence, a firmly rooted – albeit faded – distinction between factual and legal sufficiency may return to a prominent place in appellate review. Specifically, courts of appeals may be able to limit state Supreme Court review by deciding cases based on factual sufficiency of the evidence.

This distinction between legal and factual sufficiency review is a unique feature of Texas practice. It stems from the Texas Constitution, which says that “[T]he decision of said courts [of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.”