The Texas Shuffle

By Justice Irene Rios

Two bills, Senate Bill 11 (“SB11”) and Senate Bill 1529 (“SB1529”), were introduced in the most recent regular session of the legislature. Both bills aimed to dramatically change the landscape of the state’s intermediate appellate courts. Had they passed, the ramifications of these bills would have reverberated across every courtroom and attorney’s law practice in Texas. Trial judges and lawyers would have struggled to determine which justices might decide their cases on appeal, where those appeals would be heard, and what case law would be binding in their jurisdiction.

SB11 aimed to overhaul the current makeup of Texas intermediate appellate courts by eliminating the current fourteen appellate districts and creating seven mega appellate districts in their stead. The redistricted map placed Dallas and Austin in the same district, while placing Fort Worth and Texarkana in the same district. The proposed Second District stretched 520 miles wide and contained Boerne, Kerrville, Midland, and El Paso. Each of the new districts consisted of many rural counties and one or two large cities, perpetuating the concern that only justices from the large cities would be elected. Approximately 60% of the Fourth Court of Appeal’s district would have merged with a portion of the Thirteenth Court of Appeal’s district to form the new Third District. The proposed Third District stretched westward from Bexar County to Maverick County and southeastward from Bexar County to Aransas County, and encompassed every county south of those locations. This proposed Third District extended nearly 300 miles south of San Antonio and was 250 miles wide between Eagle Pass and Rockport. It would have also consisted of eleven justices—five justices from the Fourth Court and six justices from the Thirteenth Court. Two associate justices from the Fourth Court would have transferred to El Paso/Midland’s Second District.

Proponents of SB11 argued the need to improve efficiency and equalize dockets— by distributing the appellate workload more evenly across the state’s eighty appellate justices—warranted redistricting. They also argued the bill would enhance consistency and predictability in the state’s jurisprudence by eliminating the overlapping jurisdictions in Houston’s First and Fourteenth Courts.

Opponents of SB11 argued the bill “create[d] more problems than it solve[d],” was “a solution in search of a problem,” and that the recited justifications for the bill amounted to no more than “conclusory allegations without empirical data to back them up.” 1 Opponents also argued SB11 gerrymandered the districts of the intermediate appellate courts. In addition, opponents were troubled by the lack of stakeholder input and concerned that many Texas rural and urban communities would be left without a meaningful voice.

Despite short notice, approximately two dozen of the state’s eighty appellate justices— including six chief justices—testified at the April 1 hearing to inform the Senate Committee on Jurisprudence that the perceived, minor problems cited in SB11’s bill analysis did not merit the drastic measures the legislation sought. 2 Justices from the First Court in Houston denied any confusion on the law in the overlapping jurisdictions and explained that the Houston courts follow one another’s precedent. Justices also testified docket equalization only accounts for approximately 4–5% of their respective court’s dockets and did not, by itself, justify the proposed legislation—especially because current docket equalization methods sufficiently balance the workload among the appellate courts.

SB1529 sought to create an additional appellate court sitting in Austin with “exclusive intermediate appellate jurisdiction over all cases or any matters arising out of, or related to, a civil case brought by or against the state or a state agency, board, or commission or by or against an officer of the state or a state agency, board, or commission.” 3 The justices running for a position on this centralized special court would be elected in statewide elections.

Proponents of SB1529 argued a specialized, statewide appellate court with exclusive jurisdiction over cases where the state, a state agency, or state official is a party would be more adept in handling complex appeals involving the state and result in more consistent jurisprudence. Opponents of SB1529 contended that the current system already provides for appeals to the Texas Supreme Court to correct errors and ensure consistency across the state. They further contended the bill attempted to consolidate judicial power in Austin. Opponents also expressed concern that the expense to run a statewide campaign would almost certainly preclude the election of justices from rural communities.

The Senate Committee on Jurisprudence ultimately voted to reconsider SB11 and left it pending in committee when the general session concluded. The full senate approved SB1529, but it failed to make it out of committee in the house of representatives. Although these bills died in the general session, stay tuned to see if they re-emerge in special sessions or in future legislative years. When legislation seeks to affect the judiciary, judges and lawyers should be part of the process to ensure positive change and to preserve an independent judiciary where judges may faithfully preserve, protect, and defend the Constitution and laws of the United States and of the great state of Texas.

Justice Irene Rios has served on the Fourth Court of Appeals since January 2017. Justice Rios previously served as Judge of County Court at Law No. 10, in Bexar County, for fourteen years. Prior to her appointment to the bench, Justice Rios spent nine years in private practice. She is a Fellow of the Texas Bar Foundation and has served as a Special Master of major litigation. Justice Rios acknowledges her staff attorney, Craig O’Neil, for his contributions to the article.