Texas gets sued a lot. A new, Abbott-appointed court may soon handle those lawsuits.
Appeals courts aren't sexy. It's not likely Dick Wolf is going to whomp up a "Law & Order: Regional Appellate Court" spinoff any time soon. I'm sorry. It's true. There's just far too much paperwork; it'd be too hard to follow.
But trial lawyers and appellate judges do the hard work of ensuring plaintiffs and defendants in civil and criminal court are given their proverbial day in court.
Texas' appeals courts handle lawsuits against the state for everything from wrongful death cases to mask mandates.
A bill that's passed both houses of the Texas Legislature creates a new court that would fast-track all those cases to a single court. This week, the bill went to the governor's desk. Supporters say it'll take the weight off beleaguered appeals courts. Opponents say it's a politically convenient powergrab.
What do these courts do?
Say, you get hit by a bus.
I truly hope you don't, but for the sake of this hypothetical, let's say you do. You sue the bus operator in a court, and the judge sides with you. The bus operator claps back and says that judge's decision wasn't fair and wants another shot in court.
That's where appeals courts come in. They weigh cases from plaintiffs and defendants across the state on a local level. There are 14 of them.
And those 14 courts handle everything from bus crashes to estates to oil and gas disputes.
But cases against the state, largely, are filed in a single court: Austin's Third Court of Appeals. It's probably at this point you're wondering: Why does this matter?
In the past four years, the Third Court of Appeals has handled cases that affect a broad swath of daily life for Texans. Here are some of them:
- Mask mandates
- Gender-affirming care
- COVID-era curfews
- Investigations into trans families
- Paid sick leave
- Mail-in ballot access
For the last few legislative sessions, Republican lawmakers have tried to establish a court to handle these types of cases. This session, they were successful.
Senate Bill 1045 is now at the governor's desk. If Gov. Greg Abbott signs it, it would create a new, five-justice appeals court to hear appeals on lawsuits against the state: the 15th Court of Appeals.
The first round of justices would be appointed by Abbott. Then, the justices would be elected statewide, with six-year terms.
What does this mean?
Supporters of the bill, namely the longtime lobbying firm Texans for Lawsuit Reform, say the bill will clear up confusion in the appellate process — and function more like the federal appeals court system.
At a hearing on SB 1045, TLR's General Counsel Lee Parsley said a statewide court should handle statewide cases.
"The court will be hearing ... issues of statewide importance," Parsley said. "And it seems to us that a statewide court hear issues of statewide importance ... so that all the voters have some ability to weigh in on those issues."
Attorney Mike Siegel tried a case before the Third Court of Appeals a few years ago — a challenge to the state's attempt to ban mask mandates. He says creating this new appellate court is "profoundly anti-democratic" and that the possibility of both the 15th and the Supreme Court will (likely) be GOP-dominated is "obscene."
"Courts of appeal are supposed to review state action and stop the state when they're doing something illegal," Siegel said. "[This] reform would make it less likely that a court is going to stand up to the executive branch or the legislative branch and let them know when something is illegal."
His case is still before the Republican Texas Supreme Court.
Third Court Chief Justice Darlene Byrne says the political-ness of it all — the fact that Abbott will appoint the first five justices — is "bad optics."
"One of the main clients that will have cases in that court is the State of Texas, and the governor, I see, is the CEO," she said. "And the governor will be the one that gets to appoint all of his judges. So it'll be an interesting first six years of the court."
Why is this happening?
Supporters of Senate Bill 1045 say the 15th Court of Appeals would alleviate pressure on overburdened appeals courts across the state, taking cases against the state off their plate.
Republican state Sen. Joan Huffman, who authored the bill, made that argument in April at a committee hearing. Huffman argued there's a ripple effect to having these cases handled by the Third Court of Appeals — that some of those cases get pawned off to the other 13 courts across the state.
"They are transferring out a lot of cases," she said. "And again, the overriding issue is that we feel these are cases of statewide importance that would benefit from a statewide elected ... justice."
Byrne says that ripple effect isn't a result of the Third Court's caseload; a lot of valid lawsuits get filed in Texas and all of them get a chance at appeal.
She said the 15th Court would handle a fraction of what a typical appellate judge handles in a given year — 130 cases, by her estimate.
"One justice on the Court of Appeals right now handles in one year by themselves 130 cases. So it's going to be a cakewalk for the [15th Circuit] judges," she said. "Five judges are going to handle the same amount of cases that one judge handles now."
Byrne also says the push for this runs counter to the last legislative session, when Huffman and Texans for Lawsuit Reform pushed Texas to cut its appeals courts in half.
"They wanted to reduce the 14 courts of appeals down to seven because our system was too complicated. We had too many judges, we had too many courts with too many avenues," Byrne said. "Two years later, the same authors of the bill are saying, 'No, we need more courts.'"
Parsley, TLR's lead counsel, testified in April 2021 that the state's appeals court system was overwrought, a vestige of 19th and 20th century Texas thinking.
"We have too many appellate courts that have overlapping jurisdictions," he said. "It's just an irrational structure. ... Would any rational person design an appellate court system like we have in Texas today? And our answer is and has been for a number of years: No."
Why does this matter?
Siegel says creating a new court appointed by Abbott could mean partisan judges quickly throw out lawsuits.
"They are trying to dismiss lawsuits earlier in the process against state officials and state agencies with less opportunities for ordinary Texans to challenge unlawful action," he said.
This may all seem like a boring episode of an ill-fated "Law & Order" spinoff, but there are real stakes here.
The Third Court of Appeals' halt on the state's attempt to ban masks in 2022 gave his clients some breathing room, for lack of better phrasing.
And while it may have a liberal reputation, its decisions have been upheld by the Texas Supreme Court 93% of the time, per the Third Court's analysis.
And Byrne says these appeals of far-flung lawsuits against the state may seem like they don't matter to everyday Texans but they do.
Say you're someone who lost power during an unprecedented statewide blackout and you want to sue the state's Public Utility Commission for being unprepared.. The appeal would go to this court.
Say you're a whistleblower in an office and your boss is an elected official who, you believe is targeting you unfairly and acting unethically. The appeal would go to this court.
With the bill on the governor's desk, Byrne says "the train has left the station" and it's likely Abbott will sign the measure to create the court. She wishes Texans — and media outlets — paid closer attention to this before it got there.
"This will impact the day-to-day lives of Texas citizens every day," she says."Every day."
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