In Texas, the high courts have been ruby red for decades. Lower trial courts, meanwhile, mostly reflect the politics of their districts.
But election night marked a major ideological shift for the 14 appeals courts that sit in the middle and historically get little attention, but which nonetheless have the power to overturn decisions made by lower court judges.
Republicans will soon make up about three-fourths of those appellate court seats in Texas after the GOP swept elections up and down the ballot.
These intermediate courts hear civil and criminal appeals from lower courts within a designated group of counties. While appeals courts are often based in urban counties like Dallas, their districts also include suburban or rural areas in surrounding counties like Collin, Hunt and Rockwall. That means some decisions made by trial court judges in liberal counties will now be appealed to a more conservative judiciary.
Before the election, the GOP made up a little more than half the 83 justices in the state’s 15 appellate courts. That includes the newer 15th Court of Appeals, which is made up of Republican justices appointed by Gov. Greg Abbott who hear appeals involving statewide and business matters.
It’s likely that election night success is due in part to low-information races and the fervor behind president-elect Donald Trump and other Republicans' campaigns, said Chad Ruback, a Dallas appellate attorney.
“I don't think that it's anything that the former justices were doing that might have been perceived as wrong,” Ruback said. “I think it's largely [because] more people came out with a Republican tendency to the polls than maybe had happened in the last couple of election cycles.”
But this year, Republican appellate candidates and incumbents also had some help from the Judicial Fairness PAC, a group that raised millions to unseat Democratic judges across the state.
In North Texas, it did so with ads accusing Dallas Democratic judges of letting criminal defendants out on little or no bail compared to Fort Worth, which has mostly Republican judges. The PAC ran similar ads in other parts of the state, sometimes invoking criminal cases involving undocumented immigrants. The group spent thousands to help the Stop Houston Murders PAC with similar messaging for Houston voters.
While decisions about bail and pretrial detention are primarily made by those lower trial court-level judges, the Judicial Fairness PAC specifically endorsed candidates for appellate courts in Dallas, Houston, San Antonio and Corpus Christi that have little to no say over things like bail — and all those candidates won.
All the justices on the Corpus Christi-area 13th Court of Appeals and the Houston-area 14th Court of Appeals will now be Republicans, as will four of the seven justices on the San Antonio-area Fourth Court of Appeals.
The only Democrats to win or hold on to an appellate seat in the general election were in San Antonio and El Paso — but they were unchallenged.
Lee Parsley, president of the Judicial Fairness PAC and Texans for Lawsuit Reform, said in a statement trial courts in Texas have “eroded” public safety and refused to follow tort reforms passed in the Legislature.
“Rather than simply rubber stamp errant trial court decisions, the appellate courts can influence how the trial courts conduct themselves,” Parsley said. “[Last week’s] election of 26 highly qualified lawyers to serve on five of Texas’ intermediate appellate courts will help reestablish our judicial system as one that is fair and efficient, and Judicial Fairness PAC was happy to play a role in achieving that outcome.”
The Dallas-area Fifth Court of Appeals has the most justices of any single Texas appellate court. Eight of the 13 seats were won by Republicans by narrow margins — for some races, it came down to less than 1%, according to unofficial results from the Texas Secretary of State’s office.
It’s a reversal of the so-called "blue wave" across Texas in 2018 that swept Democrats into office in big cities and created a majority Democratic Fifth Court of Appeals. Criminal district court judge and former Dallas County commissioner J.J. Koch, who won the election for chief justice on the Fifth Court, attributed his and other candidates’ success to voters in more Republican North Texas counties like Rockwall, Grayson and Hunt showing up to vote.
As a criminal judge in Dallas, Koch said he witnessed negative outcomes from how some colleagues set bail, so pretrial practices are a valid consideration in picking judges.
But speaking on the Judicial Fairness PAC’s advertising, he also said an appeals court “really has only a very small bit to do with setting bail,” except for when lawsuits about pretrial detention and bail make it up to the state appellate level.
“Was it a blatant scare tactic? I don’t know,” Koch said. “Whenever a group is, you know, putting stuff on television or sending out a lot of mail, they've probably polled a lot and they found out the messages they're about to spend a lot of money on are successful.”
Major contributions from real estate and oil and gas companies, billionaires with Texas ties like Elon Musk, and PACs like Texans for Lawsuit Reform also raised questions about whether these backers had hopes of a more business-friendly judiciary when endorsing conservative judges.
But Ruback, who has spent nearly 30 years practicing in front of appellate courts, said he’s unsure how big a role the Judicial Fairness PAC, its donors and similar political groups actually played in the appeals court races.
He’s also unsure this year’s judicial red wave will necessarily make for more crime-focused or business-friendly courts in Texas.
“Would there ever be a case where the law is a bit fuzzy or there is something right on the fence that could go either way, and potentially the political leanings of an individual justice could come into play?” Ruback said. “Absolutely, that's possible. But those are going to be very rare cases in the intermediate appellate courts.”
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