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The Texas Senate passed a bill Wednesday to create a new statewide court of appeals that would hear cases that have statewide significance — including ones that challenge state laws, the constitution or when the state or its agencies are sued.
Currently, when such cases go to the intermediate appellate level, they are mostly heard by the 3rd Court of Appeals based in Austin. That court’s judges are elected by voters in Democratic-leaning Travis County. Senate Bill 1529, though, would send the cases to the new appellate court whose judges would be elected by voters statewide — an electorate that skews Republican.
Some of the state’s highest profile cases could be affected by this proposed court. Bill author Sen. Joan Huffman, R-Houston, said that recent lawsuits surrounding Gov. Greg Abbott’s pandemic emergency orders are examples of types of litigation the proposed court would have jurisdiction over.
Critics say the proposed new court is a Republican attempt to yank jurisdiction of these cases from Democrats.
The Austin-based 3rd Court of Appeals has five Democrats and only one Republican. Currently, all statewide elected judges are Republican, including on the Texas Supreme Court — and it’s likely the proposed court would also be all Republican.
“Since the [3rd Court of Appeals] deals with issues facing state government, it's a thorn in the Republican Party side,” Mark P. Jones, a political science fellow at Rice University, said in an interview. “And so by transitioning that by moving that to a statewide election where Republicans have the advantage, they would be able to, most likely, flip from being a Democratic majority… to a [5-0] Republican advantage.”
Huffman maintains that she wrote the bill to promote consistency — not for partisan reasons.
“The new court has five justices elected statewide so that all Texans have a voice in electing those who decide cases of statewide significance,” she said from the Senate floor Tuesday. “It's important for judges deciding cases of statewide importance to be familiar with specialized jurisprudence to provide consistent rulings for state litigants. ”
SB 1529 passed in the Senate in a 18-13 vote on Wednesday and heads to the Texas House, which must also approve it before it can be sent to Gov. Greg Abbott to be signed into law.
“These cases have statewide significance because they can change the policy set for Texas at a state level by their elected representatives,” Huffman said Tuesday. “These cases also usually involve nuanced complex legal issues such as sovereign immunity, constitutional law and administrative law.”
Critics say the Texas Supreme Court, whose justices are elected statewide, already exists as a safeguard against district appellate court rulings in suits that have statewide implications, making a new court unnecessary.
Currently, a case heard from a district appellate court can be appealed and sent to the Texas Supreme Court. This proposed court would take regional appellate courts out of the equation — when dealing with cases of statewide significance — with the proposed statewide court taking these cases. The Texas Supreme Court would still handle appeals to the new court’s decisions.
However, Huffman said the Texas Supreme Court doesn’t hear a large number of cases. She also said the proposed court would ensure expertise on major legal matters that have statewide significance since that would be the judges’ focus.
Democrats on Tuesday raised constitutional concerns related to this bill, asking if the Legislature has the authority to create an appellate court with statewide jurisdiction, overlapping the current district system. Huffman maintains that it does.
“We'll have to see you in court on this one,” Sen. Nathan Johnson, D-Dallas, said.
Darlene Byrne, chief justice on the 3rd Court of Appeals and a Democrat, said in an interview she thinks the bill is “bad policy and bad for statewide jurisprudence.”
Byrne also said the new structure would promote large campaigns.
“I don't know of a Supreme Court race that costs less than a million dollars per candidate,” she said. “So this new statewide court is going to be mega-big donors infusing big money to influence the judiciary. And I thought we were trying to get away from that — but apparently not.”
Linda Thomas, a former Republican chief justice of the Texas Fifth District Court of Appeals, said she believed the bill was unnecessary.
“As a retired judge, I think it's a little disingenuous, and in some ways, insulting to the sitting justices of this state to indicate that they are not capable of handling complex business cases,” Thomas said.
On Tuesday, the Senate adopted two amendments to the bill — one that would raise the salaries for the new justices to be the same as the Supreme Court and another to clarify language in the bill.
Originally, Huffman introduced the state court of appeals bill alongside Senate Bill 11 — a bill that would have halved the number of appellate courts in the state and redraw “mega courts.” Experts projected that would result in five Republican-dominated courts and two Democrat-dominated courts.
However, the senator pulled the bill last week after hours of testimony from justices, most of whom said the problems the bill alleged were overstated and that the proposal was rushed without adequate input. Huffman said in a statement “since the 87th Legislature concludes its business at the end of May, time does not allow for Senate Bill 11 to move further in the legislative process this session.”
Huffman did not respond to multiple requests for interviews.
Michael Gomez, an assistant county attorney in El Paso County, spoke in opposition to SB 1529 during a committee hearing on April 1, saying the bill takes power from local jurisdictions and removes accountability.
“Our court of appeals are more than capable of handling cases in which the state is involved and have done so for more than 100 years,” Gomez said. “Creating a new appellate court would just create an unnecessary cost to taxpayers to enable state agencies to have a home-field advantage in a friendly forum.”
Disclosure: Rice University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.