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AUSTIN — The Texas Senate’s ruling Republicans advanced bills Thursday that would dramatically reshape state appellate courts, likely reversing the Democrats’ recent judicial gains in big cities and seizing control from Austin-area appeals court judges in major lawsuits on school finance, voting rights and redistricting.
Republicans on the Senate Jurisprudence Committee approved a bill that would consolidate the 14 court of appeals districts into seven, over strong objections from Democrats, civil rights advocates and jurists.
Sen. Joan Huffman, R-Houston, described the restructuring as a much-needed way to slim down the number of courts while evenly spreading out the currently lopsided workload.
“The current system creates inefficiency and confusion for litigants,” Huffman said of her legislation, Senate Bill 11. “It is so important to the jurisprudence and judicial economy of our state that we address these issues.”
But justices from across Texas strongly criticized the proposal in the bill’s first public hearing Thursday. They warned the change would knock Black and Hispanic justices off the appellate bench and refocus attention on nettlesome administrative matters, just as the courts are facing a deluge of cases delayed by the pandemic.
“It seems to me like we’re taking a sledgehammer when a tack hammer could fix or resolve this,” said Chief Justice Robert Burns of the 5th District Court of Appeals in Dallas.
The overhaul would cut the number of appeals court districts in half starting in 2023 and rearrange them in ways critics say would disenfranchise voters from minority communities and rural areas.
The district that includes Dallas County would expand from six counties to 21 — and reach as far south as Austin and west to Llano and San Saba. Tarrant County would be folded into a far-flung district with corners in Waco, Wichita Falls and Texarkana.
Judicial candidates running in the larger districts would need more votes to win, and likely bigger campaign coffers to match, several jurists testified.
Voting rights concerns
Sen. Juan “Chuy” Hinojosa, D-McAllen, suggested the way the districts are redrawn could violate the federal Voting Rights Act, a criticism echoed by several others.
“The proposed maps are going to significantly dilute the voting strength of communities of color,” said 5th District Court of Appeals Justice Erin Nowell. Statewide, Nowell said she is the only African American out of 80 justices on the courts of appeals.
“It would make it such that, and virtually guarantee, that the number of justices of color that are on the bench right now would lose in the next election,” she said.
The suggested overhaul comes after major political swings.
In 2018, Texas Democrats flipped state appeals courts based in Dallas, Houston and Austin, which gave them control of seven of the state’s 14 appeals courts.
The victory in the Dallas area’s 5th Court of Appeals was ignited by eight Democrats running on what was called the “slate of eight.” A Democrat had not been elected to the court since 1992. But in 2018, Democrats seized the majority on the court, including the post of chief justice.
“It seems ironic that these changes are coming all of a sudden, now that Democrats are beginning to win these contests for the appeals court,” said Jeff Dalton, the political strategist for the 5th Court’s victorious Democratic slate. “We have probably flipped more courts of appeals benches than any other kind of race in the last couple of election cycles.”
Sen. Nathan Johnson, D-Dallas, prodded Huffman on whether politics played into the redesign. He said he’s heard predictions that the rewrite could result in five Republican-dominated appellate courts and two Democratic ones.
Huffman said she didn’t know what the partisan breakdown would be if an election were held today. The districts were redrawn with the objective to address uneven caseloads, she said.
“We looked at trying to make it accessible to all citizens,” she said.
One of the few to testify Thursday in support of the overhaul was Texans for Lawsuit Reform, a group trying to curb civil lawsuits against business. General counsel Lee Parsley said the change is needed to decrease the number of appeals courts and eliminate overlapping jurisdictions.
“It is all a creation that happened over 100 years of building the court system in that moment to fix that particular problem,” he said. “We favor a change and this is as good a time as any.”
First major restructuring since early 1980s
If adopted, it would mark the first major restructuring of the state’s appeals courts since the early 1980s, Huffman said. Lawyers and jurists testified they had no opportunity for input before the hearing Thursday.
The bill passed out of committee on a 3-2 party line vote, as did another bill that would significantly change the appellate process.
Senate Bill 1529 could neutralize the influence of liberal Austin voters on courts that traditionally have handled big lawsuits against the state, which are typically filed in district court in Travis County. It would yank all appeals of complex suits involving state agencies and leaders from the currently all-Democratic 3rd Court of Appeals based in Austin and give them to a newly created appellate court, the “Texas Court of Appeals,” with its justices elected statewide. At the moment, all statewide elected justices — both civil and criminal — are Republicans.
In a statement of her intent filed with an analysis of her initial draft, Huffman cited a need for experienced judges “to apply highly specialized precedent in complex areas of law.”
Currently, the major state lawsuits are frequently transferred among the 14 intermediate appellate courts to equalize dockets, Huffman noted. That has a downside, she argued.
“These courts have varying levels of experience with the complex legal issues involved in cases of statewide significance, resulting in inconsistent results for litigants,” she said. “This not only brings volatility to the state’s jurisprudence, it does so at taxpayer expense.”
The cases that would be affected could include some of the most high-profile legal battles in Texas, such as decades of challenges to how the Legislature funds public schools.
Michael Gomez, an assistant county attorney in El Paso County, testified that the current structure works just fine.
“Creating a new appellate court would just create a non-necessary cost to taxpayers to enable state agencies to have a home-field advantage in a friendly forum,” he said.