Texas’ new appeals court has not yet heard a single case, but its authority is already under threat.
Texas is creating its first new appeals court in nearly 60 years to bring the state’s complex business issues and tough legislative problems to a panel of justices selected by the state’s Republican governor, after the state’s appeals court in Austin has become more liberal. The court, which is scheduled to open on September 1, will differ from the 14 district courts of appeals in that it will hear all cases involving state issues, no matter where they arise in Texas.
That is, if the Texas Supreme Court finds it constitutional.
The Texas Supreme Court is set to decide whether to open or close the court following a last-minute constitutional challenge. Opponents argue that lawmakers who approved the new court last year lacked the authority to create a court with jurisdiction over all of the state’s 254 counties.
Final arguments in the challenge were filed last week, so a decision could come at any time, but the Supreme Court does not have to act before the September 1 court date and could postpone a decision until after the court sits.
The court, named the 15th District Court of Appeals, will be the only intermediate appellate court in Texas that will decide cases in which the state or its officials bring or defend civil lawsuits. It will also hear appeals of cases from the state’s new Business Court, which is scheduled to open on Sept. 1.
“This is a big issue that’s gotten very little attention,” Dylan Drummond, a San Antonio appellate lawyer and shareholder at the law firm of Langley & Bannack, said of the court challenge.
“This particular issue has never come before the Texas Supreme Court before, so it will be interesting to see how the Supreme Court interprets it,” he said.
Incident
While the case could create uncertainty for businesses considering using the new business court, the underlying lawsuit has nothing to do with businesses in the state.
Dallas County and its sheriff, Marian Brown, are challenging the constitutionality of the appeals court’s ruling in a 2023 lawsuit filed against Cecil Irwin Young, executive commissioner of the Texas Department of Health and Human Services.
The lawsuit accuses the state of failing to transfer inmates who have been deemed incompetent to stand trial or found not guilty by reason of insanity to state hospitals. Dallas County, which overcame a motion by the state to dismiss the case at the trial level, argued on appeal that the case should be improperly transferred to a new court because their complaint is against the state.
Dallas County, through attorneys with the Brazill Dunn law firm, wrote in the report that such a transfer would “deprive existing appellate courts of constitutional appellate jurisdiction” and is not permitted by the Texas Constitution.
Dallas County argues that the court’s statewide jurisdiction violates a law that requires Texas to be divided into appellate districts. Currently, there are 14 intermediate appeals courts, each of which has jurisdiction over a specific geographic area, but the new court would have statewide jurisdiction.
Texas argues that the state legislature has the power to create new courts and has dismissed lawsuits in the past when it added courts with overlapping jurisdictions.
“Nothing in the Constitution’s text, history, or structure would prohibit Congress from creating a 15th Supreme Court,” lawyers from the Texas Attorney General’s office wrote.
“That’s the million-dollar question that everyone wants to know but nobody knows: What’s the outcome going to be,” said Tyler Talbert, an appellate lawyer with Scanns Yelverton Talbert LLP. “It’s a close call, but I think the court will be inclined to side with the legislature.”
From red to blue
The Republican-controlled Legislature created the appeals court last year, in a move Democratic opponents see as clearly a political move.
Lawsuits brought by or against the state in Texas are typically filed in Travis County, home to the state capital, Austin, where Democratic judges have long dominated district courts, but losing Republicans felt they had a better chance of winning in the related, once-Republican-dominated, Third Circuit.
But as Austin’s suburbs have become more progressive, so has the 3rd Judicial Court: Since 2018, the court’s six justices have switched from all Republicans to all Democrats.
Republican lawmakers justified the creation of the new court by arguing that all Texas voters, not just Austin and its suburbs, should have a say in which judges decide state issues. The bill creating the new court, SB 1045, passed mostly along party lines in both houses of the chamber.
Governor Abbott appointed three Republican justices to the Supreme Court in June, including District Judge Scott Field, who served on the Austin Circuit Court of Appeals until he was defeated by a Democratic candidate in 2018. The others are former Texas Supreme Court justice Scott Brister, a senior partner at the law firm Hunton Andrews Kurth, and Judge April Faris of the 1st Circuit Court of Appeals in Houston.
If the Supreme Court is declared constitutional, the justices will be up for re-election in two years.
Meanwhile, the Austin Circuit Court of Appeals, the body most affected by the creation of the new court, is awaiting a Supreme Court decision.
Third Circuit Chief Judge Darren Byrne said he and his fellow judges are proceeding as if the 15th Circuit were to convene on Sept. 1. On that day, the judges are preparing to transfer more than 50 cases important to the state. Other appeals courts also have roughly 20 cases to transfer.
“We have been working as instructed to pack it up for transport,” Byrne said.
The case is Dallas County, Texas v. Marian Brown, Texas, Case No. 24-0426.
