Texas Supreme Court Rejects Constitutional Challenge to the Newly Established Fifteenth Court of Appeals: What to Know
by J. Beverly, Shareholder, Board Certified in Civil Appellate Law and Dana Campbell, Shareholder, Litigation
In a unanimous decision handed down on August 23, the Texas Supreme Court rejected a constitutional challenge by Dallas County that would have invalidated the new intermediate appellate court created by the Legislature in 2023. Despite the ruling of the Texas Supreme Court, important questions remain – most notably, what will the interplay between Fifteenth Court and the newly established Business Court look like?
The Fifteenth Court is Constitutional
In a pending appeal involving claims against a state agency, Dallas County sought an injunction in the Texas Supreme Court to prevent the appeal from being transferred to the Fifteenth Court.
Dallas County argued primarily that the legislation creating the new Court was unconstitutional because it created a statewide, rather than district based, court of appeals. Article V, Section 6 of the Texas Constitution provides that “[t]he State shall be divided into courts of appeals districts” and “[s]aid Courts of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” That Section further provides that the justices of the courts of appeals “shall be elected by the qualified voters of their respective districts.”
The Supreme Court rejected these arguments. The Court looked to the extensive constitutional and legislative history concerning the Texas appellate court system in concluding that the constitutional requirement of division into districts did not invalidate the legislation creating the new court. Taking an expansive view of the constitutional power of the legislature to expand or contract or even modify the existing appellate court system, the Court rejected a strict interpretation of Article V, Section 6. As the Court put it, even if the Constitution required that every intermediate court must have a limited geographic reach there would be “no constitutional objection to retaining our existing courts of appeals and adding another that covers 253 counties . . . or perhaps 253 counties and all but a sliver of the 254th [.]” The Court clearly came down on the side of fairly broad legislative flexibility with respect to organization and jurisdiction of our appellate courts.
Dallas County also argued that the new court would usurp the jurisdiction of the existing courts of appeals. That argument was rejected because as the Court put it, “Article V, Section 6(a) gives the legislature a double helping of discretion to adjust that jurisdiction.”
The final major argument posed by Dallas County concerned the appointment of the judges. Dallas County contended that because the court was created in 2023, the Court is constitutionally tainted because its justices will not be on the ballot in 2024. Under Texas law, judicial vacancies that occur after the 74th day before a general election cannot be held at that general election. Rather, the Governor appoints a new justice who must sit for election at the next succeeding general election – in this case 2026. The Court held that because the Fifteenth Court does not come into existence until September 1 – which is less than 74 days before the general election on November 3 – there was no vacancy and the appointment of justices to the new court was not constitutionally invalid.
Concerns Remain About the New Court
Numerous commentators have raised issues concerning the lack of precedent for the new Court. That is, in Texas each of the fourteen courts of appeals are generally bound by previous decisions. There are two types of such precedent termed horizontal and vertical stare decisis. As the Texas Supreme Court has explained, horizontal stare decisis means that a court must follow its own precedent. Vertical stare decisis requires the courts of appeals to follow precedent established by the United States and Texas Supreme Courts. The new Court will be creating its own precedent in cases where no decisions of the superior courts provide guidance. Exactly how much deference the new Court will give to precedent established by its sister appellate courts remains an open question because the new Court is not required to be bound by those decisions. And what deference will the Texas Supreme Court give to the opinions of a specialized statewide appellate court staffed with justices that focus on major disputes that may involve complicated appellate issues?
The interplay between Fifteenth Court and the newly established Business Court also poses some interesting questions. The Business Court judges are required to issue written opinions for dispositive rulings and significant legal issues. Will the Business Court require a complete appellate record before writing an opinion to allow for citation to the record? And who will pay for that? Will the judges ask for draft opinions from the parties’ attorneys? The Business Court opinions will very likely impact how appeals are litigated when parties appeal from a written, reasoned opinion rather than an unexplained judgment or ruling.
For attorneys, the requirement of written opinions may also have implications on the application of certain rules of civil and appellate procedure and post-trial proceedings. For example, in bench trials will the parties still need to request findings of fact and conclusions of law. Will the standards for appellate review change or will the established standards for review of findings of fact and conclusions of law apply to written opinions? What effect will such lower court opinions have on motion for new trial and JNOV practice in anticipation of an appeal?
All we can say right now is “stay tuned.”
