Texas Political Cases Shift to New GOP-Backed Appeals Court

A Texas decision on marijuana enforcement has moved to the state’s newest Republican judges from Austin’s Democrats. So, too, has a decision on investigating groups that assist transgender children.

Texas’s newest appeals court opened for business Sunday, with 90 cases of state importance before it, transferred from other appeals courts across the state. More than half came from the Third Court of Appeals in Austin.

The decisions to flow from its GOP justices will reverberate across all 254 counties. Unlike other intermediary appeals courts with jurisdiction over certain geographical regions, the 15th Court of Appeals will have a broader reach—deciding cases brought by or against the state, no matter where in the state they were filed.

The court, led by justices appointed by Gov. Greg Abbott (R), will impact the deeply conservative state under increased threat of turning purple, as it touches many cases that would have otherwise landed before more liberal appeals judges. The appeals court will decide those cases before or rather than the conservative Texas Supreme Court.

Already, the new court’s case load includes matters involving Google, Exxon Mobil, and Yelp. Political issues include challenges to the results of a statewide proposition election and a guaranteed income program in Houston opposed by Texas Attorney General Ken Paxton’s office. There’s also an issue of whether Austin can use a unique financing model opposed by Republican lawmakers to build a multi-billion dollar light rail.

On marijuana, the court will decide whether blue cities can pass laws to de-criminalize possession of certain amounts. Democratic trial court judges in Austin and San Marcos said they can, ruling against Paxton. Marijuana for recreational use is illegal in Texas, and legislation to change the law hasn’t gotten much traction.

Ground Game Texas, the group behind ballot measures to de-criminalize pot, opposed the creation of the 15th Court because it creates “a special, governor-controlled tribunal for businesses and state officials,” said Mike Siegel, the group’s political director.

But, shifting the pot enforcement question from a Democratic court to a Republican court “should not have an impact,” Siegel said.

“Two courts have already found that the AG has no standing to tell cities how to conduct police operations, and if the question is presented to the 15th, they should find the same,” he said.

‘Ever Changing Political Winds’

Until now, most appeals involving the state went to the Austin court. The reason was logistical: Austin is home to the state legislature and many state agencies, so cases that involve them typically begin at trial courts in Austin.

In the past six years, the appeals court flipped from red to blue, the result of outlying urban areas adding more Democratic voters. Republican lawmakers moved to add the new court, drawing pushback from Democrats who called the move venue shopping.

Republican supporters reasoned that issues of statewide importance should be decided by judges elected by the entire state, not just voters in and around Austin.

“A Republican legislature led by a Republican governor is going to create Republican leaning courts. There’s no way of getting around that,” said Brandon Rottinghaus, a political science professor at University of Houston.

There were questions about whether lawmakers had authority to do it. But on Aug. 23, the Texas Supreme Court rejected those concerns, giving the new court its blessing.

The new court will also handle appeals arising from the state’s fledgling business courts system, which also opened this week.

Darlene Byrne, chief justice on the Austin appeals court, said she’s confident that under the new court “the rule of law, and not the ever changing political winds, will be their North Star in resolving these important conflicts.”

A More Efficient System

Cindy Olson Bourland, a Republican former justice on the Austin court, supported the creation of the statewide court as a way to unburden her former court of often heavy and complex cases. The Austin court in addition to state matters also handles civil cases ranging from custody battles to contract disputes, as well as criminal matters.

“I believe the 15th Court of Appeals will improve the overall efficiency of the appellate system in Texas,” she said.

The three Abbott appointments have experience as appeals court justices.

Chief Justice Scott Brister, a senior partner at Hunton Andrews Kurth LLP, previously served as a justice on the Texas Supreme Court. Scott Field, a district court judge, served on the Third Court before getting driven off the bench in a Democratic tidal wave in 2018. April Farris, a former partner at Yetter Coleman LLP, is leaving behind a seat on the Houston First Court of Appeals.

The justices will serve two-year terms after which their seats will be up for an election. The court’s physical location is in Austin.

“I would put the three judges on the 15th Court up against any of the other 14 courts in the state in terms of their ability to get the law right,” D. Todd Smith, of Butler Snow, said.

“Now, is it likely to be more in line with what the (Texas) Supreme Court says? I think that’s a strong possibility.”