Texas Appeals Court Faces First Test Before Hearing Any Cases

Texas’s new appeals court hasn’t heard a single case yet, but its authority is already on the line.

The state is trying to stand up a new appeals court for the first time in almost 60 years to bring the state’s complex business issues and thorny legislative matters before a panel of judges selected by Texas’s Republican governor, as the state’s appeals court in Austin has become more progressive. With a Sept. 1 start date, the court is different from the 14 regional appeals courts in that it will hear all cases involving state matters originating anywhere in Texas.

That is, if the Supreme Court of Texas agrees it’s constitutional.

The Texas Supreme Court is set to decide whether to open or close the court following an 11th-hour challenge to its constitutionality. Opponents argue that the lawmakers who approved the new court last year didn’t have the authority to create a courts with jurisdiction over the entire 254-county state.

The ruling could come at any time, as the final brief due in the challenge was filed last week. However, the high court isn’t required to act before opening day on Sept. 1 and could push off a ruling until after the court opens.

Named the Court of Appeals, 15th District, the court will be the only intermediary appeals court in Texas deciding cases in which the state or its officials are bringing or defending a civil action. It also will hear appeals of matters from the state’s new business courts, which are also scheduled to come online on Sept. 1.

“This is a big deal and it’s largely flown under the radar,” said Dylan Drummond, a San Antonio appellate lawyer and shareholder at Langley & Banack, of the challenge to the court.

“This specific question hasn’t been brought to the Texas Supreme Court before. It’ll be interesting how they read it,” he said.

The Case

Despite the uncertainty the challenge could create for corporations looking to use the new business courts, the underlying case has nothing to do with business in the state.

The constitutionality of the appeals court is being challenged by Dallas County and its sheriff, Marian Brown, in a 2023 case against Cecile Erwin Young, executive commissioner of Texas Health and Human Services.

The complaint accuses the state of failing to transfer to state hospitals inmates deemed not competent to stand trial or not guilty by reason of insanity. Dallas County, which overcame the state’s bid to dismiss the case at the trial level, argued on appeal that because their claims are against the state the matter will be wrongly transferred to the new court.

Such a transfer would “deprive the existing Courts of Appeals of their constitutionally conferred appellate jurisdiction,” Dallas County wrote in a brief through its lawyers at Brazil & Dunn and isn’t allowed by the Texas Constitution.

The court’s statewide jurisdiction violates a law requiring Texas to be divided into courts of appeals districts, Dallas County argues. The current 14 intermediary appeals courts each handle a specific geographic region, while the new court would be statewide.

In response, Texas argues the legislature has authority to create new courts and in the past the state has defeated legal challenges when it added courts with overlapping jurisdiction.

“Nothing in the Constitution’s language, history, or structure prohibits the legislature from creating the Fifteenth Court,” lawyers with the Texas attorney general’s office wrote.

“The million dollar question is what everyone wants to know and no one knows—what shakes out?” said Tyler Talbert, an appeals lawyer with Scanes Yelverton Talbert. “It’s a close call, but I think the court is more inclined to side with legislative authority.”

From Red to Blue

The Republican-controlled legislature created the appeals court last year in a move that Democratic opponents view as overtly political.

Legal challenges in Texas brought by and against the state are generally filed in Travis County, home to the state capitol in Austin. Although the district courthouse there has long been filled with Democratic judges, Republicans on the losing end felt better about their chances on appeal at the Third Court, the associated appeals court that was once reliably red.

But, as Austin’s outlying areas became more progressive, so too did the Third Court. Since 2018, the court’s six-justice panel has flipped from all Republican to all Democratic.

In justifying the new court, Republican legislators said all Texas voters—not just those in and around Austin—should have a say in the justices presiding over matters involving the state. S.B. 1045, which created the court, passed in both chambers largely along party lines.

Abbott in June appointed three Republican justices to the court, among them Scott Field, a current district court judge who previously served on the Austin appeals court before losing to a Democratic challenger in 2018. The others are Scott Brister, a senior partner at Hunton Andrews Kurth LLP, who previously served as a justice on the Texas Supreme Court, and April Farris, a justice on the First Court of Appeals in Houston.

The justices, if the court is declared constitutional, will be up for re-election in two years.

Meanwhile, the Austin appeals court that would be most impacted by the new court’s arrival awaits a decision from the Supreme Court.

Chief Justice Darlene Byrne of the Third Court said she and the other justices are proceeding as if the 15th Court will launch on Sept. 1. The justices on that date are preparing to transfer more than 50 cases of state importance. The other appeals courts collectively have around 20 cases that will also need to be moved.

“We’ve been doing what we’re told to do, which is getting them packaged to transfer,” Byrne said.

The case is In Re Dallas County, Texas, and Marian Brown, Tex., No. 24-0426.