Opinion: The Constitution allows for creating a new statewide appeals court

Bills are pending in the Texas Legislature to create a 15th Court of Appeals, with jurisdiction of civil appeals involving statewide issues. For 40 years, the 14 existing courts of appeals have done a commendable job with increasingly difficult work. I should know―I served on two of them, and for six years reviewed the work of all of them as a member of the Texas Supreme Court.

But the Legislature has not added new appellate courts or judges since 1980, while the state’s population has doubled from 14 to 30 million, and our surging economy has meant a surge in complex litigation. Each appellate justice currently disposes of about 100 opinions annually, and signs off—or dissents—on about 200 others by colleagues.

Creating the 15th Court of Appeals is an effort to increase appellate consistency, funneling civil appeals involving statewide issues to one statewide court, reducing the chance of conflicts in this important area of the law.

Legislators may agree or disagree about creating such a court, but contrary to the claims of some who oppose it, there is nothing in the Texas Constitution that bars the Legislature from doing so. Our Constitution was amended 132 years ago for this very purpose, giving the Legislature authority to create new courts of appeals, modify their districts, and expand or restrict their jurisdiction.

In 1891, the people of Texas amended both provisions of the Texas Constitution addressing the courts of appeals. Section 1 of Article V vests judicial power in the trial and appellate courts, “and in such other courts as may be provided by law.” For emphasis, it adds: “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof.”

Section 6 of the same article says the “state shall be divided into courts of appeals districts,” each with appellate jurisdiction “co-extensive with the limits of their respective districts” but “under such restrictions and regulations as may be prescribed by law.” For emphasis, our great grandparents again added that jurisdiction of the courts of appeals shall be “as may be prescribed by law.”

This emphasis on the Legislature’s power to modify the state’s judicial structure was no accident. Before 1891, several courts had held that the Constitution limited the Legislature’s power to modify the courts’ structure and jurisdiction. But after the 1891 amendments, the Texas Supreme Court in Harbison v. McMurray conceded that the jurisdiction of the courts of appeals “is not unlimited or absolute, but is subject to control by the Legislature.”

Opponents have argued that the Constitution requires that the state “be divided into courts of appeals districts[.]” But divided does not necessarily mean completely separated; it often merely means “apportioned.” The Constitution requires that state government “be divided into three distinct departments,” but it does not require that appellate districts be distinct, and for nearly 60 years two courts of appeals in Houston have had identical districts. Given the Legislature’s broad power to organize new courts and the state’s long practice of overlapping appellate districts, nothing appears to prevent the Legislature from creating a district containing all 254 counties.

The proposed bills would also transfer civil appeals involving statewide issues away from other courts of appeals, primarily the court in Austin. Since it was the Legislature that originally assigned certain cases to trial and appellate courts in Austin, it cannot be unconstitutional for the Legislature to transfer them elsewhere. “What the Legislature may create, it may alter.” And by statute, the Texas Supreme Court for decades has routinely transferred appeals from one court of appeals to another.

The Legislature will decide whether it is good policy to establish the 15th Court of Appeals to hear matters of statewide import. It should make that determination with the knowledge that it has clear constitutional authority to do so.

Brister served for 11 years as a district judge in Houston, for 3 years on the 1st and 14th Courts of Appeals, and for 6 years on the Texas Supreme Court. He is an appellate lawyer in Austin.

This article originally appeared on Austin American-Statesman: Opinion: The Constitution allows for a new statewide appeals court