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My Personal Thoughts: My Map Beats Senator Huffman’s Map

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Texas appellate court justices, state and local lawyer organizations, minority interest groups, rural lawyers, and elected officials from across the political spectrum breathed a sigh of relief when Senator Joan Huffman (R-Houston) quietly pulled from consideration on Friday afternoon, April 9, 2021, her legislative proposal to blow up the intermediate appellate court system and cut the number of districts from 14 to seven.

But if my sources are correct, Sen. Huffman, Lt. Gov. Dan Patrick, “Texans for Lawsuit Reform,” and others are angling for a special legislative session later this year, which may (among other things) reintroduce some version of an appellate court redistricting map that has drawn sharp rebuke from Republicans and Democrats alike. 

During a livestream hearing before the Senate Committee on Criminal Jurisprudence on April 1st, dozens of respected, high-profile witnesses testified that Huffman’s SB 11 was expensive, unnecessary, created instability in the intermediate appellate system at a time when a tsunami of backlogged cases requires stability, and threatened to substantially reduce the number of minorities who will serve as justices. Past TCDLA President David Botsford vigorously argued that if certain appellate districts have too many cases, it would be easier and far less expensive to give the overburdened courts more resources. (A recent cost-analysis from the non-partisan Office of Court Administration revealed that Huffman’s proposal would cost taxpayers nearly $40 million in the first two years for courthouse construction, etc., and would save less than $3 million per year after that.)

Meanwhile, lurking in the background of the SB 11 debate like that shadowy, hat-wearing Benny Watts character in The Queens Gambit, were the political implications of a redrawn appellate map. Senator Nathan Johnson (D-Dallas) observed that Huffman’s redistricting plan — which the bill’s supporters insist is actually a “restructuring” plan — would likely result in five Republican districts and two Democratic. 

For her part, Huffman claimed she was completely unaware of and had not even considered the partisan breakdown of the proposed map. Rather, it was merely about efficiency and mandating a more even distribution of appellate cases.

At least for now, I think we should take Senator Huffman at her word. Let’s assume this isn’t about politics or as several witnesses derided, “a solution in search of a problem.” Let’s assume this is about efficiency and evening out judicial workload. Preferably without spending too much money. 

Unfortunately, a careful review of Huffman’s map shows that it fails to accomplish its purported goals. It also absurdly combines Dallas and Austin into a single district, silences El Paso culturally and politically by combining it with Midland/Odessa and roughly one third of the rural Republican counties in west Texas, and bizarrely sets aside the same number of districts — one! — for Greater Houston as it does the far-less populated Texas Panhandle. 

When I saw Huffman’s map and watched the committee debate on livestream, I (perhaps in a state of delusion) thought, “I bet I could draw a better map.” So, I powered up seasons one and two of Fauda on Netflix (10/10, by the way) and constructed my own version during breaks. In the interest of transparency, I must say I believe appellate redistricting is ill-conceived, poorly timed, wasteful, and looks suspiciously like a power-grab at a time when Texas’ political landscape may be slowly shifting. 

Nevertheless, if we were to draw a fair appellate map with an even case distribution — and for some crazy ridiculous reason we had to have exactly seven districts — then I submit my own version is clearly better than the one Senator Huffman offered. 

Methodology and Analysis

In order to ensure a balanced distribution of cases across the seven new appellate districts, the Scheiner Plan would divide the total number of filed appeals by seven. According to the Annual Statistical Report for the Texas Judiciary for Fiscal Year 2019, available at www.txcourts.gov/statistics/annual-statistical-reports/, there were 9,401 civil and criminal appeals in the last non-pandemic year. So, unless you want to artificially adjust the numbers to keep current justices perpetually employed, this means each of the seven new proposed districts should handle an average of 1,343 cases. Each district should employ 11 justices. (There are currently 80 intermediate appellate justices in Texas; my plan calls for 77.)

“Houston” (purple) – With a 2019 appellate caseload of 1,492, Harris County would be the most active district. Unfortunately, there is no way to shrink the case load without transferring cases to another district or cutting up Harris County. Note: This is precisely why Harris County and its surrounding area have two appellate districts in the current system.

“Gulf Coast/Border” (pink) – This district would give voice to Latinx voters and, as with Districts 1, 3 and 6, likely ensure justice positions for people of color. The Main Court could be in the existing structure in Corpus Christi (with some office expansion) and a Satellite Court could be in the existing structure for the El Paso Court of Appeals. Unlike the Huffman Map, the Scheiner Map’s Gulf Coast/Border District would connect El Paso with communities that are more culturally and politically similar than the conservative rural areas of west Texas. 

“South Central” (Blue) – If we must put Austin together with another large city in order to balance the case numbers, it makes far more sense to pair it with nearby San Antonio than Huffman’s suggestion of Dallas. You could have a Main Court in San Antonio and a Satellite Court in Austin, using existing structures. 

“Northwest” (green) – This district would be insanely large. But it illustrates just how heavy the caseload is in urban jurisdictions versus rural. Tiny Harris County, all by itself, has a larger caseload than the entire green area in the Scheiner Map. In fact many of the counties in the Northwest district had zero or only a handful of appellate cases in 2019. I would suggest a Main Court at the existing structure in Amarillo (with expanded offices) and a Satellite Court in Midland. These courts should make frequent use of Zoom for oral arguments, in order to cut down on lawyer travel expenses. 

“Ft. Worth/Waco” (orange) – Ft. Worth would be the biggest fish in this pond. It could house the Main Court in an existing structure. Perhaps Waco could use an existing structure for a Satellite Court. 

“Dallas/Tyler” (purple) – I would have loved to put Dallas together with Ft. Worth, but the total caseload would be too high. (Sorry, Tyler, you’re going with Dallas and perhaps you can have a Satellite Court.)

“East Texas” (yellow) – Main Office would be at the existing structure in Beaumont. To save money, this district could share a Satellite Office with District 6 in Tyler. 

Obviously, anyone can draw a map. In fact, it doesn’t take much effort to draw an appellate court redistricting map that is fair, efficient, politically balanced, and provides for an even distribution of cases. While it’s still highly questionable whether appellate redistricting is necessary or advisable, we know that Senator Huffman, Lt. Governor Patrick, and others can do much better in attempting to meet their stated goals. 

If they come back with a map that’s even remotely similar to the one Senator Huffman pulled from consideration, we’ll know their intention is something other than what they’ve told us.

Legislative Gleanings – Early Returns – By Bill Harris

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The legislature is rumored to still be in session. Our team of legislative specialists continues to monitor several bills and to support those that are important to the people we represent.

Although several committees could hear bills related to criminal law and procedure, most bills are referred to the Criminal Jurisprudence Committee. Representative Abel He­rrero, D-Corpus Christi, has been appointed to chair Criminal Jurisprudence, just as he was in 2013. Chairman Herrero is a veteran legislator, and although he is a civil attorney, he has shown great temperance and fairness in his handling of this committee. Traditionally, this committee hears more bills than any other committee and is known for working late into the night.

On the Senate side, Lt. Governor Dan Patrick appointed Senator John Whitmire, D-Houston, to once again chair the Criminal Justice Committee. Senator Whitmire has over 40 years’ experience in the Texas Legislature as a House and Senate member. Currently, Senator Whitmire is the Dean of the Senate and has chaired this committee for over 20 years. This is an appointment for which we should be grateful.

Good news on the Michael Morton Act. Robert Kepple of TDCAA told Patricia Cummings and several others that there was no plan on the prosecution side to amend Article 39.14 during this session. While nothing is set in stone at this point, it does not appear that the prosecutors’ organization will urge any changes in the law this year.

Michael Morton himself was at the Capitol recently supporting changes in Chapter 64 of the Code of Criminal Procedure. This is the chapter relating to DNA testing on prior convictions. Senator Ellis has introduced a bill at the urging of the New York Innocence Project to make it easier for a person convicted of a crime to seek DNA testing of evidence.

We continue to hope for improvements to the expunction process.

Legislative Gleanings – The 2015 Legislative Session – By Bill Harris

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A new legislative session is beginning. The composition of the legislature is much changed from the last several sessions. For better or worse, this means our lobbying efforts on behalf of the concept of justice and due process is as important as ever.

Patricia Cummings and Allen Place will head up our efforts with the able assistance of David Gonzalez and Kristen Etter. It is important that we conduct our efforts in the legislature in a manner that maximizes our effectiveness and enhances our credibility with the legislators and their staff. In furtherance of that effort, we would like to ask all of you to give generously of your time when called upon by these four people to do so.

The four people managing our lobbying efforts will probably call upon you to do two things:

1.   Lend your advice on areas that are the subject of legislation in areas where you are recognized as having expertise or special experience. If you feel you should be on that list, by all means send them an email, but please refrain from calling them unsolicited because their time is going to be very, very limited. Legislative committee hearings occur simultaneously and often run long into the night. Our lobbyists are going to be very, very busy.

2.   If asked to do so, lend your voice as a witness before a legislative committee. I suggest that you do so only when asked, because our effectiveness depends in part on the coordination of our efforts.

In past legislative years many of our members have appeared at the legislature to testify without coordinating their appearance with our legislative team. Of course, every citizen has the right to do this, but please consider this: Lobbying the legislature is a very complex process. Much goes on behind the scenes of which you are not aware. Often strategies are not public because making them public defeats them. Imagine trying a complex white-collar crime case and having an inexperienced lawyer intervene in the midst of the trial to “help” you with your defense. All of us are trial lawyers. Lobbying is a very different beast.

It is going to be a very interesting year. We have a great team leading our efforts. Let us all help them, not hinder them. If you want to communicate with them, please email them. If they need to visit with you on the phone, they will call you. Please take their calls when they do and support their efforts.

Fallen Heroes: Anthony Nicholas

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TCDLA Hall of Fame Member Anthony Nicholas passed away on May 7, 2011. Raised in Austin, Anthony was a Navy veteran of World War II. After receiving his law degree from the UT Law School, Anthony served as a prosecutor in Bexar County, beginning in 1951. In 1957, Anthony and Roy Barrera Sr. formed a partnership that lasted more than 50 years—the oldest unchanged legal partnership in San Antonio and possibly in the State of Texas. A charter member of TCDLA, he was a member of the ABA, NACDL, SABA, and SACDL (where he served on the original Board of Directors and was named Director Emeritus), among many others. A member of the original Board of Directors of the Texas Board of Legal Specialization, Anthony served as director for eight years. He has been listed in Martindale-Hubbell with “AV” rating since the mid-1960s—under preeminent lawyers in 1996. He has been named in The Best Lawyers in America in criminal law since its inception in 1987. He is survived by his loving wife of 18 years, B. A. Nicholas, and sons Michael and Drue.

Legislative Update, April 2011 – By Allen Place

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As of April 4th, 2011, the Texas legislature only has 56 days left to complete their business in the regularly called session. Many people are predicting one or more special sessions due to budgetary issues. Last week, the House approved $3.1 billion from the Rainy Day Fund to pay the State’s bills from now through August of 2011. This was necessary as state revenues have not kept up with expenses. Although over $6 billion remains in the Rainy Day Fund, Governor Perry has said that he would not approve a budget for 2011–2012 that taps that emergency fund.

In regards to criminal law bills, TCDLA is tracking several hundred bills. Although we are playing defense on many of these bills, there are several positive bills making their way through the system. The eyewitness identification bill, from the Tim Cole Commission, has already received preliminary approval in both chambers. No other major legislation, either good or bad, has advanced at this point as committees are deep in their work. Last week, approximately ten lawyers came to the Capitol to speak against a poorly conceived bill that would significantly impair the ALR system. This was appreciated as this bill hearing fell on a Tuesday when we track three and sometimes four committee meetings at the same time.

Two bills vetoed last session are again under consideration. There are several expunction bills in both chambers that would clarify and improve this statute. Also, a bill improving the sex offender registration system for some offenders is being heard in the Senate Criminal Justice Committee the week of April 4th.

The surcharge system has been criticized since it began several years ago. More than one legislator indicated a bill would be filed to terminate or at least redefine the program. However, the leading proponent of repealing the surcharge program pulled his bill last week due to the high cost of doing so. In other words, the bill was pulled by the author because the State needs all available revenue.

We have had a lot of calls regarding the DWI deferred bill. This matter has not yet come up for a hearing in the Senate although the House heard the bill in late March. The bill is not a “pure” deferred adjudication and has some mandatory requirements, such as interlock. There are a lot of mixed feelings in the legislature on this subject and it is too early to predict the future of this bill.

Within the next two months, the legislature intends to do the following: pass a budget, draw new legislative and congressional districts, pass various Sunset bills to keep several state agencies operating, and pass several “emergency items” such as Voter ID, eminent domain, and elimination of sanctuary cities. Our goal remains the same—to promote bills that provide for equal justice and fair play in the criminal justice system. We will do our best to keep our eye on that goal every day, and I hope to see all of you at Rusty Duncan in San Antonio in June.