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.
