Houston Justices: The First and Fourteenth Court of Appeals and Their Members (Tex.App.- Houston 2007-2008)

COURT PROFILE First and Fourteenth Court of Appeals

	Parallel Courts of Appeals Houston is served by two appellate courts with overlapping jurisdiction, the First Court of Appeals and the Fourteenth Court of Appeals. The rationale for two courts is the large caseload from Harris County and surrounding counties. Although the merger of the two courts into one super-court has been proposed, the idea does not command unanimous support among the current incumbents. There is also a certain degree of rivalry and competition between the two appellate courts, which sometimes reach different conclusions or the same legal issues, thus providing occasion for the Supreme Court to resolve the conflict. Location. The Houston courts of appeals are currently located on different floors in the same building that houses the South Texas College of Law, a private law school. The First and Fourteenth Court of Appeals are expected to move to the Old Harris County Civil Courthouse once restoration and remodeling work is completed. (see photo top left). The civil district courts and the civil county courts at law vacated that building and moved to much more spacious quarters in the new high-rise Harris County Courthouse in 2006. Court size and membership. The intermediate courts of appeals in Texas vary considerably in size. The smallest appellate courts have only three members. The Houston courts of appeals both are three times as large. The Texas Supreme Court also has nine members. Both courts hear criminal and civil cases in panels of three. How do judges get on the court? Judges and justices are elected in Texas. Vacancies, however, are filled by gubernatorial appointment, a frequent occurrence. An appointed justice must stand for election in order to retain his or her position. In recent years the Governor has appointed lower court judges to vacancies on a higher court, thus creating to opportunity to make additional appointments. Barring a major shift in party support in the electorate, incumbents have a great advantage in the ensuing elections. They are rarely defeated, if even challenged. A notable recent exception is Justice Sam Nuchia, who was defeated in the 2008 Republican primary. He rated poorly in bar polls. Civil and criminal appeals. Like their sister courts, the Houston Courts of Appeals hear both civil and criminal cases from the trial courts below. Cases are assigned randomly. Subsequent appeals are now transferred to the court in which the first proceeding was filed, even if randomly assigned to the other court. Oral argument, however is rare. Most cases are either heard by submission on the briefs (in conference) or dismissed with a one-page pro forma opinion instead of an opinion on the merits of the appealable issues. Demographic, social, and philosophical diversity on the Houston courts of appeals. Both appeals courts currently have female chief justices and female majorities. Most appeals, however, are decided by three- judge panel, which vary in their composition. Opinions rarely change as a result of en banc motions for rehearing. The best-known case was the constitutional challenge to the Texas sodomy status, which was subsequently resolved by the U. S. Supreme Court, but caused rancor among the membership of the court when considered by that court under the Texas Equal Rights Amendment. Minority representation on the courts of appeals. The Fourteenth Court of Appeals has one Hispanic member, Justice Eva Guzman, who previously served as a family district court judge in the Harris County Family Law Center. The only black member on a Houston appellate bench is the Hon. George C. Hanks, Jr.. Justice Hanks is making a name for himself through his innovative jurisprudence on cutting-edge legal issues and is being discussed as a prospect for higher state of federal judicial appointment. He has demonstrated the intellectual and moral fiber to disagree with holdings of the Texas Supreme Court. In 2006 Justice Hanks wrote a precedent- setting opinion that carves out an exception to the blanket immunity of governmental entities to private suits in the absence of a statutory waiver. Party affiliation of judges and career background. Although they differ in sex, age, family status, in professional background and in other respects, all current members of the Houston courts of appeals are Republicans. All are lawyers, which is an eligibility requirement. Several previously served in the Harris County District's attorney's office and/or as district court trial judges. The Justices do not always see eye to eye on the issues raised in the cases before them. See: Dissent and Concurrences in the First Court Dissents and Concurrences in the Fourteenth Court Membership Turnover: Resignations, Appointments, and 2008 Campaigns and Elections Two justices on each court are up for re-election in 2008. Two newly appointed justices (Jeff Brown, who replaced Harvey Hudson, and Bill Boyce, who was appointed to Richard Edelman's seat) must win elections to serve the remainder of their unexpired terms. Hudson and Edelman resigned before their terms were up and thus created an opportunity for the Governor to appoint Republican replacements prior to the 2008 election. Brown was a district judge in Harris County prior to his appointment. Boyce is an appellate attorney. houston-opinions.com

CONTRADICTORY PRECEDENTS

The Houston Courts of Appeals do not always agree on the same legal issues, and
say so expressly. In a recent second appeal from a case in which CPS sought to
terminate a mother's rights, Justice Richard Edelman of the Fourteenth Court of
Appeals parted ways with the First Court of Appeals and instead embraced the
position of the dissenting justice on that court:

"The First Court of Appeals has issued at least one opinion holding, as C.M.
contends, that where a challenge to a parental termination is sustained, the
appointment of DFPS as sole managing conservator must also be reversed, even
though unchallenged. See Colbert v. Dep't of Family & Protective Servs., __
S.W.3d __, __ (Tex. App.-Houston [1st. Dist] 2006, no. pet.). We disagree with that
holding and agree instead with the dissent in that case that where a parent fails to
challenge and overturn a trial court's conservatorship decision, his or her only
recourse is to seek a modification. See id. at __ (Jennings, J., dissenting)."

In the Interest of J.R. and B.R., No. 14-05-01216-CV (Tex.App.- Houston [14th Dist.] Apr. 10, 2007)
DFPS - Department of Family & Protective Services (CPS)
Colbert v. DFPS (Tex.App.- Houston [1st Dist. Dec. 21, 2006)(majority opinion by Nuchia)
Jennings Dissent in Colbert v. DFPS (Tex.App.- Houston [1st Dist. Dec. 21, 2006)(Jennings
Dissent)

Justice Frost criticizes peers for not addressing contradictory rulings by
different panels of the Fourteenth Court of Appeals, Would grant en banc
review to resolve the conflict

The court hears cases in panels consisting of three justices each. A panel's
decision and opinion nevertheless represents the court's disposition of the case.
Here, Justice Frost notes that different panels have reached opposite conclusions
on the same legal issue. En banc review provides a means to eliminate
contradictory holdings and establish clear precedent.

In the Interest of J.A.J., (Tex.App. - Houston [14th Dist.] May 10, 2007)(Dissenting
opinion by Justice Frost)(termination of parental rights)
Before Chief Justice Hedges, Justices Brock Yates, Anderson, Hudson, Fowler,
Edelman, Frost, Seymore, Guzman and Mirabal
14-04-01031-CV In the Interest of J.A.J
Appeal from 314th District Court of Harris County (Judge John Phillips)
En banc review of this case is necessary to secure and maintain the uniformity of
this court's decisions.

The same issue is before the First Court of Appeals on motion for en banc
rehearing. See Colbert v. Dep't of Family & Prot. Servs., (Tex.App.- [1st. Dist.] Dec.
21, 2006, no pet. h.) (Jennings, J., concurring and dissenting)

UPDATE: Supreme Court resolves the conflict

In Interest of J.A.J., No. 07-0511 (Tex. Nov. 2, 2007)(O'Neill)(termination of parental
rights; from Harris County; 14th district (14-04-01031-CV, 225 SW3d 621, 05/10/07)