APPELLATE COURTS - PROFILE
First and Fourteenth Court of Appeals
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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 on 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
right). 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 Civil 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.
The Supreme Court only hears civil matters.
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 opportunities 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 voted out in the 2008
Republican primary. Although he enjoyed
high name recognition because he had
previously served as Houston Police Chief, he
had poor ratings in the local 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 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. Many cases
are dismissed, often for nonpayment of all
required fees, or because a settlement is
reached before the case is resolved by the
panel to which the appeal is assigned.
In addition to their jurisdiction to hear appeals
from final judgments, the Houston courts of
appeals have appellate jurisdiction to review
interlocutory order when a statute authorizes
such appeals. See, e.g. Tex. Civ. Prac. &
Rem. Code §51.014. The courts also hear
so-called original proceedings, mostly in the
form of petitions for writ of mandamus. This is
a form of an immediate appeal under a
different name when an interlocutory appeal
is not authorized.
Demographic, social, and philosophical
diversity on the Houston courts of
appeals. Both appeals courts currently (as of
2008) 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
[Update: Justice Guzman was promoted to
the Texas Supreme Court by the Governor,
and replaced by Tracy E. Christopher,
previously a Harris County District Court
Judge. 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. [Update:
Effective Sep. 14, 2010 Justice Hanks
resigned to become a federal magistrate
judge in the Southern District of Texas.
Party affiliation of judges and career
background. Although they differ in sex,
age, family status, in professional background
and in other respects, all members of the
Houston courts of appeals in 2008 were
Republicans. One Democrat, Jim Sharp, was
elected to the First Court of Appeals in 2008.
He replaced Justice Nuchia, who was
defeated in the Republican primary in
January 2009. All members of the courts are
lawyers, which is an eligibility requirement.
Several incumbents 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, but
dissenting and concurring opinions are not
very frequent.
See: Dissent and Concurrences in the
Houston Courts of Appeals | Cases Decided
in 2008 with Separate Concurring or
Dissenting Opinions
Membership Turnover: Resignations,
Appointments, and 2008 Campaigns and
Elections
Two justices on each court were 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) had to win in the
general election to serve the remainder of
their unexpired terms. Both beat their
Democratic opponents. Jim Sharp is the only
Democrat who was successful in the bid to
get on an appellate bench in the 2008
elections season in Houston. He ran in an
open-seat contest against Edward Hubbard,
who had defeated incumbent Sam Nuchia in
the Republican primary earlier that year.
Justices 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 was
an appellate attorney. Justice Fowler
resigned too late in 2008 for a successor to
be chosen through the electoral process, and
was succeeded by Kent Sullivan, appointed
by the Governor right after the general
election. Another long-serving justice, Tim
Taft, retired in the Spring of 2009, thus
creating yet another opportunity for the
Governor to appoint a Republican jurist to a
Houston appellate bench. In June 2009, the
Governor's Office announced the selection of
Michael C. Massengale, to fill the vacant
bench. He will face the voters in the next
general elections. Taft continues on as a
retired visiting judge sitting by assignment in
some cases.
[Update: Justice Leslie Brock Yates was
defeated in the 2010 Republican primary by
Sharon McCally, a sitting district court judge
in Harris County.]
houston-opinions.com
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