Critics: Courts overhaul bill threatens diversity
The first redistricting battle of the 2021 legislative session is here — but it’s not about state or congressional districts.
Sen. Joan Huffman, a former Harris County district court judge, is proposing an overhaul of the Texas appellate court district boundaries in an effort, she says, to help balance the workload. Under the current setup, which hasn’t been restructured in decades, the state frequently has to transfer cases from high-volume courts to lower-volume courts.
“Texans routinely explain that these transfers lead to confusion, frustration and increased cost,” said Huffman, a Houston Republican.
Senate Bill 11, which was voted out of committee on a 3-2 party line vote Thursday, would cut the number of appellate districts in half to seven.
But Democrats have described the proposal as a power grab after a blue wave helped them win majorities on half of the 14 appellate courts in 2018 and greatly increased diversity on the bench. The party, along with appellate court attorneys and judges, also worry that the new districts would reduce the voting power of minorities.
Under the proposed map, courthouses would be created in Midland and Lake Jackson. Dallas County would be folded into a district with Austin’s Travis County, combining the two liberal metro areas, while other blue-leaning cities such as El Paso would become parts of districts with more rural conservative counties.
“SB11 is a blatantly partisan attempt to draw maps unfairly for Black and brown Texans,” said Gilberto Hinojosa, chair of the Texas Democratic Party. “Texas is already one of the most gerryman
dered states in the country.”
The debate comes amid immense pressure on the courts. The pandemic and a temporary hiatus of the courts before Zoom calls became more commonplace have created a major backlog in trial courts that will eventually make its way to the appellate courts. Some also lost time after being hit with a ransomware attack in May 2020 that took down a portion of the statewide court network.
David Slayton, administrative director of the Office of Court Administration, testified Thursday that 400 to 600 cases on average are transferred per year. Even with transfers, imbalances in pending cases among the courts still exist — for example, the Texarkana court had 43 cases pending compared to 98 in El Paso as of February.
“It looks like the outcome of your proposed plan here would fairly closely equalize the filings per justice,” Slayton said, adding that the office has not yet come up with an estimate of how much it would cost.
More than a dozen appellate court justices testified on the bill. Most were Democrats who didn’t support it.
Second District Court of Appeals Chief Justice Bonnie Sudderth, a Republican who is chair of the Texas Council of Chiefs, said the bill would cause a disruption “at every level of our operations.”
Sen. Juan ‘Chuy’ Hinojosa, a Mcallen Democrat and an attorney, pointed out that when the Legislature redraws state and congressional boundaries, it holds multiple hearings. This bill had just one.
“This is not redistricting; this is restructuring of the appellate courts,” Huffman said.
The bill would immediately be ripe for legal challenge, said Hinojosa, a view echoed by the Mexican American Legal Defense and Educational Fund and other civil rights groups that testified Thursday. They said the bill violates the Voting Rights Act by making it extremely difficult for minorities to elect their own.
“All of the legal standards are met here to satisfy a Latino vote dilution claim,” said Nina Perales, MALDEF’S vice president of litigation.
Sen. Nathan Johnson, D-dallas, also an attorney, asked Huffman if she took partisanship into consideration when making the maps.
“Some people think this is going to result in five Republican courts and two Democratic courts,” Johnson said. “Do you think that would accurately represent the partisan breakdown of this state?”
Huffman said she did not consider political makeup in drawing the maps and didn’t know how her plan might alter that.
Overlapping districts
The intermediary courts handle trial court appeals before they can be brought to the all-republican high courts, the Texas Supreme Court for civil cases and the Court of Criminal Appeals for criminal cases.
The high courts have a much smaller bandwidth, however, and the appellate court is often the last stop for cases that either aren’t further challenged or are declined.
The appellate court boundaries have not been updated since 1981. The greater number of districts is not as necessary anymore, Huffman
said, because travel is easier now and many cases are being handled remotely.
Huffman said she also sought to address a lack of clarity on what case law should apply when more than one appellate court serves the same area. She said her proposal combines existing district courts based on geography, eliminates overlapping jurisdictions and puts split-district courts back together.
“No other state in the nation does this,” said Lee Parsley, general counsel for Texans for Lawsuit Reform, of Texas’ overlapping and myriad appellate districts. Parsley leads a powerful tort reform group that contributes millions of dollars to Republicans. “We favor change. This is as good a time as any.”
But Justice Julie Countiss, a Democrat who was elected in 2018 to Houston’s First Court of Appeals, which overlaps completely with the Fourteenth District, said she’s heard of no confusion arising from the overlapping districts.
“This has literally never been a problem in my experience,” she said.
Justice Amparo Monique Guerra, a Democrat on the First Court of Appeals, said that when she was an attorney, she never felt disadvantaged because of the overlapping districts. She added that the district as currently drawn helped her get elected and brought more Latino representation to the court.
“Prior to my election in 2020 … we had no Hispanic justices out of 18 in the First and Fourteenth (districts) on the Houston Courts of Appeals, which cover the most diverse area in the country,” Guerra said. “I urge this committee to reflect on the possible outcomes and possible effect that the proposed map may have on opportunities of people of color to be represented on our courts of appeals.”
An analysis by Fair Maps Texas, a nonpartisan group advocating for equal political representation, found that the new map would reduce the percentage of districts with protected groups able to elect candidates of choice from 50 percent, or seven out of 14 districts, to 28.5 percent, or two out of 7 new districts.
Kristen Lafreniere, an appellate lawyer from Lubbock, said it was “nonsensical” to seek increased efficiency by reducing the number of courts. She said she’d rather see a more surgical fix to the overlapping areas, as proposed in other bills.
“It’s kind of hard to look at this and say that’s not partisan,” Lafreniere said, a self-described conservative Republican from West Texas. “It does seem to be more of a response to the shift left on some of the courts that we’ve seen. And that concerns me, Republican or otherwise, to see our courts being used in a political way.”