The Thirteenth Court of Appeals covers a vast area stretching from near Houston to the US/Mexico border. It even has chambers and hears cases in two locations—Corpus Christi and Edinburg. Thirteenth Court Justice Gina Benavides knows the territory well because she worked throughout it as a successful trial attorney for nearly 20 years before taking the appellate bench. Justice Benavides joins Todd Smith and Jody Sanders to discuss her career as a litigator, her transition to the court of appeals, and how the court has operated—including its history of virtual operations predating the COVID-19 pandemic. Justice Benavides also shares her candid views on the Texas judicial-selection system, the need for diversity and inclusion in appellate practice and the judiciary, and the challenges courts have faced (and will face) during the pandemic.
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We have with us, Justice Gina Benavides from the Thirteenth Court of Appeals. Welcome, Judge.
Thank you.
Thanks for being here with us. In case you don’t know Justice Benavides, she sits on the Thirteenth Court of Appeals which has chambers in both Corpus Christi and Edinburg. She was first elected to that court in 2006 and took office in January of 2007. She has been there ever since. Did I get that right, Judge?
You did. That’s exactly right.
Tell us about your background, what led to you becoming a lawyer and your life before becoming a judge.
I’m born in Laredo, raised in Corpus and I started practicing in the Rio Grande Valley. I am a first-generation Mexican-American. My mom is from Mazatlan and my dad was from Laredo, Texas. I consider myself a border rat and I love it and then never strayed too far from the border. I went to school here in Corpus and then went to UT undergrad where I have a degree in Business in Petroleum Land Management because I wanted to be an oil and gas lawyer. Somehow, I ended up becoming an appellate justice on the Thirteenth Court of Appeals. It’s one of the things I tell when I speak to students that whatever lawyer they thought they were going to be is not definitely the lawyer they end up being at the end of their career.
I don’t know, to be perfectly honest, how I stumbled across the idea of becoming a lawyer other than my mother tells the story that when I was in about 4th grade, I came home and told her that me, my maiden name is Martinez, and my best friend, who was Teresa Martinez, were going to have the Martinez and Martinez law firm. I’m happy to say that both Teresa and I did become lawyers. She is a lawyer up in the DC area. We never practiced together. I early on became very enamored with the law and the changes that it could bring. I was one of the lucky few that went right through. After UT, I applied to law school. I went to the University of Houston. I got out in ’88 and have been practicing ever since.
Petroleum Land Management.
I wanted to do the oil and gas law. I loved contract. I loved real estate. I enjoyed that aspect. If anybody recalls back in ‘85, which is when I graduated from UT, that’s when oil and gas prices bottomed out. It was during one of their bottom outs that I went to law school and then somewhere along the second year of law school, I went, “Maybe not.” I started looking around. I did a stint at the district attorney’s office there in Houston. I was very active in legal aid at the University of Houston Legal Aid Clinic and helped run it in my third year of law school. That’s also hard as anybody who’s ever done pro bono and legal aid knows. My heart is still there and I do a lot of legal aid. I did a lot as a lawyer and I do a lot as a judge.
I started looking around and started interviewing with different firms. I knew that I wanted to go back to a small town. I did not want to stay in the big town of Houston or go to Dallas. I was married, wanted to start a family and wanted that small town. I was lucky to be interviewed with the law firm of Adams & Graham which is one of the oldest defense insurance litigation firms in the Rio Grande Valley. They are a great bunch of guys. They interviewed me, offered me a job and I was there for the next twelve years. I did all sorts of insurance litigation. That was quite fun.
Are Adams & Graham in Harlingen?
They are in Harlingen. The practice is all through the Rio Grande Valley. We all started back in the day. I started cutting my teeth on worker’s comp like everybody of that term did and I represented great companies like H-E-B and every type of slip and fall that could happen at an H-E-B. We represented L&F Distributors and Whataburger. We had a thriving practice. You got to remember back in ‘88 when I joined the Rio Grande Valley, if you looked around and tried to find a female Hispanic lawyer doing litigation work, we were hard to find. I was one of the few women working at Adams & Graham and the first Hispanic female working at Adams & Graham.
I tell people I was lucky because then it put me at the forefront of a lot of that litigation with Adams & Graham. Towards the end, I was doing all their toxic tort litigation, asbestos litigation, silicone implant litigation and that was statewide. That started telling me to litigate cases in El Paso, San Antonio, Austin. I kept trying to tell my clients at San Antonio, El Paso and Austin weren’t quite as close as they thought it was. I tried to explain to them, it took two planes to get to El Paso, Texas, but I spent many a time doing a lot of that toxic tort litigation. I enjoyed it. It became more of a statewide practice at that time for Adams & Graham.
You mentioned being the first female Hispanic litigator or one of the only ones around, I suspect that may have been true of you also in your undergrad course with the Petroleum Land Management.
It was, very much so. Especially the crossover engineering type of classes that we had to take, I’m one of the few females and one of the few Hispanics. I’m used to being the only female running around in most boardrooms and most organizations. It’s a little bit of a different story but I’ll tell a story when after I left Adams and Graham, I switched sides and joined up with Jaime Gonzalez who I went to undergrad with and I met at UT as an undergrad in the ‘80s. He asked me to join him. He says he was tired of me beating him up in the courtroom. Since he couldn’t beat me, he decided to hire me so I switched sides. Depending on whether you’re a plaintiff or defense lawyer, you either saw the light or went to the dark side.
For twelve years, I was defending Corporate America then I went to sue Corporate America for the next 7.5 years. I remember being in Zapata, Texas which is down on the border in a big product liability rollover, roof crush, seatbelt case. There were fifteen lawyers in that courtroom defending different parties. I was the only female in that courtroom and that is not unusual. I used it to my advantage because jurors didn’t like mean men picking on the only female in the courtroom. It quite assisted me a lot in my career to get ahead. I used it as a tool to get ahead as opposed to using it as a detriment.
What made you decide to leave practice and run for the bench?
When I joined Jaime, we did a lot of product liability cases and commercial liability type of cases. It’s very boutique. It was just him and me and a staff of three. I think that for all of us it will ring true that the trial practice changed a lot at that time. A lot more mandamuses and interlocutory appeals. Even if you got a verdict, everything was appealed. Since we were doing a lot of those discovery fights for documents and such, we ended up finding ourselves quite a bit both at the Thirteenth and at the Fourth Court. I had done some with Adams & Graham but we had a board-certified Roger Hughes who everybody knows at Adams & Graham that handled most of the appeals even though I assisted him.
At Jaime Gonzalez, it was just me and him. We would hire lawyers to assist us with the research because as litigators, having those down times to sit down and do the hard research was difficult. We would have appellate lawyers help us do that but I did all the arguing. With Jaime Gonzalez’s office, I argued at the Fourth, Thirteenth, and Eastland Court of Appeals. I started getting frustrated because I felt like I was having to retry my cases at the appellate level. I thought that they didn’t give credence to what these trial judges were doing. I looked around and said, “Someone needs to do something and change this.” It was the right time, the right opportunity presented itself. I decided to run for the Thirteenth Court of Appeals and I wouldn’t have ever thought of going from being a litigator to an appellate judge.
A lot of people don’t realize this but I was looking at a map. The Thirteenth stretches geographically from right outside of Houston all the way down to the border. How was it running an election in that huge area?
You can’t travel from one end of our county to the other without stopping somewhere to sleep. When I describe it to people, I say we’re from the very tip of Texas. If you go up 59, we go all the way to Buc-ee’s because everybody knows where Buc-ee’s is on 59 before you get to Houston. If you go up 37, you head to San Antonio would go all the way to Three Rivers which is where 281 joins 37. Everybody knows that logs points there. It’s a very diverse jurisdiction but it worked for me because that was the area where I practiced law. That was my practice and I tried cases in Nueces County. I started as a lawyer in Cameron County and I had been in Hidalgo. It seems big to you but to me, that was my playground. That’s where I was born and raised and was a practicing lawyer. It was no big deal for me to go to be down in Victoria. I knew people. I tried cases in those jurisdictions. That was a big area but I liked it.
It seems common among lawyers down in that part of the state to travel around a fair amount and go to different counties.
It was not unusual with asbestos litigation to be three days a week doing depositions in Nueces County or traveling to either/or for expert testimonies, parties, or whomever. We all had clients everywhere. You go where the work takes you. It’s lots of miles on your car, though.
You made the decision to run. Tell us about that first election. You were not given the privilege as many of our appellate judicial guests were being first appointed to your bench, is that right?
I was not. I was also not a trial judge before I ran so I was an appellate and I took on an incumbent. I took everything. They don’t tell you don’t run it against an incumbent. I took on the incumbent in my own party, a Democrat sitting on the bench and a female. What you normally tell people not to do, I didn’t listen. I said, “This is the right time for me. This is the right place. I believe that I could do a better job than that and put form on my platform.” I went straight in. As every election is for any candidate that you will ask, it was an eye-opener. Not my first election though, Todd. I ran for the school board in Harlingen and lost.
School of hard knocks politically.
There’s nothing like a school board election that teaches you the rough spots of an election. That is deep and dirty school board elections.
After that first election, you’ve been re-elected to your seat twice in 2012 and 2018. As of right now, you’ve got four years left on your term.
I’ll contest it. Unfortunately, I can never say that I’ve run unopposed. I’ve always had opposition in all my elections.
You’ve done it the hard way.
I am.
It tells me this is a pattern.
I never seem to find the easy way to get things done sometimes.
We talked about the Thirteenth Court a little bit. It’s the rare court that has two different courthouses. Did you start down in Edinburgh once you took the bench?
I did. The Corpus Christi Court started in Corpus Christi when it was first created in the ’60s, it was a spinoff from the San Antonio Court of Appeals. In the ‘80s, it slowly developed the Edinburgh office. It first started with a clerk. As judges got elected, they got “offices” because Melchor Chavez and Linda Yanez were talking about how they were more in closets down at the courthouse than they were in offices. As population increases and shifts then we’ve got the full court in ‘93. We then started hearing cases in Hidalgo County with our own courtroom. We officially changed the name so it’s called the Corpus Christi Edinburg.
We have three major counties, Cameron, Hidalgo and Nueces County where the court was first. Nueces County was the highest populated County in our twenty-county jurisdiction. It is now Hidalgo County followed by Cameron, and then Nueces runs in third. You can see where the populations change. We love having two counties. It makes our work a little bit different. I wouldn’t say harder, just different than those who all sit in one County, but we make it work. It has its different bumps in the road that we have to overcome.
I’ll go so far as to say that the Thirteenth Court, or the Corpus Christi Edinburg Court, as people need to be reminded is the official name, was groundbreaking if you look back on it now because of having those two different sets of courtrooms and chambers. Even before this terrible pandemic and all the other things that have been happening to us, you all got in the habit of working remotely, working cooperatively between two different cities. You had a boost in technology that allowed you to do that.
Since I joined the court years ago, telemarketing has always been how the court has worked. When I joined the court, Chief Roy Valdez sat in Edinburg but the Clerk of the Court Kathy and then Dori after that sat in Corpus along with a senior staff attorney. We had conferences by video conferencing since the beginning. If we wanted to talk to each other either by email or telephonically or by what we used to do back then, by Skype. Our internal video conferencing is not unusual. Both courts have always been connected by videoconferencing. If we ever needed to have a complete court, getting all six of us either in Edinburg or Corpus was sometimes difficult. We try to do it on OA dates but we couldn’t.
We always had the ability to video conference in OA arguments. We always offer the option. If you’re, for example, a Corpus lawyer and you ended up with an appeal that sits out of Edinburg and it was going to be OA, you could go to the Corpus courthouse. You didn’t have to drive the 132 miles from Corpus and sit in the Corpus Court House. We could set you up by video conferencing to argue your case. All of us, at least at one time in our careers including myself, have attended oral argument by OA. If it’s one case out of a docket of 5 or 6, was it worth it to me that day to run down to Corpus to hear one OA case for whatever reason? No, so then I just sat. We’ve always done that. When the pandemic came into place, we kept operating the way we’ve always operated. Many of the judges had staff or attorneys that are in different locations. We kept doing what we’d all been doing. We’re all working from home. That’s the big difference as opposed to working remotely in our chambers.
Has your court had Zoom oral arguments, Judge?
We were the first one to have our Zoom arguments. We were the first appellate court to do it. We had a full docket by Zoom.
That was not that big of an adjustment for you all because you’d already been connected by video link anyway.
Once you’re used to doing this argument by video and knowing that you’ve got to watch the little nuances and making sure you allow the person to finish speaking, it’s a little different on a video as it is in live but once we got used to that, it was not a problem at all for any of us. It was harder for our lawyers. They like to be in front of us but for us, it was not that big of a deal. We continue to have weekly judicial meetings just as we were in chambers. Before, there would be a couple of us in the office, now we’re usually all sitting at our kitchen tables doing our conferences and doing our Zoom.
We already set September 2020, it will be by Zoom. Notices will go out for October 2020 by Zoom as well. Hidalgo County numbers are still too hot. It’s still one of the hotspots in the state of Texas. As you know, Todd, we don’t want to make lawyers travel to Hidalgo County because we do have a lot of out-of-town lawyers that come argue in our court. There’s no necessity to bring them down to Hidalgo County to argue when it’s still considered a hotspot. That doesn’t make any sense so we’re not. Throughout the year, Hidalgo County issued an order, with no jury trials to December 2020. Corpus Christi and Nueces County are through October 2020, with no jury trials. We’ll play it by ear and see what November and December 2020 hold for us.
How are the cases assigned between the two courthouses for the argument?
They’re assigned by panel A and panel B. Or do you mean assignment like how do you argue in Corpus versus Edinburg? Edinburgh hears all cases from Hidalgo, Cameron, Willacy, and Kennedy, a little town in Sarita, Texas. Occasionally we get an appeal out of there. Every other case is heard in Nueces County. That’s the way the statute reads when they created the two courts. Anything for Kingsville, Corpus Christi, Wharton, Victoria, and Beeville are heard in Nueces County.
I’m very familiar with your court and I believe Jody is too. We’re not casual observers of any of the fourteen intermediate courts but we talked off the record about what I think is an antiquated perception of the Thirteenth Court. For some reason on this show, I tend to be the one that asks the hard questions but some time in the past, there has been a perception that the Thirteenth Court was very plaintiff-friendly, much more so than a number of our other intermediate courts. What would you say to that, Judge?
It’s a lie. I heard that too even when I was practicing and I wish that was true. As a plaintiff’s lawyer, I could have won every case at the Thirteenth Court and I didn’t. When I joined the court, we always looked at the numbers and never have we ever been, there was one year early on when I joined the court that we were at the top three but other than that, we are not the most reversed court by the Texas Supreme Court or the Court of Criminal Appeals. As we look at the numbers, that’s not so. People get this perception. I said the same early on in my career. I’m very close to Judge Hilda Tagle who was a County Court of Law District Judge.
She was a senior federal judge out of the Southern District. I had a big case in her courtroom. We were speaking afterward and she said to me, “Gina, facts are malleable but perception is rock-solid. It’s harder to change perception. Facts can be changed easily.” She’s right because that whole perception, even though we argue about it and continue and it’s an issue at every campaign including the campaign years ago that says they bring integrity to the court because we’re the most reverse court and it’s not true. To try to change that perception, it’s hard because that’s the perception of the Thirteenth court.
If you look at our numbers, we track them very closely now. It’s not even close. As a matter of fact, the Supreme Court now takes less cases from our court just to begin with. Our reviews are down from the Thirteenth Court than any other court. They don’t even take more cases from our court than they do. In years, they’re taking less cases from our court because I write such great opinions and they’re going to leave Gina alone. I wish that was true. It’s a perception that we fight about every fourteen days and it’s not true.
We’ve had Kent Rutter on here and we’ve talked about Pam Baron a lot. To your point, both of their statistical studies of Courts of Appeals dockets and Supreme Court dockets back that up and the things that are public show that as well.
If you look at some of the cases that you look where we are reversed, if you are appellate nerds as we all are, and all that are reading this, it’s me making new law when we get reversed. It’s usually a new standard or review, a nuance or a new statute looking at it. You can look at Menchaca, the new insurance case that came out of the Thirteenth Court. We got reversed but that created new insurance law. As we all know, we can’t make a new law, we have to follow the old law. That was reversed and remanded because they realized it made new law and in the interest of justice, they needed to retry it because it wasn’t fair to the litigant in that case.
I wish they recognize that a lot more because it’s hard for these litigators to try cases in the laws one way. When they get all the way to the Supreme Court, they find out the law gets changed and they were played by a different set of rules. That drives me completely nuts. I tell people that I used to watch OA arguments at the Texas Supreme Court but half the time, I was screaming at my computer screen and yelling at them like, “That’s not what the opinion said.” It is definitely not what my opinion said. The other half, I wanted to throw my laptop so then I stopped watching Texas Supreme Court OAs. If I could do one of those Zooms where you can shoot questions while they’re in OA from the audience, “Can I have my own question?”
That’s the nature of the game. That’s their prerogative. They’re at a different set. It’s hard when you’re campaigning to get that message across even to lawyers. They’re under a different standard of review than we are. We are bound by precedent. We’re bound to give full discretion to all trial courts. It’s an abuse of discretion and we can’t go in and make new laws. There’s a lot of times I think the trial judges are wrong in their ruling but I got to give them the benefit of the doubt. That’s what the law says. It is what it is.
One example that Kent talked about when he was on the show is summary judgments. The statistics, when it came to looking at the Thirteenth Court versus some of what we would consider to be the conservative courts were reversed from where you thought they might be, the Thirteenth Court reversed plenty of summary judgments. As we all know, that’s the de novo standard of review. The trial judge has to get it right. The Thirteenth Court has as a complete re-review of that ruling so we’re not offering any difference to the trial judge in that situation.
Remember where our jurisdiction and geographic is? We have twenty counties. Even if you are considering Hidalgo County, the biggest of our counties, it’s sitting at about 900,000 population in Hidalgo County. Our area is still considered rural. Our judges are still all general jurisdiction judges which mean their docket is full of criminal, civil, family law, and a whole other assortment every morning that they need to hear as opposed to Houston which their civil cases are coming out of civil-only judges.
I have great respect for my trial judges who are dealing with all sorts of cases all day long and it’s them. It’s only one judge out in Wharton County. We still have traveling judges out of Brazoria, Wharton, Victoria, Beeville, and all the little counties, Jackson, De Witt, some of those have more cows than they do people in those counties. It comes to us in a different view than I think in others. They’re trying to move their docket down in Beeville and Victoria. They don’t even have the resources that we do and some of the resources that our trial judges do have in bigger cities.
You’ve talked several times about running for election. I know that you’ve been particularly outspoken among judges about the discussions that have gone on about judicial selection. What are your thoughts on some of the different proposals that have come about judicial selection in Texas?
I don’t like any of them, flat out. They haven’t shown me one that doesn’t solve the problem that they believe they have and I’m not even sure there’s a problem. No one’s convinced me that there’s a problem, to begin with. Are we solving an imaginary problem? Even if we are to say there is a problem, none of the plans that they show me solve any of those problems. If it’s qualifications, there is nothing to say that we don’t have one of the best-qualified judiciaries in the State of Texas. Are there bad apples? Sure. There’s a bad apple no matter what. There’ll be bad apples no matter what process you go through and none of what they have shown me takes care of that. Is there a money issue? There’s going to be a money issue anyway in any way, form, or fashion.
I do know, the thing why I have been such a strong proponent of elections is because I know that it directly affects the diversity of the judiciary. It is unmistakable statistically that elections favor a diverse over selection. There are books that have been written about it, articles and all sorts of forums that have done it. We can go back. We have a more diverse judiciary in the State of Texas that we ever have. Talking about perception and now that we have the most diverse when we elected eighteen African-Americans in Houston and we have many first Hispanics. Gisela Triana is the first Hispanic in the Third Court of Appeals. My chief is the first female Hispanic of the Thirteenth Court and you see those issues.
The perception is those unrepresented women and minorities that are now taking or are becoming seats of power, now we have to change it. The perception is you’re directly attacking women and minorities by trying to change the system now. I’m on record on all this. I’m not telling you all anything I haven’t specifically told the Judicial Selection Commission of which I already testified to. Everybody should go listen to those committees because it’s quite eye-opening. I was a final name for the Fifth Circuit under the Obama administration. No one can ever tell me that that eighteen months that I went through to get to the final, at the end of the day, I wasn’t the most qualified like the ABA, FBI, local bar and big bar. Everybody and their godmother.
At the end of the day, even though I was qualified and many others before me, Hispanics and females before and after me did not get the appointment. That’s not to say that ultimately whoever was appointed wasn’t also qualified. At the end of the day, you have the Fifth Circuit who represents Texas and it has not a single Hispanic on the Fifth Circuit as we sit. That just astounds me in the State of Texas. It’s never had a female Hispanic. That’s what the selection process gives you. I’m a big proponent of elections. I also think that the Selection Committee is a little premature now because we’ve got this not straight-line voting and we’re not even sure what that’s going to do to judiciary elections especially in big cities.
The nonpartisan that some people say, “You got to be nonpartisan. Why are judges partisan?” You all figure out how we’re supposed to do elections in a nonpartisan way. If you have an open seat and you got nine people that then run for that seat in a general election, how are people going to figure that out? If there’s an open seat, I’m going to put my name. It’s like the city council when there’s an open seat at large, you’ve got ten people running. We’ve got a mayor and city council position open here in Corpus Christi. We got twelve people and another nine people running for mayor. Exactly how does that help supposedly because the voters don’t know who they are. Are they going to know who those voters are when there are nine people on the ballot?
You have runoffs in every race and you won’t have the benefit of party primaries to went up the ranks.
Hopefully, we’re up the ranks. You live and die by election and I’ve lost two elections and won three. I know how it hurts to lose an election. This job is mine until I get unelected and I respect the voters. When people get unelected, they get unelected for a reason.
That’s a different perspective than some that we’ve heard. Most of what we hear that’s critical of the now system is you’ve got to get the money out of it because of the perception about money indirectly somehow contributing to the result and decision-making.
Again, a perception. Where does that perception come in? I would love to be able to not have to race that. That’s the hardest part and the Women League of Voters think that there should be public funding for the judiciary. They think that it should come from taxing the attorneys since you all are the ones that are mostly affected by judicial races. That’s one of the plans that floats around and gets discussed quite often. It is in the Texas Constitution and it got there if you look at it historically because of all the corruption and selection of judges. We got where we are because Texas was dealing with a very corrupt selection of judges. I told someone if I could select the people that were going to select the judges, I would be okay with that plan. I know who I would select is not people who you got to take it out of the legislatures. You got to take it away from the governor and that isn’t going to happen.
It’s no different than this committee that was set up. The Committee of Judicial Selection, they are good friends of mine. There’s not a single sitting judge sitting on that commission than there are all lawyers. There’s not a single layperson on there because if you ask people if you want to be able to vote for your judges, they’re going to say yes. You haven’t convinced me there’s a problem even if I give you the benefit of the doubt that there is a problem, you haven’t given me a plan that fixes that problem, whatever problem you think you have in your head. It’s going to be interesting to see.
You brought up your nomination to the Fifth Circuit. We’ve seen that many times in years with lawyers from around our part of the Fifth Circuit. I followed that as you’re going through that process but it’s not something that there’s any insider knowledge of that’s generally floating around in the legal community. It’s a cloak and dagger thing.
They kept telling me they, they say you need this and they say you need that. At some point, I said, “Someone needs to tell me who they are because I was never able to figure out who they were.” It’s some floating people out there. It’s very cloak and dagger, nontransparent and the decision was made politically and politically only. I know what they told me and what they were told on the record that I didn’t have enough federal experience even though I tried cases in federal court and have a published Fifth Circuit opinion. I know it was political and it was political through and through. It was made in a backroom of which I had no control. I pissed off someone in the political world in the past as a lawyer and several years late it came back to bite me.
The whole experience is consistent with your concerns about the judicial selection in Texas. I assume that it would be the nature of the selection process as it would be inherently political, backroom deals, and that sort of thing.
Without a doubt. Those people that are trying to sit you have their backroom meetings too. You got to go to the backroom meetings of the people that are trying to get you out of the other backroom meetings. It was an awful experience to be perfectly honest and then it’s gone. That’s it and you move on.
You don’t have to run another reelection campaign for at least a few more years.
I’m one of the weird people that like campaigning. There are some great people in our State of Texas. When I ran for Texas Supreme Court in 2014, I had more fun. It was long, hard and I drove my car to the bitter end. We were carrying the title with it. We knew it was going to leave us somewhere on a highway and we’re going to have to drive it into a dealership at some point. Let me tell you, I wouldn’t have traded that experience, going out, meeting people and talking to people. Not only lawyers but the VFW Halls, the Women Elite Voter meetings, all the different newspaper meetings that you have and local people that are interested in our election process. They care, they take the time and they listened to you. It was a lot of fun. I’d rather do that than go through that federal crap that I had to go through for eighteen months.
One of the things that you talked about a minute ago was diversity in the judiciary. Another thing that has been the topic of the discussion is diversity in the appellate bar and ways that we can improve that. Do you have some thoughts on ways that we can be intentional about increasing diversity in appellate practice?
As you may or may not know, I’ve chaired the appellate diversity committee for the appellate section for years. What we have tried is to reach out to those areas geographically because that’s where you’re going to try to grab those attorneys that don’t have to be appellate lawyers. We talked that trial practice has changed so much that you do need to have some appellate backing whether it’s yours or someone else to tell you from the minute you file that lawsuit whether you’ve hit all the things you need to get right. If you don’t plead it right, those motions to dismiss are coming a lot. There are a lot of interlocutories, all these hurdles we now have to overcome before we get any way down the line.
Those lawyers out there that are doing that need to know that because they’re going to be hit with that motion to dismiss, know why they’re being hit, and what’s wrong with their pleadings to begin with. We’re trying to reach out to those areas and try to say, “You don’t have to have an appellate practice but you should know these things because they’re going to help you in your trial practice.” If you do need help, there’s a whole section that can help you, we provide great work and assistance to do it. The appellate section is doing a great job in trying to reach out but it’s hard.
Those guys and girls are trying to make a living at beating the bush. They’re worried about now more so than they are about tomorrow. They’re more worried about what they did yesterday than they are about now. It’s hard to get them to stop and take a break and go, “Take a look at this for five seconds.” You all are still practicing law but don’t you remember back in the day when your docket was so full? I think back on some of the things I did back many years ago and think, “How did I not commit malpractice years ago with not having an appellate lawyer standing in line next to me?”
That’s what we keep trying to tell people. You always should have an appellate lawyer there holding your hand and we’re happy to help in any way we can.
I know that Roger saved my butt on more than one occasion and it’s hard. You got to have that person standing next to you to help you out. We definitely need to do a better job. The State Bar needs to do a better job overall. You know it’s been hit with a diversity problem as well from the top being sued for various things. They got it for a minority director position and such. We have to do a better job of trying to face what everybody thinks the bar is, what the appellate section is, and tell them that’s not who we are. We’re working on it. I’m glad that the Justice from the Dallas Court of Appeals is going to join me in 2020 and she’s bringing some great new ideas which I’m happy about.
When it comes to directors, there are close to 40 elected positions statewide among state bar directors. I’ve always preached that with bar involvement that everything starts locally. You’ve got to have folks step up and run minority candidates or otherwise. For any group that’s saying we don’t have a say, isn’t that where it starts is you got to rise up locally.
Everybody who complains to me I said, “What have you done? Have you looked at this? Have you contributed to this? You can’t sit there and say it doesn’t do anything for me without you saying, “What do you need?” Get involved because once they do that, we can always do better.
In fairness too, you mentioned the issue of minority directors. The Bar’s efforts sometimes to try to increase diversity are met with resistance, not from within the Bar itself, but from within other State Bar members who decide that they’re going to bring suit and try to prove in the appointment of someone based on their heritage. I’ll speak as a director. The Bar is not a perfect entity but it doesn’t help when efforts at diversity and increasing diversity are met with that response to hinder the appointment of someone who’s going to bring that perspective into the State Bar board.
That’s a problem we’ve had for years that we can’t seem to overcome. To a certain extent, I think it’s gotten worse and it’s disheartening sometimes. We had come a long way and then I feel like that we’ve all taken several steps back.
We’re at some crossroads right now. I don’t know which way it’s going to go and I don’t know what the outcome is going to be but unfortunately, everyone is very sensitive having been pent up for months. They are lashing out in ways that they otherwise wouldn’t. There’s a lot going on. We’ll have to stand by. There’s going to be some things happening in the State Bar with some upcoming meetings. It’s hard to argue against inclusion. I would not want to be the person arguing against inclusion.
Inclusion and equity in particular.
It is hard to think. When people do, you’re like, “They’re missing something and I’m not sure that we can teach them that unfortunately.”
We are getting near the time that we have allotted to visit with you, Judge. We’d love to hear some things from you about some perspectives you bring on, say advocacy in your court. We often ask about a war story or a tip. We’d love to give you some time to talk about some things that are important to you in those areas.
What’s important and what I try to do at the court is to try to respect the law. I tell this quite often that we tend to get lost and these are cases and we’re going through them. We try to not forget that we’re laying precedent. These are real people. If it’s family law or even a commercial case, these are people in companies. I represented them for twelve years. They’re all true people. We try very hard on the Thirteenth and we fight quite a lot at the Thirteenth. We may all sign off at the end but let me tell you, there was a lot of discussion going on before it gets signed off by everybody. I am known as the center in my court. This past year, I feel like somehow, I let down the Thirteenth Court. We try hard to get that full opinion out and try to make it a little bit easier for the practitioners to understand it and get it out. I’m trying to think of a good war story. All of the good ones, I can’t tell, Todd. I could get in trouble.
When we’re able to get together in person again and we’re in a group where we’re at a CLE and we’re at the bar, I will provoke you in telling me one or more of those was stories as long as I’m not the subject.
I don’t think that you and Jody are the subject. It seems like the briefs from you guys are getting a little more bitter and nappy at each other. Is it because you all have been cooped up in your kitchen tables having to write briefs and can’t get out to do the things that you love?
That’s possible.
I have been talking to some other folks about that very issue that there seems to be a lot more banning about the word sanctions and it happened before.
They are complex litigation cases and they’re a little bitey. You do know that filings are way down. We got the numbers and they are substantially low. I’m not sure how the wave is going to occur because there are fortunately judges who are not doing anything about their dockets. There are some that are working but there are some who are not. There are some DAs that are moving cases and some DAs are not. Remember 50% of our docket is criminal and 50% is civil. It varies but it’s much a 50/50. We may see this for a while but at some point, I’m very fearful when this dam breaks.
What’s going to happen all across the state when we go back to live hearings and people have these massive dockets. What’s also very interesting is that we are down to almost no mandamuses at the Thirteenth Court. We went for three weeks which no one can ever remember in the history of the court without a single mandamus being filed. We have the lowest mandamuses filing that we’ve ever had at the Thirteenth Court. I don’t know what’s going to happen to our dockets in the future. I tell people, lawsuits are still being filed when we were having that discussion.
We’ve had two hurricanes in the State of Texas. I already got that Briggs litigation. I’ve had texts from friends asking me for lawyer referrals because they’re fighting with their insurance companies. I’m like, “For the record, I don’t give lawyer referrals.” I find that it gets me into trouble especially as a judge. I’m not sure what’s going to happen when this dam of the pandemic breaks and we go forward. Justice was telling me they’re not sending any OA cases because they’re not going to have any enough cases to set for OA. That’s the Dallas Court of Appeals but lawsuits are still being filed.
They’re all in trial courts all backed up. As you said, it’s like a dam with a crack in it. There are few that seeped out but eventually, the flood is going to come.
That scares me. The only cases that we’ve seen on mandamus are family law matters because they’re desperate. We’ve never lived through a shut down of this sort in the court system with no jury trials for, let’s assume we go through December 2020, nine months of no jury trials. It’s going to be really interesting to see. The clerks say their court filings are down. I’m not sure what’s going to happen.
We’ll stay tuned because we’ll be talking about it, I’m sure.
We’re all getting our budgets cut.
It’s going to make it even harder when the wave eventually does hit.
As we know, the judiciary is funding which is less than 1/10th of 1% of the state. It’s manpower. We are a manpower corporation. It’s our lawyers and our clerks. If we don’t have them, that’s the only way that we can cut.
You’re all having to make any staff reductions. The year is already turned over, I guess you know what to do.
Not right now but we are expected and definitely for our next biennium. They’ve already told us our budget for our next biennium. We have no place to cut. The Court of Appeals is housed luckily at the county clerk in the counties that we sit in. We don’t have that overhead expense. Our expenses are people. It’s those who sit down, do the research, get your motions filed, get the clerk’s records done properly, and assist us in getting out the opinions. We’re going to be hurting because you’re right, when that dam hits, I’m not sure what we’re going to be doing.
It trickles down to all of us who practice too because we’re going to be hit by the same problems.
It’s going to hurt. We need to redo this podcast a year from now and see if we can answer any of these questions.
We will put it on the calendar and have part two. We appreciate you giving us your time. This has been interesting and we’ve touched on a lot of great subjects. We’ll go ahead, wrap up, and let you go on with your day.
Thanks for reading this episode and thank you very much, Justice Benavides, for being with us.
Thank you for having me.
It’s our pleasure.
Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.
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About Justice Gina Benavides
Justice Gina M. Benavides was first elected to the Thirteenth Court of Appeals in 2006 and took office in January of 2007. She was re-elected to a 2012 and 2018. She is currently the Senior Justice on the Court. During her tenure as an appellate judge, Justice Benavides has authored more than 1500 opinions on issues involving civil and criminal matters.
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