A Longtime Trial Jud ...

A Longtime Trial Judge’s View from the Appellate Bench | Justice Gisela Triana

November 2, 2023 | by D. Todd Smith

Listen to the podcast here:

Few Texas judges have seen the courtroom from as many perspectives as Third Court of Appeals Justice Gisela Triana. From a practitioner, to a municipal judge, to a trial court judge on various benches, Justice Triana has served the State in a variety of roles. She joins Todd Smith and Jody Sanders in this episode to discuss the insights she has gained over the course of her career. She also offers tips to appellate practitioners in both trial and appellate courts. Finally, she discusses the likely impact of the new Fifteenth Court of Appeals on the Third Court’s docket.

Our guest is Justice Gisela Triana from the Third Court of Appeals here in Austin. Welcome to the show, Judge.

Thank you for having me.

We love it when we have sitting appellate judges on our show. We always learn so much about the inside view of the courts and an objective view of what judges think of appellate practitioners and things that they should or shouldn’t do. We’re looking forward to this conversation. To launch us, you will tell our readers a little bit about yourself, your background, and where you went to school, and we’ll launch from there.

I grew up in San Antonio. I went to Earthline Academy because if you’re from San Antonio, you have to start with where you went to high school. That’s the way it is, but I graduated from Clark and went to UTSA because my parents thought I was too young to leave the house. I graduated from there, then came to Austin for the University of Texas Law School, School of Law, and graduated. I knew that I wanted to be a prosecutor, so I applied with the Bexar County DA and applied to the Travis County Attorney’s Office and got a job. Here I am. That was in ’85 that I came or in ’88 that I graduated, so many years later, still in Austin. That’s how I started in the legal field.

What were you doing at the Travis County Attorney’s Office?

I was doing what every person in intake does, which is you start off at the Justice of the Peace Court, prosecuting there. They figured you couldn’t screw anything up too much, reviewing probable cause affidavits, representing victims in protective orders, and trying cases in the county court at law, so mainly misdemeanors.

I was there, then I decided to move to the Secretary of State’s office in the elections division and was a staff attorney there for a couple of years. I always had a political bug. I thought I’d want to run for something and decided early on that I couldn’t stand the trading that I thought needed to take place if you went into the legislative branch.

I wanted to be able to do what I thought was right without having to trade horses. After the Secretary of State, I went out on my own and had my own firm. It was called Hanko and Triana. I went with Sharon Hanko, who used to be the supervisor in the elections division. We thought that we were going to have a boutique election law firm and didn’t think it out very well in the sense that elections aren’t coming around all the time. They come few and far between, and people like Buck Woods had pretty much cornered that market. We started to do whatever came in the door.

Terry Weeks, who’s a family practitioner in Austin, has been for many years with cases that he wasn’t taking and would send to us. We started trying family cases. We were doing criminal cases, defense criminal work, civil work, and a little bit of election work as well. I decided fairly quickly that I tended to look at the big picture stuff, especially in family cases.

I’ve always told all young practitioners, “You can fire your client if you don’t like what they want you to do. You don’t have to necessarily go fight for pots and pans in the courtroom.” That’s the way that I view the world. It’s like what’s the best-case scenario for everybody involved? I decided that I wanted to try my hand at being a judge and became a municipal court judge, where I thought I could do the least damage in case I got something wrong.

It’s amazing because I remember the first jury trial I presided over, and it was a traffic ticket. I’m thinking, “What am I doing? Talk about imposter syndrome. This cannot happen.” You’re there, and it comes like second nature to you. You’ve tried cases. You know what you’re supposed to do. You know how to rule, then it took off from there. I knew that I had found my calling and have been very blessed to have been able to do it for many years.

It’s not every day we have a guest who started off as a municipal court judge and wound up on the Court of Appeals, but you took a lot of steps in between. This was before my time in Austin. You were a county court at law judge on the criminal side.

Before that, I was the justice of the peace and then I was a county court criminal judge. I was a judge who heard criminal cases. That sounds bad to say you’re a criminal judge.I decided from there I wanted to do civil work and had to resign to run. One of the judges did that in Travis County because I was in the middle of a term. I ran for the 200th district court, got there, and was there for many years before I ran for the Court of Appeals. Todd, if you would have asked me during the first 23 years of those, if I would ever want to go to the appellate bench, I would have said, “No way. Why? This is not where the action is.”

I do want to explore that, but before we get into that, I’m curious about why you had to resign to run from the county court of law to the 200th because I’ve seen sitting district judges not have to resign to run for a different bench. Why is it different between county court at law and district?

There’s this thing called the legislature that makes up laws. The representatives, not so much because they’ve got to run every two years anyway, but you’ve got senators that have six-year terms. What they saw was a lot of the county officials who would run against them while they were still in whatever county election office they had. They passed a law that if you’re a county elected official, you run for any other office and there’s more than one year left on your term, it’s an automatic resignation.

All of your county judges, county commissioners, and county clerk, if they’ve run for something else, they automatically have to vacate their office. I had finished two years. It was the end of my fourth year, but I was appointed to the county court at the law bench and had two years on there, then ran for reelection. I won that election. In the middle of my term, I decided to run. There was more than a year, so I had to give up my seat.

As a county court at law, the appointment in that situation comes from the commissioners, doesn’t it?

That is correct.

It’s not a district court where it would be appointed by the governor.

Anything that’s a county official vacancy will be appointed by the commissioner’s court. District judges and Court of Appeal judges are all appointed by the governor.

When I came to Austin, it was around the time that you took the 200th, and that’s where I got to know you. Certainly, you were very visible in and around Austin as a district judge. You’re very supportive of a lot of the things that I was involved in, like the Austin Bar Association. How would you describe your experience as a district court trial judge? That’s a lot of responsibility. Not that any of the other benches you’ve held weren’t, but you’re in the big time as a district court judge in Travis County.

Especially in Travis County. You’re the first appellate court judge for all of the SOA cases, for all of the administrative cases. Being in Travis County, being the capital, the venues here for a lot of that. It is one of the most powerful judgeships in Texas, being a district court judge in Travis County at least for now. That could always change. Stay tuned. It was a little bit like drinking out of a fire hydrant.

Trial Judge: One of the most powerful judgeships in Texas is being a district court judge in Travis County.

As a judge, we’re very lucky in Travis County that we have a central docket. At the time, Judge Dietz was our local administrative judge, but Judge Muir was still around. She was like the dean of the judges. They were very protective of us when you started. You weren’t going to get your first high-profile case the second week you got on the bench. They tried to be very kind about that. I had come up through the family bar before I became a judge.

They kept me away from that. Gave me other things that I needed to learn about administrative cases, which for anybody who’s never done those. All of a sudden, you’re like, “I’m sorry. How does this work? I don’t understand this standard of proof.” I got to learn from a lot of great judges and pretty soon was hitting it full strike. People sometimes think that’s the best job in Travis County. I can’t necessarily disagree with that.

It’s a very busy job. I know that from having observed many proceedings there, especially once the pandemic ended. You were on the appellate bench before the pandemic ended.

I knew what was going to happen, and I decided that being on an appellate bench was going to be a lot easier during the pandemic, which it was, than being on the trial bench. I’m sorry that it all happened because of me, guys.

No one else had the foresight.

No one else had the foresight to figure out that it was a better job during the pandemic. They were crazy busy. Travis County was one of the first counties that started doing trials on Zoom and didn’t miss much of a beat. It was a different world for them. Now, they have a beautiful courthouse that I never got to. I had to live with the rats running in my way, falling in and out, screaming. At least that paid off.

We’ve had Judge Crump on the show. She’s talked a lot in prior years before they went to the CFCF, the Civil Family Courts Facility. The story is about the rats for legend and the air conditioning that didn’t always work.

If it rained too much, everything would leak. The wrong things would leak into the courtroom. It was not the place that you’d want to bring people to show, “This is our courthouse.”

The new facility certainly is having been. It is. Sometimes I go over there and think, “Is this our courthouse now? Is this where I get to go?” Everything’s so great. The thing that I find confusing is a slide aside. It’s taken me a little while to get used to the elevator system where you don’t punch a button in the elevator, or you punch it before you get on the elevator. I’ve seen that in other places.

I have not been in the Travis County courthouse yet, but I know that system that you’re talking about. You have to push your destination, and then it tells you which one to go to.

You have to push it before you get into the elevator. Variably, if you’re like me, who’s thinking about twelve different things and it’s running late. You’re just in the elevator, and everybody’s got in, and now what do I do? You hope that somebody’s in the elevator that’s going to the floor you want to go to, or you have to go all the way back down. I’m sure it’s very efficient, and they did it for a good reason, but it was strange.

Now I want to go back. You mentioned you never thought that you would be on the appellate bench. After all this time sitting on the 200th district bench, what made you decide to go for it when you ran for election to the third court?

I had been a judge for several years. I’d been on the county bench for years. It’s like anything else, you want to grow. I had a friend who put it perfectly. They said, “People are like plants. You’ve got to report them. You need a bigger pot. You need some fertilizer.” I was at a point in my career where I loved my job but thought that going back, it’s very intellectually stimulating. It’s like going back to law school, hearing all these issues, and you get to learn. It’s the idea of being on a little bit more of a bigger platform.

I don’t want to say policy because we don’t make policy. We are just enforcing the law that the legislature makes up. It’s something that became appealing to me. I was not an appellate lawyer, and you heard me say this, Todd, a couple of weeks ago when we had breakfast. Appellate lawyers and trial lawyers think very differently. Two different breeds of animals. I am a trial lawyer. I was a trial judge, and I think like a trial judge. We tend to want to come up with practical solutions.

One of the first things I learned when I came here was when people said, “Everybody wants to get it right.” I don’t think that I have ever practiced or been a colleague with a judge who didn’t want to get it right. Those judges are in the state of Texas, without a doubt, and everywhere else. I’ve never been surrounded by anybody who was result-oriented. Everybody wants to get it right. When I came here, the difference was that what that means. For appellate lawyers, usually, that means not getting reversed. That’s what getting it right means.

For trial people, that’s not what it means at all. Getting it right is what is the right solution for this case here under the law, but what is the right outcome? We all know that sometimes appellate courts disagree with us. I was never concerned about my reversal rate. I was never reading the website sheets. Back then, they used to send us their opinions on the judge’s paper opinions. Before, we’d get them through email. I’d get them, and literally, I would look at the last page or the first paragraph, reversed, affirmed. If it was an important case and I needed to understand, then I’d read it.

I figured, when you’re a trial lawyer, they’re going to tell you the lawyers are in charge of telling you what the law is. I don’t need to be so preoccupied with that. Appellate lawyers, that’s what makes it right for them. If you get the reverse, it’s very much of some black mark on you. I’m like, “I don’t think so. That’s not our job.” That’s a very different job than an appellate court judge.

The other thing is I’ve never run against an incumbent in all of the years that I’ve run for office. Not that there’s anything wrong with people who do, but I wasn’t built that way. Pemberton decided that he was not going to run. That was the first time there had been a vacancy on the third bench, and that wasn’t an appointment by the governor at the end of the term. I thought, “This is my time.”

It is pretty rare to have an open seat on that court. It is. That sounds like it was a great opportunity for you. I love your comments about how you identify as a trial judge. I did hear you say that at the Austin Bar breakfast with the Third Court of Appeals. The state bar helped to put that on to the State Bar Appellate section, which is a great event. As an aside, I know that similar events are happening through the state bar appellate section and the local bars all over the state. They’re wonderful.

I want to encourage lawyers to go to those because there are very few times, unlike trial judges, where you see people all the time. You’re involved all the time. With appellate judges, it’s seldom we get to just interact on a normal basis where you can see each other and talk. Talk about normal stuff. Talk a little bit about the law, but other things. I know the state bar is doing those. If you’re an appellate lawyer, you can go. I encourage you to go.

I appreciate that you said as a trial judge, you wanted to get the practical solution, but then you didn’t finish that sentence and say, “Appellate lawyers don’t look for the practical solution,” which is true, by the way. I thank you for not finishing that thought out.

I made a comment because Chief Justice Woodie Jones was with us. He’s now a visiting judge in residence. He’s helped us out a lot. He’s an appellate practitioner and appellate judge. I made a comment about that it’s good to have both. You don’t want everybody to be a trial judge on your appellate bench. Everybody shouldn’t be. I’m not sure he agrees with me on that, but we do. There is, and you’re right. It’s like, “No, it’s clearly this.” You’re like, “Not so clear that.”

Was it you or Chief Justice Byrne who bestowed upon Chief Justice Jones the title of Dean of the Third Court of Appeals?

It was Chief Justice.

Not to take anything away from the Dean of Appellate Twitter, Rafi Manoukian, our friend. I chatted with Chief Justice Jones afterward and told him, “I thought that was a nickname that was going to stick, the Dean of the Third Court of Appeals,” because he certainly is deserving of that title. I want to tell a little story about you real quick if I can.

I hope it’s a positive story and not an embarrassing story.

It’s not an embarrassing story. It’s a positive story, and it’s directly in line with your discussion of moving between the trial and appellate bench and transitioning. I happened to be arguing before the court the very first day you were on the bench in the Third Court, and you were finding your way. One of the things that struck me was when you went to ask a question in those first arguments. You would preface it by saying, “Can I ask a question?”

I don’t think I do that anymore.

I don’t think you do that anymore. I was chatting with folks afterward and said, “It won’t take her very long to figure out that she doesn’t have to do it.” You ask the questions. You’re the questioner.

I’ll tell you the difference because I used to always ask questions from the trial bench. I was one of the judges if it didn’t make sense. Not if it’s a jury trial. If it was a jury trial, I would not say a word. If I was a fact finder, and I didn’t understand what was happening. That’s a great thing. You can say, “Can you explain to me what are you doing?” When you sit in a panel, that’s one of the biggest changes.

You’re used to as a trial judge. You make decisions. I don’t have to ask anybody else for permission. I don’t have to ask anybody else, “What do you think about this?” I don’t have to read comments back on my opinions of, “What about this?” When you go from being a trial judge for so long and making all those decisions, and now everything you do is with at least two people. You’re not the chief or the senior judge, so you’re not the one who’s running the meeting. “You ask.” I was like, “Excuse me, I hate to bother you, but I’ll ask you a question here.” That took me a little bit, but it didn’t take long for me to figure it out. Now, I interrupt you all and say, “What I want to know.”

As you should.

Tell us this. I understand, appreciate, and agree with our forefathers who thought that we should have a jury of 12 or 6 and, appellate courts should be three, and the Supreme Court should be nine because it invariably makes for better opinions and better recent opinions. There’s a lot to be said for having more than one view of the world in the room.

I’ve come to appreciate it. When I was a trial judge and when I did read the opinions, my opinions came back. You didn’t even deal with the most important issue that we sent you. You dealt with waiver or this other issue, and you didn’t get to that issue. I’m sure, like it is for you all, it can be very frustrating when you think you’ve teed up this great appellate issue that hasn’t been dealt with before.

What you get back is we don’t even need to get to that. You’re like, “No, but you do,” then you come up here, and you’re like, “Now I understand why.” There are three of you involved. Sometimes, you don’t agree on that issue if you can hopefully get an opinion that all three of you can agree on. If not three, at least two of you can agree. That’s what you’re going to go with. Sometimes, we see it with the Supreme Court and their plurality opinions. It’s like, “They can’t get to five.” I’ve come to appreciate that we’re necessarily trying to hide the ball. It’s sometimes that’s the best we can do, and so that’s what we do.

We don’t see a ton of dissents coming out of the third court, though. You’re smiling, for those that can’t see you like I can.

I have the most dissents. I know you don’t, and it’s nothing that I’m proud about necessarily. It’s nothing I’m ashamed about, either. You’re right. If you look at Harris County, probably, you get a lot more dissents than you do. You get more unboxing than you do. Since I’ve been here for a few years, we’ve had one unbox. We’ve had two unboxes. We had an argument, which nobody can remember the last time we had six judges in an oral argument. That’s neat.

Where I was going with that, and maybe it comes from being a trial judge and thinking things differently. I’m not afraid of dissenting. I take it seriously, and not that anybody else doesn’t, but we, as a court. In 2018, the four Democrats got elected and not only in Travis County but Dallas. There were eight new judges on the fifth in Harris County. There was this fear that “Jurisprudence was going to go out the door,” and everybody was going to burn the house down. I’m proud to say that in the third court, you didn’t see any of that.

The idea wasn’t that the people before us were getting it wrong, and we’re here to correct that wrong. The idea was that they’d done a good job doing what they needed to do, and they might come from it in different ways, but we don’t need to rewrite the book, so I agree. I don’t think you see a lot of change in jurisprudence in the third court that people thought you would. For the most part, we try to be agreeable.

Trial Judge: They’ve done a good job doing what they need to do, and we might come from it in different ways, but we don’t need to rewrite the book.

There was a turnover of four seats when you took the bench. That was Justice Baker, Justice Smith, you, and Justice Kelly. You were the only one with judicial experience. I’m sure it was interesting coming in with colleagues with no previous judicial experience. They gave you a leg up, I would imagine. Certainly, a new judge’s school.

I had already gone to a new judge’s school at least twice, but it was different with the appellate track. You’ll know, seniority basically was a lock drawing, and it came out in age appropriately enough. Justice Baker was the one with more seniority and then I came, Justice Kelly, then Justice Smith. That’s the way that pulled it out.

There was a little bit of that. Let me tell you, I got disavowed quickly of any idea that my trial experience was going to work in convincing others. I bet you within the first year, I had an opinion that came as a trial judge that I got reversed by my colleagues here. I’m like, “You got to do what you got to do.”

Hopefully, it wasn’t an abusive, discretion, standard, or review.

I don’t remember.

That would have been an awkward opinion to write. Especially if it came later and Chief Justice Byrne was the author of the opinion.

I think it was Justice Smith who was the author.

Either way.

You’re recused, so you don’t get to read it until after it’s done, but sometimes it’s funny things like that.

That is good. You look for practical solutions. That’s the lens through which you see the law, but applying it is how you described it. What mindset shift, though, did you have to go through? You talked about how appellate judging is more isolating. You’re working in a bubble a little bit. You’ve got the other two people that you’ve got to please. Were there any other mindset shifts that you had to make to get used to the new job?

The whole thing of things not everybody sees it the way you do is great, but then, at times, it can be a little frustrating. When I say practical solutions, we’re all constrained by what the law is. As I said, all judges want to get it right and follow the law, but I’ll give you an example. I want to understand. We’ve had cases. We have all the franchise tax cases. Everybody knows that you can either file a protest, reimbursement, or an injunction. Those are the three things you can do. We see injunctions, but not that often.

To me, there’s got to be a system wherein a person wants to contest your taxes, what you need to do. Do I need to pay them up front? If I can’t pay them upfront, what do I need to do? That’s like practical solutions. I felt that sometimes what we have is piecemeal. We will have a case where the government says, “You did it wrong. You didn’t do it in these proper steps.” I understand that then you say you have to do this. Years later, there will be another case, and it’s like, “You did that, but this, you did not do correctly.” I’m like, Okay.”

By the third case, I’m like, “Can we just tell them how they’re supposed to do it? We keep on batting it down, and to me, that is whack-a-mole.” I don’t think that’s practical. I don’t think it’s right for us to allow the government to keep on making new inventive arguments on how you didn’t do it exactly right. What is it that they’re supposed to do? The only way you can do it is reimbursement. Shouldn’t the legislature tell us that it is about protesting? I have to deal with that because not all my colleagues feel that way.

Trial Judge: It’s not right for us to allow the government to keep on making new inventive arguments on how you didn’t do it exactly right.

They’re like, “We cannot give advisory opinions.” I get it. Sometimes, we disagree on what advisory means. For example, one-line denials on mandamus. I get it. I’ve had them, but if it’s something that the relator can fix. Why wouldn’t we give them a hint of what it is? That’s because you didn’t give me a record. Why can’t we say we’re denying it because you’re supposed to give us a record as opposed to the one-line denial? A one-line denial could be substantive or procedural. I don’t know. If it’s a substantive issue and there’s a lot. A one-line denial is great for that because I’m not going to sit here, tear you apart, and write your mandamus for you.

You see that coming through the legislature. As you know, they pass a bill in which the Court of Appeals, if you’re not going to take a discretionary appeal. You have to give the reason for it. Everybody’s asking, “What does that mean? Are we supposed to write a whole opinion on it, or do we pair it with what the law is, which is the reason why?” The reason is that either this will not further the litigation or what does that mean? We don’t know. We’re going to see once we start doing that. I get it, which is, once again, that’s my mind frame. I know that we’re looking at this little thing, but it would help us all along if we could give a little direction.

It’s the appellate equivalent of the trial judge not giving reasons for granting a summary judge.

I’m sure you’ve heard this before. The first thing they tell you is the trial lawyer, “Rule and run.”

I’ve heard it before. That’s awesome.

I sit there and explain your ruling because, as an appellate lawyer, if you say granted on that motion for summary judgment, then I have to figure out everything that could possibly be, which one, and do it all. If you are real specific about it, then that changes. It’s hard for some of us to say, “I was never good at that. Haven’t been a trial lawyer,” which is. I just want to understand, so I’d like to explain my rulings. There is that frustration, and I tell trial lawyers all the time, “No, don’t give explanations unless you have to.” If you have to give us findings of facts and conclusions of law, then yes, you have to do it, but short of that, no.

It would make for shorter briefs, though, on appeal if they did.

Yes, it would. Less issues sometimes. That’s a tough thing, and that’s the other thing that it’s all over. Depending on the judge. Where are the opinions? We always tell people, can we do your top 3 or 4? Don’t give them every single issue. There are a couple of things that happen. One, I tend to think that none of them are very good. Clearly, you have some good ones, but I’ve seen opinions written. In the third court, we will address every single issue that you have. Sometimes, you’ve got 60-page opinions, and you’re like, “Holy cow.”

I’ve seen other judges who will basically address the first three, then everything after is like, “This is like what I said for the first one and the second one, so we’re denying it.” We’re affirming. By that point, they ran out of steam. They were going to say they’ve already said, and so we’re going to do something you did, which is tack on all this one paragraph. That’s not a good issue. You waive this issue, and that’s the rest of the opinion.

There’s that dirty word, waiver.

It is a dirty word.

I don’t see that as being the basis of all that many rulings on appeal. I know that the court, including the third court, and certainly the Supreme Court, make every effort to get to the issue without finding waiver, but waiver, I argue the counterpoint there what the law is, including the law of waiver. It’s a tricky one, I would say.

When I came here, I was of the opinion that appellate courts try anything to get out a case with the least amount of words possible and the quickest way possible. Everybody starts off with jurisdiction. You do because you have to, jurisdiction and waiver, then you get here, and you realize how your hands are tied a lot of times.

I know this isn’t my time for the tip, but my tip is, for the love of God, can you preserve your error? I can’t preserve it because sometimes I cannot help you. I cannot not say it was weight and go to a very good issue you would have had if you would have preserved it. Now that I’m preaching to the choir because I’m assuming that most people that read this are appellate lawyers, and who I need to be talking to are the trial lawyers, which is whether you have appellate counsel with you or that’s a tough thing.

I get it because it’s tough when you’re ruled against. Most judges are fine with allowing you to make a record, but when you have a jury and you’re trying to move it on, you don’t want to be the cog in the wheel. You don’t want to upset the judge, who is still going to rule on twenty more of your objections, but you’ve got to. It’s that you make your bill of review.

Make sure that I have what I need in front of me to be able to help you. Help me help you. That’s my tip, as much as you don’t want to do it, as much as a trial lawyer for the most part. Unless they also do their own appeals and want to get to the end of it. Don’t take your time to make your appeal. Take your time to make your record. If not, use your motion for a new trial to take care of what you need to take care of.

Trial Judge: Take your time to make your appeal. Take your time to make your record. If not, definitely use your motion for a new trial to take care of what you need to take care of.

We agree with you.

We do. Thank you. It’s also a good opportunity for us to say that’s one of the reasons to have appellate counsel at trial. It’s to make us the bad guy in front of the judge. We can totally be the bad cop. I know you saw this a bunch when you were on the district bench, but the trial judges usually know who we are when we’re in the courtroom. They know what our role is.

We don’t mind if trial judges get a little irritated at us because we know how important it is to get that error preserved. The last thing you want is to get down the road on an appeal when you were embedded at trial and not have made an objection that you knew you needed to make because you’re trying to draw on some dirty looks from the trial judge or would you have it come in and out.

You don’t even get it. They’re cross-examining or directing a witness, and you’re looking for that one second at what you’re going to say. It comes in, and you don’t object, and whoops. Sorry. You’ve objected to it every single time before. I agree. As a trial judge, I get it. Especially if it’s a jury trial because you’re trying to move it along, but there’s a very respectful way of doing it. You can get it done even if it’s after the fact. Sometimes, you have to object if you’re making your bill. You can just do it later. I agree. It’s good. We can all sit around and be mad at you all in the trial court.

That’s what our role is, to make everybody annoying.

 Yes, you all are so annoying.

We try. I want to ask, has your view on jury charges changed between your time on the trial and appellate bench? I see that practical side coming out from the trial judge’s standpoint, but talk about an area where objecting or not is critical. How is your new role? It’s not new anymore, you say, four and a half years. How has this role changed your view on jury charges and charge conferences, if at all?

As a trial judge, I was one of those judges that sometimes people hated because I’m like, “If it’s not in the PJC, it’s not going in my charge.” That’s the one thing I can do, and sometimes that wouldn’t even work, but for the both of us, 99.9 % of the time, I was going to be golden. It didn’t change much. My view on it is, and I’ll tell you where it is different, is in criminal cases. For the life of me, I don’t understand why criminal courts can’t get criminal charges correct. You have your application and charging.

You have to know what you’re doing, but we find errors in criminal charges. I don’t want to say all the time, but so much more than we do in simple cases. Having said that, then I’m going to say, “How many cases do you know of? How often does a charging error result in a reversal and remand for a new trial? Do you all see it?


It does happen.

I’m not saying it doesn’t happen, but it’s more uncommon to me. When we have charging errors, you’ve got your standard. Showing harm is a lot harder than most people think it is. You’re looking at everything else, and you’re like, “No, the judge screwed up.” As I said, we find it. It’s not uncommon for us to find there’s a charge error, but then when you do the test, how much did it harm you? That’s where people get in trouble. I don’t see that, at least, in our court. We’re reversing a whole lot because of that.

That’s one of the areas where showing error is one thing, but showing harm is another. That’s where having somebody who’s made this argument before can come in handy. It’s a fine point of appellate advocacy sometimes. Writing that part of the brief where you have to show harm sometimes requires a fair amount of mental horsepower to get there, or maybe it’s just me. I don’t know, but we like patting ourselves on the back as appellate lawyers.

It’s about as often as we can. It’s like you say, Judge. We have a pretty friendly audience for it. That is one of the hardest things to do sometimes. It’s to get to that point where you feel like you’ve made a good argument unless it’s blatantly obvious where you’ve made a good argument for showing harm in a jury charge error.

Those are going to get reversed. Those are the ones that I see reversed, or you’re dealing with something fundamentally wrong. A lot of the arguments will get is, “The judge put this in, and it comments on that. It’s an inappropriate comment on the evidence.” You’re sitting there going, “That’s hard to show, number one. Number two, where’s your arm?” That’s usually problematic, but I see it more on the criminal side than I do on the civil side.

One thing we do want to talk about that we’ve covered a little bit in our recent episodes is the new Court of Appeals that’s going in in Austin and what that looks like and how that’s going to impact your court. I know a lot of the cases that are going to head to that come directly out of the third court.

We did. When we went and testified in front of the legislature about it against it, our own review of a few years of cases. Administrative cases, I want to say, are like 10% of our docket. It’ll impact us some, but work-wise, not at all. Not much. One of the things that, and I’m sure as you all know, nobody asked us or any other Court of Appeals what they thought of this.

We start off with three judges, and we get five judges at some point in the future on the 15th Court of Appeals. If our numbers are correct, they’re probably going to have 130 cases on their docket. We dispose of over 800 cases on our docket. Each of us disposes of about 120 cases a year on our docket. You get 3 to 5 judges doing the work. That’s with docket equalization, so it’s not just the third Court of Appeals.

That’s an average for all the judges on the courts of appeals who, I don’t think their docket is going to be very big. There are going to be all those business court appeals. Maybe that’s going to make up. Maybe that’s going to be a lot of those $10 million cases. That over $10 million cases that they’re going to be spending their time on.

That’s what I was going to ask you. In that number, you’re including only the cases that they’ll administrative. There are also certain other categories of cases that will immediately be transferred into the 15th court when that case becomes active. I noticed the docketing statements, the court’s docketing statements, for example, which you may not ever see, Judge.

I already have a question because I know the courts have been told you have to start looking at these cases even now because as soon as the 15th Court of Appeals becomes activated. Those cases are going to be transferred over without regard to docket equalization, as I understand. There will be some number of cases that the court will have right away, whether it’s 130. I don’t think we have any real feel. As far as I know, there are not any good statistics on what will qualify under the new business courts to be transferred over at either the $5 million or $10 million level. Have you seen any numbers on that?

There is no data on that.

That’s what I thought.

There’s no data on the business courts. The only data there was on the 15th Court of Appeal came from our court because we had people go case by case, administrative cases. If you take out the business court appeals, they’re going to get things, whether it’s administrative or not, but the attorney general is on there. The state is being sued, or one of the agencies, or it’s a constitutional issue about a state action, but that’s what’s going on there.

When I say administrative, anytime you’re suing the state except for child support cases and criminal cases. Those aren’t going to go there. There are some other things that won’t go to the 15th Court of Appeals. The way that they’ve structured this, nobody knows what this is going to look like. I heard Judge Amy Clark Meachum, who’s the local administrative judge in Travis County. She stated that it was going to be a little bit like the TCPA. It’s going to take two decades for us to know what it means.

Here it comes, Jody.

Good news for appellate lawyers and bad news for everybody else.

As to the business cases, starting September 1st of 2023, anything that has exclusive jurisdiction, those cases we were talking about, in the 15th court. They’re earmarked for the 15th court. We will not touch those unless there’s an emergency, something that we need to take care of, but those will go to the 15th. If your case is in our pipeline before the first, you’re stuck with us. I wish we could just say, here, all these things. We don’t even know it’s what the 3rd court and other courts is a convien. Do you have any presidential value for the 15th court? I don’t have a clue what’s going on.

I look forward to having to deal with that issue. As an advocate, it’s going to be so interesting to be arguing what is the law, especially when you’ve got a split. Maybe not a hard split, but courts have not expressed uniform disagreement. What’s it going to be? Are you making a prediction of what the Supreme Court of Texas is going to rule? How they’re going to rule, or is it the majority?

I know that this is a sensitive topic in many ways because I know the 3rd court is affected more than most other courts will be. From just an advocate’s perspective, Judge Meachum’s not wrong about how it’s going to have to shake down. It’s going to be a long time. My career may be over before this thing is completely settled.

It’s going to be the Wild Wild West. For appellate lawyers, you can be creative. You can argue your heart’s content because you’ve got a brand-new baby court, and who knows what that’s going to look like? It should be very exciting for appellate practitioners, and it is sensitive. If there was any data behind it, if anybody could have ever explained short of the governor saying, “Those liberal judges in Austin, we can’t let them make decisions that are statewide important.” That’s what he said. Short of that, Senator Johnson asked, “Is there a complaint about what’s going on now?”

No, we’re not. Nobody’s complaining about anything. Nobody’s doing anything wrong, but they’re overworked. We need statewide elected judges to do statewide work. This is not the first time it’s come up, so there’s been plenty of time to do research on it, like with the business courts, but nobody’s interested in that. We went from one legislative session. The session before, if you’ll remember. They were trying to minimize us into seven appellate courts. They were going to redistribute us all. They’re going to pit the 5th and the 3rd together. We had this district from Dallas to Travis County.

The I-35 district.

Yes, through Waco. We were all going to be in one district. We have too many courts of appeals, and it’s too confusing. You’ve got two in Harris County, and you’ve got some counties that overlap between districts. This is confusing. We need to minimize it, too. We’re going to do a new court. I’m confused about what the reasoning is other than it’s political, and we’ve all made it. I’ve made it at least a lifetime of not being political and not letting my politics affect my job to be told at, somewhat, the end of my career, “I’m sorry, but you’re too liberal. Therefore, we’re going to take cases away from you. Not because you’re not qualified. Not because you can’t do the work.”

Remember, of all of those administrative cases, the high profile is a minuscule number. Not even 1% of those cases that come up. In 2018, we had 2 Republicans and 4 Democrats. It would not be uncommon for me and Chief Justice Rose to be on one side and have somebody else on the other side. Irrespective of parties. We managed that very well. There wasn’t a revolution. It wasn’t the revolution everybody thought it would be. We took president like, “This is what the third court has said, and this is what we’re going to do.” It’s disingenuous, and it does. It is hurtful.

We shouldn’t politicize our courts. I know that they’ve done it in the federal courts. Politicians think, “Why can’t we do it in the state court?” It’s for any lawyer worth their salt who paid attention in law school about what we’re trying to do and what democracy is about. Forget about co-equal. We’ve never been co-equal, but we have three separate branches of government. It’s disheartening. Don’t get me started on the business courts where we’re now going to have appointed judges. Appointed judges decide these multimillion-dollar cases. Appointed by the governor and up for reappointment every two years.

Even that raises its own issues. You assume there’ll be reappointments, or else, how many cases could that judge dispose of in two years?

It’s the big ones. It’s the $10 million case that we’re going to dispose of.

I know. That also ties into what you were saying about the fifteen-course workload. They’re going to have cases to work on day one, but the business courts don’t even become activated until the same day. There’s not going to be any cases tried for quite some time in the business court. Maybe that’s the reason for the 3-judge or 5-judge phase-in, but those three judges might be playing tiddlywinks for a while.

They won’t have anything from the business side. It’s interesting because one of the reasons why they wanted business courts is it’s the idea that businesses deserve to have consistency. You have these big cases that are all over the state with different judges. Some of them aren’t up to speed necessarily. We’re wanting people who have this experience. I’m like, “The 15th Court of Appeals has to be experts in agency law, administrative law, and complex business litigation.

I’m like, “The only people I know who are experts in that sit on the Travis County bench on the Third Court of Appeals,” because those are not areas of law in which people tend to become experts. I don’t think most people who are litigating complex contractual cases necessarily know what’s going on in the PCQ, but I could be wrong. There could be many.

That’s so far outside my area of expertise. It’s certainly not me who’s an expert on that stuff.

Me either. I get my mind around complex business disputes, but the administrative stuff has always been a little more challenging for me. Although, I’ve had more than one appellate judge tell me, “It’s statutory interpretation.” I can’t get my mind around the substantial evidence standard because it’s so different than what we do day in and day out ordinarily in litigation.

Not only that. Sometimes, it is statutory construction, but sometimes, you’re dealing with a different statute. You’re dealing with different agencies, so it’s not as easy to say, “Sure, read the words. That should tell you what to do.”

How much deference goes into the agency interpretation? That’s another big issue.

The legislature tried to get rid of this last time, but that builds in the path. Some people in the legislature wanted zero deference to the agency’s opinions, which will be interesting because if that ever passes, I’m like, “That’s where you start. Do you understand what substantial evidence means? I don’t think you do.”

We’re grateful for all the time you’ve spent with us, and this has been so insightful. Before we leave, it’s always our tradition to end with a tip or a war story. I wonder if you have any that you’d like to share.

Other than my preserve your record. Preserve your error. You have seen so many things. From the beginning, the older you get, you tend to remember what happened at the beginning and what happened at the end, not so much in between. I was a municipal court judge, and not only did you get the exciting traffic jury trials, but you arranged everybody who got arrested. You’ve got to arrange some interesting people. For the most part, they would bring him into court, and you would let him know what they’re being charged with and what the bonds said.

Usually, you’re the one who would set the bond, and I’ll never forget. This was very impressionable to me. There was a gentleman who they could not bring because he refused to put any clothes on. They said, “Judge, would you come to the jail to arraign him?” I’m like, “What exactly does that entail?” They take me down, and he’s in a single cell. It’s those doors you can’t see through, but you have a little opening for where you can give him papers or food. It was big.

I came down, open, and I said, “Mr. So, I’m Gisela Triana. I’m a Magistrate in the City of Boston, and I’m here to tell you been charged with.” It was public intoxication. It wasn’t a major criminal, and he stood up, “ I’m so -and -so. It’s so nice to meet you.” I’m like, “No, sit down. I don’t need to see it all. I’m good.” I had to go through my whole spiel. I was like, “Please.” He was trying to be polite because, as a company, you have a female. You’re going to stand up. Things like that that you remember. It’s crazy stuff like that. I’m not sure how much of a war story that is.

That’s quite a war story. I can see why that would have made an impression that stuck with you.

That’s right up there. Thanks again for being with us, Judge. We appreciate.

Thank you for inviting me. I appreciate that you all do this. I always look forward to reading your tweets and hearing from the folks that come in here. Thank you for inviting me.

Important Links

Love the show? Subscribe, rate, review, and share

A special thanks to our sponsor:

Join the Texas Appellate Law Podcast Community today:

About Justice Gisela Triana

Prior to being elected to the Texas Third Court of Appeals in 2018, Justice Gisela D. Triana had served on every level of Texas trial courts. She comes to the Third Court with over 23 years of experience on a trial bench, in both criminal and civil courts. Most recently, Justice Triana served for 14 years as the 200th District Court Judge, presiding over hundreds of cases involving complex civil cases. Before that, Justice Triana served as a Travis County Court at Law Judge. In that Court of criminal jurisdiction, she is recognized for stabilizing the Court’s docket and disposing of a massive backlog. Justice Triana has also served as a City of Austin Municipal Court Judge and as a Travis County Justice of the Peace.

Justice Triana began her legal career as a prosecutor in the Travis County Attorney’s Office, where her work included representing victims of domestic violence and later served as the Director of the Trial Division in that office. Justice Triana also served as a Staff Attorney in the Texas Secretary of State’s Election Division and ran her own private law firm, Hanko & Triana, focusing on criminal and family law.

Justice Triana’s service to our community also extends beyond her years of work on the bench. She has participated in Austin Lawyers and Accountants for the Arts, Volunteer Legal Services, Legal Line, the Pro-Bono College, Habitat for Humanity, Special Olympics, the Children’s Justice Act Task Force, Travis County Juvenile Board, Travis County Child Protective Services Board, Austin Recovery, and Chaired Middle Earth (helping homeless youth in Travis County).

In 1985, Justice Triana graduated magna cum laude from The University of Texas at San Antonio. She graduated in 1988 from The University of Texas School of Law and has conducted training sessions for judges all over Texas on legal matters such as emergency protective orders, arraignment, magistration, and legal procedures. She has been a faculty member of The University of Texas International Office’s U.S. Law Program, which instructs foreign judges and lawyers on United States Law.

When not busy at work, Gisela is a soccer mom who devotes her time and energy to raising, and enjoying tremendously, her five children ranging in ages from 10-24.