Business Courts and ...

Business Courts and Other Highlights of the 88th Texas Legislature | Jerry Bullard

September 14, 2023 | by D. Todd Smith

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Join us as we unpack the highlights of the 88th Texas Legislature. In this episode, Jerry Bullard discusses the ins and outs of business courts and their potential impact, plus other intriguing legal developments. He takes us on a legislative rollercoaster, touching on topics like online ticket sales, unauthorized disclosure of judicial opinions, and fascinating changes in bonds for legal appeals. Throughout the episode Jerry breaks it all down, providing a candid and insightful view of what’s on the horizon for Texas law. Whether you’re a legal pro, an interested citizen or just someone looking for engaging stories from the Texas legislature, this episode has something for you.

Our guest is one that our audience is going to be familiar with. In fact, with this episode, you have become our most repeated guest. Jerry Bullard, welcome back to the show. Thanks for joining us again.

I am happy to be back. Back by popular demand, right?

That is true. You joke, but I have had a lot of people come up to me after we’ve done these episodes and said that was super helpful. There’s so much that goes on in the legislature that having this post-legislature breakdown is helpful. Speaking of which, that is our topic. We’re going to talk about what happened in the main and maybe even a couple of special legislative sessions that impact appellate and trial practitioners.

We couldn’t think of a more fitting guest to have as we wind down our summer recess as it were and get ramped back up on doing our episodes. It’s a fitting day, being September 1, 2023, to have you back. We had to hold off scheduling for a while because of the special sessions. We weren’t sure if there was going to be something new that might come out of those. We’re glad to have you back, Jerry. We’re looking forward to getting your insights on the things that passed and how they’re going to affect Texas trial lawyers but a lot of interesting appellate stuff in there, too.

There are plenty of appellate points to be addressed in some of these bills. Some of them are interesting for other reasons. We can talk about a few of those. Do you want me to give a little bit of an overview?

Yeah. Let’s do that. I’m curious about the numbers and what ended up coming in and out of the session.

I’m happy to do that. In this session, there were over 8,150 bills that were filed. That’s the highest ever. We set a record. I don’t read everything from the front page to the back page when they’re filed. I can’t do it. It’s not physically possible, but I do scan them all. It sure felt like there were a lot of them getting filed. I knew we were going to hit some records, and certainly we did. It’s 800 more filed than the previous record high we had in 2009. There were a lot of bills getting filed and a lot of work to be done.

At the end of the day 1,246 passed, which seemed to me to be a low number for passage rates. It turns out it’s the third lowest since 1995. They had a lot going into the funnel at the beginning. That funnel got narrow at the end and not a whole lot happened in terms of numbers. At the same time a whole lot happened with those that did pass, and we can certainly talk about those as we move forward.

When I talked to legislators, staffers and even those paying attention, everybody liked to use the word unprecedented. They’re like, “This was an unprecedented session.” We hear that word a lot. I’m not sure what makes this one more unprecedented than others. The feedback was it was unprecedented in terms of a lot of folks feeling that the level of scrutiny given to our civil justice system seemed to have been amped up a bit. Some bills came out of that, and we’ll talk about those. I already mentioned the second. It’s also unprecedented because we had a house member get expelled. We have an impeachment that’s going to start up. Those things make it unprecedented. There was a lot going on.

We had a couple of special sessions, too. It looks like maybe more before this is all said and done with.

We had one special session that didn’t result in anything because of the stalemate. It had to do with ad valorem taxes. There were a few other matters that were on the agenda, but the main one dealt with property tax relief. That got dealt with in the second session, but there will be another probably in October 2023 after the impeachment proceedings. The word is it will focus on education vouchers and things along those lines.

Some of the bills that got vetoed at the end of the regular session may show up on the special session agenda because the governor said, “I’m vetoing these bills because we need to deal with property taxes.” The property taxes got dealt with, so I bet we’ll see some of those things on the special agenda. Judicial compensation could make an appearance in the next special. I don’t think anybody’s holding their breath, but there is some talk that that could happen. There could be more to come. We’ll see if that comes to fruition.

One thing I did want to talk about as part of our background and our setup, in every session there are legislative priorities. I always like to take a look at those going in because it always gives you an idea of what’s going to attract the legislature’s attention. Is good stuff going to fall by the wayside because something else is happening? Is bad stuff going to creep in because no one’s paying attention?

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Business Courts: In every session, there are legislative priorities and always [a need] to take a look at those going in because it always gives you an idea of what’s going to attract the attention of the legislators.

This regular session was no exception. There were things like property tax reductions. There was school safety and public ed. Some of these are always on the agenda, but there were three items that caught my attention that showed up on some state leader lists. The lieutenant governor had an emphasis on proposing legislation to deal with rogue district attorneys and rogue judges.

The rogue definition was always not following Texas law, whatever that meant going in. There were a few bills to deal with that issue, and we will talk about one perhaps as we go through this episode. The one at the end dealt with what I had in the last bullet point when I do these priorities dealt with the creation of a business trial court. That did happen in this session. That one’s gotten a lot of attention from trial lawyers, appellate lawyers, about anybody else who’s interested in that issue because it’s one of those frequent flyer bills that kept coming back and finally got across the finish line this time.

I’m pretty sure we’ve talked about that issue in previous episodes with you, Jerry. It got to where it was like, “Here it comes again.” It seemed like that was going to continue to come up until it finally got pushed through.

You’re right. It’s always kept showing up. It was always in a different iteration, it seemed like. There were some tweaks to it. In this session, it was a priority for everybody in terms of state leaders. The lieutenant governor wanted it done. The governor wanted it done. The speaker wanted it done. We had business interests and business organizations that were urging its passing and had been for a while. It was going to get passed. It was HB19. It had a low bill number. We knew it had a priority associated with it. Do you want to dive into that one, or we can go whatever direction you want to go?

Let’s talk about the nuts and bolts of that a little bit because it’s interesting. I’m curious about your take on how much we think it’s going to get used given the way that it’s set up.

It’s a 23-page bill, so there’s a lot of details in it. Let’s talk about what it’s going to do. It creates a specialized business court. It’s going to hear almost exclusively business-related litigation cases. We’re talking about things like disputes between business owners. It will be a high-dollar contract type of dispute. If there are some disputes between members, shareholders and things along those lines, it is supposed to cover those types of disputes.

There are three tiers when you talk about the jurisdiction that goes along with the bill. There’s one I call tier one. That’s $10 million in controversy. Those are primarily your commercial disputes. There’s a $5 million in controversy that deals with business governance issues. However, that $5 million amount in controversy requirement doesn’t apply if one of the parties is a publicly traded company. There’s a supplemental jurisdiction piece. That’s a catchall as long as it fits within one of these other categories, parties can agree to have it brought over into the business court.

The way the jurisdiction is defined there are a lot of things in that, but there’s also a whole lot that’s been excluded like claims of the DTPA or family code disputes. State codes matter. There’s a laundry list of areas that are not covered by that bill. Back to your original comment about how many cases this is going to capture, no one knows what those numbers are. The Office of Court Administration hasn’t kept those numbers to figure out if it would fall within these jurisdictional parameters. Everybody’s got that question mark as to how many cases it’s going to going to take on. I’m not sure how many, really.

I’m not either. My comment was not at all doubtful that it’s not going to work. I truly don’t know. There may be more $5 million and $10 million disputes out there than we realize. It’s hard to say. One of the things I know you have talked about before is the rollout. It looks like it starts in big cities and then maybe moves to some of the smaller areas as a test case.

What was interesting about the bill, and this is one of those that evolved into what it ended up being when it passed, was you’ve got these courts that are being created according to the administrative judicial regions that we have in Texas. There are eleven of those, if I remember right. You’ve got those jurisdictional parameters already set in place that these courts are going to be within.

In the bill they are called divisions. On September 1, 2024, you’re going to have these courts created in divisions 1, 3, 4, 8 and 11. If you had an urban hub associated with each one, it’d be Dallas, Austin, San Antonio, Fort Worth and Houston. Each of those areas is going to have two business court judges assigned to them. In all the other administrative regions, there is a provision of the bill that says if the legislature funds those and if they do so by September 1, 2026, i.e. by the next session, then they will come into existence. If not, they go away.

The scuttlebutt was it seemed like most of the urban areas are where one of these business courts needed to be any way in the minds of legislators, and in a lot of rural areas those constituents said, “We don’t need one of those out here. We like our judges. We like them to have all these cases.” Perhaps that’s where they decided to have this tiered approach in terms of implementing this court. It’s very interesting to me.

It may be the only non-elected judge position in Texas that I can think of.

We have some appointees like masters and things like that, but as far as district judges you’re right. It’s going to be a judicial appointment. They’re appointed for two-year terms. There’s a question there. Most of us who have developed litigation for any period of time know you have cases that go a whole lot longer than two years. The one that starts it, is he or she going to be the one who finishes it? There’s a re-appointment process that goes along with that. There are a whole lot of interesting aspects of this bill that have yet to be flushed out.

I’m curious about the divisions skipping numbers. The numbers that you rattled off don’t seem to align with the administrative districts. What’s the rhyme or reason for that?

They are supposed to align with all the administrative districts. At one time, there was a thought about making them align with fourteen courts of appeals or those appellate districts, but they decided it made more sense to do it according to administrative judicial regions for administrative purposes perhaps. I don’t know. Maybe it was an easier sell for legislators to vote on. They do correspond to those administrative regions.

You’ve mentioned the appointments. The obvious issue there is there has been some serious question about whether these courts by definition would be constitutional. Our constitution requires our judges to be elected. Inevitably, there will be some challenges, but it will be interesting to see how that plays out.

There’s no question that we’ll see some challenges. I’m curious about when, where and who. Is it going to have to be somebody whose ox gets gored first before they’re going to decide they want to challenge it? That was a battle. Some of these tweaks by creating some of these courts and calling them divisions, there were some nomenclature changes perhaps to help ward off constitutional challenges. Instead of calling it a statewide district court, it’s going to be the business court. They created it by division. There are all sorts of little nuances there that make you wonder if that’s going to help it withstand that sort of a challenge.

The other part of this court is also the judges that would be appointed, there are specific qualifications for them. The legislature wanted the judges sitting on these courts to have the type of experience and background to handle what everyone thought would be complex business disputes. The judges will have to have been licensed for at least ten years and practiced complex civil business litigation or business transaction law. You’ve got some qualifications other judges don’t have.

We’d like to think that our judges have experience in litigation. I get the complex litigation, but I’m not sure that the average complex transactional lawyer would be a good fit for a court like this.

I would agree with you. I do a lot more transactional work than I used to after being solely in litigation for a while. I had to learn a lot, but at the same time I was able to appreciate the litigation nuances after having to do some transactional work and vice versa. It’s worked the same way. I would be concerned. No disrespect to any of my transactional brothers and sisters-in-law. It’s a different ballgame.

This may be my last follow-up question on this, but we’ve got the divisions. I know with respect to other aspects of this bill and another one that we’re going to get to, I’m sure, later, which is the Fifteenth Court of Appeals, the ones that are being rolled out in 2024, have those been funded? I know that was a big issue, passing this without funding.

The legislature has an appropriation provision. It may be a supplemental appropriation to be able to fund these particular courts. That was part of the budget that was passed to fund these urban area courts. I forgot what that fiscal number or fiscal note was, but it’s not insignificant. There’s still a question of whether or not that’s sufficient to fund this. Those are questions that have yet to be answered.

One other part of this court that was interesting is that the Supreme Court’s going to be adopting rules about opinion writing. Some of these trial judges are going to be writing opinions on some of their disputes. Maybe the rules will help decide when those opinions are supposed to be written. It will be complex, novel issues or something like that. That’s different.

What about staff, Jerry? We know most of our trial judges don’t write opinions. The ones that do write orders usually have the benefit of having staff available to help them with that. We’re at least used to that in terms of the federal model and our upper-level courts. I’m trying to picture. A lot of the trial judges I know are far too busy to sit down and write opinions, so that’s going to be interesting to see how that goes.

They’re supposed to be enough funding there for staff, too, like staff attorneys and having the facilities that are in the courtroom to handle these types of disputes. There is a piece of this that provides staffing to go along with this court. This is supposed to be one of those field of dreams type deals. If they build it, they will come. The idea is to attract more businesses to Texas and more corporate formations here in Texas with the idea that we have a business court that specializes in these disputes and perhaps helps more people incorporate in Texas versus Delaware or wherever else they go.

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Business Courts: If you build it, they will come. The idea is to attract more businesses and more corporate firms here in Texas.

The legislature has thought about these things. There’s going to have to be some tweaking done once this thing’s in place. I spoke at CLE with Chairman Leach who is the Chair of the House Judiciary and Civil Jurisprudence Committee and is a lawyer. He said, “There’s no perfect bill. I certainly anticipate we’ll have to tweak this one as it moves forward.”

Let’s transition into something that Todd previewed, which is the Fifteenth Court of Appeals because that dovetails a little bit with the business courts bill.

That was a different twist on this particular business court bill as opposed to previous ones. Usually, we had the creation of a business trial court and a business appellate court. That business appellate court piece went away. In its place, we have a provision on this bill that would make all of these business trial court appeals go to a newly created Fifteenth Court of Appeals.

The Fifteenth Court of Appeals is intended to be a statewide appellate district court. Those judges would be elected. Although the initial judges, there would be three initially according to the legislation that are appointed. It’s supposed to be five judges at the end of the day where they would be appointed to start sitting on this court and hearing the cases that are covered by the jurisdictional grants in the statute.

The jurisdictional grant deals with civil cases, not criminal cases, involving the state agencies and state officers acting within the color of state law or acting within their scope of authority. If anybody challenges the constitutionality of the statute, it goes to this court provided that the AG has stepped in to defend that statute and all the appeals from the business court would go to the statewide court of appeals.

That’s a new one, but it was a bill. This was Senate Bill 1045. It had a high bill number, but it was linked to HB19, the business court bill, so it was going to get passed, too. It passed with flying colors at least out of the committee. It started out not as a bipartisan bill, but there were several Democrats that crossed over and voted for the Court of Appeals, which I thought was interesting. It is the same thing with the business court. This is another one of those nuances in the legislation that’s passed that’s caused a lot of folks to wonder, “Why are we doing this?”

I’m interested in some of the logistical pieces of this one. I assume the judges on this court could probably come from anywhere in the state, but it will sit in Austin, which will be somewhere in the Supreme Court Third Court of Appeals Complex. That would be my guess. I don’t know.

That would be my guess, too. These would be elected judges elected statewide. You’re going to see more statewide judicial campaigns, and they could come from anywhere. As far as sitting, it’s primarily in Austin, but they could sit anywhere.

I’m also interested to see how we’re going to cite to it. Our 1 through 14 Tex App, that’s pretty well settled, but for a statewide appellate court, I’m not quite sure how that’s going to work.

It could be Tex App 15 or something like that.

Texas Law Review.

Texas Law Review people better get rolling on that and publish something in the Green Book and put out an advisory.

Something interesting about this one, too, is that this is a bill or a court that’s going to be created on September 1, 2024. What’s interesting about this one is the notice of appeals and what triggers the application of a case of getting to the Court of Appeals, the Fifteenth Court, once it’s filed. There’s a provision of the bill that says that cases that were filed within the court’s jurisdiction between September 1, 2023 and September 1, 2024 would get transferred into this court. I’m wondering, “Okay.”

Any other courts, if they initially get an appeal that they’re supposed to get within the jurisdiction, what do they do during that whole year or half a year? Do they brief it up and then it gets transferred over and decided by this court? I don’t know. I know the Supreme Court Advisory Committee is working on rules for the business court and this one even as we speak. We’ll flush some of those things out by rule.

SCAC has been a little bit busy.

I forgot how many bills got sent to them to propose rules or tweaks, but it was quite a voluminous stack if you had to print all that on paper.

We know how it goes when there’s a vacancy, the governor appoints, and the rest of the courts of appeals and the Supreme Court. The appointee then has to run in the next general election. Is it set up similar to that with the Fifteenth Court or is it more like you’re appointed to an initial two-year term and then after that, it’s got to be elected?

If it’s going to go into effect and start on September 1, 2024, there’s going to have to be an appointment for three judges initially and they would have to run the next general election. I don’t know if there’d be a phase-in. I’m sure there’s a provision in the bill that makes amendments to the government code that deals with what place they’re in and when they have to run. These terms would be staggered.

The Third Court of Appeals here in Austin is a bit of an anomaly because of six judges, there are four of them that are up in the same election cycle. It would be pretty disruptive if you turned over all three justices on the Fifteenth Court of Appeals at the same time. It’d be nice to have them staggered.

They may be. I’ll confess. I haven’t looked at that as far as how those positions are going to be staggered. I’m sure it’s addressed in the bill somewhere.

It’s okay. I like to play Stump the Expert. I wouldn’t know the answer. It’s why I’m asking, Jerry.

I believe there is a provision that deals with the number of judges and when they would start, but I’d have to go back and refresh my memory to give any details on it.

This is no ill performance on your part, Jerry, as always.

I appreciate it. That is a question I need to know the answer to because it will get asked again. I know.

Another one that is a minor change but one that’s going to be important to those of us who do appeals a whole lot is the bill about changing the permissive appeal statute to require reasons. It will be an interesting one.

That was one most of us were tracking. Whenever I see a bill get filed that attracts my attention, I’m wondering, “What’s behind it? Why is it filed? Who filed it?” With this one, it has a relatively easy response. There was a Supreme Court case. You may recall this. It is Industrial Specialist v. Blanchard where we had a 3-3 split.

We had three judges saying, “Our current rules do not require a court of appeal to specify why it will not accept a permissive appeal when the parties have agreed to it and the trial court has agreed to it.” There were three members of the Supreme Court who said, “You need to tell us why you’re denying this petition or this request for a permissive appeal.” There were all those in between that said, “It would be nice to have that, but the rules don’t require it. We can’t make them do it,” etc.

We had two bills filed to deal with this very issue. SB 1603 is the one that passed. The Court of Appeals is going to be required to state why they’re not accepting a permissive appeal once it reaches that particular court. If they don’t do it, then the Supreme Court can do a de novo review and say, “We think it met the standard. You need to tell us why you didn’t accept it.” They can send it back to the court of appeals and say, “Tell us what you’re thinking.”

This bill was almost unanimously passed on both sides, both chambers. It was non-controversial. I’m always interested to know what the feedback is and what the thought process is when the legislature creates more work for the Court of Appeals yet doesn’t necessarily give them the funding to move these things along. This is another example.

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Business Courts: It’s always interesting to know what the feedback is and what the thought process is when the legislature creates more work for the Court of Appeals yet doesn’t necessarily give them the funding to move these things along.

I agree. It should be non-controversial because it makes sense. I’ve studied this issue more closely than some of the other changes. I love some of the terminology used in some of those opinions of the Supreme Court that it was an unsatisfactory escape hatch for the Supreme Court to take jurisdiction over a case that the Court of Appeals had turned away on permissive appeal because then you don’t have the benefit of the Court of Appeals’ thought process and reasoning. That was an obvious reason for the change. Also, the fact that there were certain courts that had gotten in such the habit of summarily denying permissive appeals that they were repeating typographical errors from one opinion to another.

I personally love this change. Any opportunity for appellate lawyers to be in trial courts and help to get issues that are important to deciding the cases in front of appellate courts quickly so that, hopefully, the parties can spend less money overall on the litigation and, frankly, unabashedly give appellate lawyers more work is great. It’s a matter of making the trial lawyers aware of this change and then how to make it palatable to the client.

Ultimately, the long-term cost savings have taken a shot at permissive appeal when you’re looking at years of litigation and the possibility of avoiding that. It is only then being able to tee up the issue and appeal from the final judgment. If you’re the one appealing, most of the time, it’s going to be a bad outcome that you’ve had to suffer to get there. This change makes a whole lot of sense to me. I’m excited about it because it opens up new doors for us as appellate lawyers.

I agree. I like the change. It’s a great tool to have in the toolbox because I know we’ve all experienced the frustration of trying to get one of these things granted and the Court of Appeals says, “No, thank you.” It’s something that needs to happen to help resolve a case early on or potentially resolve it. It’s a good tool to have. I am a little sympathetic to the courts if they’re not getting funding because you need help to process these things. If there’s an appeal going up the ladder, sometimes it’s going to take a while to get an answer.

In the end, having a little bit of precedential guidance on some of this stuff and how courts of appeals look at it may ultimately reduce the number of permissive appeals or at least give us some better parameters. You shoot your shot and you either get it or you don’t. There’s no real explanation. Having some thought process behind it outlined in opinions may help us all out a little bit.

I’ve heard a few appellate judges say, and it may have been from transcripts of the Supreme Court Advisory Committee meeting, where they were talking about telegraphing rulings on certain issues they don’t consider to be important. There’s a little bit of concern there. There’s a high wire act a little bit the court of appeals is going to have to walk depending on how they rule these things. Those were some good questions that were brought up, but I haven’t thought through what answers ought to be those questions.

The key to that is you keep your opinion as narrow as possible, only addressing the issue that’s in front of you. That is one of the jobs of appellate counsels to help define that question in a way that will be more likely for the Court of Appeals to accept it and persuasive to the Court of Appeals, it truly does meet the statutory standards for permissive appeal.

That’s a true and good point.

One of the ones that I thought was interesting that is not so much affecting our daily practice is the extension to judicial conduct commission authority over judicial candidates. Admittedly, I didn’t realize they didn’t already have that authority, but that’s an interesting issue.

That’s HB 367. That’s one I thought was interesting, too. It was the last session that the legislature passed the constitutional amendment that everyone voted on that gave the State Commission on Judicial Conduct authority over judicial candidates. Those candidates were going to be subject to the same standards as an incumbent judge as to what they could and couldn’t do on the campaign trail. We have an amendment to deal with that, but there wasn’t any statutory authority given to the commission to do whatever it is they need to do. This bill was an enabling statute to allow them to say, “You guys got the authority to deal with judicial candidates, too.”

You may have, too, but I’ve seen judicial candidates go out and say all sorts of stuff that if they had a robe and they were on the bench, they couldn’t say, like endorsing other candidates. That is a thing incumbents can’t do but judicial candidates can. It needed to be dealt with. This is supposed to be giving the commission authority to do that.

What happens, though, to those complaints? I know they’re out there where that would’ve been filed on some of these candidates before the statute went into effect, but after the constitutional amendment was passed, I don’t know what the commission’s going to do with those. They have some authority statutorily to take care of those situations. That is another non-controversial bill. It passed both chambers unanimously or near-unanimously.

I always thought they regulated judicial candidates, but I didn’t realize that they didn’t. I’m glad. It’s interesting.

For a period of time, there was a question as to whether they had that authority or not. They do now.

That’s probably a good change.

Since we were talking about these little bills with nuances, let’s talk about the omnibus court a little bit. We did talk about it in terms of the appellate record. For trial lawyers, there’s a nice little nugget in there that’s now going to require all courts, trial and appellate, to make sure any orders they sign or judgment they enter get sent to the parties who are parties of the case by eFiling, if they’re part of the electronic filing system. That’s one of those that we all think they should have been doing a long time ago. Most of them did.

Thank goodness. It’s about time.

I’m so happy about this.

It’s one of those that seemed to make sense. A lot of times, I assumed it happened. In Tarrant County, they’re pretty good about sending those things out on a regular basis.

That’s true. That is certainly not universal across 254 counties. I can tell you for sure.

I think the same. I’m finding out that perhaps we’re an exception to the general rule in a lot of ways, not across the board. That was part of that omnibus court bill that passed.

Let’s spend a minute or two on that because that one has a huge impact for lots of reasons. It is going to cut down on the number of 306a motions that have to be filed. It truly was a problem that parties were not getting copies of orders and even final judgments. Particularly in some rural counties, that we will not call out by name. Parties would have to go and have staff regularly monitor the court dockets to see if an order had been signed. That was an immense waste of staff time.

This cures that, although it does put on the clerk the burden of making sure that those orders are sent electronically. What I don’t know yet and I will know soon is how this has been rolled out and presented to the clerks. We will see if there’s compliance right away. You want to be able to count on the clerks doing what they’re charged with doing.

The other big feature of the thing that is going to be significant about it is if you use the platform re:SearchTX at all, you know one of the downsides to it is that court orders were not there. You could go and get all kinds of pleadings easily downloaded from that site. By virtue of sending the orders through the eFiling system, it should cure that omission in re:SearchTX so that the platform eventually hopefully fulfills the promise it had of being truly a pacer-like system equivalent for Texas state courts. If you talk to Blake Hawthorne, he would probably say yes. Eventually, hopefully, that’s going to streamline and simplify getting appellate records up to appellate courts. It’s going to be far more like what we see in federal court in which the whole record gets duped and sent up.

Jerry, you mentioned this, but I don’t know if we talked about this once we started recording. There is a new rule that impacts appellate records that was part of the omnibus bill as well.

Is that the appendix that we were talking about?

We talked about that before the show, but I don’t know that we’ve mentioned it since we started.

The parties have it available if they’re going to appeal to create an appendix in lieu of a clerk’s record. It started out with the bill being solely for appellants, but then it was applied to both parties. If a party wants to go up on appeal and they want to do an appendix in lieu of the clerk’s record, i.e., instead of requesting a record be prepared by the clerk of the court, they have to notify the Court of Appeals within ten days after the notice of appeal is filed that they intend to use an appendix.

Once they make that designation, then that appendix will be due when that brief is filed. It is 30 days filing with the brief, and the brief is going to be 30 days after notice the designation is done, or the reporter’s record is filed, whichever’s later. The bottom line is it allows the parties to designate what they want to have in their clerk’s record going up on appeal.

There are provisions in the bill that say it has to be a file-marked copy of whatever’s been filed in the trial court. There are always going to be those circumstances where there’s going to be concern about whether or not what’s getting filed as this appendix is going to be complete and is going to cover what the trial court had in front of.

For many people, this is a welcome change because they don’t have to pay for the clerk’s record to be prepared. This bill also says that if someone designates an appendix instead of the clerk’s record, the clerk can’t charge the parties for the preparation of the record. There are a lot of folks who wanted that to happen. As we’ve talked about before and others have said to me, too, we’re not sure what this is going to look like. Preparing a mandamus record, for example, has had problems where parties haven’t been able to do something similar. It’s going to apply to regular appeals.

This was going to require a rule change. Have we seen the rule on that yet? I know the Supreme Court’s been announcing a bunch of new rules, but I hadn’t come across this one.

They’re working on rules. If we were to go back and look at the Supreme Court Advisory Committee agenda documents, the proposed rules are there as whatever the last meeting was. They’re out there, but they’ve not been published for public comment or anything yet. A lot of these questions we’re talking about in terms of making sure whatever’s filed is a true, correct copy, and all the other good stuff, the rules deal with some of those things.

It deals with presumptions, too, that if someone has an appendix and they designated it, the presumption’s going to be whatever’s left behind supports the judgment of the trial court. The rules are going to deal with that. I’ve not seen the latest iteration. I remember one committee member saying they had talked about that and that was going to be dealt with, but I haven’t seen it yet.

That may cure some of my concerns. Overall, this is a great idea and a huge one for access to justice. My concern is the way the bill reads, it prohibits any filing of any clerk’s record. That leaves you back in this weird mandamus land where people have to designate, cross-designate, and all that. Any of us who have done that for any length of time knows that can create a big mess.

I agree with that. We do need to be looking out for the rules. There are drafts floating around out there that are available. We have to go get them.

One thing that the court’s been doing is when they’ve been issuing these rules following up on the last session, they’ve been announcing that the rule is effective September 1, 2023, but is still leaving it open for public comment. Whenever the court does issue a rule on this, I would expect it to be effective immediately. Before they publish it in the books, it can be tweaked. We’re all on notice. There’s a Rules section on the Supreme Court’s website. If in doubt, folks should go there and look and make sure whether there is or isn’t a rule yet announced on this.

While we’re talking about rules, and Todd and I’ll do a little bit deeper dive on this in a future episode, there have been some changes to bonds as well that came out of this session relating to alternate security. They gave a little bit of clarification on when that’s to be used. With the approval of bonds, the court does not have to approve them anymore. It’s effective on filing.

The one that is a big deal for those of us who practice appeals is if you take a case on appeal and you prevail in the intermediate court of appeals even though the case isn’t over, you can revisit the bond in the trial court based on that disposition. That was a change that was a long time needed. I’m glad that they finally did that.

That was HB 4381. It deals with the supersedeas issues. There was also a provision there. It’s probably a good topic for a discussion in an episode all on its own. It allows a judgment debtor to say, “I can’t even post the bond that I’d otherwise be required to post unless I start selling off things and liquidating assets.” There’s a provision in that bill that gives a judgment debtor relief for not having to do those things if it’s going to require them to go off and liquidate a bunch of things. That creates a lot of different issues in terms of discovery. The net worth issue is a whole other can of worms potentially. That sounds like a good way to deal with some of these appeals that people want to appeal. Debtors want to appeal, but they can’t post the bond.

One provision of that bill and the new rules is the removal of the requirement that the clerk approve the bond. That is a good change because how many times have we had to go down to the clerk’s office and physically find the right clerk to sign something? Their signature didn’t affect anything. It was a requirement in the rules. If you had a clerk who, for whatever reason didn’t want to approve your bond, it affected your ability to supersede the judgment.

The nice thing about it is there’s still the failsafe that once the bond is filed, it can be questioned and it can be brought up in a hearing with the trial judge. The trial judge is always the one that ought to be making decisions. Court staff works really hard and do a great job, but let’s not put non-lawyers in the position of making a decision that impacts the party’s legal rights.

It’s funny you mentioned this topic. I had a practitioner in another part of the state pose a question. It may have been on a social media platform. They were saying, “We talked about supersedeas bonds and how much they need to be, but how to physically file something in the trial court and what we need to do, the rules are unclear on that.”

I got to thinking. I don’t know that I’ve seen many talks on that as far as the physical process one would go through. I had one we had posted a bond for way back when. I was able to send her an example of that one, but you had to get the clerk’s approval or what have you. All that to say is that’s a good topic for another day on the mechanics of that.

Todd and I love to nerd out on supersedeas. We’ve already talked offline about having a featured episode coming up on some of these changes and how that works. That’s exactly right.

We get irrationally excited about a very dry topic.

That is how we started the show. It was pretty much to cover those types of things.

I’m guilty of those things, too. Don’t get me started on some of the nuances of this proceeding that’s going to happen in September 2023, the impeachment deal, because I’ll go down that trail really easily. That’s another topic.

I’m not sure we’ll dedicate an episode to that.

That may be a good after-the-fact, one involving some of those that were involved in the historical component. I didn’t mean to sidetrack you.

We’re good.

Another bill that did pass really quickly while I am thinking about it that we all knew was going to happen is the unauthorized disclosure of judicial opinions. That’s SB 372. After Dobbs and the leak of the draft of the opinion, our legislature decided we needed to pass a law to make that a Class A misdemeanor if anybody does such a thing. There were those who thought that we already had that protection on the books. There was a question whether we did or not, but now we have a law.

The question that gets asked to me is if you read that bill, that unauthorized disclosure that thou shalt not disclose applies to everybody except the judges. I’ve had folks say, “Why is that the case?” I said, “I don’t know, but it applies to everybody else.” It may be because that’s covered by the judicial canons. Judges can’t do that. That’s one everybody knew was coming. It’s happening nationwide. It’s tying that issue up in a nice little bow as far as we’re concerned. Having served on courts as staff attorneys and briefing attorneys, you what that means. That was always a thou shalt not, and you didn’t worry about that.

It’s one of those that’s the judicial candidate thing. I never thought about the fact that there wasn’t a law that covered that because it never crossed my mind that anyone would do that anyway.

That’s one of those that sailed through, and everybody knew it would.

That makes sense. This is an obscure one that is designed to impact our practice. I saw that there are some data collection bills on judicial statistics that are going to require them to drill down to some more specific levels. That ought to be interesting because I always love looking at those stats. There’s such an aggregate level of statistics that a lot of times, you can’t tell much about it. Having some more detailed statistical information is going to be helpful, especially when your clients ask about certain types of cases and that kind of stuff.

This is supposed to create a uniform way of doing these things. HB 841 is the bill or at least one of the bills that is going to require that case-level data be kept. The judicial council’s going to keep track of those things. The rules are going to have to come up and be adopted to talk about how that’s going to be collected and stored.

A lot of this is going to require district clerks to do more work to identify these cases, categorize them, and what have you. Some counties do better jobs than others with that, so I’m told. There will be helpful information, especially when a legislature decides they need to create another specialized court if they need some data to rely upon to justify that. In the business court issue and the court of appeals, there were a lot of questions asked like, “Why do we need this? Is there data to support it?” No one was able to bring the legislature any data. This should help with those situations. For nerds like us, it will be like Christmas Day.

We can feed that information into ChatGPT and get it to tell us the problem.

That is good, though, because when you have clients ask you, “What about these types of cases, appeals, and all that kind of stuff?” I can find very general civil statistics about stuff, but you can’t go much deeper than that. It’s nice to be able to cut it at that level. It ought to help. It can’t rudder. Those people, when they update their papers, too, about which cases are going where and how they’re getting decided, instead of having to read every one of them, they may be able to do it on a little bit better basis.

Otherwise, we are all guessing. It’s all anecdotal. It will be nice to see some numbers.

We’ve gone through the list that I had. Is there anything else that you’ve got on your list, Jerry, that we don’t want to leave out?

No. There are always the fun ones, the ones that interest me because of the process. Sometimes, we all wonder why it takes so long for a bill to get passed in a session and why the legislature moves slowly. We say it’s all part of the process, and that sometimes it takes multiple sessions. There was a bill that was passed that dealt with online ticket sales, which is SB 1639. It prohibits the creation or use of bots to purchase tickets for concerts or whatever online. You get three guesses as to what motivated that bill.

It’s The Taylor Swift bill.

Yes. I don’t know how long. It may have been a matter of minutes. It was probably a few days after that whole debacle that this bill was filed in the Senate. Senator Zaffirini filed that bill. It swiftly moved through the process. It was one of those that no one had problems with. It was quickly filed, heard, voted on and passed.

There was also another bill, Senate Bill 58, that dealt with the online sale of goods. It is the same type of deal. No bots. There are prohibitions against that. That one passed, too. The online ticket sales deal was interesting. There was a provision in the omnibus court bill that prohibits process servers from serving legislators during legislative proceedings. You may wonder, “Why come? What happened there?”

Chairman Leach had a hearing on a bill in which a gentleman showed up and said he was going to testify either in support or in opposition to the bill. I can’t remember what it was. He signs the form and goes into the committee hearing. He’s called up and says what he’s going to testify to. He also says, “Chairman Leach, you’ve been served with a lawsuit.”

It’s a lawsuit that was filed out in West Texas. It was an anti-SLAPP type of deal. It ended up getting dismissed. It wasn’t too long after that that the omnibus court bill got amended to deal with that. There’s a prohibition against that happening. That’s a one-off. It will probably never happen again, but the legislature can act quickly when it wants to. Process servers can’t do that anymore. If they do, the citation of the service is quashed and they lose their certification. It was one of those quickly filed and passed bills.

Heat in that for the process server.

The process server got read the riot act a little bit about it like, “You realize you committed perjury and you say you’re testifying.” There’s a whole lot of fallout to that, I’m sure, that I don’t know about yet. That’s interesting stuff. There are these little neat little stories that come out.

That is an interesting one. You wouldn’t think about that.

I don’t know that I would be brave enough to even try that in the political environment we’re in. People do strange things.

This is the political element that we cover in these recurring episodes of our show. Jerry, we’re so grateful to you for coming back again. Our audience can pretty much count on at this point every session year that we’re going to have one episode early that talks about what we’re anticipating out of the session. We get to evaluate at the end whether your crystal ball predictions are accurate and where things lay after the whole thing is said and done

You do a tremendous job of tracking bills and keeping lawyers and others informed about what’s going on. Thank you again, Jerry, for what you do and for being willing to come back and spend some time with us. I know there are lots of other folks around the state who are going to get to know your insights on what we went through with the session. They should look for those opportunities to come here. You talk about it when you do it live, but we’re glad you’re able to spend some time with us and put some of these thoughts out there.

I’m happy to do it. I’m always appreciative that you gentlemen ask because it’s a lot of fun. It takes a lot of time, but it’s a public service. I really mean that.

Do you have any parting thoughts before we sign off, Jerry?

No words of wisdom other than to try to stay cool. We’ll keep monitoring things because there’s a proceeding going on. There’ll be another session. If we need to reconvene to cover a little nuance and things like that, I’m happy to do that, too. Next time, hopefully, I could get a legislator to do it with us.

Let’s count on that. I know we’ve talked about that before. That would be a lot of fun.

I thought about it for this one, but because of what’s going on it was impossible.

They’ve got their hands full down there. Thank you, Jerry. We really appreciate it.

I’m happy to do it. Thank you.

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About Jerry Bullard

Mr. Bullard is board certified in Civil Appellate Law by the Texas Board of Legal Specialization and specializes in handling civil appeals and assisting trial counsel with legal and strategic issues in complex civil litigation. He has represented both plaintiffs and defendants, and has handled numerous appeals involving various types of civil and commercial litigation, including personal injury, insurance coverage, contract disputes, and First Amendment issues.

Mr. Bullard also assists trial counsel at every level of litigation, including legal analysis of claims or defenses; handling dispositive motions, such as summary judgment motions, motions to dismiss, and motions for directed verdict; monitoring trial counsel and advising about error preservation during trial; preparing, objecting to and arguing the jury charge; and preparing and arguing all post-trial motions.

Mr. Bullard also represents individuals, business entities, healthcare organizations, educational institutions, and non-profit organizations with respect to governance and operational issues, contract negotiations, and other matters requiring legal analysis.

Mr. Bullard has served as chair of the Tarrant County Bar Association Appellate Section and chair of the state Bar of Texas (SBOT) Appellate Section. He also serves as the co-chair of the Legislative Liaison Committee for the SBOT Appellate Section, and has demonstrated a commitment to preserving the integrity of the Texas justice system by consulting with state legislators about issues affecting the judiciary and the administration of justice.

Mr. Bullard is a frequent author and speaker on trial and appellate procedure, substantive developments in the law, the legislative process, and legal writing and analysis. He also volunteers his time and resources to educate students and the general public about the judicial branch’s role in a democratic society.