Checking In On The 8 ...

Checking In On The 88th Texas Legislature | Jerry Bullard

March 23, 2023 | by D. Todd Smith

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Every two years, the Texas Legislature meets. During that process, legislators file dozens of bills that potentially impact legal practice and the court system. Luckily, Texas lawyers can rely on Jerry Bullard to provide insight and context on the various proposals. In this episode, Jerry joins Todd Smith and Jody Sanders to talk about what’s going on at the 88th Legislative session that may interest legal practitioners. Will we get a statewide court of appeals or a reorganization of the appellate system? What about the creation of business courts? Join us to learn about what’s potentially on the agenda for this session.

We have back with us our friend Jerry Bullard from Adams, Lynch & Loftin in Grapevine. Jerry was with us a couple of years ago. He had come on two times to talk about, first of all, what was going to happen he thought in the then-current legislative session and we did a postmortem on what happened, which was fun. It is an after-action review of the ledge. Welcome back, Jerry.

Thanks. I’m always happy to jump on with you.

We’re glad to have you. It’s strange that our show has been around long enough that we can start having repeat guests, and we’re now in our second legislative session.

This is session ten for me since I started doing this way back when. Time flies.

If any of our readers are new to our show, Jerry is a great resource for all things legislative, both the things that are proposed that have no chance and the things that have a pretty good chance. He does a weekly email summary, telling you what some of the bills are and what’s going on in the process. If you aren’t subscribed, Jerry, what’s a good way to get on your email list because it’s an incredibly valuable tool?

The email address is, say, “I want to be added,” and I’ll add you to it. However, if you find it on Twitter, because I post it on Twitter or I sometimes show up on Facebook, there’s a link you can click on there to subscribe and it’ll automatically subscribe you to that version. There are various ways to get to me. I’m always happy to add. It doesn’t cost anything.

I’m glad you haven’t put it behind a paywall yet, but I feel like you ought to because you could probably make some pretty good money off of it.


One thing we tend to see happen is during the session, you’ll get on the CLE speaking circuit and be talking about bills. It happens a lot after the session’s over, but because we have a biennial legislature, it makes a lot of sense for us to offer this little two-part series every other year. We’re glad to have you back to talk about what we think may happen in the upcoming legislature and what’s looking like it may be on the table.

I’m happy to do it. It’s something I started many years ago. I don’t know what it says about me, but I love doing it. I love tracking stuff like this and keeping our bench and bar informed is a public service.

It is a valuable and important public service because there are many bills filed. How many bills have been filed so far this session? We’re not to the cutoff day yet.

As we’re talking, we’re five days away from the deadline. Through March 3, 2023, we were over 5,200 bills. We’re ahead of the pace of the record number of bills filed. We’ll see what holds, but there are usually around 2,000 bills or so filed the last week in each session before a bill filing deadline. Who knows how many we’re going to see? There’s a lot.

How do you possibly approach those when you’ve got a sheer volume like that coming in? How do you cull through what may or may not be of interest to appellate practitioners in Texas lawyers generally?

I’ve gotten pretty adept at using the Texas Legislature Online website and anybody can go to that website and track legislation by bill number or keywords. At the end of each day, I’ll typically click on that website and see what’s been filed. You can look at the bill caption, which summarizes what the bill is about. I get a good sense of what the bill’s about by reading that one- or two-line caption. If something piques my interest whether it’s something related to civil justice or criminal justice or the courts, then I’ll click on the bill and I’ll read it from start to finish.

I get a sense of what the bill’s about that way, but then trying to figure out whether it’s going to get traction or not, I’ll look at who filed the bill, who the author is, what party they’re a part of, versus who’s in leadership and also the bill number. If it’s a low bill number, that usually tells you it’s a priority somewhere. There’s going to be a lot of emphasis on those bills. If you got the magic combination of low bill numbers, civil justice judiciary, and the right people sponsoring it, that’s a pretty good clue that something could happen. That’s how I go about it.

88th Texas Legislature: If you have the magic combination of low bill numbers, civil justice judiciary, and the right people sponsoring it, that’s a pretty good clue that something could happen.

Unless you’ve got any other prefatory comments, why don’t we go ahead and launch into it? We were dispensing with our usual formalities because people who know you know what you do and maybe have read those previous episodes with us before and we would refer folks back to those episodes because one thing that they’ll notice is some of the themes that we’re going to talk about now are recurring from the session years ago. Let’s launch right into it. What do we have coming up?

Usually, before the session rolls around, there are a lot of frequently asked questions about, “What’s the legislature going to do?” A lot of times, it centers around a topic. If you all recall, at least for the appellate practitioner, there were several bills filed that affected the appellate courts. One of them had to do with redistricting in the Courts of Appeals. There was a bill filed to create a statewide Court of Appeals. There was a business court bill that was filed.

Leading up to this session, a lot of questions were, “Are we going to see those bills again?” We all thought that we would, and that’s proving to be true. One bill that’s got my interest deals with the creation of a statewide Appellate Court. I forgot what the bill number was, but that one got some traction and went through the Senate. It didn’t get voted on the House side, but that bill has been refiled and got some traction.

We have a lieutenant governor that seems to like the idea. I’m told the governor and certain members of the House like the idea. That’s a bill that I’m paying attention to. It’s Senate Bill 1045. There was a companion filed, HB 3166, that we’re going to be keeping tabs on it. It would create what they call the 15th Court of Appeals.

We’re adding another court to our appellate court system. Those bill numbers are high, SB 1045 and HB 3166. Ordinarily, that means it may not be as important, but it is. We’ll be keeping tabs on that one. There was another business court bill that was filed, HB 19. That’s got a low number. It’s got interests from all the parties that want to see it happen. We’ll be keeping tabs on that one too. There is a lot to talk about for us as appellate lawyers and civil trial practitioners. Those are the two that jumped out at me as being something we need to pay attention to.

The movement toward the 15th Court of Appeals would have a certain statewide exclusive jurisdiction.

That one’s a repackaging of what was called Texas Court of Appeals, which was going to be like a mini–Supreme Court. This one’s going to be similar to the way it’s proposed. There would be judges elected statewide. The jurisdiction would be geared towards dealing with suits against the state government, agencies, and officials. There are some other ones that would creep over into that jurisdictional area. I’d have to pull the bill and remind myself exactly what that jurisdiction is.

What I thought was interesting about this bill was it also adds a provision that said or as otherwise provided by law, which pretty much says, “If we’re going to set up this new court to be the 15th Court of Appeals to go statewide, it’s not going to be limited to that jurisdiction.” As time goes on, it creates an avenue for the legislature to say, “We want to add this other type of cause of action to the jurisdiction of that court and make it exclusive if they want to.” That’s what the business court bill that was filed has that tie-in. We can talk about that one here in a second, but that’s what that 15th Court of Appeals would do. It would create a statewide court to elect judges elected statewide to hear certain cases.

It sounds like maybe that might be the backdoor way of creating a business court.

When we talk about the business court bill, HB 19, that bill creates trial courts only, but it says that if the 15th Court of Appeals is created, the appeals from that court are going to go to the 15th Court of Appeals.

We’re going to have a separate judicial system for business cases.

That’s what that proposal looks like. We’re going to be all over the place because there are many tie-ins in bills and that’s fascinating.

Would the 15th Court sit in Austin or have they designated some other place for it? Do you remember?

They would be based in Austin, but they could go anywhere. They could decide to set up shop here for a certain appeal and at whatever location they decided.

One of the things I thought was interesting is it’s exempted from docket equalization too. Sometimes the bane of our existence and sometimes a good thing depending on which court you draw on which particular case.

The idea is to create a specialized court to handle certain types of cases and, depending on who you ask, the purpose of the creation of this court is to extract a lot of those cases that go to the Austin Court of Appeals. Those involving state agencies and administrative proceedings, those that typically would go there they wanted to go to a court that sits statewide since those cases have statewide implications.

One of the topics was state statute constitutionality where the attorney general is involved. It does make some sense to have maybe a statewide court deciding those issues short of the Texas Supreme Court rather than having some conflicting interpretations among the lower courts.

You’ll hear the pros and cons of that arrangement. It’ll be interesting to see what direction it goes because there is interest in it and it’s on both sides, both chambers and leadership too.

It is going to make life difficult for a lot of legal research and writing professors. As I remember, my appellate brief in law school was to the 15th Court of Appeals. They’re going to have to rejigger that. The 16th Court of Appeals is about to get a bunch of appellate briefs from moot courts if that goes forward.

They may want to pick a higher number.

Is that in lieu of or in addition to reorganization bills or are some of those out there too?

That was the other question that we would often hear about the possibility of reorganizing the Courts of Appeals because it was somewhat of a messy process when that bill was laid out. Asking around various folks, it doesn’t seem like there’s a lot of political will there to reorganize the Courts of Appeals because there are many factors involved.

88th Texas Legislature: It doesn’t seem like there’s a lot of political will to reorganize the Courts of Appeals because there are many factors involved.

Besides the political and the Republican-Democrat component to it, you’ve got rural counties, urban counties, and what the effects of that reorganization would be for those who wouldn’t want to get elected to these larger courts from the rural areas. You have that going on too. At the same time, proposing a 15th Court of Appeals, then turning around and saying, “We need to reorganize the other fourteen and reduce them in number,” doesn’t look very good. In terms of political optics, nothing makes a lot of sense.

There are many constituencies that had to be involved last time that felt like they got left out of that process early on. I wondered how far that was moving along.

At the time we’re talking, there’s one week left for bills to get filed. There has not been a placeholder bill filed yet like there was. For refreshing our memories, a placeholder bill is one where someone files something to hold it in place so they can amend that bill later. We had two bills that were filed that essentially wanted to remove the overlapping districts and overlapping counties in several districts.

That’s what the official bill was when it was filed, but because the caption was general about the jurisdiction of the Court of Appeals, that was a bill that allowed someone to propose an amendment later on, which is what happened. One of those bills has not been filed yet. Yet to see a bill that’s general enough to capture a reorganization of the Courts of Appeals, but there’s still time. It could still happen.

I wondered how that was put out there this time around. Was there an interim study on Appellate Court jurisdiction? I feel like there was, but I may be misremembering.

There was an interim study done by the House judiciary and civil jurisprudence committee. They looked at several things, especially courts. They talked about redistricting in the testimony, but the report itself didn’t address it. It’s one of those things they talked about but never wrote about. It was discussed, but there was never a formal report coming out of the judiciary committee saying, “We think it’s time to redistrict.”

In the background, there is a kind of supervision that says we’re supposed to examine the Court of Appeals districts after every ten years or after the census, and they’re supposed to examine redistricting, which hasn’t been done in who knows how long. That’s out there, but I don’t know that anybody’s going to file a bill that’s going to deal with it this session.

There are two lawsuits that were filed. One in Collin County, one in the Eastern District of Texas up in the Sherman Division where there’s been a Voting Rights Act lawsuit that was filed challenging the way the Courts of Appeals are districted. That was filed by an individual who I understand to be a Republican voter who said, “The Courts of Appeals have shifted. The districts and demographics have changed.”

“All of a sudden, my vote doesn’t mean anything because the Dallas Court of Appeals is pretty much Democrat-dominated.” We’ve got those two lawsuits that were filed. There was some school of thought that maybe filing those lawsuits may trigger the legislators to do something. I don’t know if that’s going to happen. Those two cases are pending. They’re in the early stages. It’s interesting stuff.

We can switch over. The parting thought, as far as these types of bills, is they continue to come up session after session. Within the judiciary itself, I know there’s a lot of opposition to those in particular, not only appellate redistricting but the creation of additional courts. This is not going to be the last that we’ll hear about this more than likely even if these bills don’t go through, they’ll continue to have more discussions about them. We’ll look forward to following these issues with you as long as they go on.

They’ll go on for a while. Even if it doesn’t get addressed this session, that’s going to come up again.

To dovetail off this, let’s switch over to business court, which sounds like maybe a little bit related to where the 15th Court of Appeals is headed.

To set the table, Lieutenant Governor Dan Patrick set forth some legislative priorities early on in the session. One of which is the business court. As a matter of fact, when it gets filed in the Senate, we already know it’s going to be Senate Bill 27. It’s got a low number. We also knew that on the House side, it was a priority. Speaker Fallon said, “We have several priorities in the House. One of them going to be the business court.” That got filed the same day he announced that as a priority, which is HB 19. We had the judicial council make a recommendation that there be a pilot business court established that would be done by rule.

That’s a little different than this business court bill, but there was talk about that happening as well. We had been told the governor likes the idea of the business court concept. You’ve got key senators, key state reps, the speaker, and everyone saying business court is a good idea. We knew that was coming and sure enough, it did. It’s in the form of HB 19.

HB 19 is pretty similar to the other business court bills that have been filed in previous sessions. We were talking about the statewide Court of Appeals being composed of judges elected statewide. This bill deals with trial courts only. The last few bills that we had seen created a trial court, a business trial court, and also a business Court of Appeals.

The business Court of Appeals is specifically carved out of this one. We’re only talking about trial courts. What’s interesting about this one is you still have judges who are appointed to sit as the business trial court judges. They’d be appointed by the governor. They would be appointed for two-year terms. You would have seven judges who could go wherever there was a need for a business court dispute.

They would try those cases. When they finished up, then it would go to this 15th Court of Appeals that we were talking about if that court is created. There’s a provision of the bill that says that if the 15th Court of Appeals isn’t created, then the appeals of those business court decisions would go to the Court of Appeals where that court is sitting when it issues its decision.

There’s a carve-out for a specific appellate court here, but there is an appellate route that’s provided for in the bill. The jurisdictional amount is similar to what it was last time around and there’s a very long list. It centers around business or shareholder disputes, disputes between businesses that are over a certain amount of money. $10 million is a number that’s been floated around for the amount in dispute.

It exclusively eliminates things like PI cases, family code cases, and things like that. Here we are talking about it again. It’s a little different concept, but everybody seems to want it to happen. When I say everybody, I mean the higher levels. The question’s going to be, “Will you get enough legislators to support it?”

One of the things that I thought was interesting about this bill is it only provides for the appointment of seven judges, which when you consider the expanse of the state doesn’t seem like a whole lot given the broad jurisdiction. It is the thought that it’s a test balloon case. Is it intended to have the expansion or not clear at this point?

The million-dollar question is, “How many cases are we talking about?” We are talking about creating a new court system with specific areas of jurisdiction, but we’re not exactly sure how many cases there are out there. The last I checked, the Office of Court Administration usually maintains statistics, but they don’t have this level of detail. To figure out how many cases we’re talking about, we’re going to have a lot of guesstimates.

Someone’s going to have to try and figure out what that number looks like. We don’t know how many cases we’re talking about. Is this going to be a busy court or what? We don’t know that yet. That’s what a lot of people are asking. We need some data before we move forward with a whole new system with new judges. You got to fund it. How are you going to pay for it? That’s a great question. I don’t know exactly what that looks like.

With only seven it seems like, pretty quickly, those judges could bite off more than they could chew.

It’s going to sink or swim pretty fast because when you look at the list, there are a lot of things that could fall under some of those categories. $10 million at issue was one of the jurisdictional thresholds for it. Does that mean $10 million alleged? I could see a lot of cases where people allege huge damages to get into a business court that may or may not ultimately end up getting to that. I don’t know. It presents a lot of interesting things that ought to keep appellate lawyers busy if it ends up getting passed.

It reminds me a little bit of removal from the Federal Court. What would be the process for moving cases back and forth between the ordinary civil dockets and the business courts? Would there be a removal process or how would that work?

There is some component in this bill where you could either file it there initially or the parties could agree to remove it later on. It looks like you’d have to have some removal process if someone tries to file it in a court of a regular jurisdiction. Someone thinks it needs to be in the business court. There is a removal process. We don’t know what that looks like yet. Somebody would’ve to pass some rules to deal with it. It’s certainly something that would have to be addressed and flushed out. I say the devil’s in the details.

We’re going to see the normal trial lawyer groups are going to chime in on this issue’s pros and cons. In the past, most of the groups oppose it, whether it was the defense side or the plaintiff side. TEX-ABOTA is one of the organizations composed of both plaintiffs and defense lawyers who had opposed it. We had the Business Law Section and the Business Law Foundation. The section has to get permission to take positions, but the foundation doesn’t. They’ve been pushing this bill for a while. You’ve got those little groups who think it’s a good idea, but you have a lot who think it’s not a great idea. This is not one that goes along party lines typically either.

Is the idea to model the chancery process that Delaware has to have a streamlined court for business disputes?

That’s the idea, but if you say chancery court to the proponents of it now, they’ll say, “That’s a different deal. Chancery Court or Court of Equity, there are no juries or anything like that. That’s a different deal.” They’ll stay away from that terminology. That’s what it’s intended to look like. What’s interesting about this bill that wasn’t in a previous one is that there’s an opinion writing component to this one. These courts will be required to write opinions about their decision unless it’s well-developed case law or something they may not have to write an opinion on. This is a hybrid mini-appellate court in some ways.

88th Texas Legislature: These courts will be required to write opinions about their decision unless it’s well-developed case law or something they may not have to write an opinion on. This is a hybrid mini-appellate court in some ways.

There are seven judges appointed statewide, but they’re still sitting as single judges.

That’s the plan. It looks like the Supreme Court could appoint associate judges or visiting judges if they needed some help or there’s a mechanism to provide those judges resources to help them handle cases, especially in opinion writing. You have to have staff attorneys and staff this thing. When you look at how many cases we’re talking about, which no one knows, and you’re talking about a new trial court system with judges.

It’s going to require staff and facilities, maybe in some counties you’ll have to have them. I don’t know what that looks like yet, but there are a lot of hidden costs in this. It’ll be interesting to see what the fiscal note will be once they’re required to put one of those together to figure out what the price tag would be and how you’re going to pay for it.

Both with this one and the 15th Court of Appeals, I assume we probably will need constitutional amendments too.

That’s up for debate too with respect to the business court. There are those who think we don’t need a constitutional amendment, that the governor could have the authority to appoint some of these judges. There’s no constitutional amendment proposed yet, but there has been one filed for the 15th Court of Appeals. The author of that bill in the House filed a proposed resolution for the voters to vote on the 15th Court, but they haven’t done that for business yet.

Does that about cover it for the potential court changes?

Those are the major changes in the court structure. There are a couple of interesting bills that I’ve found. One of them was self-explanatory based on the Dobbs opinion leak. There was a bill to create a criminal offense for the unauthorized disclosure of additional opinions of Senate Bill 372. State affairs already voted on that bill and voted it out of committee. It’s already on the track to go to the Senate and there’s a companion in the House, but I don’t know that that one’s going to have any pushback at all.

That doesn’t seem like a particularly controversial thing to do. I’m surprised we didn’t have some criminal statute that covered that already.

I don’t know who I heard speak on it, but there could have been a penal co-provision that deals with how you handle government property. That could have provided some vehicle to prosecute someone for disclosing opinions, but it wasn’t clear. This specifically deals with that topic. That’s already well on its way to approval. There’s one about prohibiting per curium opinions.

I’m not sure what the driver is there. Senator Mayes Middleton out of Galveston was in the House. He is a pretty conservative guy, which makes me wonder if there was an opinion he didn’t agree with. He would like to know who wrote it. Wouldn’t we all like to know who writes PCs, especially if we’re on the losing side? Those got referred to their respective committees. I’m not sure exactly how much traction that was going to get, but it’s one of those that I’m going, “I wonder what’s behind that.” I’m doing some digging. I’m curious.

That’s an interesting issue and one that never would’ve come to my mind as something that needed to be addressed that can’t have any PC opinions. You’ve got to have an authoring judge’s name on everything.

There’s a compensation bill to give our judges a pay raise.

I was going to ask about that. Do we have a sense of how much traction that one has? It’s been a while, but not that long in Texas terms since they had the last pay raise go through.

In 2013 or 2014, there may have been a bump that was a cost of living adjustment. The last solid pay raise was when I got started doing this back in ‘04 or ‘05. Everyone agrees on both sides of the aisle. Everyone thinks the judges need to be paid more. If you look at the ranking of states, we’re towards the bottom, especially in the most populous states. Everybody agrees that’s a good idea. When I say everyone, both sides of the aisle, both chambers, but when it comes down to the nut-cutting, as they say, a lot of times, it falls by the wayside.

The reason for that has always been, at least that’s what they say publicly, “As long as the salaries of a district judge determine what the legislative pension’s going to be, then the legislators don’t want to be giving the appearance that they’re voting themselves a bump in their pension by approving a pay raise for the judges all the way down to the district court level.”

Representative Leach in the House has filed a bill that would de-link that, which would set a salary for the district judge. It’s a $140,000 base salary. That’s what the number would be until it gets changed. It would take away that political roadblock. To answer your original question, everybody thinks it’s a good idea. There’s a good push for it. Everybody would like to see it happen, whether it does or not.

That’s another one that is desperately needed because we’ve had a lot of very good judges leave the bench in Texas because of financial pressures and issues. It could help retain and recruit some great judges.

That’s the argument that we’ll hear from those who are advocating for it, which is pretty much everybody when you come right down to it in terms of thinking it’s a good idea. There are some political overtones of some of this, as you might expect, especially over the last few years. There have been some areas or counties where dockets have not been moving fast enough for the legislature to be pleased with. There may be some who think, “We don’t want to give pay raises to judges who aren’t working.” At least that’s the perception we’ll hear.

“Let’s punish the rest of them. Punish all the hardworking judges, too, while you’re at it.”

Those overtones are there too, but we’ll see what happens there. The other thing I thought was interesting is there are a couple of bills that deal with the jurisdiction of the Supreme Court changing to where it could overrule statutory interpretation by the Court of Criminal Appeals. You guys probably know, but I don’t know how many of your readers will know, where the Court of Criminal Appeals had reissued a decision that was found unconstitutional.

The Attorney General was stepping in to prosecute election fraud cases. The issue was whether or not they had the authority to do that, or if that was authority solely given to district attorneys. Although if I remember right, the attorney general stepped in to help, but the attorney general didn’t have the original jurisdiction to do it on its own. Based upon that decision, there were several who didn’t like the way that came down. These bills were filed to deal with that.

That’s an interesting one. It creates a supervisory role for the Texas Supreme Court over the Court of Criminal Appeals, which historically has not been something that they have ever wanted or intended to use. I almost wonder how much it would get used, but we’ll see.

That’s one of those. I’m not sure how many cases have come down to where the Court of Appeals decided that something was unconstitutional and the Supreme Court didn’t like it, or someone thought the Supreme Court should chime in. That’s one got political overtones to it.

It makes you question, “Why isn’t there a legislative fix to this?” If there was some issue that somebody didn’t like, rather than give the Supreme Court effectively some jurisdiction over the Court of Criminal Appeals, wouldn’t it be better to fix whatever you think the problem is legislatively, not by this blanket arrangement that’s being suggested?

That’s the way it’s supposed to work. We see this at all levels of government. There are some bills that have been filed to deal with those sorts of issues to give authority to the AG to handle these cases. There is an attempt to do that, but this is looking down the road at other situations.

I saw that there’s also a push to raise the judicial retirement age, which is currently 75 maybe plus a couple of years, depending on where you fall in your term up to 79.

It was Representative Veasey who had filed the bill to eliminate the mandatory retirement age altogether. There are various theories about why they did that. Sometimes somebody has a judge that they think is doing a great job and doesn’t want them to have to time out. They may think it’s a good idea to remove that age limitation entirely. Not too long after that, there were companion bills filed in the House and in the Senate raising that age from 75 to 79. Senator Hinojosa filed that in the Senate. He’s a Democrat and a respected senator. He takes positions that are probably contrary to what his party would like him to take sometimes.

He has a bipartisan approach to a lot of things. The fact that he filed that resolution, it would have to be a resolution, not a bill. The Senate Constitutional Amendment makes me think that there may be some traction there to be gained on the House side. There’s a companion resolution filed there. That’s another one of those. I’m not sure how many judges that affects. I don’t know if it’s a good or bad idea. It seems to me, if you have good judges who know what they’re doing, you want them to hang around as long as possible, but there are those who think maybe after a certain time, it’s time to go do something else and let somebody else make a decision.

Being tied to age is tricky because there are going to be some judges who are going to have to retire in the middle of their term. I wonder if another solution would be 75 or after completion of the term in which they turn 75? That seems too practical, though.

You’re not thinking like a legislator.

This change in the constitution was made in 2010 or 2013. It used to be a hard stop. At 75, you were done and then it was amended to where if you turn 75, it’s a 6-year term. Within the first 4 years, you can finish out the 4 years of your term, but after that you’re done. There’s a blend there where almost like you’re grandfathered in for a period of time. I know some judges who are in that age range who are as sharp as a tack. We need to hang onto them, but there are those who probably need to go do something else. Sometimes you got to nudge.

Time will tell. If that gets any traction, we shall see.

As far as the court system and the judges, those are the main bills and resolutions that jump out at me. I don’t know if you all saw anything.

I have one that’s very practical. It’s this House Bill 525, the delivery of court orders through the electronic filing system. You guys have probably seen this in your own practices. I’ve seen it multiple times where eFiling has been mandatory in Texas for more than a decade, but sometimes our judges and their staff don’t notify the parties when an order’s been signed. In some courts, the only way that one can count on getting notice of a particular court order is by constantly checking the docket online, which is an awfully impractical thing.

Now this varies a lot from county to county. For example, in Travis County one thing that the district judges decided to do is that they were going to eFile all their orders. That takes care of the problem because it goes through the mandatory or the eFiling or eService system, and everybody who is on that list gets a notification of whatever the case event is.

That seems like a great solution, but for whatever reason some judges don’t want to adopt it. Some district clerks and court staff don’t want to adopt it. It looks like this bill would require any statutory county court, district court, or appellate court to do exactly what Travis County is already doing, which is to send their orders through the eFiling system. Is there any more story that you’re aware of than just trying to rectify that gap?

I don’t know what the driver that’s filed by Representative Veasey is. This is his second session as a legislator. I’m not sure if someone got ahold of him and said, “We need a bill to fix this,” or if there’s something else driving it at a higher level. That is a problem. I’m surprised to see how big of a problem it’s been where you have courts who don’t want to send out the orders for whatever reason. Do I have to come? There’s got to be a rule for me or against me. Let me see what you did. I’m not sure how widespread that problem is. It seems like it’s an easy fix. Just do it. I’m not sure what the roadblock is.

It’s a pretty easy fix. Unfortunately, the consequence for the parties can be dramatic. You miss a final judgment or time-sensitive deadline, and you’re stuck with whatever remedies may be available to you for overcoming that, but what if the time’s run out and you’re left without a remedy? That’s not the way our system is supposed to work.

For those of us who practice in Travis County or Tarrant County, I’m not running into that problem in Tarrant County, not that I can recall, but the county is the more populated area. Maybe it’s not a big problem there. Maybe the rural areas or that’s the issue. You start getting into somebody else’s territory. They don’t like that as much. That’s a good question about what’s driving it and what’s the likelihood of success that it passes. I don’t know.

The other one I was going to bring up was HB 2384 deals with judicial qualifications and training. Representative Leach filed that bill on the House side. I suspect there’ll be a Senate companion at some point. If passed, it would require judges to have some proof of continuing education. Most judges get CLE anyway, but this would be a requirement that would force our judges to do that.

Even if you’re going to be on the ballot, there’s got to be some demonstration that you know what you’re going to be judging. You have some competency in the areas of what you’re going to be practicing. There’s an interesting component to this bill that there would be a proposal where attorneys could get certified in judicial administration if they’re going to run for judge.

They’ll be able to say, “I’m board-certified in judicial administration. I want to be your judge and my opponent is barely over the finish line qualifications-wise, they don’t have the experience I have.” There are lots of good things you could do with that if you’re a judge, but I’m told the bill that’s filed is a placeholder. They’re looking to tweak it and add to or change.

I wouldn’t spend a lot of time looking at the details of what’s in this bill because it could change. The main thing is that there is a push. We’ve always tried to establish some qualifications for those who are going to be hearing our cases. I’m not sure who’s on working it on the Senate side. I don’t know if they’ve decided yet who would carry it, but this one has some potential to get some traction, too, and is something to watch.

I had three that seemed interesting practical ones that I wanted to address. One of them is a bill that would require Courts of Appeals to essentially write a mini opinion in a permissive appeal case if they denied explaining specifically why they aren’t taking the case, which is an interesting debate that the Texas Supreme Court has had internally in some opinions recently. This is one of those areas where you see the legislature taking up something based on what the Supreme Court has said. I have no idea if it’ll go anywhere, but I thought that was interesting to tell the Courts of Appeals, “You need to say a little bit more.”

John Smithee out of Amarillo filed that bill. I’m not sure what’s behind it. You had mentioned the Supreme Court opinions that deal with some of those topics that may have been the driver or at least getting a bill filed. Sometimes we all want to know why they deny something. Everybody misses an appeal if the parties and trial court think it’s a good idea, but the Court of Appeal says, “We’re not interested.” Why?

If you’re going to have to force them to write an opinion on that, then you’re adding some more workload to their docket, which is talking about another issue we haven’t talked about. If your concern is moving cases and exposing cases of the Court of Appeals, you’re having issues keeping your good staff attorneys and they’re not compensated the way they ought to be, our workload is what it is. We can’t make bricks without straw. This is something where you’re adding more to their plate.

Another one that makes a lot of sense is to give parties the option of creating their own joint appendix for an appeal rather than a formal clerk’s record, which in a lot of cases could save a lot of money and time. That seems like a pretty common sense one to me.

That’s the one that I was going to flag, and I tend to agree with that. What it looks like maybe it might do, if it were to go through was make at least the clerk’s record part of the appellate record a lot more like a mandamus record. Although I note that they’re going to have to change the terminology because you’re calling it an appendix when you’ve got briefing rules that require an appendix is going to be confusing. Maybe they could adopt something like what the Federal courts do and call it a record excerpt or something like that instead of an appendix. To the extent anybody reading who wants my suggestions on how to amend this bill, there you go.

That’s one of those bills that makes practical sense, too, because you have a clerk’s record, the pleadings are filed to the trial court, and it’s all there. Why are we having to pay for the preparation of a record and pay for the copies of those documents? That’s what everybody can see. I’m sure there’s a cost-saving associated with this too. There are large clerk’s records sometimes, but the reporter’s record is going to be the one that a lot of times it’s going to have the biggest price tag on it. This is one of those bills I will keep an eye on. Representative Julie Johnson out of Dallas filed it. She’s Vice Chair of the Judiciary Committee on the House side.

One way to get around this problem is directly tied to the problem of the courts not filing their orders. We’ve got this database here in Texas now called Research Texas, and it is very useful. One of the side effects of courts not filing their orders is that orders don’t show up in that database. It’s tied directly to the eFiling system. Anytime a party files something, that document automatically gets loaded into this database.

If the courts would do the same, then the orders would be as well. I know that one of the long-term ideas supporting that database is that it could wind up being truly pacer-like. If that were to be the case, then it would streamline the preparation of clerk’s records greatly because you could rely on Research Texas and maybe there’s a click to download all or whatever you need to do to streamline that. That’s a big gaping hole in that system because the court’s not putting their orders in the eFiling system.

That’s a good point. I’ve not thought about the relationship between this bill and the issue of not having orders showing up there.

This may be a solution I want to point out. A lot of these things are interrelated. We’re not here to necessarily talk about the bills we agree or don’t agree with, but this is a good thought to explore. If other things that we’ve got in the process could be sorted out, it might not be necessary.

The last one I had is an issue that’s always interesting to me is limiting the automatic stay under the Anti-SLAPP statute. In those cases, if you file an appeal of an Anti-SLAPP statute denial in Texas, it automatically stays everything going on in the trial court, which makes sense given what the aims of that statute are.

The problem is if you have a case where the trial court has found either the TCPA doesn’t apply or that the Anti-SLAPP motion itself was frivolous or filed solely for the purposes of delay, that person can still appeal and still stay the entire trial during the pendency of the appeal or not just the trial, but the entire court proceedings. This bill would exempt from the stay cases in which the trial court determined that something was frivolous or filed solely for delay or that the TCPA didn’t apply or that the TCPA motion was untimely filed, which fixes something that was a bit of a problem that maybe was an unintended consequence.

I haven’t spent a lot of time looking at the TCPA cases to see how many cases this would impact. What caught my attention was that Senator Hughes filed the Senate version and Jeff Leach filed the House version. Leach was the lead legislator on the TCPA revisions a couple of sessions ago and Hughes carried that same bill a few sessions ago in the Senate. If you’re going to call architects of a particular bill, it would be these two gentlemen, and they’re filing this one, which tells me someone has told them that’s a problem, they see the problem and that would increase the chances of that fix occurring.

I’ve seen it in cases I’ve been involved in it, and it is very frustrating because you have someone file an Anti-SLAPP motion. You not only defeat it, but the court determines that it’s frivolous. They then file an appeal, which is their right, but then it ends up staying the trial court proceedings completely during the pendency of that appeal. The Court of Appeals to potentially say, “We agree it’s frivolous that that is something that the framers of the statute probably didn’t realize was going to happen.” This is a very common-sense fix to that. I’ll be interested to see if this gets traction and moves forward.

It seems like we have maybe fewer proposed amendments to the TCPA than we’ve had in some recent years, at least one that has made it to your radar screen. The ones that are there, including Senate Bill 896, House Bill 2781, which we discussed, and the other one that you’ve got listed, HB 527, exempting legal malpractice cases from the scope of the TCPA.

Those seem to be potentially solid amendments to refine that statute in a way that’s consistent with our usual understanding of how the law is supposed to work. That statute was so far afield for what seemed like a long time. It does seem the amendments from a couple of sessions ago that tapered it back have had the intended effect.

Most folks have been pleased with the effect that the amendments had a few sessions ago, but there are still holes that lawyers are going to figure out that exist or loopholes that need to be dealt with. That type of statute is always going to be tinkered with in my mind because there’s always going to be something that we don’t know about as technology changes, as people change how they opine on what others do. That statute is going to be a work in progress.

This has been a good discussion. We were hoping and expecting that we would have a good discussion about what’s going on in the legislature here on the front end. We’ll look forward to having you back when the dust settles on the current session. Last time around, we had a whole lot of special sessions come about as well. That’s a parting thought. Are we thinking that we may be headed in the same direction this time?

I hope not. We had sessions going on into October last time. One of them had to do with a quorum break that shut down the first one. The issues there dealt with the election changes to the  election law and a lot of hot-button social topics. They’re out there, I’m sure. I don’t know if it’s that level where someone’s going to derail a regular session or a group is going to derail it.

What happens there where specials would be needed? Some of these emergency items and priorities may become important enough that somebody wants to talk about them in a special if they can’t get it done. Remember the only bill that has to be passed each session is the budget. If they can get the budget done, that takes a lot of pressure off of lots of people to call a special.

88th Texas Legislature: The only bill that has to be passed each session is the budget. If they can get the budget done, that takes a lot of pressure off of lots of people to call a special.

Jerry, thanks for being with us again and we’ll look forward to having you back.

I look forward to it. I appreciate it.

If you’re reading and you haven’t subscribed to Jerry’s newsletter and you’re interested, please do. We want to refer folks to those to read more about Jerry, his practice, and how he got where he is. We appreciate everything you do to keep track of legislation for Texas lawyers.

I’m happy to do it. I’m just not a legislative update guy. It’s why I’m here. I enjoy doing it. It’s a form of public service. I’m happy to provide that.

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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 nonprofit 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.