A Texas Appellate Oddity: How Can One City Be In Two State Appellate Districts?

Despite growing up in a suburb outside of Houston and attending college in West Texas, I have been surprised by some Texas legal system aspects after living my entire professional career—from law school to practice then back to law school to teach— in California. Since returning to Houston to teach at the University of Houston Law Center in 2017, I have learned a lot about the Texas legal system, and some of the things have been interesting enough to share more widely.

The first fact that made me raise an eyebrow was that Houston, situated in Harris County and the fourth largest city in the US, is under the appellate jurisdiction of both the First District Court of Appeals and the Fourteenth District Court of Appeals. I learned this over lunch soon after arriving in Houston. My former student is a Harris County District Attorney, and he casually mentioned the challenge it was in certain circumstances not knowing what law would be applied upon appeal. Not understanding, I asked him to explain further. He shared about the First and Fourteenth Districts and how it was not until the appeal was filed that the case was randomly assigned to either the First or Fourteenth District. As a trial lawyer in one of the ten counties subject to this dual jurisdiction, you do not know which appellate court’s opinions will ultimately be applied if you end up appealing. Here’s the technical explanation from the Fourteenth District Internal Operating Procedures:

The 1st and 14th Courts have concurrent jurisdiction over cases from Harris and 9 other counties: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Waller, and Washington. The trial court clerk randomly assigns each appeal, with one exception: cases in which a related matter has previously been heard by a particular court are assigned to that court.

So how did Texas become the only state in the country with this jurisdictional quirk? It has to do with Texas history. As the state grew, more courts were added in an ad hoc manner. The First District was created in 1892 and located in Galveston. In 1957, after Hurricane Audrey and significant damage to the Old Galveston Court House, the First District was moved to Houston. In 1967, the state legislature added the Fourteenth District because of population growth and also located it in Houston. At that point, the courts were still limited to three justices each, so new districts were added when case loads became too large.
While Texans often take pride in their unique institutions, many have criticized the resulting court system from this add-on approach. According to Judge Willett of the Fifth Circuit while he was a Texas Supreme Court Judge:

Truth be told — and this particular truth has been told repeatedly — the State's entire Rube Goldberg-designed judicial "system" is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom. The convoluted make-up of the Texas judiciary — "one of the most complex in the United States, if not the world" — does not lack for critics, from the litigants who endure it, the lawyers who navigate it, and the judges who lead it. . . Texas is the only state in the nation in which trial judges answer to more than one intermediate appellate court, that is, no other state has overlapping appellate jurisdictions. Fifteen counties are in overlapping districts. This Court has lamented the "manifest" problems inherent in overlapping districts: "uncertainty from conflicting legal authority," "the potential for unfair forum shopping," and "jurisdictional conflicts.”

In re Reece, 341 S.W.3d 360 (Tex. 2011) (Willett, J. dissenting).

One shocking example of what can happen when two appellate districts have the same jurisdiction occurred when four passengers were in the same car in a bad accident, and three had the right to sue according to one appellate district, one did not according to the other. Compare Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) with Montes v. City of Houston, 2000 WL 1228618, at *4 n. 3 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). While the Texas Supreme Court may grant a petition for review when there is a split of this type, it often does not. There are lots of less dramatic examples of conflicting rulings. Litigants and attorneys are left with a limited ability to predict the law that will be applied in their case, let alone an outcome based on that law.

It’s also worth pointing out that fourteen intermediate appellate districts is a lot, and likely adds to costs and strain on the high courts. Texas has more intermediate appellate courts than there are federal circuits. Though Texas is large in both size and population, it strains reasoning to understand why it needs that many. For reference, California only has six intermediate appellate courts.

Finally, the concurrent jurisdiction has been criticized for diluting voting rights of minority voters in Harris and Fort Bend counties with votes from the other largely Caucasian, suburban counties. With the election in 2018 and the vast changes in the judiciary in Texas, it will be interesting to see if political motives will result in more momentum towards some sort of change.

Overall, forty nine out of fifty state and the entire federal court system operate with unitary intermediate appellate court jurisdiction. Texas is an outlier with this strange system, and I did not find anyone extolling the virtues of it. Perhaps this is a quirk that should be retired.