Texas: bill gives Chief Justice + Attorney General power to divert cases (without briefing or appeal) to 3-judge panels picked by Chief Justice

Legislative anger that single trial court judges have overturned or stayed the enforcement of laws passed by the state legislature has prompted at least four efforts in recent years to create special courts to handle such challenges, including one enacted in North Carolina in 2014 (discussed last here, here, here, here, here, here). Last week Texas became the fifth state to consider such legislation and to give the state’s Attorney General a prominent role in deciding whether such courts would be used.

Texas’ HB 1091 and SB 455 would create at the request of the Attorney General special 3-judge panels chosen by the Chief Justice to hear challenges to cases referred by the Attorney General. The 3 judges would be

  • District Court judge originally assigned
  • District Court judge from some other county, picked by Chief Justice
  • Court of Appeals judge from some other judicial district, picked by Chief Justice

There would be two categories of cases subject to the 3-judge panel provisions.

  • The 3 judge panel system would mandatory in cases involving either
    • finances or operations of the State’s public school system, or
    • redistricting/ apportionment of districts
  • The 3 judge panel system would be at the discretion of the Chief Justice in cases where the Attorney General certifies the case
    • could significantly impact the finances of the State
    • could significantly alter the operations of important statewide policies or programs, or is otherwise of exceptional or,
    • has statewide importance such that the case should not be decided by a single district judge

Aside from the Attorney General, parties in the case would be prohibited from communicating with the Chief Justice unless asked for a brief (“The Chief Justice may request that any party file a statement objecting to or supporting the Attorney General’s petition. No such statement may be filed unless requested by the Chief Justice.”)

Moreover, the Chief Justice’s decision as to whether or not to refer the case to a 3-judge panel would not be subject to any sort of appeal or review (“The Chief Justice’s decision to grant or deny the petition is final and may not be appealed or challenged.”)

HB 1091 and SB 455 have been filed their respective chambers but not yet assigned to committees.

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