Legislative Update

Civil Litigation and Appellate Law

By Jerry D. Bullard

The following briefly describes some of the bills passed by the 88th Texas Legislature that will directly affect Texas civil trial and appellate practitioners. Unless otherwise indicated, all bills are effective September 1, 2023. For more detailed and additional background information on the following bills, please visit Texas Legislature Online at capitol.state.tx.us.

Attorneys/Practice of Law
HB 5010¹ amends section 81.073 of the Government Code and requires the Office of Chief Disciplinary Counsel to classify grievances against attorneys as “complaints” if the grievance alleges conduct that, if true, constitutes professional misconduct or disability and the grievance is submitted by a person listed in the statute or who otherwise has a cognizable individual interest in or connection to the legal matter or facts alleged in the grievance. HB 5010 also allows an attorney against whom a grievance is filed to appeal the classification of the grievance as a “complaint.”

Civil Justice System/Judiciary
SB 372² amends the Government Code to make it a Class A misdemeanor for a person, other than a justice or judge, with access to non-public judicial work product to knowingly disclose the contents of any non-public judicial work product to a person who is not a justice, judge, court staff attorney, court clerk, law clerk, employee of the Judicial Council or Office of Court Administration, or other court staff routinely involved in crafting an opinion or decision for an adjudicatory proceeding. However, it will be a defense to prosecution if the disclosure was authorized either in writing by the justice or judge for whom the work product is prepared or under Supreme Court of Texas rules.

SB 1045³ establishes the 15th Court of Appeals. The court will be based in Austin and composed of an elected chief justice and four justices; however, for the first three years after the court’s creation, the court will consist of a chief justice and two justices.

Under SB 1045, the court will have exclusive immediate appellate jurisdiction over civil matters: (1) brought by or against the state or a board, commission, department or executive state agency, or by or against an officer or employee thereof arising out of the officer’s or employee’s official conduct; (2) in which a party to the proceeding challenges the constitutionality or validity of a state statute or rule and the attorney general is a party; and (3) any other matter as provided by law.

The court will be created on September 1, 2024. The changes in law made under SB 1045 apply to appeals perfected on or after September 1, 2024. On September 1, all cases pending in other courts of appeal that were filed on or after September 1, 2023, and of which the 15th Court of Appeals has exclusive intermediate appellate jurisdiction, will be transferred to the newly created court.

SB 1603⁴ amends section 51.014 of the Civil Practice & Remedies Code, or CPRC, and requires a court of appeals to specify its reasons for finding that a permissive appeal is not warranted under 51.014(d) if the court does not accept the appeal. SB 1603 also provides that the Supreme Court will conduct a de novo review of a decision by a court of appeals not to accept a permissive appeal and permits the court to direct the court of appeals to accept the appeal if the Supreme Court determined that the requisites for a permissive appeal have been satisfied.

HB 19⁵ creates a new business trial court system in Texas. More specifically, HB 19 does the following:

• Establishes a statewide business court with concurrent jurisdiction with a district court in three different categories of cases:

Tier 1: Business governance disputes in which the amount in controversy exceeds $5 million and involve: (1) a derivative proceeding; (2) an action regarding the governance or internal affairs of the organization; (3) an action in which a claim under a state or federal securities or trade regulation law is asserted against an organization, a governing or controlling person or officer of an organization, or an underwriter of securities issued by the organization or its auditor; (4) an action by an organization or an owner or member thereof if the action is brought against an owner, managerial official, or controlling person and alleges an act or omission by that person in the person’s official capacity; (5) an action alleging that an owner, managerial official, or controlling person breached a duty, including a duty of care, loyalty, or good faith; (6) an action seeking to hold an owner, member, or governing person liable for an obligation of the organization, other than on account of a written contract signed by the person to be held liable in a capacity other than as an owner or governing person; and (7) an action arising out of the Business Organizations Code. The amount in controversy requirement will not apply to actions in which a publicly traded company is a party.
Tier 2: Commercial disputes in which the amount in controversy exceeds $10 million and involve: (1) an action arising out of a “qualified transaction” (as defined in the statute); (2) an action that arises out of a contract or commercial transaction in which the parties to the contract or transaction agreed to that the business court has jurisdiction over the action, except an action arising out of an insurance contract; and (3) an action that arises out of a violation of the Finance Code or Business & Commerce Code by an organization or an officer or governing person acting on behalf of an organization, other than a bank, credit union, or savings and loan association; and
Supplemental Jurisdiction: Any other claim related to a case or controversy within the court’s jurisdiction that forms part of the same case or controversy. A claim within the business court’s supplemental jurisdiction may only proceed upon agreement of all parties and the judge.

• Establishes a procedure for removing claims (or parts of claims) not within the jurisdiction of the business court to a county in which the claim could have originally been filed.

• Gives the 15th Court of Appeals exclusive jurisdiction over appeals described by statute.

• Requires a business court judge to be at least 35 years of age, a U.S citizen, a Texas resident for two years preceding appointment, a Texas licensed attorney with at least 10 years of experience in Texas in practicing complex business litigation or business transaction law, serving as a judge of a Texas civil court, or any combination of the above.

• Provides for the gubernatorial appointment of judges for two-year terms.
  

• Provides that a party has a right to a jury trial where required by the constitution in the county in which venue is proper under CPRC, section 15.002 and, if the case was removed to the business court, in the county in which the case was originally filed.

• Requires the Supreme Court of Texas to adopt rules relating to written opinions.

• Provides that the business court system will be composed of geographic divisions that correspond to the state’s 11 administrative judicial regions. Effective September 1, 2024, judges will be appointed to each business court division, with two judges in five of the divisions (Dallas, Austin, San Antonio, Fort Worth, and Houston). One judge will be appointed in each of the remaining six divisions if a legislative appropriation is made for that purpose. If not funded, the remaining six divisions will be abolished on September 1, 2026.

The business courts will be created September 1, 2024. The changes in the law under HB 19 apply to civil actions commenced on or after September 1, 2024.

HB 367⁶ amends the Government Code to authorize the State Commission on Judicial Conduct, or SCJC, to accept complaints, conduct investigations, and take any other action authorized by statute or the Texas Constitution, with respect to a candidate for judicial office who is subject to the Judicial Campaign Fairness Act, in the same manner SCJC is authorized to take those actions with respect to a judge. [Note: In 2021, the 87th Legislature passed—and Texas voters subsequently approved—a constitutional amendment that provides the constitutional authority for the SCJC to enforce the Code of Judicial Conduct and administer discipline with respect to judicial candidates.]

HB 3474⁷is an omnibus courts bill that does many things, including the following:

• Creates multiple new district courts, probate courts, and county courts at law in numerous Texas counties.

• Raises the jurisdictional limit for tenant judicial remedies sought in justice courts from $10,000 to $20,000 in cases under Tex. Prop. Code §92.056(3).

• Addresses the appointment of official court reporters and interpreters.

• Addresses deposition, transcription, and interpretation services.

• Requires OCA to biennially conduct a district court workload analysis in the 30 most populous counties.

• Adopts a process in which an appealing party can create an appendix in lieu of a clerk’s record.

• Requires trial and appellate courts to deliver through the electronic filing system all orders that a court enters in a case to all parties.

HB 3929⁸ repeals CPRC §20.002 and authorizes the Supreme Court to adopt the Uniform Interstate Depositions and Discovery Act, or UIDDA, as rules of civil procedure. It also provides that, if the Supreme Court does not adopt the UIDDA before September 1, 2025, the current law remains in effect.

Texas Citizens Participation Act, or TCPA
HB 527⁹ amends section 27.010(a) of the CPRC and adds a new subsection (13) that expressly exempts “a legal malpractice claim brought by a client or former client” from the scope of the TCPA.

JERRY D. BULLARD is a shareholder in the Grapevine firm of Adams, Lynch & Loftin. He is certified in civil appellate law by the Texas Board of Legal Specialization and is a past chair of the State Bar of Texas Appellate Section. Since 2004, Bullard has monitored legislation impacting the judiciary and the civil justice system and provided updates to interested members of the bench and bar. He is a graduate of Baylor University and the University of Texas School of Law.