Conflicts between appellate decisions in Houston Courts of Appeals

Chief Justice Kem Thompson Frost published an article in which she surveyed former members of the First and Fourteenth Courts of Appeals, Houston, regarding their preferences for correctness (sound rule of decision) versus alignment (established rule of law) and found that most appellate judges prefer what they perceive as the fair rule over predictability of outcome.1Kem Thompson Frost, Predictability in the Law, Prized Yet Not Promoted: A Study in Judicial Priorities, 67 Baylor L. Rev. 48 (2015).

Even though the Constitution provides that “[t]he state shall be divided into courts of appeals districts,” Tex. Const. art. V, § 6 (emphasis supplied), twenty-two counties are located in two appellate districts and one, Brazos County, is located in three. See Tex. Gov’t Code § 22.201. The first appellate overlap, created in 1934, involved Hunt County. After that county was transferred from the Fifth District (Dallas) to the Sixth District (Texarkana) in 1927, it was also restored to the Fifth Court seven years later, thus placing it in two districts. Act of September 24, 1934, 43rd Leg., 3rd C.S., ch. 31, 1934 Gen. Laws 54.
No further overlaps were created until 1963, when the seventeen-county Twelfth Court of Civil Appeals was established in Tyler. Nine of the counties comprising the new district were removed from their former districts, but the other eight were also left in their previous districts. Act of May 7, 1963, 58th Leg., R.S., ch. 198, § 2, 1963 Gen. Laws 539. Gregg, Hopkins, Panola, Rusk, Upshur and Wood Counties remained in the Sixth District as well as the Twelfth, while Kaufman and Van Zandt Counties remained in the Fifth District as well as the Twelfth. Id.
The final overlaps were created in 1967. Because of the population and litigation growth in the Houston area and the then constitutional limitation of appellate courts to three justices, the Legislature established an entirely new court, the Fourteenth Court of Appeals, covering the same counties as the existing First Court. Act of June 18, 1967, 60th Leg., R.S., ch. 728, § 2, 1967 Tex. Gen. Laws 1953. In addition to the thirteen counties already covered, the Legislature added Brazos County to both courts, while also leaving it in the Tenth District. Even though the people amended the Constitution in 1978 to allow larger appellate courts, the dual appellate court system in the state’s most populous area remains.

Miles v. Ford Motor Co., 914 SW 2d 135, 137 fn. 3 (Tex. 1995)

Dresser-Rand points out one case in which the reviewing court discussed the statute, but refused to apply it based on common-law principles. See Kingston v. Helm, 82 S.W.3d 755 (Tex. App.-Corpus Christi 2002, pet. denied). In Kingston, the president of a corporate real estate developer made misrepresentations about a townhome in the course of selling it to the plaintiff. See id. at 757. Our sister court concluded that the statute was intended to apply only in very limited circumstances—more limited, we believe, than is consistent with the statute’s plain language. We disagree with the Kingston court’s reasoning because it reached its conclusion that the statute has only limited application by relying on cases that predated the relevant statutory amendments, or that dealt with liability imposed by another statute.

 TecLogistics, Inc. v. Dresser-Rand Grp., Inc., 527 S.W.3d 589 (Tex. App.-Houston [14th Dist.] 2017, no pet.)).

In one instance, the First Court held that the City of Houston was not immune from a suit filed by the families of three occupants of a car who died in a car accident, but the Fourteenth Court held that the City of Houston was immune from a suit filed by the fourth occupant in the same car in the same accident.

Ray Blackwood, Overlapping Jurisdiction in the Houston Courts of Appeals—Could a Special En Banc Procedure Alleviate Problems?, 26 App. Advoc. 277 (2013). 2Compare 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).

To one of its oldest and most beneficent functions resolving conflicts of law among the courts of appeals — this Court has an inexplicably mulish aversion, preferring instead the resulting confusion in the law, the unfairness to litigants in having the law depend on what court they happen to be in, and the waste of time and money, public and private, in pointless litigation over issues that could readily be resolved. I have noted this aversion and its consequences, and so has the appellate bar, but this case displays the problem yet more vividly. The Fourteenth Court of Appeals decided this case differently than the First Court of Appeals decided another case involving not only the identical legal issue but the exact same occurrence. The result is that of the four passengers in a one-car accident, three can sue and one cannot, based on differing applications of the very same law. This Court could resolve this very uncomfortable conflict in a few sentences but refuses to do so. I think the Fourteenth Court of Appeals was correct in this case and therefore concur in the denial of the petition for review. Probably the Court does too, or it would not deny the petition, but it should explain why to give guidance in the other case that has been remanded to the trial court to spare the participants a water haul.

Montes v. City of Houston, 66 S.W.3d 267 (Tex. 2001) (Hecht, J., joined by Owen, J., concurring with the denial of petition for review).

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 fact, the two Houston-based courts of appeals have even reached polar-opposite outcomes on the same facts — allowing three passengers in a car accident to sue but not the fourth. The following year, in 2002, we exhorted the Legislature that ‘[n]o county should be in more than one appellate district.’ I suspect we will do so again next year when we issue our required plan to the Legislature on whether any appellate courts should be added, eliminated, consolidated, or reallocated.

In re Reece, 341 S.W.3d 360, 383–84 (Tex. 2011) (Willett, J., dissenting and concurring) (citations omitted).

In reaching our holding, we note the recent decision from our sister court affirming a prior temporary commitment order concerning appellant. See In re G.H., 94 S.W.3d 115 (Tex. App.-Houston [14th Dist.] 2002, no pet.). In its majority opinion, the court of appeals concluded, based on testimony concerning appellant’s delusional behavior and her refusal to take prescribed medications, that the evidence was legally and factually sufficient to support the trial court’s decision to temporarily commit appellant. Id. at 116-17. Because the majority opinion in that case does not follow the reasoning of K.T. or of the cases cited therein, which hold that mere evidence of a patient’s mental illness and refusal to take medication is not sufficient to sustain the State’s statutory burden, we disagree with the analysis applied by the majority opinion of that court. See K.T., 68 S.W.3d at 892.

G.H. v. State, 96 S.W.3d 629, 635 (Tex. App.-Houston [1st Dist.] 2002, no pet.).

I have been unable to find a single recent case from this Court affirming an involuntary commitment order. Thus, I infer that the standard of review established by this Court for involuntary commitment of a mental patient is not only contrary to the plain language of the statute, out of harmony with its other provisions and purpose, and in conflict with our sister court’s construction of the same standard, but so high that no commitment order can survive a legal or factual sufficiency of the evidence challenge made in this Court. If so, the Court’s criterion for “clear and convincing” evidence of behavior satisfying the requirements of the statute vitiates the statute. I also note that the fact that a sister court has reached an opposite conclusion with respect to the same patient under the same statute indicates that commitment under the statute has become arbitrary — a matter of which appellate court receives the case and what evidence of mental illness it will recognize as tending to confirm that a prospective patient presents a likelihood of harm to himself or others or exhibits distress and the deterioration of his ability to function.

K.E.W. v. State, 276 S.W.3d 686, 707 (Tex. App.—Houston [1st Dist.] 2009) (Keyes, J., dissenting).

Although the First Court of Appeals decided Esparza almost a month before the final Amadi opinion was published, it commented in great depth on the Fourteenth Court’s July 7, 2011 opinion (which was subsequently withdrawn). Contrary to its sister court’s position, the Esparza court concluded that subsection (b) “consent” requires compliance with the entire TTCA, including the election-of-remedies. In a subsequent decision, the First Court of Appeals explicitly rejected the argument that TTCA provisions such as section 101.021 can never establish subsection (b) consent.161 In all actuality, however, that argument must be correct.

Brant E. Wischnewsky, “Election” of Remedies: The City of Houston, the Sister Courts, and the Mission to Interpret the Tort Claims Act, 50 HOU. L. REV. 1507, 1510 (2013) (noting pronounced differences between approaches taken by the First and Fourteenth and concluding: “There is perhaps no greater divide among the courts of appeals than that which has developed between the sister courts in Houston.”)3Discussing City of Houston v. Esparza, 369 S.W.3d 238 (Tex.App.-Houston [1st Dist.] 2011, pet. denied) (op. on reh’g)
& Amadi v. City of Houston, 369 S.W.3d 254, 259-60 (Tex.App.-Houston [14th Dist.] 2011, pet. filed) (op. on reh’g en banc).

Problems can be exacerbated by foolish structures. For example, in Texas, appellate jurisdiction is divided in the first and fourteenth districts (centered in Houston) between two intermediate courts, with cases from the same geographical area randomly assigned between the two courts. As one commentator noted, this produces the absurd situation in which none of the residents, lawyers, and trial judges in an area with a population of more than two million people “can safely predict the state of the law in any matter” before a higher court rules on it. Problems can also be exacerbated by the state supreme court’s failure to address conflicting intermediate court opinions in a timely way, something Texas lawyers have complained about for some time.

Andrew P. Morriss, Opting for Change or Continuity? Thinking About ‘Reforming’ the Judicial Article of Montana’s Constitution, 72 Mont. L. Rev. 27 (2011).

Unlike the other overlapping districts, the Houston courts forestall forum-shopping by randomly assigning appeals between the two courts, although litigants have occasionally succeeded in circumventing these safeguards. Nevertheless, conflicting interpretations of the law are especially acute in Houston, due both to the volume of litigation in Harris County and the larger uncertainty as to who will hear the appeal. While trial lawyers in most jurisdictions face relatively small odds of transfer in any particular case, in Houston and surrounding counties the odds are roughly 40 percent that an appeal will go to the First Court, 40 percent to the Fourteenth Court, and 20 percent to somewhere else in the state by transfer. In close questions and conflicts, this is practicing law on a guess and a gamble.

Scott Brister, Is It Time to Reform Our Courts of Appeals?, 40 HOUS. LAW. 22, 26 (Mar.–Apr. 2003)

The first and fourteenth districts sit in the same building in Houston. Appeals from the lower courts of the ten counties they jointly encompass are randomly assigned between them. A sign in the hallway directs litigants and lawyers to the appropriate courtroom and justices. When the first and fourteenth courts disagree on the interpretation of the constitution, statutes, or the common law, only the supreme court or the court of criminal appeals can resolve those disagreements. While neither of these courts are obliged to take a case solely on account of a conflict, conflicts are difficult to ignore when they exist over the same trial courts in the same counties. And in the absence of conflict, no legal issue is truly foreclosed in the lower courts in these counties until both courts have spoken. Litigants are therefore compelled to litigate with uncertainty of what the law really is and to bear the cost and risk of having to prove it later on appeal.

David J. Schenck, Are We Finally Ready to Reshape Texas Appellate Courts for the 21st Century?, 41 TEX. TECH L. REV. 221, 227 (2009)

References   [ + ]

1. Kem Thompson Frost, Predictability in the Law, Prized Yet Not Promoted: A Study in Judicial Priorities, 67 Baylor L. Rev. 48 (2015).
2. 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).
3. Discussing City of Houston v. Esparza, 369 S.W.3d 238 (Tex.App.-Houston [1st Dist.] 2011, pet. denied) (op. on reh’g)
& Amadi v. City of Houston, 369 S.W.3d 254, 259-60 (Tex.App.-Houston [14th Dist.] 2011, pet. filed) (op. on reh’g en banc).

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