Unopposed motion to transfer appeal to avoid conflict of interest denied by newest member of First Court of Appeals, Justice Russell Lloyd

In one of his first official acts as a member of the First Court of Appeals, freshman Justice Russell Lloyd on January 15, 2015 denied a motion to transfer a case from the First to the Fourteenth Court of Appeals, which was filed to avoid a conflict of interest. The motion was not objected to by the other party in the appeal. Both appellate courts sit in Houston, and hear cases from the same counties, which are assigned randomly to one or the other.  
 
Attorney Orjanel Lewis requested the transfer after an appeal in which his firm - RADACK AND BORUNDA, P.C. -  represents a medical malpractice plaintiff who had summary judgment entered against her by a Harris County District Court was assigned to the First Court of Appeals. The transfer was sought because Jeremy Radack, a name partner and shareholder of the law firm that handles the appeal for the unsuccessful plaintiff in the trial court, is the son of Sherry Radack, the First Court's Chief Justice.

In denying the motion in a short order, Judge Lloyd acted individually, rather for the court. He did not give a reason, other than to cite to the rules governing transfer, disqualification, and recusal.

 RADACK AND BORUNDA, P.C. - Public Information 

Attorneys are notoriously loath to file recusal motions against sitting judges because they do not want to question the impartiality of a judge before whom they may appear in the future, and make themselves unpopular.

Justice Russell Lloyd took office January 1, 2015, replacing Jim Sharp, who lost his re-election bid. Justice Lloyd does not yet have an official biography on the First Court of Appeal's website (as of 1/21/2015).  Attorney Russell T. Lloyd's profile on file with the State Bar of Texas was last certified on 04/17/2014 and reflects that he practiced law as a solo. He received his law license in 1978 after earning his law degree from the University of Texas that same year. Judge Lloyd's LinkedIn profile provides much more detailed information about his background.

Appellate Court Output (FY 2014): Justices Christopher and Radack lead in number of opinions, Frost and Keyes show most independent streak

The 2014 Annual Statistical Report on the Texas Judiciary has not yet been released, but much of the new data for the fiscal year that ended Aug 31, 2014 is already available on the Office of Court Administration's website, including productivity stats.

So how did the members of the two Houston-based courts of appeals compare this year?

14TH COURT OF APPEALS: CHIEF AS LEADING DISSENTER  

On the Fourteenth Court of Appeals, the annual opinion output ranged from a low of 84 to a high of 163 (leaving aside the 12 opinions written by Justice Jeff Brown before he received his promotion to the Texas Supreme Court from the Governor). The most productive member was Justice Tracy Christopher, whose jurisprudence also included a combined total of 13 dissents and concurrences, the second highest number of such opinions after Chief Justice Kem Thompson Frost, who took the lead with 21. With a total of 80, Justice Christopher also authored the highest number of signed original opinions on the merits. The number of per curiam opinions was relatively even across the membership of this court, with slightly over 70 per justice except for those who were not on the court for the entire fiscal year. Dissenting and concurring opinions were much rarer for other members of this court, but each penned at least one separate opinion. The tally for the court as a whole was 1,220 for Fiscal Year 2013-2014. Its share of all concurring and dissenting opinions was much higher than its share of the statewide caseload, making the fourteenth an interesting court to watch.

1ST COURT OF APPEALS: CHIEF WRITES THE MOST OPINIONS, KEYES AGAIN TAKES HONORS AS CHIEF DISSENTER  

On the First Court of Appeals, the most prolific opinion-author was Chief Justice Sherry Radack, with a total of 207, none of which were dissents. Chief Radack took the lead in original opinions on the merits (122) as well as per curiam opinions (84). Justices Bland and Keyes came in second and third, with totals of 156 and 154, respectively, closely followed by Justice Harvey Brown, with 151.

The least productive justices on this court -- at least as gauged by the official metric -- were Rebeca Huddle and Jim Sharp. Sharp came in last with only 110. (Sharp since lost his bid for re-election; he was the only incumbent among the courts of appeals who was defeated in the November 2014 general election.). It may come as something of a surprise that the only Democrat on the court penned only 4 dissenting opinions. Going into the re-election contest, Sharp touted himself as a different voice on the court, and campaigned with the slogan "BALANCED JUSTICE IS A GOOD THING". But as now revealed by the OCA's official tally, his Republican colleague Justice Evelyn Keyes found much more frequent occasion to disagree with her fellow Republicans on the court than Democrat Sharp, and went to the trouble of articulating the basis of her divergent views of the issues presented by appellants and appellees by setting them forth in separate opinions. Some justices merely note their disagreement, or concur only in the result, without saying why. Justice Keyes handed down 12 dissents and 6 other separate opinions, more than three times as many as Maverick Sharp. Keyes was also the most prolific dissenter in the previous fiscal year that ended August 31, 2013. See prior post on Who Dissents the Most on the Houston Courts of Appeals (based on the Annual Report for the 2013 Fiscal Year).

The total number of opinions the First Court of Appeals issued in fiscal year 2014 was 1,290, which is slightly higher than the annual caseload processed and disposed of with opinion by its sister court in the same time span.

SOME CAVEATS, CAUTIONS, AND COMMENTS ABOUT OPINION-COUNT AS A YARDSTICK OF APPELLATE PRODUCTIVITY  

It is assumed that counting and reporting procedures are consistently applied to all members of the court. But there are potential sources of error or of debatable coding and counting, particularly in relation to one-page orders and opinions. Should they be counted and aggregated with long merits opinions or not? Also, mediation referral orders are longer than some opinions, but are basically templates. They are nevertheless typically issued in the name of justices, which is also true of other procedural orders. As such, they should not count as part of a justice's productivity. It is not clear if any such orders are counted and reported to the Office of Court Administration, and whether any opinions, which often even shorter, are deleted from the count.

On the other hand, sometimes a procedural matter and resultant order is complex enough to merit being counted as an opinion, while some opinions -- especially routine dismissal opinions based on non-payment or failure to file a brief and denials of mandamus petitions -- do not merit being regarded as opinions for statistical purposes at all, especially not as a measure of productivity. They are simply not the equivalent to an opinion that resolves a legal issue and gives guidance to courts below and practicing attorneys in future cases. At least they should not be lumped into the same category as merits opinions that have substantive content even if they are not reported in the Southwestern Reporter and are  not precedent-setting.

Comparability of aggregate opinion counts across the fourteen courts of appeals is also somewhat doubtful. The Houston Courts of Appeals now issue many more orders online (on the dated opinion/order release pages) than they used to.

Sample Opinion/Order Release Page - 14th Court of Appeals
New layout after recent court website redesign and
migration to new domain / URL

Other courts of appeals have other practices which may extend to the manner in which they classify opinions/orders for statistical purposes in addition to decisions as to what gets displayed and hyper-linked on the pages featuring daily releases. Variation in classification practices may affect the statistics for an entire court relative to sister courts. Comparisons of productivity measured by numbers of opinions reported by or on behalf of different appellate courts are accordingly not necessarily completely reliable. The same problem would affect a comparison of the total number of orders and opinion issued on the courts' websites on opinion release dates.

Another problem affecting comparability, though relatively minor, are appellate opinions that resolve several cases which are consolidated for briefing or are companion cases. They appear as an opinion on the docket for each case, but they are really just one opinion.

A better measure of productivity would be one that is sensitive to the length of opinions measured by pages (of the pdf files) or number of words (a metric already required for e-briefs to enforce length limitations), rather than merely the bare count without any differentiation as to short vs. long, and complex vs. routine. Complexity cannot easily be quantified, of course, but length should make for a suitable proxy; -- one that can be implemented in a consistent and reliable fashion by purely technical means with no subjective component whatever.

Another measure to enhance comparability, and make aggregate numbers more meaningful in representing amount of work, time, and effort, would be to strictly exclude from the count all one-page and two-page orders and opinions (such as dismissal orders and orders denying mandamus relief in one sentence or two), as well as form/template-based orders even if they exceed two pages. This criterion could be supplemented with a provision that allows the assigned justice to designate an opinion or order that would not otherwise qualify to be counted to nevertheless be exempted from the cut-off and be counted as "non-routine" for case-specific reasons despite brevity, or as useful as guidance for other appellate practitioners. This special designation could also be shown on the opinion release page on the relevant date as an additional value in the data field that currently identifies the released items as memorandum opinion, signed opinion with author's name, or "order" under the "Case Number" column header.

EXAMPLES OF ROUTINE ONE-PAGE AND TWO-PAGE "OPINIONS" 

Example of  2-sentence Memo Op - Denial of Petition for Habeas Corpus relief 

Examples of two-page "Opinion" dismissing case for nonpayment of fees

Example of single-page opinion dismissing appeal
per agreement of the parties 

FOR COMPARISON: OPINION PRODUCTION BY THE TEXAS SUPREME COURT IN FY2014 WAS MUCH LOWER, COMPARED TO THE INTERMEDIATE COURTS, REFLECTING DISCRETIONARY REVIEW 

Opinions written by Texas Supreme Court Justice in FY2014: Total of 115 ranging from 7 to 12 among members. 

KEY TERMS: Texas Courts of Appeals, appellate statistics, appellate opinions, Houston courts of Appeals, First Court of Appeals, Fourteenth Court of Appeals, Texas Supreme Court, disposition patterns, dissents and concurrences, measuring court productivity, methodological issue, quantifying justice.

2014 Texas Judicial Elections Results - Appellate Courts - and a look back at winning margins in 2008

2014 APPELLATE RACES: REPUBLICANS KEEP TIGHT GRIP ON HIGHEST COURTS, AND WIN ALL BUT ONE COURT OF APPEALS RACE   

Republicans remain firmly in control of the state's two highest courts and courts of last resort: Supreme Court of Texas and Court of Criminal Appeals. The members of both courts are elected statewide.

SUPREME COURT AND CCA RACES: WIDE MARGINS OF VICTORY 

In the Supreme Court races, three of the Republican incumbents did better than Greg Abbott in this bid for the governorship, but only in terms of winning percentages. The raw vote totals for the judicial candidates were lower, except for Phil Johnson, who did not draw a Democratic challenger. The same pattern holds for the CCA. The candidates who did not draw a Democratic opponent garnered higher total vote numbers, and a higher percentage of the vote than the successful Republican contender in the gubernatorial race.

Chief Justice Nathan Hecht, the longest-serving member of the high court for civil and juvenile cases, won with 59.57% of the vote; Associate Justice Jeff Brown won with 60.31%; Justice Jeff Boyd garnered 58.88%; and long-time Associate Justice Phil Johnson won with 78.78%  -- the highest margin -- in a race that did not have a Democratic contender.

Complexion of Tex. Sup. Ct. won't change as a result of 2014 election 

Texas Supreme Court Membership Roster (2014)

On the Court of Criminal Appeals, Kevin Patrick Yeary won with 76.29% of the vote in a contest that did not feature a Democratic opponent, giving minor-party candidates a chance to test their ability to pick up part of the Democratic vote; David Newell won with 78.28% in a race that likewise featured only a Libertarian and Green candidate, but no Democratic opponent. In the third race for seats on that court, Bert Richardson faced a Democratic opponent in addition to a Libertarian and won with 59.82%.

COURTS OF APPEALS

Member of the courts of appeals are elected from their respective appellate districts. This means that they are more competitive, - at least some of them, but not always.

In San Antonio (4thCOA), Republican Sandee Bryan Marion defeated Democrat Irene Rios with 55.50% of the vote. This was the judicial equivalent of an open-seat contest following Chief Justice Catherine Stone's decision not to seek re-election.
 
The Third Court of Appeals in Austin also featured an open contest for chief justice: Republican Justice Jeff Rose, a sitting member of the court, defeated Democrat Diane Henson, a former member of the Austin Court, with 54.14% of the vote versus Henson's 45.85%. Chief Justice J. Woodfin "Woodie" Jones had decided not to stand for re-election. The outcome will give the new governor an  opportunity to make an appointment for the position vacated by Rose upon ascension to the position of chief.
 
In Houston, Republican Chief Justice Kem Thompson Frost successfully defended against Democrat Kyle Carter, a Harris County District Court judge first elected in 2008, with 57.59% of the vote. Incumbent Ken Wise, formerly a District Court Judge in Harris County, prevailed over his Democratic opponent Gordon Goodman with 58.24% of the vote.

The only incumbent Democrat on the First Court of Appeals, also in Houston, lost to Republican challenger Russell Lloyd. The vote was 57.13% for Lloyd, and 42.86% for Jim Sharp, who was elected to the appellate court in 2008, when Democrats also swept Republican judges from their benches in Harris County, which went with Obama while much of Texas voted for McCain. In that election, Sharp was the only Democrat to win an appellate bench in the Houston Court of Appeals district which includes Harris County and nine additional counties, which makes the appellate district more conservative/red than Harris County alone, not to mention the City of Houston, which elects Democratic mayors.

In Dallas Craig Stoddart, recently appointed by Governor Rick Perry to fill a vacancy, prevailed with 55.59% over Ken Molberg in the contest involving the unexpired term.

In Corpus Christi (13thCOA), Democratic incumbent Dori Contreras Garza won reelection to Place 6 on the Thirteenth Court of Appeals -- but just barely -- with 50.96% of the vote, less than 2% over Doug Norman, her Republican opponent. The difference was less than 5,000 votes (based on unofficial results as of 11/22/2014).

In sum, Republicans won all appellate races save one. Of only two Democratic incumbents in these races, one lost and the second one survived by the skin of her teeth.

DATA SOURCE: Unofficial 2014 General Election Results from the Texas Secretary of State

PARTISAN TIDES

Judicial races are down-ballot races that are driven by straight-ticket voting and partisan tides. That does not make candidate-specific attributes, incumbents’ record and standing with the attentive public, or campaign efforts by them or on their behalf irrelevant, but it makes these factors more important when contests are close. This may not have been the case in 2014 (even without the benefit of hindsight), but 2008 was another matter. Unsurprisingly, Democratic candidates for judicial positions did better in a presidential election that turned the White House back over to a Democrat, but not everywhere. Much has to do with the electoral geography of Texas.  

LOOKING BACK: 2008 DEMOCRATIC WINS IN APPELLATE COURT RACES, AND MARGINS OF VICTORY THEN  

In 2008, Obama did not win Texas (55.45% of the statewide vote went to McCain), but a number of Democrats were elected or re-elected to court of appeals benches with votes shares ranging from just barely over 50% to as high as 66.48%.

  

Democratic challenger Woodie Jones unseated incumbent Republican Chief Justice Ken Law in Austin (3^rd Court of Appeals) with 52.40% of the vote.
  

In San Antonio, Democrat Catherine Stone, originally appointed to a vacancy by Governor Ann Richards in 1994, prevailed over Republican Ann Comerio in the contest for Chief Justice of the Fourth Court of Appeals with 55.81% of the vote.  

   

In El Paso (8^th Court of Appeals), Democrat Guadalupe “Lupe” Rivera put Republican Kenneth R. “Kenn” Carr in the shade with a 66.48% landslide.

   

In Corpus Christi, Dori Contreras Garza beat Republican Caroline Bertuzzi with 58.58% of the vote.
  

In Houston, Democrat Jim Sharp beat Republican Ed Hubbard in the contest for a position on the First Court of Appeals with a narrow margin (50.57%). Hubbard had defeated the incumbent in the Republican primary. Republican incumbent Laura Carter Higley, who was also up for reelection, was able to hold on to her bench with 51.23% of the vote, warding off a challenge by Leslie C. Taylor. 
  

On the sister court in the same city, the Fourteenth Court of Appeal, incumbent Chief Adele Hedges faced a challenge by Democrat Joe W. Beverly and survived -- but just barely – with 50.96% of the vote. Three other Republican incumbents on that court also held on to their positions, all with less than 52% of the vote. The margins of victory and mixed outcome (the first Democrat was elected to one of two previously all-Republican appellate courts) made Houston the most competitive appellate battleground in the 2008 general election. In Harris County, the partisan tide had a much more sweeping impact on the district courts because Harris County voted for Obama, though the surrounding counties (which are part of the appellate district that elects the members of the 1^st and 14^th Court of Appeals) did not.

   

In Dallas, Republicans won all three appellate races with more than 52% of the vote. Republican Rex Davis on the 10^th Court of Appeals in Waco cruised to victory with the highest margin on the Republican side: 63.92% of the vote. 

   

Electoral geography matters. Judicial races are no different.

2014 TEXAS JUDICIAL ELECTION LINKS:

Texas Appellate Law Blog (blogpost summarizing results of 2014 appellate races)
Texas Judge Race (2014 pre-election/campaign information with links to campaign finance reports filed with Texas Ethics Commission)
Houston Chronicle endorsements in local appellate races: For Courts of Appeals  (Oct 13, 2014)
Houston Bar Association 2014 Judicial Candidate Qualification Poll: 2014 HBA Poll of judicial candidates in contested races (Table of Result)
State Bar of Texas Judicial Poll Results (note disclaimer): 2014 SBOT Judicial Poll

TEXAS APPELLATE SYSTEM -  2 LEVELS OF APPELLATE COURTS - TWO HIGH COURTS WITH DIVISION OF LABOR FOR CIVIL AND CRIMINAL CASES 

Structure of Appellate Court System in Texas

THIRTEEN COURT OF APPEALS DISTRICTS: FIRST AND FOURTEENTH OVERLAP 

Texas appellate districts shown on map: Numbers match Courts of Appeals
First through Fourteenth 

Houston's First Court of Appeals based in old Harris County Courthouse after massive renovation project that did not alter its appearance much

Formerly home to Harris County Civil Courts, now seat of two Texas Courts of Appeals 

(First and Fourteenth Appellate Districts, which cover the same aggregation of counties)

MEMBERSHIP OF THE FIRST COURT OF APPEALS

The First Court of Appeals consists of nine elected members, and hears cases in panels of three. Vacancies on the court are filled by gubernatorial appointment. In 2013, all justices were Republicans save one, Jim Sharp, who won election as a Democrat when President Obama was first elected, and faces re-election in 2014. Like all other intermediate courts of appeals, the First Court of Appeals decides both civil and criminal appeals. 

Current Membership of the First Court of Appeals (Feb 1, 2013 snip of collective pic & bio page on court's website)

NOTE: For updated version of list of justices with bios and photos, click this link to the court's website.
The latest revision took place 1/31/2014.

Dome (outside) and Rotuda seen from the inside looking up

1910 Harris County Courthouse (prior to restoration) 

The First Court of Appeals in Houston, Texas

The First Court of Appeals

a/k/a Court of Appeals for the First District (Tex.App. - Houston [1st Dist.] 2007)

This intermediate court of appeals, like its sister court, the Fourteeth Court of Appeals, has its seat in Houston. It consistes of nine elected members (shown below) and hears both civil and criminal cases from the trial courts of Harris County and other counties in its district.

Justices:

Chief Justice Sherry Radack
Justice Elsa Alcala
Justice Jane N. Bland
Justice George C. Hanks, Jr.
Justice Laura Carter Higley
Justice Terry Jennings
Justice Evelyn Keyes
Justice Sam Nuchia
Justice Tim Taft