An appeal from a Dallas County trial court is heard by the Dallas Court of Appeals, right? Right. Bexar County by San Antonio, right? Right. Tarrant County by Fort Worth, right? Right. And so on, right? Right. That is, unless the answer is “Wrong!”
Approximately once each quarter, the Supreme Court of Texas transfers blocks of cases from one Court of Appeals to another, principally to achieve docket equalization. Such transfers are authorized by chapter 73 of the Texas Government Code and are encouraged by the biennial appropriations acts. Transfers are governed by a standing Supreme Court order (06-9136), which is available on the court’s website.
The fourteen Texas Courts of Appeals have widely disparate caseloads, ranging from 76 filings per justice (El Paso) to 159 filings per justice (Fort Worth). Appeals are transferred from courts with higher per-justice caseloads to courts with lower per-justice caseloads. So far this year, 370 appeals (about 5% of cases filed) have been transferred; Fort Worth, Austin, San Antonio, Dallas, Beaumont, and Waco are currently the “sending” courts and the other Courts of Appeals are the “receiving” courts. Appeals filed in Waco have the highest chance of being transferred (11%) and those filed in Dallas the lowest (3.6%). Of course, these things fluctuate over time as caseloads ebb and flow; sending courts can even turn into receiving courts, and vice versa.
Not all cases are subject to transfer; the most notable exceptions are original proceedings (such as mandamus), interlocutory appeals, criminal bail appeals, and multidistrict-litigation cases. Companion cases are retained in, or transferred to, the court with the earliest-perfected appeal. The typical approach is for the Supreme Court to transfer the first X eligible appeals filed in the sending court after a certain date in the past. The Court may also transfer the first X eligible appeals filed after a future date; to prevent “gaming the system,” this type of transfer order is kept confidential until the appeals have been filed and the transfer notices issued.
A 2008 amendment to the Texas Rules of Appellate Procedure resolves the confusing question of which court’s precedent (the sending court’s or the receiving court’s) applies in a transferred appeal. The sending court’s precedent applies, but the receiving court may state in its opinion whether the outcome would have been different had the court applied its own precedent.
By statute, oral argument in a transferred case must occur in the location of the sending court, unless the distance between the sending and receiving courts is less than 35 miles (think Dallas and Fort Worth) or unless the parties otherwise agree. Sometimes the receiving court will offer an earlier oral argument on its home turf as an alternative to waiting for the court to take a road trip.
So before you confidently tell your client that you’ve known the local justices since you were high school classmates and here’s how they’ll vote, bear in mind that your appeal just might get decided by three out-of-town strangers. Realize that what you thought might be a leisurely appeal in a backlogged local appellate court might turn into a sprint in a “rocket docket” court somewhere else. And when you budget for a walk down the street to the local courthouse, consider the possibility that you’ll end up flying across the state to get an oral argument this year instead of next.