"Texas Democrats’ biggest win on election night may have been the courts" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
It wasn’t Beto O’Rourke.
But in the sleepiest branch of government — the judiciary — Texas Democrats cleaned up on Election Day, flipping the four influential state appeals courts that serve Austin, Houston and Dallas. Democrats now hold majorities on seven of the state’s 14 appeals courts. Before Tuesday, they held seats on just three.
On a night of close margins and purple counties Texas’ minority party hailed as moral victories, these were major wins. The sweep has thrown off the balance of the state’s judiciary, which before Tuesday was the best example of Texas Republican hegemony. And it has teed up an ideological tension between newly Democratic courts of appeals and the state’s all-Republican high courts.
“This is a big, big, big win for us in Texas,” said Gilberto Hinojosa, chair of the Texas Democratic Party. “It’s one of the significant waves that we had.”
State appeals courts sit between Texas’ scores of trial courts and its two high courts. They are intermediate courts — meaning their papers get graded by the state’s two high courts, the Texas Supreme Court and the Texas Court of Criminal Appeals, which remain fully in Republican hands.
But the appeals courts hear thousands of cases — the Dallas-based 5th Court of Appeals, for example, handled some 1,800 cases during the last fiscal year — while the Supreme Court takes up about 100 cases.
The new justices will generate far more decisions than the state’s two high courts can overturn, even if they want to. And the state’s urban-based courts are — unofficially — considered more influential than its smaller, rural courts, practitioners said.
All judges are bound by the tight restrictions of the law, but the cases that come before them often fall into gray areas, and there is sometimes room for ideology in the interstices. Appellate practitioners across the state said that Democratic judges tend to be more sympathetic to criminal defendants, and defer more to jury verdicts, like in cases where victims are awarded top dollar after being harmed by large corporations. Republican judges in Texas, meanwhile, are sometimes criticized as overly friendly to business.
“Most of the Texas appellate courts, including the Dallas Court of Appeals, had developed a reputation as somewhat pro-business, pro-defendant forums — reliably in favor of large corporate defendants,” said Chris Kratovil, an appellate lawyer in Dallas who often practices before state appellate courts. “That will no longer be the case. … I think it will cut a little bit against Texas’ pro-business, open-for-business reputation.”
Kratovil said he also anticipates “a little bit of a swing in the pendulum for criminal defendants.”
Most of the state’s new sweep of Democratic judges rode in on O’Rourke’s coattails. The courts that flipped are centered in the state’s urban, liberal areas, but their sprawling districts include neighboring counties whose suburban and rural voters have in recent years delivered wins to Republicans. To win, Democrats needed to boost their victories in the cities and narrow their margins in neighboring suburban and rural counties.
O’Rourke helped deliver just that, particularly in the Dallas area, where a slate of Republicans lost their bids for Texas House. A court that has not elected a Democrat since 1992 took on a Democratic majority, including a Democrat as its chief justice.
Ken Molberg, a longtime North Texas judge and former Dallas County Democratic Party chair, was one of this week’s victors. In 2014, in a run for the same court, he came about 70,000 votes short. This year, he won by more than 80,000.
“I’m very excited, of course. It’s something I worked very hard for,” said Molberg, who also acknowledged the power of the “Beto factor.” “You’re going to have to watch for more diverse views of opinion on that court. You saw very little in the last many years.”
Before Tuesday, Democrats were also shut out entirely of the two appeals courts that serve Houston, the state’s biggest and most diverse city. Democrats have now picked up majorities on both those courts.
“The diversity of ideology of opinion on the courts will become greater, and that will lead to more decisions that are more balanced, more fair and represent the people of Texas,” said Meagan Hassan, a Democrat who won a seat on the 14th Court of Appeals.
Democrats won all but one contested appeals court judge race this year, toppling 19 Republican incumbent judges. Years of experience have been lost, lawyers said.
“There may be a learning curve,” said David Coale, an appellate lawyer based in Dallas.
In the weeks before the courts change hands, incumbent Republicans are scrambling to finish up the cases already pending before them, particularly those for which they have already had oral argument.
Pending before the Austin-based 3rd Court of Appeals is a high-profile case over the capital city’s new paid sick leave ordinance. In August, the court temporarily blocked the local measure from taking effect; last month, lawyers for the city asked the court to allow the ordinance to go into effect.
Two of the three judges hearing that case were unseated Tuesday night, setting off something of a lame duck session during which they’ll work overtime to get cases resolved.
“There will be a push here before the end of the year,” said Justice Scott Field, who was unseated Tuesday by Democrat Chari Kelly. “If anything was argued, it has to be decided … Those cases which are kind of our bigger, more interesting cases, they really need to be pushed out the door by Dec. 31.”