by Nicholas Bruno, Beck Redden LLP
During the 2018 elections, several then-candidates for the Courts of Appeals promised greater “diversity of thought” if more ideological diversity existed on the Courts of Appeals. After the election, five new justices took seats on the First Court of Appeals and five new justices took seats on the Fourteenth Court of Appeals. Some speculated that the election results would lead to greater frequency of separate opinions on those Courts.
But, after nearly six months of the ten new appellate justices’ service on the Courts of Appeals in Houston, does the data show that there are more separate opinions from those Courts?
The short answer is that—at this point—the answer seems no. The number of dissenting opinions has not increased. It also appears that the types of opinions in which dissents have been recorded have not changed. The results are consistent across both the First and Fourteenth Courts of Appeals.
Of course, appellate decision-making, by its nature, is a slow process. It is too soon to draw any definite conclusions on the new justices’ willingness to write separately. But we can identify some preliminary trends at this point.
For purposes of this article, I searched the TAMES database for all opinions released by the First and Fourteenth Court of Appeals from January 1, 2019 to May 31, 2019 that contained a dissenting opinion. I compared those results to the same search from those same dates in 2018.
| Number of Dissents in the First Court | Number of Dissents in the Fourteenth Court | |
| January 1, 2018-May 31, 2018 | 7 | 10 |
| January 1, 2019-May 31, 2019 | 7 | 7 |
Similarly, the types of cases in which dissents were entered have not changed:
- Many cases involve parental rights. In 2018, two cases with dissents involved parental rights in the First Court; in 2019, that number is three. Similar numbers hold true in the Fourteenth Court (one in 2018 and two in 2019).
- Relatively few were related to criminal justice. In 2018, two cases with dissents were in the criminal context in the First Court; in 2019, that number was also two. Similar numbers (three in 2018 and three in 2019) hold true in the Fourteenth Court.
- The remaining cases mainly involved various civil issues.
At this early stage in the new justices’ service, time of service is no correlation between to the likelihood a justice will write a dissent. Several justices have written separately in 2019. In the Fourteenth Court, five different justices (Frost, Christopher, Bourliot, Hassan, and Spain) have each written at least one dissent. In the First Court, three justices have (Keyes, Lloyd, and Landau).
Nor has the Court released fewer opinions with the transition inherent in the turnover of a significant number of justices. The number of opinions released by each Court has been roughly the same.
| Number of Opinions in the First Court | Number of Opinions in the Fourteenth Court | |
| January 1, 2018-May 31, 2018 | 393 | 424 |
| January 1, 2019-May 31, 2019 | 391 | 421 |
It is possible that these numbers will change as time goes on. Each Court’s term ends in August, leaving the possibility that more controversial decisions and dissenting opinions will be released later in the term.
Additionally, the number of dissents may not be the best measure of “diversity of thought.” Judges often negotiate in conference before opinions are released. Although the number of dissents may not have increased, this diversity of thought may have impacted the opinions released by the Courts in other ways.
In short, at least up to this point, the First and Fourteenth Courts of Appeals have not released more dissenting opinions since the 2018 midterm elections. Whether this trend remains true remains to be seen.
Appendix
Below is a list of cases in which a dissenting opinion has been issued.
I. 2018 First Court of Appeals Decisions with a Dissent.
(1) TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176 (Tex. App.—Houston [1st Dist.] 2018, pet. filed).
(2) Holcomb v. Waller Cty., 546 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
(3) In Interest of B.D.A., 546 S.W.3d 346 (Tex. App.—Houston [1st Dist.] 2018, pet. filed).
(4) Milton v. State, 546 S.W.3d 330 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (dissent from denial of en banc reconsideration).
(5) Werthwein v. Workman, 546 S.W.3d 749 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
(6) Gims v. State, No. 01-14-00279-CR, 2018 WL 1109029, at *1 (Tex. App.—Houston [1st Dist.] Mar. 1, 2018, pet. ref’d).
(7) Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d 256 (Tex. App.—Houston [1st Dist.] 2018, pet. dism’d).
II. 2019 First Court of Appeals Decisions with a Dissent.
(1) Interest of K.D.B., No. 01-18-00840-CV, 2019 WL 1119404, at *1 (Tex. App.—Houston [1st Dist.] Mar. 12, 2019, no pet.).
(2) Interest of J. G. S., 574 S.W.3d 101 (Tex. App.—Houston [1st Dist.] 2019, no pet. h.).
(3) Interest of R.J., No. 01-18-00729-CV, 2019 WL 2656124 (Tex. App.—Houston [1st Dist.] Feb. 5, 2019, no pet.).
(4) Matter of A.M., No. 01-18-00017-CV, 2019 WL 2180444 (Tex. App.—Houston [1st Dist.] May 21, 2019, no pet. h.).
(5) Texas Educ. Agency v. H.C.V., No. 01-17-00210-CV, 2019 WL 965596 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019, no pet.).
(6) Cadence Bank v. Elizondo, No. 01-17-00886-CV, 2019 WL 2137187 (Tex. App.—Houston [1st Dist.] May 16, 2019, no pet. h.).
(7) In re Alief Vietnamese All. Church, No. 01-18-00127-CV, 2019 WL 1915659 (Tex. App.—Houston [1st Dist.] Apr. 30, 2019, no pet. h.).
III. 2018 Fourteenth Court of Appeals Decisions with a Dissent.
(1) O.C.T.G., L.L.P. v. Laguna Tubular Products Corp., 557 S.W.3d 175 (Tex. App.—Houston [14th Dist.] 2018, pet. granted, judgt. vacated, and remanded by agreement).
(2) Texas Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561 S.W.3d 263 (Tex. App.—Houston [14th Dist.] 2018, pet. filed).
(3) In re Minix, 543 S.W.3d 446 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
(4) Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523 (Tex. App.—Houston [14th Dist.] 2018), supplemented, No. 14-16-00036-CV, 2018 WL 2106599 (Tex. App.—Houston [14th Dist.] May 8, 2018, pet. filed).
(5) Berkel & Co. Contractors, Inc. v. Lee, 543 S.W.3d 288 (Tex. App.—Houston [14th Dist.] 2018, pet. filed), reh’g granted in part (Jan. 23, 2018).
(6) In Interest of F.E.N., 542 S.W.3d 752 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
(7) Belle v. State, 543 S.W.3d 871 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
(8) Arthur v. State, 542 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
(9) Dailing v. State, 546 S.W.3d 438 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
(10) Abdullatif v. Choudhri, 561 S.W.3d 590 (Tex. App.—Houston [14th Dist.] 2018, pet. filed), reh’g denied (Dec. 6, 2018), as supplemented on denial of reh’g (Dec. 6, 2018).
IV. 2019 Fourteenth Court of Appeals Decisions with a Dissent.
(1) Scott v. State, 572 S.W.3d 755 (Tex. App.—Houston [14th Dist.] 2019, no pet. h.).
(2) Walker v. State, No. 14-18-00601-CR, 2019 WL 1031428, at *1 (Tex. App.—Houston [14th Dist.] Mar. 5, 2019, no pet.) (dissent to denial of motion to abate).
(3) Moliere v. State, No. 14-17-00594-CR (Tex. App.—Houston [14th Dist.] May 16, 2019, pet. filed) (dissent from denial of en banc reconsideration).
(4) Interest of L.N.C, 573 S.W.3d 309 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
(5) Interest of D.Z., No. 14-17-00938-CV, 2019 WL 2135135 (Tex. App.—Houston [14th Dist.] May 16, 2019, no pet. h.).
(6) In re Hightower, No. 14-19-00047-CV, 2019 WL 1770094 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019, no pet. h.).
(7) Fort Bend Cty. v. Norsworthy, No. 14-17-00520-CV, 2019 WL 1291526 (Tex. App.—Houston [14th Dist.] Mar. 21, 2019, pet. filed).
(8) Abraham v. Victory Apartments, No. 14-17-00814-CV, 2019 WL 2078070 (Tex. App.—Houston [14th Dist.] May 9, 2019, no pet. h.).