As courthouses in Texas’ urban centers trended blue over the course of several election cycles, state GOP leaders embarked on an expensive effort to reclaim power through reconsidering the qualifications for judges, high-dollar judicial races and new courts that will take certain cases off locally elected judges’ plates.
Over the past six months, the results are slowly starting to come into focus.
Just blocks away from the Bexar County Courthouse — where Democrats flipped the last remaining Republican-held district court judgeships in 2022 — some cases that previously would have been handled by those elected judges are now being diverted to a new business court with judges appointed by GOP Gov. Greg Abbott.
The state’s GOP-led legislature put a division of the business court in each of the state’s five largest urban centers last September. They’re intended to take over complex, multimillion-dollar business cases that can take years to sort out in a court system dealing with all kinds of other cases.
In a building off North St. Mary’s Street in downtown San Antonio, a hearing room and office space are being built out at the state’s expense for the court’s two judges, two staff attorneys and two court managers.
Their temporary accommodations are on a vacant floor, where Judge Marialyn Barnard’s robe hangs on the wall from a thumbtack. Stationed in the office next door, Judge Stacy Rogers Sharp said she’s grateful they’re working so closely while navigating this new venture.
Of the 90 cases the business court system has received statewide so far, most have been in Dallas and Houston — two metroplexes that lead the nation in the number of Fortune 500 companies headquartered there.
The 4th Business Court Division in San Antonio has received just four cases, two of which were sent back to the district courts by Barnard and Sharp.
While the court’s judges are in still a self-proclaimed “startup” mode, their new role is part of a decades-long effort to make the state’s judiciary more friendly to business, with more plans already underway to expand their jurisdiction this legislative session.
And despite great pains taken to ensure they receive a positive reception, the move to appointed judges in a state that’s always elected them has set off plenty of alarm about potential political ramifications to come.
“We did this on purpose. We’re fully cognizant of the fact that the next governor could be a governor from the from a different party, with a completely different perspective,” said Lee Parsely, president of the Texans for Lawsuit Reform, which pushed the business court legislation, along with many other changes to make the state’s legal landscape over the years.
“We are convinced that governors in Texas historically have wanted to appoint good judges, and we’re willing to take the chance that the next governor, whomever he or she is, is going to want a good judiciary and they’re going to want highly qualified people on the business court.”
Shifting the political landscape
The change comes as state district court judgeships, which once bounced back and forth between Republicans and Democrats in Bexar County, have been dominated by Democrats in recent years.
An exciting U.S. Senate race in 2018 fueled a banner year for down-ballot candidates in Texas’ urban centers, unseating nine of Bexar County’s Republican state district judges. Democrats would complete the sweep four years later, and no GOP candidates would even bother running in 2024.
Against the backdrop of the 2018 losses, leaders at the state capitol started openly wondering whether electing judges on a partisan basis was still good idea.
The 2019 legislative session called for a task force to reconsider the way local and regional judges are chosen, including potential new qualifications and assessing “the relative merits of alternative methods for selecting a judicial officer.”
Two years later, the new business court was created — with judges that will forever be appointed by the governor, as opposed to those elected by voters.
“Historically, Texans have elected their judges. As a result, judges in Texas have always been representative of the people they serve,” said Monique Diaz, a civil district court judge in Bexar County who was elected in the Democratic wave of 2018. “What’s interesting to me is that all of a sudden there is a need for a specialized court to be handled by judges that are appointed, when that’s something that our civil district court judges have been handling for a very long time with no concern.”
Also born from the same legislation that year was a new statewide appeals court, which has three inaugural justices appointed by Abbott. Those positions will eventually be elected on a statewide basis, starting in 2026, and take cases that previously went to the regional appeals courts.
While the new 15th Court of Appeals has received far less attention than the new business court, experts on both sides of the aisle say it has perhaps much greater potential to become a political lightning rod.
In addition to hearing challenges to the business court’s rulings, it will also hear other cases with “statewide significance,” including those brought by and against state officials and state agencies, as well as cases challenging state statutes.
Examples of the court’s cases could include matters of school finance — something school districts have historically found a sympathetic ear for in regional courts — as well an appeal of a Democratic district judge’s ruling against the “Death Star” bill, a judgment the bill’s author has already said “is not worth the paper it’s printed on” thanks to Texas’ GOP-dominated high courts.
“It seems very clear that the Republican legislature did not like the results of Democrats who’ve been elected to the courts of appeals, so they decided to change the playing field,” said Dallas County Commissioner Andy Sommerman, a Democratic attorney who already challenged the new court’s authority and lost.
While proponents of the new appeals court say it makes sense to take statewide cases to court with justices who are elected statewide, Sommerman said it’s not hard to imagine the potential conflicts of interest that might arise before that occurs.
“The 15th Court of Appeals was basically created by the governor’s office… and it involves litigation involving the state,” he said. “So if you are suing Gov. Abbott in his official capacity, you’ll be going through the 15th Court of Appeals, with the judges he appointed.”
The merits of a business court
Despite those concerns, Texas lawmakers’ desire to remain a top destination for business has helped pave the way for a seismic shift in the state’s court system that hasn’t been seen since it was formalized more than a century ago.
At the heart of the argument behind Texas House Bill 19 was the idea that companies need clarity fast when it comes to costly business disputes — and other states are benefitting greatly by finding ways to give it to them.
Not only do the business courts allow a company to take their case to a judge with a background in that specific field of law, they also produce written judgements that other Texas businesses can reference back to in the future.
HB 19 sailed through the Republican-controlled legislature in 2023 with even some Democrats on board — creating the state’s first new courts since 1891.
“One of the big reasons to do this is to establish a body of case law that can be relied upon by Texas businesses in their transactions,” said Julia Mann, managing partner of Jackson Walker LLP’s San Antonio office, who has advised corporate counsels on how to use Texas’ new court.
“That’s what Delaware did… and because they’ve done it for such a long time, there’s just a huge body of law in Delaware around some of these more sophisticated disputes,” Mann said. “That’s why you see a lot of times, if it’s possible, parties will select Delaware law to control their agreement.”
In a nod to that idea, entrepreneur Elon Musk, whose Tesla company is headquartered in Austin, has already signaled plans to move more of his businesses to Texas because of the state’s increasingly friendly judicial landscape.
Last election cycle Musk and other business leaders also gave generously to Texans for Lawsuit Reform, which helped fuel some particularly well-funded Republican judicial campaigns.
In the midst of an overall wave election for Republicans last November, those campaigns ultimately turned the political tide in many of the state’s Democrat-controlled appeals courts.
The San Antonio-based 4th Court of Appeals, for example, went from one elected Republican to a Republican majority.
“Ironically, [Republicans are] trying to basically change the playing field from blue to red, but in the end, these [appeals court] seats are changing back to red anyway,” Sommerman said.
‘A special kind of judge’
The new Texas Business Court 4th Division serves 22 counties spanning from Eagle Pass to Port Aransas, but is located in Bexar County, where district judges are stretched thin from a court system that hasn’t kept up with population growth, and court space is already a commodity.
Abbott named two inaugural business court judges who are deeply respected among local attorneys and have so far faced little pushback from fellow judges as cases move over to their court.
Barnard has a background in forensic litigation, was elected as a Republican to the 4th Court of Appeals, and appointed to the Bexar County Commissioners Court by a Democratic county judge in 2022.
Sharp was a popular legal writing professor at the University of Texas School of Law, ran her own private practice in San Antonio and was elected twice to Alamo Heights ISD’s school board — roles she gave up to accept the governor’s appointment.
At an investiture ceremony for Barnard and Sharp earlier this month, judges from both parties packed the Double Height Courtroom to wish them well in their new roles.
“[Barnard] called me and said the governor’s office was asking her to consider getting appointed to this whole new court… and she asked me what I think about it,” said U.S. District Court Judge Orlando Garcia, a Democrat who hired Barnard at her first law job.
“I said, ‘What’s to think about? When the governor of Texas calls you and wants to offer you a judgeship, there’s really not much to think about, you take it.’”
Barnard, who was most recently appointed to a vacancy in the 73rd District Court, said business cases often get put on the back-burner in a court system that’s dealing with everything from family matters to foreclosures.
But so far very few cases in Bexar County have qualified for the new business court’s narrow parameters and $5 million threshold. Some types of cases face an even higher bar of $10 million at stake.
Nevertheless, the judges have kept busy helping with cases in busier divisions, and standing up an office that already appears poised for growth.
“This is just like a brand new startup company that has to start from scratch,” Barnard said. “Every day is a new adventure.”
As more companies learn about the court, she said, some are starting to write it into their contracts as the venue for future disputes, as opposed to arbitration.
Work is also underway on legislation that could expand the court’s jurisdiction to include banking and insurance issues, according to Parsley, as well as a plan to lengthen the judges’ two-year terms and raise their pay, which is currently set at the same rate as district court judges: $140,000 per year.
It’s a humble start for a court that’s expected to revolutionize the way businesses is done in Texas, but one that has managed to ruffle relatively few feathers so far in a blue county.
“When you create a new kind of court that our state has never seen before, and people wonder, ‘Why do we need that court?’ You have to make it successful,” Texas Supreme Court Justice Evan Young told the San Antonio Report.
“The way you make it successful is by choosing a special kind of judge who will do such a wonderful job… do it with humility and respect for the lawyers and the parties before them, [that they’ll] win the confidence of everybody,” he said.
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