Texas Lands on Judicial Hellholes Watch List

Smart-minded reforms passed by the Texas Legislature over the past two decades have fought against frivolous lawsuits, abusive legal practices, and unreasonable damage awards, contributing to a business climate that continues to create new jobs in our state. What’s more, landmark Texas medical liability reforms have helped result in more physicians practicing in underserved areas.

But a not-so-rosy picture is emerging in other areas. Each year the American Tort Reform Foundation publishes its Judicial Hellholes, a report highlighting the most egregious abuses in the civil justice system across the U.S. Thanks to the Texas Court of Appeals for the Fifth District, Texas once again finds itself on the report’s Watch List.

The latest Judicial Hellholes report sends a warning signal, one that should remind us that a vigilant defense against lawsuit abuse is a year-round and ongoing priority for voters, legislators and our justice system.

The Dallas-based Court of Appeals for the Fifth District lands on this year’s Watch List for repeatedly misapplying established U.S. Supreme Court and state precedents and procedures, requiring review and reversal by the Texas Supreme Court.

During the first six months of 2022, the Texas Supreme Court unanimously overturned five Fifth Court decisions. Clearly, our system allows for appeals and reviews of lower court verdicts, but the extent to which the higher court has rejected the Fifth Court should raise eyebrows.

As one of 14 appellate courts in Texas, the Fifth Court has jurisdiction over state trial court decisions in Dallas, Collin, Grayson, Hunt, Rockwall, and Kaufman counties.

Composed of an elected chief justice and 12 justices, who serve six-year terms, this court is a reminder that good judges matter and that elections have consequences.

From questionable discovery rulings to the Fifth Court’s finding jurisdiction for a company that doesn’t even exist, this Watch List designation is sadly well-deserved.

Abuses of the discovery system littered the Fifth Court’s docket in the past year. In October 2021, the Texas Supreme Court unanimously ordered the Fifth Court to vacate or cancel its order requiring a deposition in an American Airlines case. Texas’ high court applied a rule that prevents plaintiffs’ lawyers from abusing the discovery system by subjecting business defendants to depositions unless they have “unique or superior knowledge” of the relevant facts.

The Fifth Court complied with the high court’s order in the American Airlines case, but it refused to recognize the rule in subsequent appeals. Simply put, the Fifth Court didn’t learn from its past mistakes or chose to ignore making them.

The Fifth Court also allowed a plaintiff’s attempt to compel a healthcare provider to provide copies of its policies and procedures at an early stage in the litigation, a move not provided for by the Texas Medical Liability Act. Once again, the Texas Supreme Court unanimously overruled the Fifth Court.

Another head-scratcher was the Fifth Court’s decision in July that upheld a judgment in a case in which the plaintiff company didn’t even formally exist. The plaintiff was neither registered with the state nor had any formal business records in the state.

To some, making such legal mistakes that are overturned may not seem like a big deal, but it is. A court that is known for questionable decisions or that fails to apply the law in a fair and even-handed manner, is cause for concern. These types of mistakes can have a significant and serious impact on our system of civil justice, and damaging that system can undermine our economy, cost Texas jobs and hurt consumers.

We’ve worked hard to promote a civil justice system in Texas that is fair and just. As the Fifth Court and its Watch List designation indicates, Texas can’t rest on past success. Voters and our state lawmakers should keep a watchful eye on abuses in our civil justice system.

Roger Borgelt is an attorney and chairman of the board of Citizens Against Lawsuit Abuse of Central Texas.