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"If it ain't broke . . ."

Ralph Waldo Emerson once wrote, “Common sense is genius dressed in its working clothes.” Those of us who grew up in rural areas, towns, or small cities are accustomed to folk wisdom or common sayings that prove the truth of Emerson’s thought. One such saying is, “If it ain’t broke, don’t fix it.” Pretty simple, yet profound.

Every other year the Texas Legislature meets. Sometimes for better and sometimes for worse. This session there is much needed to be done given the pandemic, storms, the extended freeze and infrastructure. Unfortunately, there are always efforts to do that which should not or need not be done. A good example of the latter is Senate Bill 11 which proposes to restructure Texas’ intermediate Courts of Appeal. I have always viewed the Texas Judiciary as a non-partisan issue and still do. Measures that are unwise or unnecessary are neither Republican nor Democrat. They are simply unwise or unnecessary.

The attached map shows that the net effect of the proposed reorganization is to consolidate appellate judicial review in the larger cities by eliminating approximately half of the existing Courts and combining them with larger areas.

While this is presented as “combining” as opposed to “eliminating”, the net effect is to deprive voters (who elect Judges in Texas) in rural areas, towns, and small cities of a meaningful voice. This has been proven when several West Texas counties were moved from the El Paso Court of Appeals to the Eastland Court of Appeals. Prior to the move, candidates outside El Paso could not get elected. Since the move, the electorate has sent Justices to the Eastland Court from rural areas and smaller cities such as Midland and Odessa. This allowed an electorate tied to an important industry to elect Judges with greater expertise in the law governing such industries.

The proposed legislation would consolidate some Eastland Court counties to Fort Worth (a very large voting bloc) and the remainder to El Paso (which has proved in the past a hurdle that couldn’t be jumped).

Why does this matter? The larger the area covered, the less the electorate in rural areas will be in a position to have a meaningful voice. This is important to industries in these areas, such as Agriculture or Energy, and important to the sensibilities of the communities the Courts serve.

The most compelling argument against the change, however, is that there is no compelling argument for the change. The Courts in Texas have continued to function, even in the face of the crisis resulting from the pandemic. It is not surprising that Texas has more intermediate appellate courts than any other state, it is a big and diverse state. Texas has always fared better when policy makers recognize that one size does not fit all in a state this large and this diverse – both in terms of population and in terms of critical industries.

Some counties will be affected by the proposed legislation more than others. The panhandle and much of the South Plains will see no change… for now. That said, folks living in that part of the world will see the common sense of not attempting a fix where nothing is broken.

I urge you to contact your State Senators and Representatives voicing your opposition to proposed Senate Bill 11.

Harper Estes is a lawyer in Midland, Texas and Former President of the State Bar of Texas. The views expressed in this column are the views of Harper Estes and do not express the opinions of the State Bar of Texas or any other person or organization.

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