I. Introduction

Predictability in the law is the heart and soul of a rule-of-law system. Yet, in parts of Texas it can be impossible to achieve because of an odd feature of the state’s court structure: coterminous or shared-jurisdiction districts. In some places—like the Houston area—two intermediate courts of appeals share judicial power within the same multi-county region. When these shared-jurisdiction courts come down on different sides of a legal issue, people and trial courts in the affected districts ostensibly must obey two different, equally binding rules. In these split-of-authority cases, Texans lose the valuable benefits of stare decisis. The loss makes the law less predictable and the delivery of justice more challenging. Implemented decades ago, the shared-jurisdiction model is growing increasingly unworkable. But there is good news for Texas: A simple fix and greater rule-of-law benefits lie within easy reach.

II. Predictability in the Law: The Goal and the Reward of Stare Decisis

Lawyers, judges, and legal scholars point to predictability in the law as the stabilizing force in our rule-of-law system, the essential quality that enables us to form fair expectations so that we can plan our actions and manage our affairs.[1] Our drive to attain predictability in the law springs from principles of stare decisis,[2] the foundational doctrine that forms the framework of a rule-of-law system. At its core, stare decisis recognizes that for courts to deliver justice even-handedly, they must decide like cases alike. The doctrine promises that if courts apply legal rules consistently, legal outcomes will be predictable. That makes predictability both the goal and the reward of stare decisis.

Grasping the connection between stare decisis and predictability in the law is the key to understanding how the absence of stare decisis leads to the loss of predictability and, conversely, how obedience to stare decisis produces predictability in the law.[3] The two move together like ice dancing partners. When stare decisis pushes forward, predictability glides elegantly behind. And, when stare decisis falls, predictability goes with it.

Without the steadying effect of stare decisis, we could not form legitimate expectations about what courts will do.[4] Knowing the likelihood of outcomes helps us plan, allocate resources, manage risks,[5] and shape our conduct to meet societal expectations.[6] Because law reflects those expectations, predictability is both the root and the fruit of a rule-of-law system.[7]

Despite the high value we place on predictability in the law,[8] in some Texas court-of-appeals districts we lack a means to attain it. The state’s coterminous-jurisdiction court structure forces some of the state’s intermediate courts of appeals to share judicial power. In these places, the law of the jurisdiction does not command a single outcome, and that destroys the benefits of vertical stare decisis. The state’s coterminous-jurisdiction courts—like the two in Houston—regularly create conflicts in the law within the overlapping districts. The conflicts make the law unpredictable where the two courts disagree.

III. The Origin of Unpredictability in the Houston Courts of Appeals

Texas’s First Court of Appeals and Fourteenth Court of Appeals, both based in Houston, serve one of the country’s largest population centers.[9] Though the two courts often agree, at times they part ways, sometimes on topics of great importance.[10] The resulting splits in authority have led to disparate appellate outcomes across a wide array of fields and subjects.

Figure 1

A. Clashes in the Jurisprudence

The First and the Fourteenth have disagreed on the interpretation of statutes,[11] rules of evidence,[12] rules of civil procedure,[13] and rules of appellate procedure.[14] They have clashed on legal standards,[15] burdens of proof,[16] and on the existence of claims.[17] They have conflicted on the availability of appeals in civil contexts[18] and in criminal contexts.[19] They have differed on the scope of and prerequisites for appeal[20] and on what is necessary to assign error for purposes of appeal.[21] They have divided over the proper treatment of summary judgment grounds,[22] the appropriateness of remedies,[23] and the proper disposition of appellate points.[24] They have parted ways on various matters of jurisdiction in both civil cases[25] and criminal cases.[26] They have diverged on the availability of substantive relief[27] and on various matters of waiver,[28] what constitutes official mistake,[29] the scope of a trial court’s plenary power,[30] and even sufficiency of the evidence.[31]

In criminal cases, the Houston sister courts have disagreed on whether the accused can waive certain rights,[32] on the elements of an offense,[33] on the validity of warrants,[34] on the availability of habeas corpus relief,[35] and on sentencing.[36] And, they have split on the applicability of legal theories and the admissibility of evidence in a criminal trial.[37]

On the civil side, they have created even more conflicts. The two courts have clashed on what is required to toll limitations[38] and to trigger an election of remedies.[39] They have disagreed on the availability of damages,[40] attorney’s fees,[41] and sanctions.[42] They have parted ways on matters of governmental immunity[43] and the enforceability of releases for personal injury.[44] And even when the courts agree on the result, they sometimes differ substantially in their analysis.[45]

B. Judicial Decision-Making in Coterminous-Jurisdiction Courts

Judges in the affected districts occasionally use appellate writings to lament the effect of judicial decisions that create or prolong a split of authority between the two sister courts[46] and to implore the state’s high courts to resolve the conflicts.[47] Likewise, from time to time, members of the state’s high courts mention in their opinions or in separate writings the disparate outcomes in the Houston sister courts.[48] Though these judicial writings might suggest that judges in coterminous-jurisdiction courts seek to avoid creating or prolonging conflicts between the courts in the shared region, the Author’s research shows that judges almost always choose a rule of law or procedure they perceive to be a better option rather than adopt the rule that would achieve alignment with the sister court and thus promote predictability in the law within the shared jurisdiction.[49]

Even when faced with the chance to unite around a single rule, both Houston sister courts, on occasion, instead have opted to stand by existing precedent, which meant the conflict would continue.[50] On a few occasions, one court sitting en banc to revisit existing precedent in split-of-authority cases has elected to adopt the other court’s rule, thus eliminating a conflict in the shared jurisdiction.[51] But, on the whole, the decisions show that the conflicts in the two courts’ case law only increase with the passage of time.[52]

It is not that the judges on coterminous-jurisdiction courts lack an appreciation for predictability in the law. They know the value of it;[53] they simply face a hard choice.[54] In cases in which they are not bound by precedent, appellate judges find themselves torn between a desire to promote predictability on one hand and a longing to choose what they believe to be the better legal or procedural rule on the other. They tend to place a higher priority on choosing what they consider to be the “best rule.”[55]

In cases in which the state’s high courts have yet to set precedent, courts that do not share jurisdiction can choose what they believe to be the soundest or most efficient rule without fear that they will be creating a split of authority within their own jurisdiction. But their counterparts in coterminous-jurisdiction courts face this ugly choice on a regular basis. If judges on coterminous-jurisdiction courts choose what they consider to be the soundest or most efficient rule and the other court in the shared jurisdiction has gone another way, they will destroy vertical stare decisis within the shared jurisdiction. The loss produces a slew of unwelcome consequences.

C. Disappearing Vertical Stare Decisis

The law of precedents presumes vertical stare decisis—“that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction.”[56] Yet, vertical stare decisis disappears when the law does not command a single result. And, when vertical stare decisis goes, predictability in the law goes with it. That is the problem with coterminous jurisdiction.

IV. The Unintended Consequences of Coterminous Jurisdiction

Identical in jurisdiction, equal in authority, and matching in size, Texas’s First and Fourteenth Courts of Appeals serve the same citizens from the same courthouse.[57] Yet, as shown by the many splits of authority between the two courts, these two separate bodies operate independently, sometimes at cross-purposes. Today, each court has a chief justice and eight associate justices.[58] In cases in which there has been no prior appeal, appeals from the ten counties in the shared jurisdiction fall by random assignment into either the First or the Fourteenth.[59] When the two courts disagree on the law, the conflict often goes unresolved. Over time, the number of conflicts has grown. The resulting splits in the region’s jurisprudence are becoming increasingly problematic, and we lack any real means to settle all conflicts.

A. Conflicts: Easy to Create, Hard to Resolve

Until recently, the existence of conflicting precedent from Texas’s courts of appeals gave litigants an express ground for appellate jurisdiction in the Supreme Court of Texas. In 2017, the Texas Legislature amended section 22.001 of the Texas Government Code to remove this and all but one other ground for the high court’s jurisdiction. Today, the sole basis for supreme court jurisdiction is a case the high court deems “important to the jurisprudence of the state.”[60] Though the statute no longer contains an express grant of jurisdiction in cases in which courts of appeals disagree on a material question of law, the supreme court likely will view resolving splits in authority among the courts of appeals as falling within the new criterion. Under the Texas Rules of Appellate Procedure, splits in authority in a civil case between two or more intermediate courts of appeals remain a consideration that guides the supreme court’s exercise of its jurisdictional authority.[61] Still, the statutory change could mean that in the future even fewer conflicts will get resolved.

Unlike the Court of Criminal Appeals of Texas, which has the power to review a court-of-appeals decision in a criminal case on its own motion,[62] the Supreme Court of Texas may review an intermediate court’s decision in a civil case only if a party timely petitions for review.[63] When no party petitions for review in a split-of-authority case, the conflict goes unresolved, sometimes for many years.

Take, for example, the conflict between the First’s opinion in In re Moers[64] and the Fourteenth’s opinion in Hardin v. Hardin.[65] The contested issue[66] recurred frequently and for years the two courts applied different rules. In Moers, Hardin, and almost all of the ensuing cases addressing the issue, no party filed a petition for review in the supreme court, and for many years the high court had no opportunity to resolve this split between the two Houston courts.[67] Eventually, the unresolved conflict prompted the Fourteenth to reconsider the Moers-Hardin issue en banc. But, in a closely divided decision, the Fourteenth stood by its earlier holding in Hardin,[68] which meant that a split of authority would continue until the supreme court had both an opportunity and a willingness to resolve the conflict[69] or the Fourteenth changed its precedent through another en banc holding.

Cases that involve issues of jurisdiction or statutory interpretation pose special problems because the issues arise repeatedly. So, if the Houston sister courts fail to align on how a particular statute or rule should be construed and applied or whether the court of appeals has jurisdiction to consider a particular type of case, the problem can multiply quickly. At times, within a short period the two Houston courts have found themselves facing scads of cases with the same issue and resolving them differently.

One prime example lies in a conflict over sentencing that arose more than two decades ago. Three criminal defendants—Thompson,[70] Perry,[71] and Van Corsey[72]—were convicted of state jail felonies in unrelated proceedings. All three had two or more prior felony offenses, a factor that impacts sentencing under Texas law.[73] The issue in all three cases was whether the trial court had to place the defendant on community supervision or sentence the defendant under the habitual-felony-offender statute.[74] The trial court that sentenced Thompson and Perry refused to assess punishment under the habitual-offender statute.[75] A different trial court sentenced Van Corsey as a habitual offender.[76]

The state appealed in the Thompson and Perry cases, and the Fourteenth Court of Appeals consolidated the appeals.[77] Van Corsey appealed her conviction to the First Court of Appeals.[78] The issue in both courts turned on the interpretation of amended provisions to the Texas Penal Code and the Texas Code of Criminal Procedure.[79] The sister courts used different interpretive methodologies and arrived at different conclusions.[80] The defendants sentenced under the same law did not receive the same treatment.

The Fourteenth agreed with the State, reversed the trial courts in the Thompson and Perry cases, and held that punishment had to be assessed in accordance with the habitual-offender statute.[81] In reaching this holding, the Fourteenth noted that the First had reached the opposite result in an earlier case, State v. Mancuso,[82] decided only six months before. Relying on its decision in Mancuso,[83] the First affirmed Van Corsey’s conviction, holding that a trial court must “sentence a defendant convicted of a state jail felony under the terms of the mandatory community-supervision law rather than the terms of the habitual-offender law even though the defendant also [had] been convicted of two prior felony offenses.”[84] The First noted that the Fourteenth had “reached a contrary result in the companion cases.”[85]

The split in authority meant that unless the Court of Criminal Appeals resolved the conflict[86] or the two Houston courts came into alignment through en banc review in one of the courts, the region’s trial court judges making this sentencing decision would be incorrect in one appellate court no matter which way they ruled. Because the issue arose frequently, the split in authority rapidly spawned a number of other appeals.[87] As long as the issue went unresolved, trial court judges would be held right or wrong on criminal sentencing depending on which of the two appellate courts happened to draw the appeal, and neither the trial judge nor the criminal defendant would know at the time of sentencing which of the two statutory interpretations would apply.

More recently, the First and the Fourteenth went in opposite directions in deciding a court-costs-assessment issue.[88] As with the sentencing conflict, the court-costs conflict impacted many criminal appeals in the shared jurisdiction and quickly generated several opinions from both courts. Within a matter of months, the split in authority sparked multiple petitions for review.[89] The Court of Criminal Appeals granted review of the issue in two cases and resolved the conflict in a relatively short time,[90] but in the interim, the Houston sister courts issued dozens of opinions with opposite holdings.[91]

Figure 2

The multiplying effect in cases with frequently recurring issues increases processing expenses and causes delays. Worse, the unsettled law leaves trial courts and litigants confused on everyday issues. The disparity in treatment within a single region makes it especially difficult for governmental actors because they often have many cases with the same issue and sometimes find themselves in both courts on both sides of the divide.

Even when the outcomes are the same, the two courts sometimes differ in methodology and analysis, and these differences also cause problems. For instance, the two Houston courts adopted different statutory interpretations of an election-of-remedies provision contained in the part of the Texas Civil Practice and Remedies Code commonly known as the Texas Tort Claims Act.[92] The issue at the center of the controversy was how the statute operates when a plaintiff elects to sue both the governmental entity and its employee.[93] Intermediate courts across the state were at odds on how to construe the statute, but the pronounced differences in approach between the First and the Fourteenth prompted one legal commentator to conclude, “There is perhaps no greater divide among the courts of appeals than that which has developed between the sister courts in Houston.”[94]

The First, in City of Houston v. Esparza, held that when one part of the statute (section 101.106(e)) is triggered, another part (section 101.106(b)) does not apply.[95] A few weeks later, the Fourteenth, sitting en banc in Amadi v. City of Houston,[96] unanimously rejected Esparza’s core holding.[97] The City of Houston was a party in both cases. Though the cases involved the same fact patterns and legal issues and both courts rejected the City’s proffered statutory interpretation, the two courts failed to agree on the proper analytical framework and instead invoked what have been characterized as “remarkably different methodologies” to resolve the issue.[98]

Even though the two courts reached the same outcome, one commentator noted that “[t]he procedural implications and dilemmas presented by the decisions” were “vastly different.”[99] The same court observer concluded that the Fourteenth’s decision in Amadi favored the plaintiff and the First’s decision in Esparza potentially favored the government.[100] Regardless of the accuracy of this assessment, the disparity in the two courts’ holdings—even when the outcomes are the same[101]—underscores the significance of public perception in split-of-authority cases and the crucial need for uniformity in the law.[102]

B. Decisions That Divide

Many split-of-authority cases show the problems that emerge from conflicts in the case law of the Houston sister courts, but the most vivid illustrations are the ones that involved the same incident, the same evidence, or the same individual yet produced different outcomes.

1. Same Incident, Different Outcomes.

An often-cited example is a pair of cases that arose out of the same automobile accident, involved the same facts and the same legal issue, yet met different endings. The First Court of Appeals, in Reyes v. City of Houston, held that the City of Houston was not immune from suit brought by the families of three individuals whose vehicle ran off a dead-end road that had no barricade.[103] The Fourteenth Court of Appeals reached the opposite conclusion in Montes v. City of Houston,[104] the appeal from the suit brought by the surviving passenger in the same vehicle. The conflict went unresolved because the Supreme Court of Texas denied review in Montes, drawing a sharp rebuke from then-Justice (now Chief Justice) Nathan Hecht,[105] who, in a concurring opinion joined by Justice Priscilla Owen, recognized two facets of the same problem: the “unfairness to litigants in having the law depend on what court they happen to be in” and the injustice that results from actors not knowing which of two possible rules is the one to follow.[106] Both facets are present in every split-of-authority case.

2. Same Evidence, Different Outcomes.

The two Houston courts of appeals have reached opposite conclusions even when reviewing the same evidence. One notable example lies in a pair of motion-to-suppress cases that arose from the same search-and-seizure episode. The single seizure of drugs and repackaging materials spawned several prosecutions and convictions, with the appeals for a misdemeanor conviction for drug possession landing in the First Court of Appeals and the appeal of a felony conviction for delivery of dangerous drugs landing in the Fourteenth Court of Appeals.[107] The First Court considered whether the trial court should have suppressed evidence of the seized materials.[108] Concluding the seized items were in plain view, the First Court upheld the seizure.[109] When the Fourteenth Court adjudicated the appeal of the felony conviction, it reached the opposite result[110] reviewing the same evidence.[111]

3. Same Conduct by Same Individual, Different Outcomes.

Another split of authority in the same-facts context lies in two appeals involving the same individual involuntarily committed to a mental institution for temporary inpatient mental health services. In the first appeal, a divided panel of the Fourteenth Court concluded the evidence sufficed to support a finding that the individual had committed recent “overt acts” that showed a substantial deterioration of her ability to function independently.[112] A short time later, the same trial judge again ordered the same individual involuntarily committed under the same law, and she again appealed.[113] This time the appeal went to the First Court, where a unanimous panel, facing the same legal issue and applying the same law to the same individual, reached a different conclusion.[114]

In the two appeals, both styled G.H. v. State and handed down just two months apart, the central issue was whether an individual’s refusal to take medication was clear and convincing evidence of an overt act.[115] The Fourteenth found it was; the First found it was not, expressly declining to follow the Fourteenth’s holding.[116] As a result, the Fourteenth affirmed the first commitment order and the First reversed the second one, rendering judgment denying the State’s request to commit the individual for temporary mental health services.[117] The two orders of commitment were signed by the same trial judge for the same patient based on the same type of conduct.[118]

Had the State sought yet another commitment order, the trial judge would have been equally bound by the holdings in both cases and only could have guessed which rule would apply,[119] knowing that unless one of the courts adopted new precedent, either choice would be held wrong in one court.[120] The individual at the center of the controversy facing involuntary commitment to a mental institution would have been in no better position, nor would the adverse party or any counsel in the case. One former justice of the Supreme Court of Texas and a former member of both the First and the Fourteenth has described this type of dilemma as “practicing law on a guess and a gamble.”[121]

C. Guessing and Gambling: An Unappealing Option in a Rule-of-Law System

With few exceptions, neither the parties nor the trial judge has any way of knowing which of the two Houston sister courts of appeals will be reviewing the case until after the trial court rules.[122] Practitioners can advise their clients about the state of the law in each appellate court but not about which court will be hearing the client’s appeal. The members of both courts seem to realize that it behooves all concerned for the two courts to achieve alignment whenever feasible.[123] Yet, the law provides no mechanism at the court-of-appeals level to purge conflicts between these two appellate courts.[124]

En banc review can resolve conflicts within one court’s precedent, but it rarely resolves a conflict between the First and the Fourteenth.[125] Because the members of the First cannot sit en banc on the Fourteenth and vice versa,[126] en banc review is no answer to resolving conflicts between the two sister courts.[127]

D. Trapped in a “Disfavored” System

Though the Supreme Court of Texas took no action to resolve the Reyes-Montes conflict and for many years had no opportunity to resolve the conflict that led to the Moers-Hardin divide, the high court has taken notice of the unwanted consequences springing from overlaps in Texas appellate districts and has acknowledged the challenges of this “disfavored” system.[128] These concerns intensify when considering the possibility of disparate outcomes in the criminal-law context,[129] where a lack of uniformity has the potential for creating injustices that go beyond the mere loss of property or the inability to recover damages or attorney’s fees.

In recent years, lawmakers and courts have tried to deal with same-party disparate-treatment cases like the G.H. appeals through local rules for the assignment and transfer of related cases and original proceedings between the two Houston courts of appeals, as provided in the Texas Government Code.[130] But, the efficacy of this mechanism depends on the parties’ compliance with specific provisions requiring them to file statements indicating whether a related prior appeal or original proceeding has been filed in the First or Fourteenth or the respective courts identifying such cases sua sponte at a time when it is feasible to take action.[131] Though the two courts’ local rules have helped to some degree, as a practical matter, these measures have not fully solved the related-case disparate-treatment problem.

E. A Compelling Need for Predictability in the Law

In split-of-authority cases, the outcome of an appeal often will turn entirely on the appellate court to which the appeal is randomly assigned, yet parties and counsel have no meaningful way to evaluate their options. The trial judge faces the same predicament because there is no way to know which court’s precedent will be used to review the trial court’s rulings.[132] Under the doctrine of vertical stare decisis, the trial judge’s ruling will be held to be right or wrong based on which court of appeals ultimately reviews the case. If the trial judge makes the “wrong” choice and the court of appeals to which the case is assigned finds the error harmful, then the trial court’s decision will be reversed, and the case may be remanded for retrial.

The uncertainty undermines our ability to know what the law is and how courts will apply it. That makes it harder to forecast likely outcomes, to assess risks, and to make plans. Though some conflicts in the Houston courts’ case law get resolved, new ones develop at a faster pace. Bit by bit, the creeping uncertainty in what these coterminous-jurisdiction courts will do threatens the steadying force that gives life to the rule of law. When we can no longer form fair expectations, it is time to take notice for the vanishing expectations that, like distant sirens, warn of coming danger.

The ancient Latin legal maxim Ubi jus incertum, ibi jus nullum captures the core problem: “Where the law is uncertain, there is no law.”[133] Without intervention, we run the risk that over time the unpredictability in the law will erode public confidence in the fairness of our system. Now is the time to heed the sirens’ warning, to unpack the unpredictability problem, and to take a critical look at Texas’s coterminous-jurisdiction model.

Figure 3

V. The Texas Model: A Court Structure Born of Necessity, Not Design

For some of the state’s fourteen appellate districts, the overlapping of jurisdictions is partial.[134] For the First and Fourteenth, the geographic jurisdictions completely overlap,[135] as shown in the accompanying map.[136] This layering of one jurisdiction on top of the other means that two equal and independent courts share judicial power—a distinctive design not found in any other legal system known to exist in this country.[137]

Figure 4

The jurisdictional districts for the First Court and the Fourteenth Court consist of the same ten counties.[138] Because the two courts share jurisdiction, trial courts in this region are bound by the precedents of both appellate courts.[139] But neither appellate court is bound by the precedents of the other.[140] When the two courts come down on different sides of a legal issue, litigants, lawyers, and trial judges ostensibly must comply with two equally binding yet different (sometimes opposite) rules. Vertical stare decisis vanishes. In split-of-authority cases, litigants in like circumstances do not get like treatment.

Because the decisions of the two appellate courts do not command a single result, appellate outcomes in these cases usually turn on the luck of the draw—the random assignment of the appeal to one court or the other. So, in these districts, the law can be unpredictable in split-of-authority cases. The problem is not that appellate outcomes in the shared jurisdiction might not match those of other jurisdictions but that whenever the First and the Fourteenth disagree, they create a lack of uniformity—and hence a lack of predictability in the law—within their own, shared jurisdiction.[141]

The phenomenon, unique to Texas, arises from the state’s unusual court structure. The federal system has no overlapping geographic jurisdictions. Though the Texas court structure mirrors the federal design in many respects, Texas’s coterminous-jurisdiction feature makes it a one-of-a-kind model.[142] This single mutation in the state’s court structure, dating to the 1930s,[143] fundamentally changes how the system works and what it produces.

Two obvious questions emerge:

  • Why did Texas deviate from the federal model by creating coterminous-jurisdiction courts?

  • Why do the First Court of Appeals and the Fourteenth Court of Appeals share jurisdiction over a single region?

Theories explaining the origin of coterminous jurisdiction vary.[144] The lawmakers that chose the unconventional structure for the Houston courts of appeals might say necessity outran design. They did not choose the odd structure because they considered it ideal; they chose it because it promised an instant solution to what then was a big problem: an overflowing appellate docket.[145]

In the 1960s, the First Court consisted of a chief justice and two associate justices.[146] Litigation from the multi-county jurisdiction produced a sizeable appellate caseload. The three-judge court eventually became overloaded and needed relief.[147] But adding more judges presented a problem because, at the time, the Texas Constitution limited the size of intermediate appellate courts to three judges.[148] The Texas Legislature wanted to alleviate the strain on the First Court of Appeals from the swelling docket, but lawmakers could not add more judges without an amendment to the state constitution. Rather than let the time-consuming amendment process run its course, the Texas Legislature created a new three-judge court for the Houston area—the Fourteenth Court of Appeals—with the same geographic jurisdiction as the First Court of Appeals.[149]

Creating a new court of appeals solved the overcrowded-docket crisis. But the quick fix came at a high price. As the growing conflicts in the case law show, yesterday’s creative solution has spawned a bigger problem today—the disappearance of vertical stare decisis in split-of-authority cases and the loss of predictability in the law within the shared jurisdiction.

VI. Assessing the Impact of Unpredictability on the Delivery of Justice

What can we do about the loss of predictability in the law? The answer rests in the relationship of predictability to the rule of law. By counting the costs of the loss, we can see more clearly how coterminous jurisdiction is impacting the delivery of justice in Texas. Given the interdependency between stare decisis and predictability in the law, it comes as no surprise that the loss of predictability means a loss of the benefits that come from stare decisis—a loss that impacts courts, practitioners, and the public.

A. Damage to Higher Courts’ Roles as Arbiters of the Law

In most justice systems, trial courts, duty-bound to follow precedent, find vertical stare decisis easy to apply. But in split-of-authority cases, trial courts in the First-Fourteenth Districts cannot possibly apply the doctrine without violating the precedent of one of the two intermediate courts. So, in those cases, a trial court’s adherence to vertical stare decisis always and necessarily fails to protect one higher court’s role as arbiter of the law.

If the issue decided recurs frequently, even winning parties might conclude that they can take no comfort in the outcome today because they have no assurance that the same precedent will be followed tomorrow. And, even presuming that all trial judges would be consistent in their rulings on a given issue, with scores of trial judges in the ten-county region, a different trial court could reach a different decision the next time. With equally binding precedent going the opposite way, even the winning litigant must come to grips with the reality that nothing prevents a trial judge in the shared jurisdiction from deciding the same issue differently tomorrow.

The usual ways of addressing conflicts—en banc rehearing and higher-court review—fail in this context.[150] Creative proposals for new procedures might help at the edges, but they, too, fall short.[151] Even if these measures could resolve all conflicts, neither the resolution of a conflict in a given case nor the beneficial effects of a single rule would be immediate. For some significant period of time, actors in the region would have to tolerate the uncertainty in the law, and during those periods, both Houston courts of appeals still would suffer the inefficiencies that come with retreading the same ground. Worse, the uncertainty still would upset decision-making for both the public and the trial courts.

B. Barriers to Managing Risks and Settling Claims

When the Houston sister courts disagree about the law, parties, practitioners, and trial courts become reluctant players in an unwelcome game of appellate roulette. In Texas, as in most other places, litigants tend to make settlement decisions by evaluating the strength of the case. In the First and Fourteenth Districts, those caught in split-of-authority cases must make decisions in the dark with the blind hope that their case will land randomly in the court that has the more favorable rule.

Lawyers who have practiced in the region know firsthand the professionally awkward experience of having to explain the predicament to clients who turn to them for settlement advice. Inevitably, the lawyer in that quandary strains to explain that because one court allows recovery and the other does not, the client must make its settlement decision on nothing but “a guess and a gamble.”[152] The uncertainty makes it hard for parties to evaluate risks and assess potential costs, and that lessens the chances litigants will settle their disputes before an appeal.

Texans expect their courts to rule in ways that will tell them whether and how to act, when to press claims, and when to settle. Knowing likely outcomes fuels decision-making. Not knowing hinders it. When parties grow reluctant to settle, our judicial system becomes less efficient.[153] The inefficiencies spread beyond the courthouse to board rooms and closing tables. For those operating in the transactional realm, uncertainty in the law can present real barriers to deal-making. The ambiguities in legal doctrine make it tough for those in the business arena to navigate around potential legal problems, effectively manage risks, plan for contingencies, and make informed choices.

C. Doctrinal Ambiguity

Seventeenth-century English jurist Sir Edward Coke warned that for the law to have a settling effect on the public, the law must give some assurance of outcome.[154] If, instead, the law grows unpredictable, disagreements are sure to follow. The lack of clarity bothers both those who seek to know the law and those who seek to enforce it.[155]

The doctrinal ambiguity that comes from splits of authority spawns interpretive problems for actors at all levels. Lawyers and trial judges struggle to reconcile disparate holdings. It is even harder for the untrained public to understand either what the law is or how courts will apply it.[156] When institutional actors in government, business, and commerce seek professional advice for avoiding day-to-day problems arising from recurring split-of-authority issues, their lawyers cannot forecast outcomes, leaving them unable to adjust processes and protocols to meet the demands of conflicting rules.[157]

D. Inherent Inefficiencies

In the simplest terms, when the law is unclear, it takes longer and costs more to resolve disputes. Inherent inefficiencies take many forms.

1. Extra Time and Expense for Litigants.

Split-of-authority cases impose greater briefing costs because they generate more en banc rehearing motions and more petitions for review to higher courts. The parties’ attorney’s fees and litigation expenses add to the individual case costs, making the appellate process more expensive and more time-consuming for litigants caught in split-of-authority cases.

2. Burdens on Judges and Court Staff.

Split-of-authority cases also burden judges and court staff. Sorting out conflicts requires an extra measure of time, energy, and resources. Because many of the conflicts arise on a recurring basis, at any given time the two coterminous-jurisdiction courts might be engaging in simultaneous searches for ways to avoid conflicts in the law, each going through the same protracted process, and each burning up resources trying to find ways around the same problems. The inefficiencies spill into other levels within the judiciary. Because a conflict can provide a springboard to petition the higher courts for review, the splits in authority also consume judicial resources in those courts.

3. Drags on Case Movement and Court Resources.

Because split-of-authority issues drain resources across all levels of the judiciary, they tend to slow both the trial and appellate process. Coterminous-jurisdiction courts receive no greater resources than their counterparts that do not face these challenges. Though the extra time and expense can be significant, the drags on case movement and drains on court resources hardly compare to the intangible costs to the adjudicative process.

E. Weakening of the Adjudicative Process

As the primary guardians of the adjudicative process,[158] judges must maintain public trust. That means ensuring that the process of judging produces outcomes that the public perceives as just. If the public views the process as unfair, the public may perceive even a legally correct judgment as unjust. Simply put, the courthouse experience counts.

1. Disparities in Individual Cases.

The rule of law provides the essential assurance that courts will treat persons in like circumstances alike. A litigant might be willing to accept an adverse decision from a court of appeals even when the litigant disagrees with the ruling because the litigant respects the court as an institution. But, the chances of acceptance fade fast when the litigant knows that if only the litigant had landed in the “other court” the decision would have gone the other way.

Predictability matters not just to the substance of our law but also to the delivery of justice. We do not want litigants or the public to view split-of-authority experiences as undercutting the due measure of justice in individual cases. To understand the impact, consider how a litigant, untrained in the law, might experience justice in a split-of-authority case.

The first stop in a litigant’s journey through the adjudicative process is the trial court, where the litigant expects a single judge to look to binding precedent to render judgment. In a split-of-authority case, both sides come to court with favorable binding precedent and so, at least in the abstract, both parties would expect to prevail. Yet, in the coterminous-jurisdiction model, neither side’s position legally tops the other’s, and both cannot prevail. In ruling, the trial judge necessarily will have to ignore one appellate court’s precedent, necessarily frustrating one side’s legitimate expectations.

The losing litigant, who holds favorable binding precedent in one hand and the adverse judgment in the other, might be left wondering why she lost if the law was on her side. Even if the losing litigant accepts the reality that both sides stand in equal positions under the coterminous-jurisdiction regime, the losing litigant still might be left wondering what criteria the trial judge used to decide the case. The judge’s ruling might seem arbitrary. The litigant might question the judge’s neutrality.[159]

The winning litigant, though victorious, also might leave the courthouse disappointed with the process and the experience. He went to court to have his rights enforced but instead of feeling vindicated at the bar of justice, he might feel only the relief that comes with a lucky roll of the dice. Without a sense that justice has been served, even the victor might find the adjudicative process empty and unsatisfying.

2. Impact on Public Perception.

The coterminous-jurisdiction model puts the public’s confidence in our courts at risk, not just because some parties in some cases miss out on the promise that like cases will be treated alike, but because the public might perceive an inherent unfairness from the lack of uniform treatment. The concern is that people will view as unfair a system that holds one liable under a law as interpreted by the First Court of Appeals (in a case of first impression in that court) when the person, acting in obedience to precedent, molded her conduct to conform to the pre-existing requirements of the Fourteenth Court of Appeals.

Charged with advancing both the reality and the appearance of justice,[160] courts must meet the public’s legitimate expectations. Fairness—and the perception of fair treatment—fuel the public’s acceptance of the adjudicative process. People expect courts to engage in a rational process and to apply the law uniformly and consistently. Yet, even knowledgeable judges and lawyers have a hard time explaining how two courts of appeals sharing the same courthouse and serving the same people can be on opposite sides of an issue, and how lower courts and litigants can be bound by both rules. Winning and losing parties almost certainly leave the courthouse with unanswered questions:

  • What criteria did the trial court use to decide when the decision turned on two equally binding but conflicting precedents?

  • How could the trial court ignore one court of appeals’ binding precedent when the losing litigant relied upon it?

  • How are we to manage our affairs and plan our actions when the other court might decide the same issue differently tomorrow?

These questions pierce the heart of the coterminous-jurisdiction model.

Process matters. When a trial court’s decision does not turn on one true rule of law, how can the trial court assure litigants of fair treatment?

Texas law provides no guidance to trial courts caught in split-of-authority cases.[161] Despite the good faith of judicial decision-makers, the losing litigant in a split-of-authority case might perceive that with binding precedent on her side, the judge decided the case on something other than the law, some unknown and perhaps impermissible criteria.

From the trial judge’s perspective, the experience is no better. Forced to make an impossible choice, the trial judge, as the public face of justice, must make the adjudicative process seem fair, reasonable, and objective when all concerned know that because of the split of authority, the ultimate legal outcome will turn entirely on which higher court ends up hearing the appeal. When there is no single binding precedent, there is no check on judicial arbitrariness or the perception of it.[162] The usual measure of justice—the court’s adherence to binding precedent—is not in play in this genre of cases.

  • With judicial decision-making seemingly unhinged to the rule of law, might the parties or the public perceive justice to be random?

  • Might litigants in split-of-authority cases view the process as arbitrary or question the objectivity or neutrality of judges?

  • If so, how might these perceptions color the institutional legitimacy of our courts?

As Texans, we must ask and answer these hard questions. If we tolerate unpredictability and incoherence in the law within coterminous-jurisdiction districts, do we forsake our commitment to even-handed judicial decision-making?[163] And, in the process, do we disappoint the public or diminish the judiciary or forfeit a measure of institutional legitimacy for our courts?

F. Threat to Court Legitimacy

Predictability in the law gives courts legitimacy.[164] To maintain it, courts must keep faith with the people they serve.[165] The loss of predictability in the law tends to diminish the public’s willingness to accept judicial decisions and that lack of acceptance tends to erode public trust. Though justices on the Houston courts of appeals value predictability in the law, research shows that in practice when they must choose between predictability and a preferred rule, they generally forsake alignment and instead choose to create conflicts within the shared jurisdiction.[166]

Given the promise of continued conflicts, we must consider the larger impact from the loss of predictability in the law. Though some might view the coterminous-jurisdiction problem more as an annoying local wrinkle than as a real threat to rule-of-law principles, we act at our peril if we do not pause to take a hard look at the cumulative effects this court structure produces.

Problems often increase so gradually that we hardly notice what is happening as they grow and take shape. The steady decline of predictability in the law within the shared jurisdiction is like a slow-moving cancer. Its constant, poisonous creep poses real danger but mostly goes unnoticed. Like an undiagnosed disease, it is festering silently and if left unchecked, it surely will metastasize.

The collateral consequences, seen and unseen, have spurred judges and lawmakers to think more critically about how the loss of predictability in the law is affecting Texans and their perceptions of our courts. In the last two decades, state and local groups have been giving the issue greater attention.[167] Judges, who have experienced firsthand the fallout from coterminous jurisdiction, are said to be among the most strenuous critics.[168] Lawyers, too, have joined the growing call for reform.

As the eyes and ears of the community at large, lawyers have seen how the uncertainty in the law impacts client decision-making. Practitioners who specialize in a particular field, such as banking, healthcare, insurance, or real estate, report the practical difficulties actors in those industries experience as a result of the lack of certainty in the law. Because part of the bar’s function is to disseminate information to industry leaders, the uncertainty in the law makes it harder for practitioners to perform this role effectively. Likewise, when the muddled state of the law makes it hard to forecast likely outcomes, industry actors are among the first to notice. They expect to draw guidance from binding court opinions, and they become frustrated when binding court opinions point in different directions.

The fallout from the loss of predictability in the law extends beyond the boundaries of the First and Fourteenth Districts. What impacts commerce in the ten-county region (which includes the country’s fourth-largest city) tends to ripple throughout the entire system. Because an unsettled legal climate tends to foster an unsettled business climate, coterminous-jurisdiction districts present more than a regional problem.

Partly in response to the outcry over splits of authority in the Houston sister courts, judges, practitioners, and legal commentators have brought attention to the coterminous-jurisdiction problem through separate judicial writings,[169] newspaper editorials,[170] online and magazine pieces,[171] law review articles,[172] and various scholarly writings aimed at effecting structural reform of the courts.[173] As a result of media coverage in the legal community and discourse in the public square, awareness of the coterminous-jurisdiction problem continues to grow, and with the increased awareness comes renewed concerns about maintaining public trust in our courts.

The challenge is to find a way for Texas courts to accomplish their primary mission of rendering justice when, in some cases, we lack one true rule of law for the region.

  • As guardians of justice, what can and should Texas judges do to avoid frustrating the public’s legitimate expectations?[174]

  • What is the answer to the loss of predictability that comes from a court of appeals’ failure to reach alignment with a sister court in a shared jurisdiction?

  • If predictability is so essential to the rule of law, how can shared-jurisdiction districts thrive without it?

These questions underscore both the value of predictability in a rule-of-law system and the cost of its loss. The fallout from the loss, anticipated and experienced, is stirring the bench and the bar to think again about how Texas can better serve this core value.

VII. Thinking More Critically About Existing Practices

“In all affairs . . . it’s a healthy idea, now and then, to hang a question mark on the things you have long taken for granted.”[175] In these fitting words penned decades ago, Nobel Prize winner Bertrand Russell[176] reminds us to ask new questions while unpacking old paradigms. Would a new rule that forces the Houston courts of appeals to align solve the problem?

A. The Freedom to Reject a Sister Court’s Precedent

The large volume of split-of-authority cases in the First-Fourteenth District show how a single institutional practice—the freedom to reject the sister court’s precedent—not only shapes but often defines key aspects of judicial decision-making. This institutional practice actually encourages judges on Texas’s coterminous-jurisdiction courts to forsake alignment in favor of creating conflicts.[177] But what if declining to follow the sister court’s precedent were not an acceptable institutional practice? What if, instead, all fourteen of Texas’s intermediate courts were bound by one another’s precedent?

B. A Forced-Alignment Rule as a Possible Solution

Some states require their intermediate courts to adhere to precedent of the state’s other intermediate courts,[178] effectively compelling them to achieve alignment.[179] If Texas’s intermediate appellate courts were bound by a forced-alignment rule, then judges on those courts would be required to follow a fellow appellate court’s precedent whether they agreed with it or not. If the first of the state’s fourteen courts of appeals to address an issue were to set binding precedent for the rest of the state until a higher court ruled on the issue, predictability would be increased, for sure, yet the increased predictability would come with a cost—the loss of jurisprudential development that enhances judicial problem-solving.

The Texas system, like the federal system, gives intermediate courts a major role in the overall development of jurisprudence, with each court bringing different views and considerations to the fore. This multidistrict design recognizes that problem-solving is enhanced when the various courts engage in independent analysis of the law. The judicial opinions reflecting the various intermediate courts’ considered choices provide valuable perspectives to other courts considering the same issue. Horizontally, the fourteen sister courts benefit from one another’s judicial product as the law develops throughout the state. Vertically, the higher courts profit from the resulting array of choices produced at the intermediate level. Texas’s tiered and diffused court structure thus benefits the state in the same way the federal court structure benefits the country.

If a Texas intermediate court were bound to follow the precedent of its fellow intermediate courts, then in some respects it would cease to be a vehicle for the development of Texas law, and salutary benefits that come from a diffused court structure would be lost. A forced-alignment rule also would go against the law of precedents.[180]

Some might argue that a possible solution would be to impose a forced-alignment rule only on the two Houston courts of appeals. While that solution would afford some relief from disparate outcomes, it also would be accompanied by at least two significant costs.

First, under such a regime, the First and Fourteenth Districts, being bound by a forced-alignment rule, would be the only intermediate courts in the state that could not revisit their own precedent. (Without forced alignment, either court could change its own precedent via en banc review.) Because review in the higher courts is discretionary and rarely granted, as a practical matter, intermediate courts are the courts of last resort in most cases. Without the ability to revisit and overrule their own precedent, the Houston sister courts would lose a valuable function, and the people of the First and Fourteenth Districts would miss out on the benefits afforded by en banc review.

A forced-alignment rule also would add transaction costs in both the First and the Fourteenth. One can imagine the debates that might arise over whether a particular precedent presented a true conflict or could be distinguished, or for other reasons should not be applied to the issue under review. The ensuing arguments likely would mirror those typically presented with motions for rehearing en banc on grounds that the panel’s opinion conflicts with a prior precedent. Such a rule almost certainly would result in more separate writing in that justices who sought to reject the sister court’s precedent, under a forced-alignment regime, would do so via a concurring or dissenting opinion. Separate writing and en banc review, while beneficial to the system as a whole, slow the appellate process and add transaction costs in individual cases.

For these reasons, a forced-alignment rule is not the answer. Nor would imposing a forced-alignment rule on some intermediate courts and not others satisfactorily solve the problem. Either path would eliminate benefits of a diffused court structure in some regions.

In sum, the existing framework benefits the state as a whole but when the Houston sister courts produce conflicting rules, the advantages that enhance substantive jurisprudence can be overshadowed by the confusion and uncertainty that follow disparate appellate outcomes within the single region. Yet, adopting a forced-alignment rule to foster predictability in the law in the shared jurisdiction would require sacrifices. Under a forced-alignment rule, the cost of predictability would be the loss of diffused-structure benefits and the cost of jurisprudential development would be unpredictability in the law. But it does not have to be an either/or proposition. It could be both/and—and would be both/and but for the state’s coterminous-jurisdiction design.

VIII. Unanswered Calls for Reform

As the coterminous-jurisdiction problem has grown, so, too, have the calls for reform. Not long after the Reyes-Montes cases raised eyebrows in the legal community, the Supreme Court of Texas urged the Texas Legislature to take corrective action, emphasizing that “[n]o county should be in more than one appellate district.”[181] Some legal commentators openly criticize the “heavily fractured intermediate court structure” that has left Texas courts “primed for generating conflicts.”[182] Others lament a “situation [that] results in a significant lack of certainty and predictability.”[183] Court watchers often note when the two Houston courts of appeals disagree and when the two come into alignment on an issue.[184]

Many in the legal and business communities have brought their concerns to legislators and judicial councils,[185] who have studied the problem and proposed various ways of addressing it,[186] all of which so far have fallen short of adoption.

More than twenty-five years ago, the then-chief justice of the Supreme Court of Texas in a report to the Texas Legislature stated that no Texas county should be in a geographical jurisdiction of more than one of the state’s intermediate courts of appeals.[187] Nothing happened. Years later, that chief justice’s successor made a similar plea and urged Texas lawmakers to merge the two Houston sister courts.[188] Though the Texas Legislature did not act on that recommendation, it took action to curb the effects of coterminous jurisdiction in some parts of Texas by shifting one or more counties in overlapping court-of-appeals districts so that they would fall into single court-of-appeals districts.[189] Today, some court-of-appeals districts still partially overlap and the First and the Fourteenth Districts still completely overlap.[190]

While the piecemeal legislative changes have done nothing to mitigate the ongoing ill effects of coterminous jurisdiction in the First-Fourteenth Districts, the legislature’s actions show an understanding of the coterminous-jurisdiction problem. And legislative measures in other contexts show that Texas lawmakers recognize the importance of fostering predictability in the law. Several years ago, in response to an outcry over problems arising from Texas’s docket equalization system,[191] the legislature implemented structural solutions to address the particular need for predictability in the law within individual districts in cases transferred among the state’s intermediate courts of appeals. Because appellate case filings vary across the state, the legislature had created a statutory mechanism to allow the Supreme Court of Texas to equalize the caseload among the state’s fourteen courts of appeals by transferring pending cases from one court of appeals to another.[192] The process grew complicated in cases in which the transferor court and the transferee court disagreed on the law. Questions arose as to which court’s precedent would apply to the transferred case.[193] The courts of appeals differed in their approaches.[194] Some transferee courts applied their own precedent instead of the precedent of the transferor court,[195] a practice that spurred the same lack-of-predictability-in-the-law concerns that arise with coterminous jurisdiction.

In an effort to put an end to the uncertainty in transfer cases, in 2005, the Texas Legislature passed a resolution “urg[ing] the Supreme Court of Texas to adopt rules for determining which court of appeals’ precedent will be applied in cases that are transferred from one court of appeals to another court of appeals if there is a conflict between the precedent of the two courts of appeals.”[196] Responding to this legislative call for action, the supreme court promulgated Texas Rule of Appellate Procedure 41.3, entitled “Precedent in Transferred Cases,” requiring the transferee court to “decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.”[197] The high court based the new rule on principles of stare decisis, the law’s elixir for unpredictability.

Given this history, it seems that Texas lawmakers recognize the need for predictability in the law and, like Texas lawyers and judges, embrace it as a core value. So, why do we continue to tolerate its loss?

IX. Facing the Danger of Inaction

The longer the conflict-producing regime remains in place, the harder it will be to solve the unpredictability problem. The difficulties grow with each passing year.[198] Though the troubling effects of the odd system design were barely noticeable at first, little by little, case by case, the conflicts are taking their toll. Each new pair of conflicting cases produces many offspring. A single split in authority can spawn dozens of appeals in a matter of months. Coterminous-jurisdiction courts generate conflicts faster than the high courts resolve them.[199] Many splits in authority have existed for decades with no resolution by a higher court.[200] Even more seemingly go unnoticed. Only a fraction of litigated cases and trial-court proceedings culminate in appeals,[201] and an even smaller number end in reported appellate decisions.[202] Because unreported decisions generate no opinions, those split-of-authority cases may seem invisible,[203] but the litigants and the trial judges suffer no less from the experiences. If we do not address the problem now, the region’s jurisprudence and the legitimacy of the courts are sure to suffer in bigger and more apparent ways in the future.[204]

The coterminous-jurisdiction element of Texas’s current system, once viewed as an innovative solution to an overcrowded docket, today fuels the loss of predictability and certainty in the law. The tweak in the state’s court structure, made decades ago by well-meaning lawmakers, is undermining the fundamental benefits of a proven model today. Another tweak could fix it.

X. The Path Forward: Restoring Predictability in the Law

How do we restore predictability in the law? Legal history offers the surest counsel in a time-tested design. Two centuries of American jurisprudence call Texas to return to first principles, to reinstate vertical stare decisis—a feat that can be accomplished only by eliminating coterminous jurisdiction.

The simple solution to the coterminous-jurisdiction problem is to combine the First and Fourteenth Courts of Appeals so that there would be just one court of appeals for the ten-county region. This one change would restore predictability in the law and enable Texans to reclaim lost rule-of-law benefits.

Merging the First and the Fourteenth into a single court of appeals could be accomplished with little inconvenience and little expense. Structurally, the merger could be achieved by converting one court’s chief-justice position into an associate-justice position and then merging the two courts into one. The reconstituted court would emerge from the process with eighteen members—a chief justice and seventeen associate justices. Alternatively, one of the chief justice’s positions could be eliminated in the merger, leaving the reconstituted court with a chief justice and sixteen associate justices.

Figure 5

Logistically, combining the courts would be simple because the two courts already share a single courthouse and a single court clerk.[205] The time and resources necessary to combine the courts would be minimal, and a merger would not disturb either the configuration of the physical space or the placement of personnel.[206] Operationally, the merged courts would benefit from the pooling of resources and enhanced system efficiencies.[207]

Still, some might oppose merging the First and Fourteenth, arguing the size of the reconstituted court would make it unwieldy. The largest of Texas’s intermediate courts—the thirteen-member, Dallas-based Fifth Court of Appeals—is less than half the size of its federal counterpart.[208] While a reconstituted court comprised of seventeen or eighteen members might make administrative functions more challenging, the increased size would not pose an insurmountable problem. (Other states have larger courts.)[209] And, by any measure, even an oversized court would be better than the coterminous-jurisdiction alternative.

Some might oppose merging the First and Fourteenth, citing anticipated case-disposition delays due to the increased need for the post-merger en banc court to settle the conflicts in the case law.[210] These, too, may be valid concerns but they could be addressed through a rule of procedure and should pose no barrier to merger. Texas should not turn away from a good government measure just because it comes with incidental costs. If the courts merge, the benefits would swallow the costs whole.

Financial costs usually pose the biggest obstacle to reform.[211] Ironically, for a First-Fourteenth merger the financial element presents an advantage, not an impediment. Consolidating the courts would produce cost savings for the taxpayer[212] and also cut costs for the consumer of court services.[213] Yet, even if combining the courts instead came with a hefty price tag, the reason for the merger would be no less compelling. After all, the reason to merge the courts is far bigger than the fiscal benefits a merger would produce.

A merger would bring back the lost benefits of vertical stare decisis. It would reduce doctrinal ambiguity,[214] purge the guessing and gambling in split-of-authority cases, boost the prospects for settlement of claims, and remove barriers to transacting business. A merger would ease the jurisprudential tension in both trial and appellate courts and improve the adjudicative process for litigants. A merger would decrease industry angst and other societal unease by replacing uncertainty with the clarity of a single rule from a single court speaking with a single voice.

By ridding our legal system of coterminous jurisdiction, we could put an end to the troubling conflicts and disparate outcomes that frustrate Texans’ legitimate expectations in shared-jurisdiction districts, making it easier for individual, corporate, and governmental actors to make plans, manage risks, settle disputes, and conduct business. As the conflicts in the law disappear, our jurisprudence would become more predictable, our courts would produce more consistent outcomes, our case law would provide a greater measure of certainty, the public’s trust in our courts would grow, and Texans would enjoy greater rule-of-law benefits. Like unclaimed treasure, these riches are there for the taking, and Texas should take them.

  1. See, e.g., Bryan A. Garner et al., The Law of Judicial Precedent 11 (2016) (“To a society aspiring to live under the rule of law, it’s no small thing to ensure that citizens can determine in advance what the law will require of them and have the chance to conform their conduct to it.”); Thomas M. Reavley & Ryan S. Killian, Against the Rule of Judges, 68 Baylor L. Rev. 661, 669 (2016) (describing predictability as “the idea that law is stable and knowable to a degree that permits citizens to plan their lives around it”).

  2. Stare Decisis, Black’s Law Dictionary (11th ed. 2019) (noting the term comes from the Latin phrase meaning “to stand by things decided”).

  3. One scholar explained the importance of predictability in this way:

    From the perspective of those guided by the rules, an appellate court’s articulation of the rule of law for which its opinion stands increases the predictability of future court decisions, thereby facilitating decisions whether and how to act, to settle, and to litigate. Such increased predictability tends to reduce litigation and increase the efficient operation of the judicial system. Such articulation of rules of law also serves to increase the uniformity, deliberateness, correctness, impersonality, and objectivity of judicial decisions, serving as a check on judicial arbitrariness and bias. The generalization of judicial results increases not only the actuality but also the appearance of these benefits, thereby increasing public acceptance of the judiciary and of the law.

    James Hardisty, Reflections on Stare Decisis, 55 Ind. L.J. 41, 55 (1979).

  4. “The doctrine of stare decisis protects the legitimate expectations of those who live under the law . . . .” Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring).

  5. . See, e.g., Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 66 (2013) (“When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties’ settled expectations. A forum-selection clause, after all, may have figured centrally in the parties’ negotiations and may have affected how they set monetary and other contractual terms; it may, in fact, have been a critical factor in their agreement to do business together in the first place. In all but the most unusual cases, therefore, ‘the interest of justice’ is served by holding parties to their bargain.”); John Y. Gotanda, Consistently Inconsistent: The Need for Predictability in Awarding Costs and Fees in Investment Treaty Arbitrations, 28 Foreign Inv. L.J. 420, 421 (2013) (“[T]he lack of uniformity . . . leads to uncertainty in evaluating the economic cost of pursuing or defending an action and it ultimately hinders the parties’ ability to settle actions.”); Douglas Glen Whitman, The Role of Panels in Enhancing Legal Predictability, 25 Int’l Rev. L. & Econ. 541, 542 (2005) (“If potential litigants cannot easily predict what rule a court will apply in their particular case, they will find it more difficult to choose their actions so as to avoid legal sanction and to coordinate their actions with each other. In other words, it is important for agents to be able to predict which rules the legal system will apply to them, regardless of whether those rules are deemed ‘correct.’”).

  6. See Reavley & Killian, supra note 1, at 669 (“The stability of financial investments and the success of inventions require predictability of the law.”); Garner et al., supra note 1, at 11 (noting the importance in a rule-of-law system of giving people the opportunity to know what the law requires so that they can conform their conduct to meet the law’s demands).

  7. Garner et al., supra note 1, at 389 (noting that certainty, predictability, and stability in the law are the major objectives of our legal system).

  8. Hardisty, supra note 3, at 68; see also Scott Dodson, The Gravitational Force of Federal Law, 164 U. Pa. L. Rev. 703, 732–33 (2016) (“[V]ertical uniformity has long been considered a jurisprudential virtue because it offers: (1) predictability within a particular geographic region; (2) simplicity, clarity, and efficiency by reducing variation; (3) the appearance of neutrality; and (4) the enhancement of reputation by evincing unanimity and consistency.”).

  9. Houston is the largest city in Texas and the fourth-largest city in the United States. C.L. Illsley, The Largest Cities in the U.S., World Atlas (July 26, 2019), https://www.worldatlas.com/articles/largest-cities-in-the-united-states.html [https://perma.cc/4Y8A-YS34]. Houston is located in Harris County, one of ten counties in the First-Fourteenth Districts. See Tex. Gov’t Code Ann. § 22.201 (identifying Harris and nine other counties comprising the First-Fourteenth Districts).

  10. For a compilation of currently percolating conflicts in civil jurisprudence among Texas’s intermediate courts of appeals, including the First and Fourteenth Courts of Appeals, see Yvonne Y. Ho et al., Splits Among the State Appellate Courts, in State Bar Tex., 32nd Annual Advanced Civil Appellate Practice ch. 22, at 1–22 (2018) (identifying existing conflicts in civil law subjects ripe for resolution).

  11. For the Texas Citizens’ Participation Act (TCPA), compare Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *8 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.) (holding that TCPA’s right of association applied to allegations involving tortious interference with an existing contract, and specifically that engaging in the same private business may satisfy the “common interests” element of TCPA’s definition of “exercise of the right of association”), and Reeves v. Harbor Am. Cent., Inc., No. 14-18-00594-CV, 2020 WL 2026527, at *5 (Tex. App.—Houston [14th Dist.] Apr. 28, 2020, no pet. h.) (following Abatecola and holding that TCPA applied to claims for breach of employment agreement, misappropriation of trade secrets, conversion of customer lists, and breach of fiduciary duty, based on actions taken in soliciting customers and forming a competing business to solicit customers), with Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 474–76 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (en banc) (disagreeing with Abatecola and holding that the “common interests” element of TCPA’s definition of “exercise of the right of association” means “public or community interests” and that alleged conduct involving misappropriation of trade secrets in furtherance of private business interests did not constitute an exercise of the right of association under TCPA). For article 38.071 of the Texas Code of Criminal Procedure, compare Jolly v. State, 681 S.W.2d 689, 697 (Tex. App.—Houston [14th Dist.] 1984), rev’d, 739 S.W.2d 345 (Tex. Crim. App. 1987) (interpreting “proceeding” as used in article 38.071 to mean “trial”), with Lawson v. State, 697 S.W.2d 799, 803 (Tex. App.—Houston [1st Dist.] 1985), vacated, 752 S.W.2d 572 (Tex. Crim. App. 1988) (declining to follow Jolly and holding instead that the term “proceeding” as used in section 2(a) of article 38.071 encompasses the entire legal process from the initiation of the “criminal action”).

  12. Compare Leyba v. State, 416 S.W.3d 563, 569 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (declining to apply common law “tacking doctrine” to interpretation and application of Texas Rule of Evidence 609), with Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.—Houston [1st Dist.] 1998), pet. ref’d, 980 S.W.2d 652 (Tex. Crim. App. 1998) (applying tacking doctrine; holding that if a conviction is more than ten years old, it may be “tacked” onto a subsequent conviction for remoteness purposes, which then alters the legal standard governing its admission).

  13. For Texas Rule of Civil Procedure 13, compare Finlay v. Olive, 77 S.W.3d 520, 526–27, 527 n.8 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (determining law firms are subject to sanctions under Rule 13), with Yuen v. Gerson, 342 S.W.3d 824, 828 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (holding trial court erred to the extent it sanctioned law firm under the same rule). For Texas Rule of Civil Procedure 165a(3), compare Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 902–03 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (holding that Rule 165a(3)'s reinstatement standard applies to all dismissals for want of prosecution), with Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 4–5, 4 n.1 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding that Rule 165a(3) is limited to the grounds for dismissal listed in the rule).

  14. Compare, e.g., Carson v. Gomez, 14 S.W.3d 778, 780 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (refusing to apply former Texas Rule of Appellate Procedure 38.1(f), now Rule 38.1(g), which provides that in a civil case, “the court will accept as true the facts stated unless another party contradicts them” unless the statement is also supported by record references), with, e.g., Johnson v. Off. of Att’y Gen. of Tex., No. 14-11-00842-CV, 2013 WL 151622, at *1 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that under Texas Rule of Appellate Procedure 38.1(g), formerly Rule 38.1(f), a court of appeals accepts as true facts asserted in the “Statement of Facts” section of an appellant’s brief unless controverted by another party, without imposing the additional requirement that the statement also be supported by record references).

  15. Compare, e.g., Keough, 204 S.W.3d at 3 (holding that when a trial court relies on its inherent authority to dismiss a case and denies a motion to reinstate, the court considers whether trial court abused its discretion in determining that the plaintiff did not prosecute its case with due diligence), with, e.g., Brown, 820 S.W.2d at 902–03 (applying the standard set forth in Texas Rule of Civil Procedure 165a to determine whether trial court abused its discretion in refusing to reinstate case).

  16. Compare Hall v. Crocker Equip. Leasing, Inc., 737 S.W.2d 1, 3 (Tex. App.—Houston [14th Dist.] 1987, writ denied) (placing the burden of proof on the creditor to plead and prove commercial reasonableness and notice under Texas Business and Commerce Code Ann. section 9.504(c) (Tex. U.C.C)), with Stra, Inc. v. Seafirst Com. Corp., 727 S.W.2d 591, 594 (Tex. App.—Houston [1st Dist.] 1987, no writ) (placing the burden to proof on the debtor). See also Greathouse v. Charter Nat’l Bank-Sw., 795 S.W.2d 1, 2 (Tex. App.—Houston [1st Dist.] 1990) (placing burden to plead, not prove, on the debtor), aff’d, 851 S.W.2d 173 (Tex. 1992).

  17. Compare Pepi Corp. v. Galliford, 254 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (holding unjust enrichment is an independent claim), with RDG Ltd. P’ship v. Gexa Corp., No. 14-04-00679-CV, 2005 WL 949171, at *3 (Tex. App.—Houston [14th Dist.] Apr. 26, 2005, no pet.) (holding unjust enrichment is not an independent claim).

  18. For availability of interlocutory appeal under section 51.014 of the Texas Civil Practice and Remedies Code, compare, for example, De Miño v. Sheridan, 176 S.W.3d 359, 365 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that section 51.014 authorizes interlocutory review of the denial of jurisdictional pleas on claims against state employees sued in their official capacity because such suits, in reality, are suits against governmental units), with Univ. of Hous. v. Elthon, 9 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 1999, pet. dism’d w.o.j.) (holding that interlocutory review of pleas to the jurisdiction is not available when state employees are sued—even if sued in their official capacity—on the ground that they do not fit within the category of “governmental units” under section 51.014(a)(8)). For a split concerning whether an order directing a party to deposit funds into a trial court’s registry to satisfy a potential judgment is properly characterized as a temporary injunction for which an interlocutory appeal is available, compare Zhao v. XO Energy LLC, 493 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding an order requiring the deposit of funds is not a temporary injunction subject to an interlocutory appeal), with In re Est. of Skinner, 417 S.W.3d 639, 644–45 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (declining to adopt a categorical approach).

  19. Compare Clark v. Barr, 827 S.W.2d 556, 557 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (holding that a defendant may take an interlocutory appeal from a pretrial motion for bond reduction), with Ex parte Ragston, 402 S.W.3d 472, 478 (Tex. App.—Houston [14th Dist.] 2013), aff’d sub nom., Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014) (concluding that no constitutional or statutory provision exists authorizing an interlocutory appeal from a trial court’s order on a motion for bond reduction).

  20. Compare Harris Cnty. Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 135 & n.1 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that a party to an interlocutory appeal under Texas Civil Practice and Remedies Code section 51.014(a)(8) may raise any challenge to a trial court’s subject-matter jurisdiction in the appeal), with State v. Clear Channel Outdoor, Inc., No. 14-07-00369-CV, 2008 WL 2986392, at *3 (Tex. App.—Houston [14th Dist.] July 31, 2008, no pet.) (mem. op.) (holding that section 51.104(a)(8) vests courts of appeals with interlocutory jurisdiction only with respect to a plea to the jurisdiction actually granted or denied by the trial court in the appealed order, not pleas which have not yet been made by the defendant or ruled upon by the trial court).

  21. Compare Earvin v. Dep’t of Fam. & Protective Servs., 229 S.W.3d 345, 349–51 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (treating challenges to termination of parental rights and conservatorship as distinct issues and holding that a party must specifically assign error to the Department of Family Protective Service’s appointment as conservator when a judgment terminating parental rights is reversed), with In re J.A.J., 225 S.W.3d 621, 633 (Tex. App.—Houston [14th Dist.] 2006) (Frost, J., dissenting) (holding that when evidence is insufficient to support termination, it is proper also to reverse the trial court’s judgment appointing the Department as the child’s conservator), aff’d in part, rev’d in part, 243 S.W.3d 611 (Tex. 2007).

  22. Compare Lockett v. H.B. Zachary Co., 285 S.W.3d 63, 72–73 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that a defendant could rely upon summary judgment grounds stated in a motion filed by another party when the defendant had not incorporated by reference into its own motion), with Peine v. HIT Servs., L.P., No. 14-12-00991-CV, 2014 WL 586430, at *2 (Tex. App.—Houston [14th Dist.] Feb. 13, 2014, pet. denied) (mem. op.) (holding that a summary judgment motion was insufficient as a matter of law because the summary judgment grounds were stated in a separate memorandum and not included in the motion itself).

  23. Compare Colbert v. Dep’t of Fam. & Protective Servs., 227 S.W.3d 799, 816 & n.14 (Tex. App.—Houston [1st Dist.] 2006, no. pet.) (holding that where a challenge to a parental termination of parental rights is sustained, the appointment of Department of Family Protective Services as sole managing conservator also must be reversed, even though unchallenged), with In re J.R., 222 S.W.3d 817, 819 & n.4 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (expressly disagreeing with First Court in Colbert).

  24. See cases cited supra note 23.

  25. Compare Univ. of Hous. v. Elthon, 9 S.W.3d 351, 356 (Tex. App.—Houston [14th Dist.] 1999, pet. dism’d w.o.j.) (holding that statutory requirements of Whistleblower Act are not jurisdictional), with Tex. S. Univ. v. Carter, 84 S.W.3d 787, 792 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding statutory prerequisite that plaintiff in a whistleblower action timely initiate grievance before filing suit is a jurisdictional issue that may be challenged by plea to jurisdiction), and Univ. of Hous. v. Barth, 178 S.W.3d 157, 161–62 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (noting conflict and determining that disposition is governed by the First Court’s opinion in Carter). In another context, compare City of Galveston v. Flagship Hotel, Ltd., 73 S.W.3d 422, 426–27 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that section 13.042(a) of the Water Code confers the city with original exclusive jurisdiction over suits disputing a municipality’s charges for water service, and that section 13.402(d) vests the Texas Natural Resource Commission with exclusive appellate jurisdiction over the city’s determination), with Gatesco Q.M., Ltd. v. City of Houston, 333 S.W.3d 338, 341, 345–47 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that the unambiguous language of section 13.402(d) excludes the city from the definition of a “water and sewer utility” in section 13.042(a) of the Water Code and that no provision of Chapter 13 gives the Commission appellate jurisdiction over administrative proceedings relating to a customer within the municipality). And, with respect to appellate jurisdiction in cases under the Texas Citizens Participation Act (TCPA), compare Jardin v. Marklund, 431 S.W.3d 765, 768, 774 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that when an appellant has not shown that the claims against it fall within the scope of TCPA, court of appeals loses appellate jurisdiction over an interlocutory appeal challenging the denial of the appellant’s TCPA motion to dismiss, and court of appeals must dismiss the appeal), with I-10 Colony, Inc. v. Lee, Nos. 01-14-00465-CV & 01-14-00718-CV, 2015 WL 1869467, at *2, *4–5 (Tex. App.—Houston [1st Dist.] Apr. 23, 2015, no pet.) (mem. op.) (concluding that under Texas Practice and Remedies Code section 51.014(a)(12), court of appeals had jurisdiction to review and affirm interlocutory order denying motion to dismiss, even though court concluded that appellant had not shown that TCPA applied to the claim against him).

  26. Compare Johnson v. State, 747 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (holding no jurisdiction to entertain appeal where notice of appeal did not state that the trial court granted permission to appeal nor specify that matters to be appealed were raised by written motion and ruled on before trial; expressly rejecting use of rules of procedure to cure jurisdictional defect), and Jackson v. State, 775 S.W.2d 422, 423 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (holding the same), with Jiles v. State, 751 S.W.2d 620, 621–22 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (faced with the same issue, the court refused to dismiss for want of jurisdiction), and Campbell v. State, 747 S.W.2d 65, 66–67 (Tex. App.—Houston [1st Dist.] 1988, no pet.) (holding the same).

  27. Compare Mayes v. Stewart, 11 S.W.3d 440, 447–48 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding that although claims against the offending spouse are precluded by Schlueter, claims for fraud and conspiracy against third parties are nevertheless actionable), with Ginsburg v. Chernoff/Silver & Assocs., Inc., 137 S.W.3d 231, 235–37 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that once the martial property is divided in a divorce proceeding, the complaining spouse has no right to further relief against a third party); compare Nova Cas. Co. v. Turner Constr. Co., 335 S.W.3d 698, 706 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding that the trial court has discretion whether to award prejudgment interest on attorney’s fees paid before the judgment, based on equitable principles), with Power Reps., Inc. v. Cates, No. 01-13-00856-CV, 2015 WL 4747215, at *22 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (mem. op.) (holding that prejudgment interest on award of attorney’s fees is generally not available).

  28. Compare Massey v. Massey, No. 01-02-00196-CV, 2003 WL 21665612, at *2 & n.5 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“As a general rule, we do not favor finding waiver of an issue because the author of the brief did not comply with the briefing requirements, without giving that attorney or party the opportunity to re-brief.”), with Valdez v. Aldrich, 892 S.W.2d 95, 96 (Tex. App.—Houston [14th Dist.] 1994, no writ) (noting that appellate court has discretion to choose between deeming a point waived and allowing amendment or re-briefing).

  29. Compare Wolfe v. Grant Prideco, Inc., 53 S.W.3d 771, 773–74 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (holding that a trial court clerk commits an official mistake by sending a notice of hearing regarding dismissal for want of prosecution under Texas Rule of Civil Procedure 165a to an attorney’s address that is listed in the county’s attorney register, rather than sending the notice to the address listed in the papers on file), with Marathon Petroleum Co. v. Cherry Moving Co., 550 S.W.3d 791, 804 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (holding that a trial court clerk’s reliance on an address listed in the county attorney register is not, by itself, an official mistake).

  30. Compare Homart Dev. Co. v. Blanton, 755 S.W.2d 158, 159 (Tex. App.—Houston [1st Dist.] 1988, no writ) (holding that, absent the exception provided in Texas Rule of Civil Procedure 329b, the trial court’s plenary power only continues in effect for 75 days after the date the judgment is signed), with Biaza v. Simon, 879 S.W.2d 349, 357 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding that trial court has 105 days to “ungrant” a motion for new trial because plenary authority continues until a final judgment is entered).

  31. Compare Transoceanic Shipping Co. v. Gen. Universal Sys., Inc., 961 S.W.2d 418, 419–20 (Tex. App.—Houston [1st Dist.] 1997, no writ) (holding default judgment was improper because record showed that counsel did not receive notice), with Withrow v. Schou, 13 S.W.3d 37, 41 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (holding “no error ‘apparent from the face of the record’ when the trial court or clerk fully complies with Texas Rule of Civil Procedure 245 by mailing notice of the trial setting to appellant’s attorney of record at his last known address”).

  32. Compare Coleman v. State, 45 S.W.3d 175, 181–82 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d), and Ly v. State, 943 S.W.2d 218, 220–21 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d), and Reyes v. State, 934 S.W.2d 819, 820 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (all holding that a defendant can affirmatively waive a required jury instruction in a criminal case), with Webber v. State, 29 S.W.3d 226, 231–32 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (holding trial court committed both statutory and constitutional error by omitting an instruction on presumptions despite defendant’s affirmative statement that he had no objection).

  33. Compare Wood v. State, 260 S.W.3d 146, 147, 149 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (concluding that existence of prior conviction is a punishment enhancement), with Oliva v. State, 525 S.W.3d 286, 292–93 (Tex. App.—Houston [14th Dist.] 2017) (concluding that existence of prior conviction is an element of the offense), rev’d, 548 S.W.3d 518 (Tex. Crim. App. 2018), and Mapes v. State, 187 S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (concluding the same).

  34. Compare Williams v. State, 928 S.W.2d 752, 754 (Tex. App.—Houston [14th Dist.] 1996) (holding that a valid warrant must be sufficiently descriptive to permit any officer to locate the property with no reasonable possibility of a mistaken execution), aff’d, 965 S.W.2d 506 (Tex. Crim. App. 1998), with Smith v. State, 962 S.W.2d 178, 181, 185 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (expressly declining to follow Williams and holding that an executing officer may supplement the warrant’s descriptive averment with knowledge obtained from the officer’s own observation of the place to be searched).

  35. Compare Ex parte Davis, 748 S.W.2d 555, 557 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (holding that a void misdemeanor conviction constitutes “confinement” or “restraint” as defined by the habeas corpus statutes and also constitutes a “collateral legal consequence” which would invoke an appellate court’s writ power), with Ex parte Oyedo, 939 S.W.2d 785, 786 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (holding that a habeas corpus applicant, who acknowledged he had no future sentence to serve and whose ten-year-old misdemeanor “price-tag switching” conviction had been discharged, was not “confined” pursuant to a commitment for a misdemeanor conviction; further holding that, in absence of such a showing, an application for habeas corpus relief will not lie under article 11.09 of the Texas Code of Criminal Procedure).

  36. Compare State v. Thompson, 912 S.W.2d 244, 246 (Tex. App.—Houston [14th Dist.] 1995) (holding that punishment had to be assessed in accordance with the habitual-offender statute), rev’d, 958 S.W.2d 395 (Tex. Crim. App. 1996), and State v. Perry, 912 S.W.2d 244, 246 (Tex. App.—Houston [14th Dist.] 1995) (holding the same), rev’d, 958 S.W.2d 395 (Tex. Crim. App. 1996), with Van Corsey v. State, 916 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding that a trial court is required to sentence a defendant convicted of a state jail felony under the terms of the mandatory community supervision law rather than the terms of the habitual offender law).

  37. Compare Fox v. State, 115 S.W.3d 550, 565–66 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (holding trial court did not abuse its discretion in finding expert witness unqualified due to insufficient experience in the techniques used to interview child sex abuse victims), with Mulvihill v. State, 177 S.W.3d 409, 413 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (expressly declining to follow Fox).

  38. Compare Zavadil v. Safeco Ins. Co., 309 S.W.3d 593, 594–95 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (holding that a Texas resident’s 14 days of out-of-state travel over a two-year limitations period did not constitute “absence from the state” for purposes of tolling limitations under section 16.063 of Texas Civil Practice and Remedies Code), with Medina v. Tate, 438 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (holding that any physical departure from the state during the limitations period is not to be included in calculating the limitations period).

  39. Compare Alexander v. Walker, 335 S.W.3d 709, 712, 714–15 (Tex. App.—Houston [1st Dist.] 2011) (concluding that application of section 101.106 of the Texas Tort Claims Act of the Texas Civil Practice and Remedies Code does not constitute automatic dismissal based on the irrevocable election of the Tort Claims Act—the order of the filing of the lawsuits is controlling for purposes of election of remedies), rev’d, 435 S.W.3d 789 (Tex. 2014), with Fontenot v. Stinson, 369 S.W.3d 268, 275–76 (Tex. App.—Houston [14th Dist.] 2011) (holding under the same provision that the Tort Claims Act constitutes a bar to any suit regardless of the order of the filing of the suit), aff’d on other grounds, 435 S.W.3d 793 (Tex. 2014).

  40. Compare Roberts v. Geosource Drilling Servs., 757 S.W.2d 48, 50–51 (Tex. App.—Houston [1st Dist.] 1988, no writ) (holding that a plaintiff may recover damages for detrimental reliance on a promise of future employment under promissory estoppel theory), with Collins v. Allied Pharmacy Mgmt., 871 S.W.2d 929, 937–38 (Tex. App.—Houston [14th Dist.] 1994, no writ) (rejecting rationale in Roberts and holding that damages for detrimental reliance based on promissory estoppel are not recoverable).

  41. Compare Adams v. Petrade Int’l, 754 S.W.2d 696, 720 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (allowing recovery of attorney’s fees on promissory estoppel claim), with Drs. Hosp. 1997, L.P. v. Sambuca Hous., L.P., 154 S.W.3d 634, 636–38 (Tex. App.—Houston [14th Dist.] 2004, pet. abated) (holding party may not recover attorney’s fees on a promissory estoppel claim, expressly declining to follow Adams).

  42. Compare Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 66 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (denying request for sanctions under Texas Rule of Appellate Procedure 45 because record did not show appeal was frivolous and brought for purposes of delay (bad faith)), overruled by Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc), and Cantu v. Maher, No. 14-07-00584-CV, 2009 WL 2589253, at *4 (Tex. App.—Houston [14th Dist.] Aug. 25 2009, pet. denied) (mem. op.) (holding the same), overruled by Glassman, 347 S.W.3d at 781–­82, with Smith v. Brown, 51 S.W.3d 376, 381–82 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (en banc) (holding that bad faith is not required under Rule 45 and that just damages may be awarded under Rule 45 if, after considering everything in its file, the court makes an objective determination that the appeal is frivolous—no finding of bad faith is required).

  43. Compare Brown v. Xie, 260 S.W.3d 118, 122–23 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that plaintiff’s “original petition, not his amended petition is the proper one to scrutinize,” and, therefore, claims against employees should have been dismissed because the original petition’s claims were “under” the Tort Claims Act), with Tex. Dep’t of Aging & Disability Servs. v. Cannon, 383 S.W.3d 571, 577–78, 580 (Tex. App.—Houston [14th Dist.] 2012) (holding that because plaintiff amended her suit to add § 1983 claims against the employees before the trial court dismissed the tort claims against them, “the trial court did not err by refusing to dismiss the § 1983 claims on the ground that they were not ‘before the court’”), aff’d, 453 S.W.3d 411 (Tex. 2015). See also Hitz v. Lally, 305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (distinguishing Brown v. Xie).

  44. Compare Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 127 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding a pre-injury release of gross negligence is enforceable), with Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (noting that pre-accident waivers of gross negligence are against public policy).

  45. Compare Fairways Offshore Expl., Inc. v. Patterson Servs., Inc., 355 S.W.3d 296, 302 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding “compensatory damages” includes attorney’s fees and that definitions employed in chapter 41 were expressly prescribed to apply to that chapter only), with Clearview Props., L.P. v. Prop. Tex. SC One Corp., 228 S.W.3d 262, 264 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (per curiam) (holding that attorney’s fees are in the nature of costs and should be considered part of the “costs awarded in the judgment,” but regardless of whether attorney’s fees are in the nature of costs or damages, neither Rule 24 nor section 41.001 precludes the trial court from setting an amount to secure the award). When the Supreme Court of Texas considered the issue, it adopted neither court’s analysis, though it upheld both courts’ conclusions that attorney’s fees need not be superseded. See In re Nalle Plastics Fam. Ltd. P’ship, 406 S.W.3d 168, 171–72, 175–76 (Tex. 2013) (holding attorney’s fees are neither compensatory damages nor costs for purposes of suspending enforcement of a money judgment—attorney’s fees need not be superseded).

  46. See, e.g., Medina v. Tate, 438 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Although we strive for uniformity with our sister Houston court to provide predictability for litigants, practitioners, and trial courts within our overlapping jurisdictional boundaries, we do not view the supreme court decisions cited by the Fourteenth Court—dealing with nonresidents—so broad as to overrule our prior interpretation of section 16.063 with regard to Texas residents.”).

  47. See, e.g., Tucker v. Thomas, 405 S.W.3d 694, 729 (Tex. App.—Houston [14th Dist.] 2011) (en banc) (Christopher, J., dissenting) (urging the Supreme Court of Texas to grant review to resolve the conflict between the two Houston courts of appeals), aff’d in part and rev’d in part, 419 S.W.3d 292 (Tex. 2013).

  48. See, e.g., In re Reece, 341 S.W.3d 360, 384 (Tex. 2011) (Willett, J., dissenting) (“[T]he two Houston-based courts of appeals have even reached polar-opposite outcomes on the same facts–allowing three passengers in a car accident to sue but not the fourth.”); State v. Haley, 811 S.W.2d 597, 600 (Tex. Crim. App. 1991) (en banc) (Clinton, J., dissenting) (involving two cases out of the First and Fourteenth Courts concerning the same drug seizure with the two courts reaching opposite conclusions on the propriety of suppressing the seized evidence, observing that they “present an anomaly, the likes of which rarely confront this Court”); K.E.W. v. State, 276 S.W.3d 686, 707 (Tex. App.—Houston [1st Dist.] 2008) (Keyes, J., dissenting) (noting a pair of cases in which the two courts differed on the interpretation of the “clear and convincing” standard of proof in section 574.034 of the Texas Health & Safety Code, stating that “[t]he panel in that case refused to follow our sister court even with respect to the same patient”), rev’d, 315 S.W.3d 16 (Tex. 2010).

  49. This original research featured both a survey of split-of-authority cases and a survey of judges who formerly served on the First or Fourteenth Courts of Appeals. The study focused on how judges serving on these courts decide whether to follow the precedent of the Houston sister court or instead to create a conflict in the shared jurisdiction. See Kem Thompson Frost, Predictability in the Law, Prized Yet Not Promoted: A Study in Judicial Priorities, 67 Baylor L. Rev. 48, 52–56, 116 (2015) [hereinafter Frost, Predictability in the Law]. An abridged version of the same article may be found in Judicature magazine. Kem Thompson Frost, Predictability in the Law, Prized Yet Not Promoted: A Study in Judicial Priorities, Judicature, Summer 2015, at 35.

  50. See, e.g., Tucker, 405 S.W.3d at 716.

  51. See, e.g., Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc) (noting that the court granted en banc review on its own motion to resolve the conflict on sanctions issue under Texas Rule of Appellate Procedure 45, abandoning existing precedent, holding that no finding of bad faith is required before sanctions can be imposed, and disapproving of all portions of prior opinions to the extent court concluded otherwise); Patrick J. Dyer & Jacalyn D. Scott, The Trials and Tribulations of Suspending Enforcement of a Money Judgment Under the New Rules, Hous. Law., July–Aug. 2009, at 28 (explaining how after the Fourteenth District issued its opinion in Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 914 (Tex. App.—Houston [14th Dist.] 2005, no pet.), the First District withdrew its panel opinion and issued its own en banc opinion following Ramco).

  52. The Author’s research (a case study of splits in authority in the First and Fourteenth Courts of Appeals over a 46-year period) revealed that the frequency of conflicts in these coterminous-jurisdiction courts has increased over time. See Frost, Predictability in the Law, supra note 49, at 69.

  53. Nearly all of the judicial survey participants (90%) in the Author’s study agreed that there is a strong need for predictability of outcomes in the shared jurisdiction. See id. at 79.

  54. See id. at 116.

  55. Id.

  56. Garner et al., supra note 1, at 807 (defining the doctrine of vertical stare decisis).

  57. See Tex. Gov’t Code Ann. § 22.201. Over the years, the Texas Legislature has redrawn the jurisdictional lines for intermediate appellate courts, but the two Houston-based courts of appeals always have shared precisely the same geographic jurisdiction, which currently consists of Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington Counties. Id. Both courts make their home in the Harris County 1910 Courthouse, located in downtown Houston. Robert Stanton, Restored Courthouse Brings History to Life, Hous. Chron., https://www.chron.com/news/houston-texas/article/Restored-courthouse-brings-history-to-life-2138217.php [https://perma.cc/JJ8T-YLA6] (Aug. 23, 2011, 9:29 PM).

  58. . See First Court of Appeals, About the Court, Justices, Tex. Cts., https://www.txcourts.gov/1stcoa/about-the-court/justices/ [https://perma.cc/W449-J8H5] (last visited Sept. 5, 2020); Fourteenth Court of Appeals, About the Court, Justices, Tex. Cts., https://www.txcourts.gov/14thcoa/about-the-court/ [https://perma.cc/HE93-Z2QL] (last visited Sept. 5, 2020).

  59. See Tex. Gov’t Code Ann. §§ 22.202(h), 22.215(e).

  60. See Act of May 19, 2017, 85th Leg., R.S., ch. 150, §§ 1, 6, 2017 Tex. Gen. Laws 291–93 (effective Sept. 1, 2017, codified at Tex. Gov’t Code Ann. §§ 22.001, 22.225).

  61. See Tex. R. App. P. 53.1, 56.1(a)(2).

  62. See id. 66.1, 67.1.

  63. See id. 53.1, 53.7.

  64. In re Moers, 104 S.W.3d 609, 611–12 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

  65. Hardin v. Hardin, 161 S.W.3d 14, 25–26 (Tex. App.—Houston [14th Dist.] 2004), vacated, op. not withdrawn, No. 14-03-00342-CV, 2005 WL 310076, at *1 (Tex. App.—Houston [14th Dist.] Feb. 10, 2005, no pet.) (per curiam) (mem. op.).

  66. The issue is whether a trial court in a nonenforcement modification suit may order a parent to pay, as additional child support, reasonable attorney’s fees for legal services benefitting the children. In re Moers, 104 S.W.3d at 611–12; Hardin, 161 S.W.3d at 25–26.

  67. Ray Blackwood, a member of the Author’s chambers staff at the Fourteenth Court of Appeals, independently wrote an article in which he made the following observation:

    In the seven years after Hardin was decided, the same issue was raised in at least 19 intermediate court of appeals opinions throughout Texas. In 17 of these cases, no party sought review in the Supreme Court of Texas. In the other two cases, even if the Supreme Court of Texas had granted the petition for review, the high court would not have been able to address this issue. Thus, even though the issue was raised in 19 appeals over seven years, the Supreme Court of Texas was powerless to resolve the split between the Houston Appellate Courts.

    Ray Blackwood, Overlapping Jurisdiction in the Houston-Based Courts of Appeals – Could a Special En Banc Procedure Alleviate Problems?, Hous. Law., July–Aug. 2013, at 22, 23 (citations omitted).

  68. See Tucker v. Thomas, 405 S.W.3d 694, 711 (Tex. App.—Houston [14th Dist.] 2011) (en banc), aff’d in part and rev’d in part, 419 S.W.3d 292 (Tex. 2013).

  69. The Supreme Court of Texas granted review in Tucker v. Thomas and resolved the conflict, holding that Texas statutes do not authorize a trial court “to order a parent to pay attorney’s fees as additional child support in a non-enforcement modification suit.” Tucker v. Thomas, 419 S.W.3d 292, 293, 298 (Tex. 2013).

  70. State v. Thompson, 912 S.W.2d 244, 246 (Tex. App.—Houston [14th Dist.] 1995), rev’d, 958 S.W.2d 395 (Tex. Crim. App. 1996).

  71. Id.

  72. Van Corsey v. State, 916 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).

  73. Thompson, 912 S.W.2d at 246 (consolidating state’s appeal from trial court’s assessment of punishment under Texas Penal Code section 12.35 and section 15 of article 42.12 of Texas Code of Criminal Procedure in unrelated proceedings in which both appellees—Thompson and Perry—entered “guilty” pleas and answered “true” to enhancement paragraphs for two prior felony convictions); Van Corsey, 916 S.W.2d at 25 (reviewing defendant’s appeal from conviction for state jail felony of delivery of less than one gram of a controlled substance following “guilty” plea and plea of “true” to enhancement paragraphs in indictment alleging prior felony convictions for robbery and delivery of a controlled substance).

  74. Thompson, 912 S.W.2d at 246–47; Van Corsey, 916 S.W.2d at 25.

  75. Thompson, 912 S.W.2d at 246.

  76. Van Corsey, 916 S.W.2d at 25.

  77. Thompson, 912 S.W.2d at 246.

  78. Van Corsey, 916 S.W.2d at 25.

  79. Thompson, 912 S.W.2d at 246; Van Corsey, 916 S.W.2d at 25.

  80. Compare Thompson, 912 S.W.2d at 249–50 (concluding that three statutes were not in pari materia for purposes of statutory construction and holding that trial court erred in disregarding section 12.42(d) and sentencing defendants under section 15 of article 42.12), with Van Corsey, 916 S.W.2d at 25 & n.3 (applying statutory construction from court’s prior precedents).

  81. Thompson, 912 S.W.2d at 246, 250.

  82. Id. at 250 n.3 (citing State v. Mancuso, 903 S.W.2d 386 (Tex. App.—Houston [1st Dist.] 1995), aff’d, 919 S.W.2d 66 (Tex. Crim. App. 1996)).

  83. After issuing its opinion in Mancuso but before issuing its opinion in Van Corsey, the First Court decided State v. Warner, 915 S.W.2d 873, 874 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d), another appeal with the same issue. The First noted in Van Corsey that in Warner, the First reached the same conclusion as in Mancuso “after application of the rules of statutory construction to sections 12.35 and 12.42 of the Penal Code.” Van Corsey, 916 S.W.2d at 25.

  84. Van Corsey, 916 S.W.2d at 25.

  85. Id. at 25 n.3 (citations omitted).

  86. The high court affirmed the First, Mancuso v. State, 919 S.W.2d 86, 89 (Tex. Crim. App. 1996) (en banc), and reversed the Fourteenth, Thompson v. State, 958 S.W.2d 395, 395 (Tex. Crim. App. 1996) (mem.).

  87. See, e.g., State v. Thomas, No. 01-95-00969-CR, 1996 WL 26837, at *1 (Tex. App.—Houston [1st Dist.] Jan. 25, 1996, pet. ref’d) (not designated for publication); State v. Jones, No. 01-95-00710-CR, 1996 WL 20546, at *1 (Tex. App.—Houston [1st Dist.] Jan. 18, 1996, pet. ref’d) (not designated for publication); State v. Greenhaw, No. 01-95-00150-CR, 1995 WL 348238, at *1 (Tex. App.—Houston [1st Dist.] Jun. 8, 1995) (not designated for publication), aff’d sub nom., State v. Mancuso, 919 S.W.2d 86 (Tex. Crim. App. 1996); Nowling v. State, 909 S.W.2d 121, 122 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).

  88. Compare Johnson v. State, 389 S.W.3d 513, 515 n.1 (Tex. App.—Houston [14th Dist.] 2012), aff’d as modified, 423 S.W.3d 385 (Tex. Crim. App. 2014) (holding that an unsigned computer printout from Justice Information Management System that does not show it was brought to the attention of the trial judge is not an actual bill of costs under article 103.001 of the Texas Code of Criminal Procedure), with Cardenas v. State, 403 S.W.3d 377, 383, 385, 387 (Tex. App.—Houston [1st Dist.] 2013) (op. on reh’g) (allowing supplementation of the clerk’s record with a bill of costs that was prepared and filed with the court after the appellant appealed and holding that bill of costs may be considered as support for the trial court’s earlier assessment of a specific amount of court costs), aff’d, 423 S.W.3d 396 (Tex. Crim. App. 2014).

  89. See, e.g., Romero v. State, 406 S.W.3d 695, 698 (Tex. App.—Houston [14th Dist.] 2013), vacated, 427 S.W.3d 398 (Tex. Crim. App. 2014); Rogers v. State, 402 S.W.3d 410, 420 n.9 (Tex. App.—Houston [14th Dist.] 2013), vacated, 426 S.W.3d 105 (Tex. Crim. App. 2014); Jelks v. State, 397 S.W.3d 759, 760 (Tex. App.—Houston [14th Dist.] 2013), vacated, 426 S.W.3d 104 (Tex. Crim. App. 2014). Opinions not designated for publication are not included.

  90. The Court of Criminal Appeals of Texas granted review in Johnson to consider whether the Fourteenth “erred in deleting the specific amount of court costs on the judgment of conviction based upon the lack of a certified bill of costs in the record.” Johnson v. State, 423 S.W.3d 385, 387 n.1 (Tex. Crim. App. 2014). The high court also granted review in Cardenas to consider whether the First erred in allowing the supplementation of the record with documents created after the trial court entered judgment. Cardenas v. State, 423 S.W.3d 396, 397–98 (Tex. Crim. App. 2014). The high court affirmed the judgment in Cardenas, id. at 399, and affirmed the judgment as modified in Johnson, 423 S.W.3d at 396.

  91. See, e.g., Hearne v. State, 415 S.W.3d 365, 366 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (allowing supplementation of the record with a bill of court costs); Ewells v. State, No. 01-11-01014-CR, 2013 WL 6198318, at *5 (Tex. App.—Houston [1st Dist.] Nov. 26, 2013, pet. ref’d) (mem. op., not designated for publication) (allowing supplementation of the clerk’s record with a computerized printout of costs); Jelks, 397 S.W.3d at 760 (rejecting order to pay court costs when amount is not supported in the record). Depending on the circumstances, intermediate courts sometimes opt to hold cases pending resolution of the issue by the higher court. But this option has its limits. Given the press for prompt disposition of cases pending in the intermediate courts of appeals, it usually proves impractical to hold cases while waiting on the higher court to rule.

  92. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.002, 101.106.

  93. City of Houston v. Esparza, 369 S.W.3d 238, 253 (Tex. App.—Houston [1st Dist.] 2011, pet. denied); Amadi v. City of Houston, 369 S.W.3d 254, 259 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc). The fact patterns in cases addressing the issue usually feature an injured claimant suing both the governmental entity and its employee. The governmental entity then seeks a dismissal of the claims against the employee and afterward seeks dismissal of the claims against it, arguing that the statute demands this result when the claimant elects to sue both the governmental entity and the employee. See, e.g., Esparza, 369 S.W.3d at 242–43; Amadi, 369 S.W.3d at 256.

  94. Brant E. Wischnewsky, Comment, “Election” of Remedies: The City of Houston, the Sister Courts, and the Mission to Interpret the Tort Claims Act, 50 Hous. L. Rev. 1507, 1510 (2013).

  95. Esparza, 369 S.W.3d at 249.

  96. Amadi, 369 S.W.3d at 254–55.

  97. Id. at 260 (rejecting the notion that subsections (b) and (e) of the statute necessarily apply in the alternative).

  98. Wischnewsky, supra note 94, at 1518–19.

  99. Id. at 1530.

  100. Id. at 1530–32.

  101. Another illustration of the two Houston courts of appeals reaching the same outcome but disagreeing on rationale can be found in their application of supersedeas standards adopted in a 2003 statute. Under the statute, appellants are required to post a bond covering compensatory damages, interest, and costs. Tex. Civ. Prac. & Rem. Code Ann. § 52.006. The First and the Fourteenth both held that attorney’s fees had to be included in the amount of the supersedeas bond, but the two courts adopted different rationales. The First held that attorney’s fees are “compensatory damages” whereas the Fourteenth held that attorney’s fees are “costs.” The Supreme Court of Texas has now resolved the long-open issue with a unanimous opinion holding that attorney’s fees should not be included in determining the amount of a supersedeas bond. In re Nalle Plastics Fam. Ltd. P’ship, 406 S.W.3d 168, 170–72, 175–76 (Tex. 2013) (holding the legislature’s use of the word “costs” did not include attorney’s fees as the definition of “litigation costs” elsewhere included both costs and attorney’s fees).

  102. See Paul D. Carrington et al., Justice on Appeal 11 (1976) (“If the purposes of an appeal are to be achieved, the system must provide uniform and coherent enunciation and application of the law . . . .”).

  103. Reyes v. City of Houston, 4 S.W.3d 459, 461–62 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

  104. Montes v. City of Houston, No. 14-99-00174-CV, 2000 WL 1228618, at *1, *3 (Tex. App.—Houston [14th Dist.] Aug. 31, 2000, pet. denied) (not designated for publication).

  105. Montes v. City of Houston, 66 S.W.3d 267, 267–69 (Tex. 2001) (Hecht, J., concurring).

  106. Id. at 267.

  107. See State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991) (en banc); id. at 600 (Clinton, J., dissenting) (noting that the two cases out of the First and Fourteenth “present an anomaly, the likes of which rarely confront this Court”).

  108. A Texas Department of Public Safety officer had received information regarding possible illegal repackaging and distribution of drugs at a building. After the officer conveyed that information to a Texas Department of Health Investigator, both went before a magistrate who issued an inspection warrant authorizing the health investigator to inspect the premises. The officer accompanied the health investigator to the building, where both were allowed entry. They saw employees at the location repackaging pills and also noted the presence of plastic bags, “weight loss advertising literature, order and reorder forms, envelopes, mailing labels, and a postage meter,” which led them to conclude that the employees were “repackaging expired misbranded adulterated drugs for introduction into commerce.” Six vehicle loads of materials were seized. Id. at 598 (majority opinion).

  109. Id. at 600 (Clinton, J., dissenting) (noting the First Court upheld the seizure on the legal theory of plain view).

  110. Haley v. State, 788 S.W.2d 892, 895–96 (Tex. App.—Houston [14th Dist.] 1990) (holding that the authority for seizure of dangerous drugs was limited by the statutory requirement of a search warrant and that the Department of Public Safety officer, without such a warrant, lacked authority to seize the evidence), rev’d, 811 S.W.2d 597 (Tex. Crim. App. 1991); see also Haley, 811 S.W.2d at 600 (Clinton, J., dissenting) (noting that the Fourteenth Court suppressed the fruits of the seizure on the legal theory that the seizure was unauthorized).

  111. The Court of Criminal Appeals of Texas granted review in the felony case, and in a split decision held that the evidence was seized properly under the plain-view doctrine. Haley, 811 S.W.2d at 600. The dissenting judge on the high court expressly noted the incongruity of the two Houston courts viewing the same evidence and reaching opposite results. Id. (Clinton, J., dissenting) (“The First Court upheld the seizure on one legal theory (plain view); the Fourteenth ruled out its fruits on another (unauthorized seizure). Indeed, each petitioning party claims as a reason for review that the decision should be examined because it is in conflict with that of the other.”).

  112. G.H. v. State, 94 S.W.3d 115, 116–17 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (finding “medical records and testimony established delusional and disruptive overt acts, both at home and at the emergency room, that showed a substantial deterioration of G.H.'s ability to function independently”—expressly finding that a patient’s refusal to take medications constitutes an “overt act”).

  113. G.H. v. State, 96 S.W.3d 629, 629, 633 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

  114. Id. at 630, 635 (holding a refusal to take medication is not evidence of a recent “overt act”).

  115. See G.H., 94 S.W.3d at 116–17 (holding an individual’s refusal to take medication is legally sufficient evidence of a recent “overt act”); G.H., 96 S.W.3d at 635 (holding a refusal to take medication is not evidence of a recent “overt act”).

  116. The First Court addressed “the recent decision from our sister [Fourteenth] court affirming a prior temporary commitment order concerning appellant,” noting it disagreed with the analysis, and expressly declined to follow it because the Fourteenth had failed to follow an earlier First Court precedent, K.T. v. State, 68 S.W.3d 887 (Tex. App.—Houston [1st Dist.] 2002, no pet.), and the cases cited therein. G.H., 96 S.W.3d at 635.

  117. G.H., 94 S.W.3d at 117; G.H., 96 S.W.3d at 635.

  118. Compare G.H., 96 S.W.3d at 629, 632–33, 635 (showing commitment proceedings before Judge Gladys B. Burwell, Probate Court of Galveston County, who signed an order for G.H.'s immediate commitment, identifying G.H. was “unable to make a rational and informed decision as to whether or not to submit to treatment” under statute), with G.H., 94 S.W.3d at 116 (noting the trial court found G.H. was unable to determine her treatment independently).

  119. See generally Mark DeForrest, In the Groove or in a Rut? Resolving Conflicts Between the Divisions of the Washington State Court of Appeals at the Trial Court Level, 48 Gonz. L. Rev. 455, 488 (2013) (discussing difficulties for trial courts when faced with the prospect of deciding issues for which there are conflicting authorities from divisions within the intermediate courts of appeals in the state of Washington).

  120. See id. After these cases, both courts instituted local rules to provide for the potential assignment or transfer to the Houston sister court any appeals and original proceedings involving the same parties, where there was a prior appeal, under certain circumstances. However, the rule has several limitations, and in most split-of-authority circumstances trial judges still must choose between two equally binding yet different (sometimes opposite) rules. See discussion infra Section IV.D.

  121. Scott Brister, Is It Time to Reform Our Courts of Appeals?, Hous. Law., Mar.–Apr. 2003, at 22, 26; see also Stacy K. Alexander, An Interview with Justice (Ret.) Scott Brister, 22 App. Advoc. 103, 106 (2009) (explaining the difficulty with having “two appellate courts with identical jurisdiction over one area . . . [are] the conflicts. I ran into this a number of times as a trial judge where the Fourteenth Court would say the law is one thing, and the First Court would say the law is something else.”).

  122. See Tex. Gov’t Code Ann. § 22.202(h); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 500 S.W.3d 26, 51 n.2 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (Massengale, J., dissenting) (“Litigants in Harris County and the nine other counties that constitute the First and Fourteenth Judicial Districts do not know which appellate court will have jurisdiction over an appeal until after filing a notice of appeal.”).

  123. See Resurgence Fin., L.L.C. v. Lawrence, No. 01-08-00341-CV, 2009 WL 3248285, at *3 (Tex. App.—Houston [1st Dist.] Oct. 8, 2009, no pet.) (noting that the court generally does not “overrule precedent absent a compelling reason, especially when, as here, doing so would cause a split of authority between our sister court with which we exercise concurrent appellate jurisdiction”); Howeth Invs., Inc. v. City of Hedwig Village, 259 S.W.3d 877, 901 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (declining to overturn a thirty-three-year-old precedent interpreting a statute that would result in a split with the Fourteenth Court of Appeals, when no compelling reason existed to do so); Agar Corp. v. Electro Cirs. Int’l, L.L.C., 529 S.W.3d 559, 560 (Tex. App.—Houston [14th Dist.] 2017) (Frost, C.J., concurring) (observing, in the denial of motion for rehearing en banc, that stepping away from the court’s precedent in favor of a superior rule “would mean stepping away from uniformity in the law within our shared jurisdiction” and noting that adopting a different rule than the Houston sister court would create a split in authority within the shared jurisdiction “that would cause more harm than keeping the inferior rule”), aff’d in part and rev’d in part, 580 S.W.3d 136 (Tex. 2019); Tucker v. Thomas, 405 S.W.3d 694, 717 (Tex. App.—Houston [14th Dist.] 2011) (en banc) (Frost, J., concurring) (observing that “it is in the best interest of all concerned that, whenever possible, the two Houston-based courts of appeals achieve alignment”), rev’d, 419 S.W.3d 292 (Tex. 2013).

  124. Blackwood, supra note 67, at 23. Panels of a court of appeals are bound to follow the court’s precedent. If a panel overlooks or fails to follow binding precedent, the members of the court can invoke en banc review to settle any resulting conflict. See Tex. R. App. P. 41.2(c); Glassman v. Goodfriend, 347 S.W.3d 772, 781 & n.8 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc).

  125. En banc review will resolve a conflict between the First and Fourteenth only when a majority of the en banc court happens to make the same judgment as the other appellate court regarding the legal issue at hand. If there is no conflict in the precedent of the First and if a majority of the members of that court sitting en banc conclude that a precedent of that court is correct, then a conflict between that precedent and precedent from the Fourteenth cannot be resolved by en banc review in the First. If a majority of the members of the First sitting en banc conclude that a precedent that conflicts with its sister court’s precedent is wrongly decided and should be overruled, then the basis for en banc review is the determination that the First’s precedent was wrongly decided, not the existence of a conflict between sister courts. See Blackwood, supra note 67, at 23.

  126. See Tex. R. App. P. 41.2(a).

  127. The Author’s research indicates that only 4.2% of the conflicts between 1968 to the first quarter of 2014 identified in the study’s survey of cases were resolved in a later case by en banc review in the first court to decide the issue; the same percentage (4.2%) were resolved by en banc review in a later case by the second-to-decide court. See Frost, Predictability in the Law, supra note 49, at 70–71. It is possible that a special en banc procedure could be developed for resolving conflicts between the Houston sister courts of appeals. See Blackwood, supra note 67, at 24. Though the idea holds promise, the benefits would only go so far. If the procedure were adopted, it would address only conflict resolution; it would not solve the many other problems that result from splits in authority in the shared jurisdiction. See discussion infra Section VI.A (noting that even if conflicts eventually get resolved, for some significant period of time actors in the region would have to tolerate the uncertainty in the law, and during those periods, both Houston courts of appeals still would suffer the inefficiencies that come with retreading the same ground); discussion infra Section VI.D (describing inherent inefficiencies in a system that permits splits in authority within the same geographic region).

  128. See Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.3, 139–40 (Tex. 1995) (“[W]e note that this question arises only because the Legislature has chosen to create overlaps in the State’s appellate districts. . . . [T]he problems created by overlapping districts are manifest. Both the bench and bar in counties served by multiple courts are subjected to uncertainty from conflicting legal authority. . . . The Court thus adheres to its view that overlaps in appellate districts are disfavored.”).

  129. See State v. Haley, 811 S.W.2d 597, 600 (Tex. Crim. App. 1991) (en banc) (Clinton, J., dissenting) (noting that out of a single entry and seizure there arose several prosecutions in which the First Court upheld seizure on one legal theory while the Fourteenth Court ruled out fruits of the seizure on another).

  130. See Tex. Gov’t Code Ann. § 22.202(h) (providing for companion cases to be assigned to the same court of appeals); 1st Tex. App. (Houston) Loc. R. 1.3 (Notice of and Assignment of Related Cases in Original Proceedings), 1.4 (Notice of and Assignment of Related Cases in Appeals); 14th Tex. App. (Houston) Loc. R. 1.3 (Notice of and Assignment of Related Cases in Original Proceedings), 1.4 (Notice of and Assignment of Related Cases in Appeals).

  131. The local rules for the First and the Fourteenth are identical. They address transfers of related cases between the courts in various scenarios and provide that if one of the courts has heard a related matter, the filing party must identify the matter and provide the related case’s caption and cause numbers and indicate whether the related appeal or original proceeding has been filed in the First Court or in the Fourteenth Court. See, e.g., 1st Tex. App. (Houston) Loc. R. 1.3 (Notice of and Assignment of Related Cases in Original Proceedings), 1.4 (Notice of and Assignment of Related Cases in Appeals), 1.5 (Transfers of Related Cases Between the First and Fourteenth Courts of Appeals), 1.6 (Assignment of Permissive Appeals to either the First or Fourteenth Court of Appeals). If the information is provided, the current proceeding will be assigned to the court that heard the related matter. See id. Loc. R. 1.3, 1.4. If parties do not comply with the rules by providing information necessary to flag the case as a candidate for assignment, or if they wait too long in the process to do so (after submission), the court in which the case is pending will not be put on notice of the potential assignment, and unless the court itself identifies the case as a candidate for assignment, the case-assignment process will not be triggered. See id. Loc. R. 1.5.

  132. Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 500 S.W.3d 26, 51 n.2 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (Massengale, J., dissenting) (noting that in the shared jurisdiction, applicability of one court of appeals’ precedent to a given case is “an unknown variable” until after the filing of a notice of appeal); Tucker v. Thomas, 405 S.W.3d 694, 716–17 (Tex. App.—Houston [14th Dist.] 2011) (en banc) (Frost, J., concurring), aff’d in part and rev’d in part, 419 S.W.3d 292 (Tex. 2013).

  133. John Bouvier, Ubi jus incertum, Free Dictionary: Legal Dictionary, https://legaldictionary.thefreedictionary.com/Ubi+jus+incertum [https://perma.cc/3B6F-JH25] (last visited June 13, 2020).

  134. . Today, the Fifth Court of Appeals (based in Dallas) and Sixth Court of Appeals (based in Texarkana) share jurisdiction over Hunt County while the Sixth Court of Appeals and Twelfth Court of Appeals (based in Tyler) share jurisdiction over Gregg, Rusk, Upshur, and Wood Counties. Tex. Gov’t Code Ann. §§ 22.201(f)­–(g), (m), 22.207(a), 22.213(a), 22.206(a).

  135. See Miles v. Ford Motor Co., 914 S.W.2d 135, 139–40 (Tex. 1995).

  136. This map of the Texas courts-of-appeals districts was reprinted (and labels added) from Courts of Appeals Districts, Tex. Cts., https://www.txcourts.gov/media/10872/COA05_map2012.pdf [https://perma.cc/F8NV-PBM4] (last visited July 5, 2020).

  137. See Tucker, 405 S.W.3d at 716 (“The Texas court system is the only court system in the United States that has intermediate appellate courts whose geographical jurisdiction overlaps.”). The state of Washington has a different court structure, one that features a single intermediate appellate court, but it is prone to many of the same problems as the Houston sister courts because the one intermediate court has multiple coordinate divisions. See DeForrest, supra note 119, at 488 (noting that the state’s unitary court structure with multiple divisions within the intermediate court “births conflicts between the divisions of the single court of appeals, with trial courts often left to deal with those conflicted authorities as best they can”). Similarly, Arizona’s regional appellate courts issue decisions that have equal precedential weight throughout the state. Scappaticci v. Sw. Sav. & Loan Ass’n, 662 P.2d 131, 136 (Ariz. 1983) (en banc) (“A decision by the Arizona Court of Appeals has statewide application.”). In these states, when two divisions issue conflicting opinions, a similar problem arises, though neither Washington nor Arizona have overlapping geographic jurisdictions.

  138. See Tex. Gov’t Code Ann. §§ 22.201 (b), (o). These ten counties are Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington.

  139. See Perez v. State, 495 S.W.3d 374, 392 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

  140. In Texas, no court of appeals is required to follow the decisions of any of the other thirteen intermediate courts of appeals. See Lambert v. Affiliated Foods, Inc., 20 S.W.3d 1, 8 (Tex. App.—Amarillo 1999), aff’d sub. nom., Lawrence v. C.D.B. Servs., Inc., 44 S.W.3d 544 (Tex. 2001).

  141. A member of the Author’s chambers staff who has written independently on this subject explained the problem in Houston’s coterminous-jurisdiction courts in this way:

    A conflict between intermediate appellate courts whose jurisdiction does not overlap creates a lack of uniformity in the judicial system, which lasts until the conflict is resolved. But, even while this conflict exists, under principles of vertical stare decisis, the holding in each of the appeals binds the trial courts in the respective jurisdiction of each appellate court. In addition, unless abrogated by a higher court or the court of appeals sitting en banc or superseded by statute, the holding in each of the appeals binds future panels of each appellate court. But a conflict between holdings of the First Court and the Fourteenth Court means that there is no mandatory precedent for the trial courts in the geographical jurisdiction of the Houston Appellate Courts. . . . This situation results in a significant lack of certainty and predictability, as well as increased transaction costs, for parties, lawyers and the trial courts in this jurisdiction.

    Blackwood, supra note 67, at 23 (citations omitted).

  142. See Miles v. Ford Motor Co., 914 S.W.2d 135, 139 (Tex. 1995) (noting that “the Legislature has chosen to create overlaps in the State’s appellate districts” and stating that the Texas Supreme Court has been “unable to find any other state in the union which has created geographically overlapping appellate districts”).

  143. See id. at 137 n.3 (“The first appellate overlap, created in 1934, involved Hunt County. After that county was transferred from the Fifth District (Dallas) to the Sixth District (Texarkana) in 1927, it was restored to the Fifth District seven years later, thus placing it in two districts.” (citing Act of September 24, 1934, 43rd Leg., 3rd C.S., ch. 31, 1934 Tex. Gen. Laws 54)).

  144. The Supreme Court of Texas, in considering the possible explanations for this legislative choice, has suggested that coterminous jurisdiction might have come about as a result of political expediency, local dissatisfaction with the existing judiciary, or an expanded base of potential judicial candidates. Id. at 139.

  145. In an article commemorating the fiftieth anniversary of the Fourteenth Court of Appeals, the Author highlighted the origin of the court and the challenges the coterminous-jurisdiction model presents. See Kem Thompson Frost, The Fourteenth at Fifty: Poised for Change, Prepared for Challenge, and Pointed Toward the Future, Hous. Law., Sept.–Oct. 2017, at 33, 36.

  146. See Tex. Const. art. V, § 6(a) (amended 2001). At the time, the court was the First Court of Civil Appeals and had no criminal jurisdiction. In 1980, Texans amended the Texas Constitution to give the state’s intermediate appellate courts jurisdiction over criminal appeals. See id. § 5 (amended 2001).

  147. See Miles, 914 S.W.2d at 137 n.3 (pointing to “population and litigation growth in the Houston area and the then constitutional limitation of appellate courts to three justices” as reasons the Legislature chose to establish the Fourteenth Court, covering the same counties as the existing First Court).

  148. See Tex. Const. art. V, § 6 (amended 1978, 1981, 1985, 2001). In 1978, the people of Texas amended the Texas Constitution to omit the restriction on the number of justices on each of the state’s intermediate appellate courts. See First Court of Appeals History, Tex. Cts., http://www.txcourts.gov/1stcoa/about-the-court/history/ [https://perma.cc/NCF7-QQJE] (last visited July 29, 2020).

  149. See Act of May 29, 1967, 60th Leg., R.S., ch. 728, §§ 1, 2, 3, 1967 Tex. Gen. Laws 1952, 1952–54; James T. Worthen, The Organizational and Structural Development of Intermediate Appellate Courts in Texas, 1892–2003, 46 S. Tex. L. Rev. 33, 35 (2004).

  150. As explained in Section IV.C, supra, en banc review in the Houston sister courts cannot resolve the splits in authority. The Supreme Court of Texas will not and cannot resolve all the conflicts, either. Though the Court of Criminal Appeals of Texas could act sua sponte to resolve a conflict in the state’s criminal law, the court rarely invokes this power and many conflicts in criminal cases go unresolved. See infra notes 199–200 and accompanying text.

  151. See supra note 127 and accompanying text.

  152. See Brister, supra note 121 (describing the problem created by Houston’s shared-jurisdiction courts as “practicing law on a guess and a gamble”).

  153. Hardisty, supra note 3, at 55 (“[I]ncreased predictability tends to reduce litigation and increase the efficient operation of the judicial system.”).

  154. Coke observed that “Certainty is the mother of quiet and repose, and uncertainty the cause of variance and contentions.” Beverly A. Potter & Mark J. Estren, Question Authority to Think for Yourself 110 (Mark Estren ed., 2012).

  155. See Garner et al., supra note 1, at 11–12 (“[T]he right answer to a legal question is sometimes less important than a clear one. Does it matter more which side of the road the law says we should drive on, or that everyone follows the same rule?”).

  156. See J. Thomas Sullivan, Justice White’s Principled Passion for Consistency, 4 J. App. Prac. & Process 79, 81 (2002) (“Uncertainty in doctrine, while undoubtedly of interest to academics and theoreticians, is an anathema to the practitioner whose sound counsel is dependent upon the stability that doctrinal certainty affords.”).

  157. See, e.g., Blackwood, supra note 67, at 23, 25 (noting “the undesirable effects of these [Houston-based] courts’ overlapping jurisdiction”).

  158. One legal commentator has described the shared-jurisdiction problem as “absurd, unnecessary, and unworthy of the many fine judges and lawyers working in both the lower courts and the courts of appeals [in the Houston shared-jurisdiction courts].” David J. Schenck, Are We Finally Ready to Reshape Texas Appellate Courts for the 21st Century?, 41 Tex. Tech L. Rev. 221, 227 (2009).

  159. Garner et al., supra note 1, at 10 (“[B]y seeking to ensure some consistency in outcomes among decision-makers, the doctrine of precedent may simultaneously promote respect for the judiciary as a neutral source.”).

  160. Carrington et al., supra note 102, at 8.

  161. In Arizona (where the intermediate appellate courts are divided into departments within a division), trial courts get to choose among the intermediate courts’ discordant opinions. See Garner et al., supra note 1, at 306–07 (“When two decisions are applicable but conflicting, a trial court has the ‘discretion to adopt the decision that most persuasively interprets the law, regardless of the division to which the department making the decision belongs or within which the trial court sits.’”) (citing State v. Patterson, 218 P.3d 1031, 1037 (Ariz. Ct. App. 2009). California follows a similar practice when the state’s courts of appeals issue conflicting decisions. Id.

  162. Hardisty, supra note 3, at 54–55 (“[A]rticulation of rules of law . . . serves . . . as a check on judicial arbitrariness and bias.”).

  163. Id.

  164. See Payne v. Tennessee, 501 U.S. 808, 827 (1991) (“Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”); Garner et al., supra note 1, at 10 (noting that consistency in outcomes among judicial decision-makers promotes respect for the judiciary as a neutral source).

  165. Carrington et al., supra note 102, at 12.

  166. The Author’s research indicates that although judges on the Houston sister courts “acknowledge the salutary benefits of achieving uniformity in the law within the shared jurisdiction, they do not choose the path that would advance it unless they believe that path is also the one that will lead to the best rule.” See Frost, Predictability in the Law, supra note 49, at 82.

  167. In 2007, Texans for Lawsuit Reform Foundation, a nonprofit research organization that describes its interest as “providing objective analysis and effective solutions to address the challenges presented by the Texas civil justice system,” issued a report entitled Recommendations for Reform: The Texas Judicial System, in which the foundation concluded that there was no reason for overlapping appellate jurisdictions and recommended merger of the two Houston courts of appeals. Texans for Lawsuit Reform Found., Recommendations for Reform: The Texas Judicial System 77 (2007), http://www.tlrfoundation.com/foundation_papers/the-texas-judicial-system/ [https://perma.cc/UFG9-VCD2].

  168. See, e.g., In re Reece, 341 S.W.3d 360, 381–82 (Tex. 2011) (Willett, J., dissenting) (“[T]he most strenuous critics, it seems, are those who know the system best: the judges.”).

  169. See sources cited supra notes 46–48, 121.

  170. See Ed. Bd., The 1st and the 14th Courts of Appeals Need to Be Fixed, Hous. Chron. (Oct. 4, 2010), https://www.houstonchronicle.com/opinion/recommendations/article/1st-and-14th-Courts-of-Appeals-voting-rights-13282698.php [https://perma.cc/6L2Z-8N4M] (noting problems with two overlapping districts and stating: “Consider this scenario: What happens when the concurrent appellate courts come to differing conclusions about a question of law? It would create conflicting precedents for the trial courts that would have to be settled by the Texas Supreme Court. State legislators should redraw the districts to avoid this bizarre jurisprudential riddle.”).

  171. See, e.g., Michelle Casady, Texas Appellate Court Sprawl Has No Easy Fix in Sight, Law360 (Oct. 30, 2019, 5:23 PM), https://www.law360.com/articles/1215230/texas-appellate-court-sprawl-has-no-easy-fix-in-sight [https://perma.cc/AD7P-YYK3] (“One car crash, two lawsuits. Two appellate courts in the same city that reached opposite outcomes on the same issue. It could have only happened in Texas, where the state’s 14 intermediate appellate courts each have their own lines of precedent. Houston is stranger still, with two separate appellate courts to which cases are assigned at random.”); Brister, supra note 121.

  172. See, e.g., Andrew P. Morriss, Opting for Change or Continuity? Thinking About ‘Reforming’ the Judicial Article of Montana’s Constitution, 1 Mont. L. Rev. 27, 36 (2011) (citing to Montes and characterizing the shared-jurisdiction courts as an example of “foolish structures”); Wischnewsky, supra note 94, at 1537 (describing the impact of the Esparza-Amadi conflict and “uncertain resolution” of the split in authority in Houston’s two appellate courts); Andrew T. Solomon, A Simple Prescription for Texas’s Ailing Court System: Stronger Stare Decisis, 37 St. Mary’s L.J. 417, 418–19 (2006) (condemning Texas jurisdictional overlaps for creating uncertainty about controlling legal authority).

  173. See, e.g., Blackwood, supra note 67, at 23 (noting that “[h]aving two intermediate appellate courts with the same geographic jurisdiction creates various problems”; that “overlapping jurisdiction creates inefficiency and uncertainty in appellate precedent”; and the result is “a significant lack of certainty and predictability, as well as increased transaction costs, for parties, lawyers and the trial courts in this jurisdiction”); Brister, supra note 121 (describing the problem created by Houston’s shared-jurisdiction courts as “practicing law on a guess and a gamble”).

  174. See Stefanie A. Lindquist & Frank C. Cross, Univ. Tex. Sch. of L., Stability, Predictability and the Rule of Law: Stare Decisis as Reciprocity Norm 1, https://law.utexas.edu/conferences/measuring/The Papers/Rule of Law Conference.crosslindquist.pdf [https://perma.cc/C53V-3FUV] (last visited July 2, 2020) (“When judges dispense with prevailing doctrine in favor of a new rule, it has the potential to throw citizens’ expectations into disarray. If judges frequently choose to do so, it creates a less predictable legal environment for the development of economic and other human relations.”).

  175. Bertrand Russell, Quotable Quotes, Reader’s Dig., Aug. 1940, at 90.

  176. The Nobel Prize in Literature 1950, Nobel Prize, https://www.nobelprize.org/prizes/literature/1950/summary/ [https://perma.cc/Q8LY-X27B] (last visited Sept. 6, 2020).

  177. See Garner et al., supra note 1, at 295 (“If no binding precedent exists for determining a particular case, and the decisions in other jurisdictions on the question involved are in irreconcilable conflict, the court will adopt a rule that appears to be founded on the better rationale.”). The Author’s research shows that, because the First and Fourteenth Courts of Appeals are independent bodies whose members are duty-bound to exercise independent judgment, judges can and do act on their judicial preferences. On almost every index of inquiry, the surveyed judges placed greater importance on choosing the “better rule” than on achieving alignment in the shared jurisdiction. Research shows that even though these judges believe that predictability in the law is crucial to the justice system as a whole, most choose to sacrifice it for the sake of adopting what they believe to be a sounder or more efficient rule. See Frost, Predictability in the Law, supra note 49, at 81–82. Judges express this judicial priority through conflict creation. See id. at 67–78.

  178. See, e.g., State v. Seeley, 567 N.W.2d 897, 901–02 (Wis. Ct. App. 1997) (holding that in Wisconsin, the decision of one intermediate court is binding on other intermediate courts); Pena v. Indus. Comm’n. of Ariz., 683 P.2d 309, 315 (Ariz. Ct. App. 1984) (ruling that the decision of one intermediate court is binding on others unless a prior decision was clearly erroneous or conditions have changed so much to warrant a change).

  179. But these judges still could choose to author a separate writing advocating a different rule or expressing disagreement with the logic or rationale of the opinion of the first court that considered the issue. See Ex parte Williams, 595 S.W.3d 328, 330 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (Frost, J., concurring).

  180. “If no binding precedent exists for determining a particular case, and the decisions in other jurisdictions on the question involved are in irreconcilable conflict, the court will adopt a rule that appears to be founded on the better rationale.” Garner et al., supra note 1, at 295. In furtherance of this principle, “a court considering an open question is also bound to apply its independent judgment” and is not required to follow a trend founded on poor reasoning or inconsistent with existing state law. Id. at 295–96.

  181. Tex. Sup. Ct., Recommendations for Reallocation of Courts of Appeals, Misc. Docket No. 02-9232, para. 1 (Dec. 17, 2002); see also In re Reece, 341 S.W.3d 360, 384 (Tex. 2011) (Willett, J., dissenting in part and concurring in part).

  182. Schenck, supra note 158, at 225­–26; see also In re Reece, 341 S.W.3d at 384 (Willett, J., dissenting).

  183. Blackwood, supra note 67, at 23.

  184. See, e.g., Patrick J. Dyer & Jacalyn D. Scott, Supersedeas: The Trials and Tribulations of Suspending Enforcement of a Money Judgment Under the New Rules, Hous. Law., July–Aug. 2009, at 28 (noting that the First and Fourteenth came into alignment on the meaning of “net worth” for supersedeas purposes, and explaining how after the Fourteenth issued its opinion in Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 914 (Tex. App.—Houston [14th Dist.] 2005, no pet.), the First withdrew its panel opinion and issued an en banc opinion following Ramco). Only about a month earlier, a panel of the First had declined to adopt the definition. But, on rehearing, the en banc court withdrew the opinion and issued a new en banc majority opinion, stating that net worth is determined by current assets minus current liabilities in accordance with generally accepted accounting principles, just as the Fourteenth held in Ramco. Id.

  185. See, e.g., In re Reece, 341 S.W.3d at 384 (Willett, J., dissenting) (noting the Supreme Court of Texas’s recognition of the “‘manifest’ problems inherent in overlapping districts” and mentioning that in 2002, the high court had “exhorted the Legislature that ‘[n]o county should be in more than one appellate district’”); State Bar of Tex., Report of the Court Administration Task Force 36 (2008) (recommending that the Legislature address “jurisdictional overlaps in the court of appeals districts gradually, in cooperation with the courts themselves, while maintaining the number of courts and diverse . . . geographical coverage of each district”).

  186. “A substantial majority of the appeals in the Houston Appellate Courts’ jurisdiction comes from Harris County [where Houston is located]. Thus, there is no way to effectively address these problems by dividing the 10 counties in the jurisdiction between the two Houston Appellate Courts.” Blackwood, supra note 67, at 23. Some, including several judges, have advocated merger of the two courts. Id.

  187. See Lisa Bowlin Hobbs, Appellate Rules Update 5 (2005) http://www.texasbarcle.com/Materials/Events/5116/99284_01.pdf [https://perma.cc/E833-QSVD] (“The primary recommendation of the Court at this time is to eliminate the current jurisdictional overlaps that occur between two or more Courts of Appeals in ten counties, and in one instance, in three counties.”); Tex. Sup. Ct., Report of the Supreme Court to the Legislature Regarding Appellate Courts, Misc. Docket No. 93-0063, para. 4 (Mar. 1, 1993) (“No county should be in more than one appellate district.”); Tex. Sup. Ct., Report on the Reapportionment of the Courts of Appeals Districts as adopted by the Supreme Court of Texas and the Texas Judicial Council (Dec. 1986) (“All current overlapping districts should be eliminated except for the 1st and 14th districts which are coterminous.”).

  188. Tex. Sup. Ct., Recommendations for Reallocation of Court of Appeals, Misc. Docket No. 02-9232, para. 1 (Dec. 17, 2002).

  189. In 2003, the Legislature cut Brazos County, which had been in both the First-Fourteenth Districts and the Tenth District (based in Waco), from the First-Fourteenth’s shared jurisdiction, leaving it exclusively in the Tenth District. In 2005, the Legislature cut Van Zandt County out of the Fifth District (based in Dallas) so that Van Zandt County remained exclusively in the Twelfth District (based in Tyler). The same year, the Legislature cut Hopkins, Kaufman, and Panola Counties from the Sixth District, leaving Hopkins and Panola Counties in the Twelfth District and Kaufman County in the Fifth District. See Texans for Lawsuit Reform Found., supra note 167, at 9–10.

  190. See Courts of Appeals Districts, Texas Jud. Branch, https://www.txcourts.gov/judicial-directory/court-jurisdiction-maps/ [https://perma.cc/Q7ZR-D78H] (last visited July 3, 2020).

  191. See Andrew T. Solomon, A Simple Prescription for Texas’s Ailing Court System: Stronger Stare Decisis, 37 St. Mary’s L.J. 417, 457–65 (2006); Wade Glover, Comment, Docket Equalization: Turning the Texas Court System into a Crapshoot and How Your Case May Be Affected, 40 Tex. Tech L. Rev. 295, 304–05 (2008).

  192. The Supreme Court of Texas has the power to transfer cases among the intermediate courts of appeals when there is “good cause,” and the high court does so as a means of docket equalization. Tex. Gov’t Code Ann. § 73.001 (“The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.”); see also Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.3 (Tex. 1995) (noting that the supreme court typically exercises its authority under Government Code section 73.001 to equalize dockets of the courts of appeals); Tex. Sup. Ct., Order Regarding Transfer of Cases from Courts of Appeals, Misc. Docket No. 14-9121, para. II (June 23, 2014). The Texas Legislature appropriates funds to the Supreme Court of Texas each biennium for the purpose of transferring cases among the fourteen courts of appeals to equalize the dockets and promote efficiency in the use of court resources. See Tex. H.B. 1, 84th Leg., R.S., IV-2, Rider 3 (2015). The General Appropriations Act provides that “equalization shall be considered achieved if the new cases filed each year per justice are equalized by 10% or less among all the courts of appeals.” Id.

  193. The transferee court would ask, “Should we apply the law as we believe it should be across the State of Texas or should we apply the law in the manner we believe [the transferor court] would apply it?” Jaubert v. State, 65 S.W.3d 73, 77 (Tex. App.—Waco 2000) (Gray, J., concurring), rev’d on other grounds, 74 S.W.3d 1 (Tex. Crim. App. 2002).

  194. Compare McLendon v. Tex. Dep’t of Pub. Safety, 985 S.W.2d 571, 576 n.6 (Tex. App.—Waco 1998) (“[W]e disagree with the reasoning of [our sister court] and will decline to follow [its precedent] notwithstanding the transfer status of this cause.”), and Am. Nat’l Ins. v. Int’l Bus. Machs. Corp., 933 S.W.2d 685, 687 (Tex. App.—San Antonio 1996, writ denied) (“[W]e are not to blindly apply either [the precedent of the transferring court or the our own precedent], but are to reach our best conclusion as to what the law of the State of Texas is on this issue.”), with Pena v. State, 995 S.W.2d 259, 261 (Tex. App.—Corpus Christi 1999, no pet.) (“We hold that when an appellate court has a case presenting [a conflict], the court accepting the transfer should apply the law of the transferring jurisdiction so as to uphold the rightful expectations of practitioners in the transferring jurisdiction.”).

  195. See, e.g., Am. Nat’l Ins., 933 S.W.2d at 692 (Duncan, J., dissenting) (reversing summary judgment despite recognizing that it was properly granted under transferor court’s precedent).

  196. Tex. H.R. Con. Res. 88, 79th Leg., R.S. (2005).

  197. See Tex. R. App. P. 41.3 (“In cases transferred by the Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.”).

  198. See Frost, Predictability in the Law, supra note 49, at 93–94 (“The survey of cases [from the Houston sister courts] revealed an upward trendline in splits of authority, compared to relatively few conflicts in the early years following the creation of the shared jurisdiction.”).

  199. In the Author’s study of First-Fourteenth conflicts, the pace and frequency of conflict creation increased over time, and 46% of the conflicts remained unresolved at the close of the study. See Frost, Predictability in the Law, supra note 49, at 69–70, and accompanying conflict-creation chronology and graphs.

  200. Id.

  201. In some cases, parties accept the trial court’s judgment and choose not to appeal; in other cases, parties settle before an appeal or forgo an appeal due to expense, inconvenience, or delay; and in some instances, the law does not provide a right to appeal. See Theodore Eisenberg, Appeal Rates and Outcome in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. Empirical Legal Stud. 3, 659, 679, 993 (2004).

  202. Even when parties appeal, they may settle before the court issues an opinion, and even if the court already has issued an opinion, the court retains the option of withdrawing the opinion. See Tex. R. App. P. 42.1(c) (governing voluntary dismissal and settlement in civil cases and providing that “[i]n dismissing a proceeding, the appellate court will determine whether to withdraw any opinion it has already issued”). Some cases may implicate a split of authority but not result in an opinion that mentions the conflict because the court of appeals did not reach the issue but instead disposed of the appeal on another ground. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

  203. Unlike the federal system, in which trial courts write and designate opinions for publication in reporters (such as the Federal Supplement and Federal Rules Decisions), in Texas, there are no case reporters for state court trial opinions and orders, so decisions in these cases typically do not get published. Though trial court orders and opinions are publicly available (where case number, parties, or other case information is known) and open to media coverage, trial court decisions are not reported or compiled for legal-research purposes. See Legal Research: An Overview: Courts, Case Reporters & Publication of Cases, UCLA Sch. L., https://libguides.law.ucla.edu/c.php?g=686105&p=5160744 [https://perma.cc/W5DZ-EUHH] (Sept. 9, 2020, 5:12 PM).

  204. In the Author’s study, 84% of the survey participants (former members of the Houston sister courts of appeals) reported “that if disparate outcomes in split-of-authority cases in the Houston courts of appeals occurred with greater frequency, there would be greater cause for concern over negative perceptions about the fairness of our legal system.” See Frost, Predictability in the Law, supra note 49, at 93.

  205. See Tex. Gov’t Code Ann. § 22.202(f) (“The First and Fourteenth Courts of Appeals shall establish a central clerk’s office and offices for justices and other support personnel in Houston.”).

  206. The First and the Fourteenth both make their home in the historic Harris County 1910 Courthouse, dividing the space not by floors but by north and south sides of the building. Consequently, the chambers of justices of the two courts already are on the same four floors. If the courts were combined, no judge’s chambers would have to move, no court lawyers or administrative staff would have to relocate, and no physical space would have to be reconfigured. The courts already share common areas and, occasionally, courtrooms.

  207. Combining the First and Fourteenth would bring about improvements in court administration and procedure by enabling the members of the new, unified court to select the best of both courts’ administrative processes and policies. The two courts currently utilize different procedures for handling certain aspects of their dockets and, as with any merger, unification would provide the opportunity to choose the better, more efficient systems. The long-term benefits derived from these system improvements would outweigh any initial rough spots resulting from the merger. See Frost, supra note 145, at 36.

  208. See Fifth Court of Appeals, Tex. Jud. Branch, https://www.txcourts.gov/5thcoa/about-the-court/ [https://perma.cc/VG9E-KXHL] (last visited July 27, 2020). The largest of the intermediate courts in the federal system—the Ninth Circuit Court of Appeals—has 29 judgeships. See Court Structure and Procedures, U.S. Ct. Appeals Ninth Cir., http://cdn.ca9.uscourts.gov/datastore/uploads/rules/rules.htm [https://perma.cc/AV96-JELL] (last visited July 3, 2020).

  209. Arizona has a single intermediate court of appeals with two divisions and 22 judges (16 in Phoenix and 6 in Tucson). See Courts of Appeals, Ariz. Jud. Branch, https://www.azcourts.gov/AZ-Courts/Court-of-Appeals [https://perma.cc/8F3R-E8MV] (last visited July 3, 2020). Colorado has one intermediate court of appeals with 22 judges. See Judges of the Courts of Appeals, Colo. Jud. Branch, https://www.courts.state.co.us/Courts/Court_Of_Appeals/Judges.cfm [https://perma.cc/MVA5-ZCXF] (last visited July 4, 2020). Illinois has one intermediate appellate court with 52 judges serving in 5 districts; the First District (based in Chicago) is the largest, with 18 judges. See About the Courts in Illinois, Ill. Cts., http://www.illinoiscourts.gov/General/CourtsInIL.asp [https://perma.cc/K8WP-KPY2] (last visited July 16, 2020). Massachusetts has one intermediate court of appeals with 25 judges. See Appeals Courts, Mass.gov, https://www.mass.gov/orgs/appeals-court [https://perma.cc/5T4P-9BZR] (last visited June 29, 2020). Michigan, too, has one intermediate court of appeals with 24 judges. See About the Court, Mich. Cts., https://courts.michigan.gov/Courts/COA/aboutthecourt/Pages/About.aspx [https://perma.cc/9YRJ-HEBE] (last visited July 16, 2020). Minnesota has one court of appeals with 19 judges. See Minnesota Court of Appeals, Minn. Jud. Branch http://www.mncourts.gov/CourtOfAppeals.aspx#tab04Judges [https://perma.cc/D68G-8RMY] (last visited July 2, 2020).

  210. A default rule might mitigate the problem, i.e., a rule providing that the first-in-time decision prevails unless changed by the unified court via en banc review.

  211. See Barbara Rodriguez Mundell & Wallace B. Jefferson, Herding Lions: Shared Leadership of State Trial Courts, Perspectives on State Court Leadership Series 2 (2011) (“The most significant deterrent to reform is financial.”).

  212. The savings would take various forms but predominantly would come from eliminating duplicative costs of operating two courts for a single geographic region. In a recent article, the Author noted that already the two courts have realized savings and ease of administration by utilizing a single court clerk and sharing some personnel and programs. See Frost, supra note 145, at 36 (explaining how the Houston courts of appeals “have pooled resources to achieve greater efficiencies in court management and operations” and, by combining efforts, have “boosted court safety and security, enhanced employee training, and increased educational opportunities for the courts’ professional staffs”).

  213. See discussion supra Section VI.D.1.

  214. See Brister, supra note 121, at 25–27.