As anyone who has ever tried can attest, suing the state of Texas isn’t exactly easy, as Lone Star entities are partially shielded by governmental immunity.
And if a new bill becomes law, plaintiff’s attorneys would no longer be able to forum shop for that friendly district judge who might be inclined to hear the civil case against the state, says one political science professor.
In early February, Rep. Mike Schofield, R-Katy, filed House Bill 1091, which calls for the creation of a special three-judge district court when the state is a defendant in any lawsuit in any district court.
Currently pending before committee, HB 1091 would permit the attorney general to petition the chief justice of the state Supreme Court to form a three-judge panel to hear the case, effectively plucking the suit out of whatever district court where it was first heard.
“East Texas was known for large jury awards. Some lawyers bringing suit against the state forum shop for a receptive court,” said Cal Jillson, professor of political science at Southern Methodist University. “This bill would defeat forum shopping.”
Jillson believes that even though some trial lawyers may not like the bill, overall HB 1091 is “not worrisome,” saying that so long as the chief justice appoints “thoughtful and unbiased” judges, there’s not much danger of partisanship.
“Clearly the fear would be that the chief justice would appoint three judges that would lean in favor of the state,” Jillson said, adding that, however, three sets of legal eyes looking at an issue may produce a more stable outcome than one idiosyncratic judge.
Although the bill makes no mention of forum shopping, the bill’s sponsor, Schofield, has publicly stated HB 1091 will ensure that the judges in lawsuits involving major state issues, like school finance and redistricting, aren’t just from Austin.
And regardless of forum shopping, some suits are just too important for a single district judge to decide, according to the bill’s own text.
The bill states that the attorney general's petition to remove must certify that the suit could impact the finances or operations of the state, or “is otherwise of exceptional statewide importance such that the case should not be decided by a single district judge.”
“You can have local interests or prejudice in the venue where the suit is filed,” said Jillson. “It’s reasonable for the state to want … several minds examining the issue.”
The Texas Trial Lawyers Association did not return requests for comment.