A consolidated lawsuit challenging the constitutionality of the law could go to the state’s Seventh Court of Appeals, based in Amarillo, instead of proceeding as expected to the Third Court of Appeals, based in Austin.
Not to be confused with the federal case currently proceeding in the U.S. Court of Appeals for the Fifth Circuit, a group of Planned Parenthood branches, abortion funds, and other industry proponents are suing pro-life advocacy group Texas Right to Life (TRTL) in state court.
The plaintiffs won an early victory last month when the district court judge ruled much of the Heartbeat Act unconstitutional. TRTL appealed, and since the district proceedings took place in Travis County, plaintiffs expected a favorable path forward to the Third Court of Appeals, made up almost unanimously of Democratic justices.
However, shortly after TRTL appealed the case, a routine procedure moved it to the Seventh Court of Appeals, made up entirely of Republican appointees.
The plaintiffs asked the Supreme Court of Texas (SCOTX) to move it back to the Third Court of Appeals on January 10.
Known as docket equalization, the process is meant to spread cases evenly between the different courts of appeal across the state court system. This lawsuit was just one of several cases shuffled to different appellate courts.
The plaintiffs believe transfer was improper because the Texas Rules of Judicial Administration say that a case may not be transferred for docket equalization if the appellate court is reviewing an order from a lower court where the case is pending when the appeal happens.
“Despite the prohibition against docket equalization transfer, this case was inadvertently transferred because its cause number fell within a bracketed group of cause numbers included in the Supreme Court’s transfer order,” the plaintiffs wrote.
“[I]t is important that the case be re-transferred to the Third Court of Appeals as soon as possible.”
Both the Third and Seventh Courts of Appeals have 10 days to respond to the plaintiffs’ motion — and, in addition to seeking a favorable court, the plaintiffs have a vested interest in speeding the process up.
First, and most obviously, opponents of the law are hoping for courts to enjoin it as quickly as possible.
Secondly, because of heretofore unrelated proceedings in the federal lawsuit in the Fifth Circuit, the plaintiffs have found themselves in a race to SCOTX. The Fifth Circuit may decide to certify key questions in the case to SCOTX, which likewise has a conservative reputation, but only if a state court challenge to the law doesn’t reach SCOTX first.
And, while the plaintiffs hope that their recent victory in district court could persuade other courts that the law is unconstitutional, their state court lawsuit is only limited to action against TRTL, while the federal challenge is intended to stop enforcement of the law entirely and could have ramifications for the whole state.
A conservative court like the Seventh Circuit could effectively aid the law by moving slowly, thereby letting the federal Fifth Circuit put the case in the hands of the Supreme Court of Texas.
If the Supreme Court lets the case go to the Seventh Court of Appeals, the decision would be the latest in a string of bad luck for the state court challengers of Senate Bill 8.
The multifarious case began as 14 different lawsuits that SCOTX consolidated into one. The plaintiffs opposed this consolidation before it took place in early October, arguing that it would slow the process down.
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