Saturday, December 17, 2011

The Dissenters: Which TX appellate judges author dissents? (Hint: Sharon Keller writes the most)

Presiding Judge Sharon Keller of the Court of Criminal Appeals authored more dissenting opinions in FY2011 than any other Texas appellate judge, Grits was surprised to discover. According to data (xls) from the Office of Court Administration annual report, dissenting opinions are incredibly rare among Texas appellate courts, and only a handful of justices author most of them, Grits' analysis found. Here's a list of the number of dissents at each Texas appellate court in the year ending Aug. 31, 2011, listing every justice who authored more than two dissents:
1st Court (Houston): 32
Terry Jennings: 6
Evelyn Keyes: 4
Jim Sharp, Jr.: 17

2nd Court (Fort Worth): 21
Lee Ann Dauphinot: 13

3rd Court (Austin): 17
Jan Patterson: 3
David Puryear: 5
Diane Henson: 3

4th Court (San Antonio): 4

5th Court (Dallas): 4
Mary Murphy: 4

6th Court (Texarkana): 3
Jack Carter: 3

7th Court (Amarillo): 2

8th Court (El Paso): 0

9th Court (Beaumont): 5
David Gaultney: 4

10th Court (Waco): 6
Chief Justice Thomas Gray: 4

11th Court (Eastland): 1

12th Court (Tyler): 0

13th Court (Corpus Christi): 8

14th Court (Houston): 21
John Anderson: 3
Kern Thompson Frost: 7
Tracy Christopher: 4

Total dissents by Texas Court of Appeals justices: 124
Total original opinions on merits: 6,199
Chief Justice Thomas Gray at the 10th Court may have the reputation as the state's most ardent dissenter among appellate judges, but by the numbers he's certainly not among the most frequent, or wasn't last year.

At the Court of Criminal Appeals (pdf), similarly, a handful of judges, led by Presiding Judge Sharon Kelle, accounted for most dissents authored on the court:
Keller: 20
Price: 9
Meyers: 8
Johnson: 4
Cochran:  2
Alcala: 2
Keasler: 1
Hervey: 1
Holcomb: 0*
Womack: 0

*Replaced by Alcala this summer.
No Texas Supreme Court Justice authored more than 6 dissents (Phil Johnson).

That said, how should one interpret this data? Are more dissents a good or bad thing? It depends, of course, on the dissent and the dissenter. A jurist who never dissents may just be going along to get along, refusing to assert principle when it's called for. By the same token, there are advantages to judges signing onto an opinion in order to influence its nuance when it becomes obvious dissenters don't have votes to prevail. In Judge Keller's case, the (relatively) large number of dissents may represent growing frustration as she's begun to lose her once-iron grip on the court to a nascent plurality of still-conservative but more independent thinkers. It's probably impossible to generalize. I just found the disparities interesting and thought other court-watchers might too.


Soronel Haetir said...

If you have the numbers handy, how would this change if you were to count not just authored dissents, but dissents one judge writes but another joins?

I do think the point is well taken that with a dissent rate of about 2% that such opinions are quite rare at the circuit level.

Another question, I know the TX courts of last resort are split (the Supreme Court and Court of Criminal Appeals) but is that true for the circuits as well? And if not, how many of those 124 dissents were in criminal cases and how many in civil matters? (If the circuits are divided as well that seems like it might be incredibly redundant, but oh well).

Gritsforbreakfast said...

Soronel, what data exists is at the links provided, but I'm not sure it drills down quite as far as you want it to.

don said...

So far as I know, OCA only reports opinion authorship. They don't count how the judges vote on dissents (or majorities) written by others.

When I've asked those sort of questions for the Texas Supreme Court, I've had to build my own database.

quash said...

Soronel, the Texas circuit courts do not split jurisdiction.

Texas Maverick said...

Grits, what was the dissent? Did the plaintiff win the case or not? Unless you know, then the dissent numbers don't make any sense. Since these cases are usually prosecutors trying to support jury convictions, Keller's dissent could be supporting the jury and prosecutors like she usually does. Numbers without data are misleading.

Anonymous said...

The makeup of the Waco court changed at the end of last year, which likely explains the decline in dissents by Justice Gray. Prior to that, Justice Gray was often the lone voice of reason on the cases where he did dissent.