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TEXAS LAWYER " January 13, 1992
Democrats Reappear on Dallas'
CONTINUED FROM PAGE 15th Court
ment in Dallas as well.
The timing of McClung's retirement
- one month into his second term,
and 16 days after Richards was sworn
in - piqued some Republicans be-
cause it opened the door for the twin
Democratic appointments.
By the time Chapman had settled in,
two more of the court's elder justices,
Gordon Rowe, 66, and John Whit-
tington Jr., 72, gave notice of their
December resignations. Within a
three-week span, Richards appointed
Dallas civil litigator Jeff Kaplan, 35, to
replace Rowe and family court master
Barbara Rosenberg, 41, to replace
Whittington.
The 5th's Changing Face
The most recent turnover follows a
trend that has beset the 5th Court
since 1980, when the first Republican,
Bill J. Stephens, broke the Democrats'
historical stronghold and got elected.
A year later, Stephens was joined by
six Republican appointees made pos-
sible by a change in state law that
eventually expanded the court to 13
justices when criminal cases were
added to its jurisdiction.
While most appellate specialists
downplay any relationship between
the changing political patterns of the
court and its decision-making, they
agree the court has become more con-
servative.
"The Dallas court over the past few
years in civil cases has become in-creasingly conservative," said Fort
Worth's David Keltner, chief of the
appellate section in Dallas-based Hay-
nes and Boone and a 2nd Court of Ap-
peals justice from 1986-90.
"The [recent] addition of Democrats
will not necessarily make it more lib-
eral. You have to give it time," said
Keltner, a Democrat.The thin line that divides many Re-
publicans from Democrats in Dallas
County makes the liberal vs. conser-
vative argument "a wash" for criminal
cases, said criminal appellate specialist
Gary Udashen, a name partner in Dal-
las' Milner, Goranson, Sorrels, Ud-
ashen, Wells & Parker.
"There is not a consistent philoso-
phy coming out of the court," Ud-
ashen said. "It is not good for an ap-
pellate court to approach a case with a
philosophy."
Udashen pointed to the court's June
27 opinion, King v. State, No. 05-86-
00461-CR, that prohibited police from
using roadblocks under the guise of
driver's license checkpoints to ferret
out drunk drivers. That opinion, Ud-
ashen said, shows why it is difficult to
predict how a court known as con-
servative will rule: Rather than side
with law enforcement, the court was
swayed by an individual's Fourth
Amendment right to be free from un-
reasonable searches and seizures.
The trend toward a Republican ma-
jority on the court has been matched
by an increasing number of female
justices. When Whitham retires at the
end of January, three of the four pre-
siding justices will be women, giving
the Dallas court the highest number of
women in senior positions among all
14 appeals courts. The 5th court has a
unique system in which the four most
experienced justices preside over four
panels. The remaining justices then
rotate among the panels.
Chief Justice Craig Enoch does not
sit on the panels unless called upon
because of recusals, illness or vaca-
tion. Once a month Enoch sits with
visiting judges as a fifth panel to help
whittle away the court's growing
docket.
Adding Intangibles
Like political persuasion and pro-
fessional experience, the effect of a
strong contingent of women does not
profoundly alter the court's opinions,
but it throws another intangible ele-
tent into the mix, said Fort Worth's
.eltner andJustice Stewart.
"I think women on courts today
have had to grow up in a practice of
law that discriiiiinated against them,"CHIEFJUSTICE
Craig Enoch says the
5th Court's new
justices must hit the
ground running
because of the
court's caseload.JEFF KAPLAN, aformer Dallas
litigator, is one of the three new
Democratic members of the 5th
Court.
Keltner said. "Therefore, they are
very quick to give both sides a chance
to have their say. They have very open
minds. They will fully listen to you.
Maybe that is a sexist comment in a
reverse way, but I think it is true."
The greatest influence the new-
comers will have at the outset is on the
docket. Last calendar year, a record-
breaking 1,746 cases were filed with
the 5th Court, significantly surpassing
the 1,500 that usually are filed in a
year, Enoch said.
"That is breaking the seams on us,"
Enoch said.
According to a draft report of ac-
tivity among Texas' 14 courts of ap-
peals for the year ending Aug. 31,
1991, the Dallas court had the most
new cases filed, 1,687; the most cases
pending, 1,194; the most remanded
from higher courts, 13; and the most
disposed cases, 1,614.
Houston's 14th Court of Appeals
was second in new filings with 1,190,
followed by Houston's 1st Court with
1,181, the Office of Court Adminis-
tration's preliminary report showed.
The 1st Court had four cases remanded
from the higher courts, while the 14th
CONTINUED ON NEXT PAGE32
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[Clipping: Newspaper clippings regarding local political news], clipping, January 13, 1992; (https://texashistory.unt.edu/ark:/67531/metadc1404475/m1/2/: accessed July 11, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Special Collections.