As the Texas Business Courts begin operating, the question of how judges will handle the removal of preexisting cases into the new court is growing more pressing. Haynes Boone Partner David Harper spoke to Law360 on the issue.
Harper said, by his analysis, a "decent" proportion of cases removed to the court are likely to get booted out.
By Harper's reading, "the statute says no can do."
While only eight original disputes have been filed in the court since its opening, Harper said that shouldn't necessarily be read as a slow start to the business court.
"Because it's new, some people are probably going to be slow to adopt," Harper said. "It's going to take a little bit of time. I think people still are aware there might be challenges to jurisdiction. I think people still think somebody may challenge the constitutionality of the court."
The statewide Fifteenth Court of Appeals, which also opened Sept. 1 and is intended to operate in tandem with the business court, faced a constitutional challenge over the summer. The Texas Supreme Court upheld the court's creation less than two weeks before it opened.
Harper noted that while the Fifteenth Court is also in its infancy, its quick resolution of the state's challenge to the State Fair of Texas' firearms policy may inspire confidence for potential litigants.
"They decided it very fast with a very short order," Harper said. "I think the fact that the appellate court jumped on something quickly will help people in the business courts, too, because those are the judges we go to if we have a problem."