Gov. Abbott’s 2024 appointment of three judges to the 15th Court of Appeals is without statutory or constitutional authority

January 21st, 2025

Article submitted by David Fisher

In June of 2024 Gov. Abbott’s appointed three judges to the newly created 15th COA without statutory or constitutional authority and these judges have no authority to occupy those positions, because the 15th COA did not come into existence until September 1, 2024. Without valid appointments the Texas senate cannot confirm the newly appointed judges of the 15th Court of Appeals or any other court.

In 2010 then AG Abbott issued the attached March 22, 2010 Opinion GA-0764 stating then Gov. Perry could not appoint a district court judge to the newly created 431st District Court of Denton CO until the legislative creation date of January 1, 2011, which is the first day the court actually existed and there will be a vacancy that the governor can appoint to.

On page three, second paragraph of Abbott’s AG Opinion he wrote;

We note as a preliminary matter that a vacancy occurs in a newly created office “on the effective date of the Act of the legislature creating the office.” TEX.ELEC. CODE ANN. § 201.027 (Vernon 2003) .. There is no vacancy in the 431st District Court for the Governor to fill until January 1, 2011, although he may announce his planned appointment before that date. See generally Crawford v. Saunders, 29 S. W. 102, 103 (Tex. Civ. App.-San Antonio 1894, writ dism’d) (stating that the commissioners court is not authorized to appoint a justice of the peace if there is no vacancy in the office); Tex. Att’y Gen. Op. No. H-134 (1973) at 3 (concluding that there is no vacancy in an office until the statute creating the office becomes effective)

Then AG Abbott makes it clear, now as Governor Abbott, he could not have appointed the three judges of the 15th Court of Appeals until September 1, 2024 and only after an appointment on that day could the judges take their constitutional oaths. Without a valid statutory and constitutional appointment by the governor, there is no office for which to swear the Oath of Office.

But the problem doesn’t end here, without 2024 valid appointments the three judges of the 15th Court of Appeals can’t be confirmed by the TX Senate until they are statutorily re-appointed, which would now be in 2025, so they can’t take their constitutional oaths until after they are confirmed by the TX Senate. And until Judges Field and Farris are re-appointed and confirmed by the senate they are still the judges of their original courts, so there were no vacancies in those courts for Abbott to appointment news judges to too, which are void as well. (Terence Davis to the 480th and David Gunn to the 1st COA)

This lack of valid appointments to the 15th Court of Appeals also includes all of Gov. Abbott’s appointments to the new TX Business Courts, which were also made in June with an effective date of September 1, 2024.

Quietly more and more of the judges in Texas are failing and or refusing to take the constitutional oaths required before they can take the bench and this includes the judge assigned to preside over the State Bar action against 1st Assistant AG Brent Webster. To preside over a State Bar action against an attorney one must be a sitting district court judge. If the district court judge is assigned by the presiding judge of the administrative judicial region to a district court in another jurisdiction, then the judge must take the constitutional oaths for the assignment order.

In the Brent Webster Case District Court Judge John Youngblood of Milam CO was, by Order of Assignment, assigned to Williamson CO to preside over the State Bar action. Judge Youngblood then in Sept. 2022 dismissed the State Bar Action against Webster citing the TX Separation of Powers Doctrine. This dismissal went all the way to the TX Supreme Court, who, in December 2024 upheld Youngblood’s dismissal order. The problem here is the TX Supreme Court and the 8th Court of Appeals had no authority to consider Youngblood’s dismissal order, because Youngblood was not a district court judge when he was assigned to Webster’s case, so lacked jurisdiction to issue the dismissal. (Appeals courts in TX cannot review findings of judge who lacks jurisdiction and may only dismiss the judge’s actions, valid or not.) In the attached PDF file you will find my public records request to the TX Secretary of State and the response showing Youngblood did not take his constitutional oaths for his 2020 reelection to the Milam CO District Court, nor did he take the required constitutional oaths for his Order of Assignment to the Webster Action in Williamson CO. (attached Judicial Rule 12 Request for Youngblood’s assignment documents) (attached 1978 Court of Criminal Appeals Ruling in French v. State, where on second remand (pg 6) wrote;

“We hold that without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void.“

The above being true and correct, the Texas Senate must reject Governor Abbott’s appointed judges to the newly created Business Courts and the 15th Court of Appeals due to the lack of statutory and constitutional appointments.

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