Case filings and docket equalization

Since its inception on September 1, 2024, 103 total cases have been filed in the five operating divisions of the Texas Business Court. Those filings have, perhaps to be expected, not been evenly distributed. But a review of the numbers is striking. Of the 103 total cases, almost half (49) have been filed in the Eleventh Division (Houston). A quarter of all cases (27) have been filed in the First Division (Dallas). Of the remaining 27 cases, 10 have been filed in the Fourth Division (San Antonio), nine in the Eighth Division (Forth Worth), and eight have been filed in Third Division (Austin).

But each division of the Business Court is staffed identically—with two judges sitting in each division. Based on this uneven distribution of filings, the Texas Business Court has employed a provision in its enabling legislation that allows members of the bench to “sit and act for each other” for any pending matters in an effort to “promote the orderly and efficient administration of justice.” See H.B. 19, § 1 (codifying Tex. Gov. Code § 25A.009(f)). Using this provision, the Business Court has periodically (on an, approximately, monthly basis) reassigned cases from high-volume divisions (Houston) to lower-volume divisions (Austin, San Antonio and Fort Worth). In each case, the presiding judge, Judge Dorfman, has issued an Order of Assignment specifying which new judge will hear the case. See, e.g., Marathon Oil Company v. Mercuria Energy America, LLC, Cause No. 25-BC11A-0013, Order of Assignment by the Presiding Judge.

The Business Court’s correspondence describes this as an “exchange of benches.”

In total, 15 orders for “exchange of benches” have occurred since the Business Court opened its doors on September 1, 2024. Of those, all originated in the Eleventh Division and seven were exchanged to Fourth Division judges, three each moved to Third and Eighth Division judges, and two were exchanged between the judges of the Eleventh Division itself.

Theoretically, the exchange of bench practice will prevent bottlenecks in the divisions with more filings by allowing judges from other divisions to assist with the existing caseload. So far, the practice has shifted the burden shown in the above graph, to the chart below, which reflects the Business Court division of the judges actually overseeing the various open cases.

The Business Court’s “exchange of bench” docket equalization practice does not effectuate a transfer of the case from the Business Court division within which the case was filed. Instead, the Business Court’s reassignment orders have simply assigned judges from other divisions to “sit” and hear cases in the Business Court’s other divisions outside their own. These  judges sitting outside their divisions have routinely issued orders making clear that the case remains pending in the original district.

For example, in a case originally filed in Harris County in the Business Court’s Eleventh Division, but exchanged to Fourth Division Judge Marialyn Barnard, Judge Barnard issued a letter, stating that the Business Court’s goal is “to provide a fair and efficient forum” for resolving disputes, that “the court will not require parties to travel beyond the Eleventh Division to participate in its proceedings,” and that “all proceedings will be conducted either remotely or in person in Harris County.” Donel Davidson Derivately on Behalf of Centerpoint Energy, Inc. v. Jason P. Wells, Cause No. 25-BC11A-0009, Welcome Letter, 1 (Mar. 4, 2025).

As the Business Court continues to gain momentum and more cases are filed, litigants filing cases in busier divisions, like Houston, should be aware that their cases may be presided over by judges from other divisions of the Business Court. The benefit of the Business Court’s docket equalization process is that it will theoretically help unlock the anticipated efficiencies of the Business Court and to prevent situations where any given Business Court division becomes materially slower to adjudicate a dispute than any other division.

Further, docket equalization is consistent with the fact that the Texas Business Court is a single court currently staffed by ten judges across its various divisions. As opposed to a situation where the visiting judge’s rules might apply to a current or former judge, each of the Business Court judges have been appointed as judge of the single Texas Business Court.

Norton Rose Fulbright’s Texas Business Court insider will continue to monitor developments in the Texas Business Court and beyond.