Thomas R. Phillips, partner in the Austin office, left, and Rebeca Aizpuru Huddle, partner-in-charge of the Houston office, right, with Baker Botts.

Backlogs in Texas district courts were growing before the coronavirus became a household term. The 2019 Annual Statistical Report for the Texas judiciary reflects an 11% increase in civil cases filed in district courts over the previous year. While district courts disposed of more civil cases in 2019 compared to 2018, dispositions did not keep pace with new filings, resulting in a clearance rate of 87%. Now, COVID-19 has mandated the postponement of jury trials and slowed the movement of cases through pretrial proceedings.

To be sure, Texas trial judges have risen to meet the challenge—they rule on written motions and hold Zoom hearings, and some have gone so far as conducting entire bench trials remotely. But even these heroic efforts may be insufficient to meet the continuing demand for formal, adjudicated final judgments. Even after live trials resume, social distancing protocols will limit the efficient disposition of cases.

Fortunately, Chapter 151 of the Texas Civil Practice and Remedies Code, titled Trial by Special Judge, provides an invaluable mechanism to ease the looming backlog in district courts. The statute provides that, on the agreement of the parties, a district court may refer "any or all of the issues" in a civil case, "whether an issue of fact or law," to a qualified special judge selected by the parties themselves.

The referral process is simple. The parties file in the district court a motion requesting the referral, waiving a trial by jury, and stating the issues to be referred. The motion should identify the time and place for the trial, the identity of the special judge who has agreed to hear the case, and the fee that the parties have agreed to pay the special judge. The district court then signs an order of referral reflecting the parties' terms and staying the case until the special judge has completed the trial and filed his or her verdict with the district court.  Any former appellate, district, statutory county, or probate judge with four years of judicial experience who meets certain ethical and experiential requirements is eligible.

The special judge conducts the trial the same way that a district court would conduct a bench trial. For example, the special judge must provide a court reporter meeting the qualifications set by the referring court and must apply the same procedural and evidentiary rules that govern the referring court. To prevent delay, the special judge must return a verdict to the referring judge within 60 days of the trial's conclusion, unless the referring order provides otherwise.  Importantly, the statute preserves the right to appeal under the Texas Rules of Civil and Appellate Procedure.

Chapter 151 provides a useful alternative to arbitration. It differs from arbitration in three significant respects that the parties may find desirable:

• Unlike arbitrators, special judges exercise all the powers of a district judge except that their power to find a person in contempt extends only to a witness before the special judge.
• Unlike many arbitrations, trials before special judges are conducted "in the same manner as a court trying an issue without a jury," using Texas procedural rules and applying Texas choice-of-law principles.
• Unlike the extremely limited appellate review of arbitration awards permitted under the Federal Arbitration Act and Texas Arbitration Act, Chapter 151 allows dissatisfied litigants to appeal the verdicts through the Texas appellate system, and thus avail themselves of the same review as would be available to parties in a regular civil case.

Chapter 151 likewise has several advantages over trial before an assigned visiting judge:

• The parties have complete control over selecting their judge, rather than being limited to one strike per side of the regional presiding judge's choice.
• The parties have far greater control over the location, timing and pace of the trial than they would before a visiting judge, who must sit at the local courthouse.
• The parties need not wait for a visiting judge to be assigned to the court where their case pends and to reach their case; they control the trial schedule.

Particularly in complex or highly specialized cases, Chapter 151 gives parties the same type of flexibility to choose a judge with special expertise as they would enjoy in arbitration while nevertheless obtaining a neutral who both exercises more power and is subject to more formal institutional constraints than a private arbitrator. With many hundreds of qualified former judges located throughout the state—many of whom now serve as visiting judges, practicing attorneys, and law professors—litigants have a rich and diverse pool of special judge candidates from which to choose, should they avail themselves of Chapter 151 to move their disputes to a timely resolution. In short, the special judge statute provides a flexible, efficient dispute resolution procedure whose time has come.

Thomas R. Phillips, a partner in the Austin office of Baker Botts, is board certified in Civil Trial Law by the Texas Board of Legal Specialization and was a judge of a state civil district court in Harris County before serving as Chief Justice of the Texas Supreme Court from 1988-2004.

Rebeca Aizpuru Huddle, the partner-in-charge of the Houston office of Baker Botts and chair of the Firm's Commercial Litigation section, served as a justice of the First Court of Appeals of Texas from 2011-2017.