Since opening its doors on September 1, 2024, the Texas Business Court has seen 86 cases1 cross the docket of its five active divisions,2 with the scope of the court’s jurisdiction being a common—and hotly contested—issue. In a decision published February 21, 2025, the Business Court’s dedicated appellate court, the Fifteenth Court of Appeals, affirmed what had been the consensus among the trial courts: cases commenced prior to September 1, 2024 cannot be removed to the Business Court.
Prior to the Court of Appeals’ decision, each of the five active trial courts dealt with the commencement issue separately, as more than a dozen parties whose cases commenced prior to September 1, 2024 tested a variety of removal arguments. Parties in the Fourth (San Antonio) and Eleventh (Houston) Divisions tried waiving subject matter jurisdiction by agreed removal or a Rule 11 Agreement to litigate in the Business Court. Both courts emphasized that subject matter jurisdiction “cannot be conferred by waiver.”
The First, Third, and Eleventh Divisions heard arguments for removal in cases where new claims were joined to a lawsuit, only certain claims were removed, new discrete claims were made, and where a party was added to an action that made it fit within the Business Court’s jurisdiction. None of these efforts succeeded. The Business Courts, without exception, held firm to the September 1, 2024 commencement requirement. The courts held that because the statute states that it applies to “actions commenced” before September 1, 2024, and “the term ‘commenced’ refers specifically to the initiation of a suit as a whole,” changes in parties and claims had no impact on subject matter jurisdiction.
In its February 21 opinion, the Fifteenth Court of Appeals acknowledged the potential for cases filed in other courts prior to September 1, 2024 to be nonsuited and refiled in the business court. But, as the court indicated, the passage of time and limitations periods will make such maneuvering less and less available. It remains to be seen whether the commencement date fight will make its way to the Texas Supreme Court.
OBSERVATIONS AND TRENDS FROM THE TEXAS BUSINESS COURT’S FIRST SIX MONTHS
Much has happened in the first 180 days of the Business Court. Here are some of the issues we have seen so far and will be watching moving forward.
STRATEGIC REMOVAL . . . BY PLAINTIFFS
Unlike federal removal, removal to the Texas Business Court is available to any “party,” not just defendants. This has at least two interesting implications. First, plaintiffs can file in state district court and then, if dissatisfied for any reason—including the judge to whom they are assigned—remove to the Business Court for a shot at what that party perceives to be a more favorable forum (assuming removal is timely and jurisdictional requirements are met). Second, a party seeking expedited injunctive relief can try its hand in the district court and then, if unsuccessful, get a second bite at an injunction after removing to the Business Court. The Third Division dealt with this scenario earlier this year when a plaintiff initially filed in the district court, obtained a TRO and an extension of that TRO, but then was denied a temporary injunction following an evidentiary hearing. Because all this happened within the 30-day removal window, the plaintiff was still able to remove the case to the Business Court, where it ultimately succeeded in getting an injunction. The Third Division dismissed forum shopping accusations from the defendant, characterizing forum shopping as a risk inherent in this and other procedures, but a risk for which there are remedial mechanisms.
DOCKET EQUALIZATION
Advancing the Business Court’s mission “to promote the orderly and efficient administration of justice,” the Eleventh (Houston) Division has taken measures to “equalize dockets” among the Business Court’s five active divisions—and alleviate the load on its judges.
Eleven cases on the Eleventh Division’s relatively busy docket were assigned for handling to judges in the Third, Fourth, and Eighth Divisions, though the cases themselves will remain in the Eleventh Division. It is reasonable to expect docket equalization to become more common if current trends continue: as of today, the First (Dallas) and Eleventh (Houston) Divisions carry 42 of the Business Court’s 57 open cases. Come September 2026, if the Business Court’s additional divisions open in Beaumont, Corpus Christi, El Paso, Midland, Lubbock, and Tyler, this disparity could become even more pronounced. Parties filing in Dallas and Houston expecting to have their cases heard by the judges assigned to those Divisions may end up with a judge from a different Division, reducing some of the certainty of opting for Business Court.
LET THERE BE JURIES
With only six months in the books—and with the enforcement of the post-September 1, 2024 commencement date—it is unsurprising that the Business Court has yet to see its first jury trial. When it comes, it will garner significant interest throughout Texas and from legal departments all over the country. Litigants in the Business Court have the right to a jury trial when required by the Texas Constitution, but the location and jury pool are contingent on multiple variables, including whether the case was originally filed in the Business Court or removed, whether the parties have a written contract specifying a venue county, and whether the parties and the judge can agree on particular venue. With jury trials being a key distinguishing characteristic of the Texas Business Court, as compared to the Delaware Chancery Court’s bench-trial-only structure, litigants in Texas can get the benefit of the Business Court’s specialized knowledge while preserving their right to a jury, if they wish.
The Texas Business Court is a statewide, specialized trial court created to resolve certain complex business disputes. The court was created by House Bill 19, which was signed into law by Governor Greg Abbott on June 9, 2023. The Texas Business Courts opened on September 1, 2024.
1 As of March 10, 2025.
2 The Texas Legislature authorized 11 divisions, but the remaining six will not open until July 2026, if at all.
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