Good ’ole Steve Badger responded to my blog post, “Texas Appraisal Gets a New Rulebook,” with a private text message asking: “Can a retired judge, mediator, or lawyer be an umpire anymore? A lot of courts appoint these guys.”
Steve put his finger on a provision that deserves more attention. Courts often appoint retired judges and mediators as appraisal umpires, and their ability to evaluate competing positions and manage disagreements can be valuable. The new Texas regulation, however, requires us to look beyond the professional title and judicial experience.
My reading is that retired judges, mediators, and lawyers can still serve as umpires, but their legal credentials do not automatically qualify them. For a residential appraisal involving dwelling damage under a policy governed by the new rules, they must demonstrate the relevant experience or training required by §5.9804. A judicial appointment does not contain a hidden exemption from that requirement.
The regulation establishes two levels of qualification. Section 5.9804(a) first requires both appraisers and umpires to be competent by training or experience to evaluate the particular type of loss, independent from the parties, and disinterested in the appraisal’s outcome. Those requirements apply throughout the division.
Section 5.9804(b) then adds another requirement when a residential property appraisal involves loss to a dwelling. The person must be an adjuster or public adjuster with relevant residential estimating experience or training; an engineer or architect with specified relevant construction, repair, damage-investigation, or estimating experience or training; or an individual who meets the catchall provision.
The catchall, subsection (b)(3), allows “an individual who otherwise has occupational experience or training in constructing or repairing the type of damaged property at issue or estimating the type of property loss at issue.” Those words provide a route for a lawyer, mediator, or retired judge. They also establish a requirement that cannot be answered merely by saying that the proposed umpire is a respected member of the legal community.
The introductory language matters. Subsection (b) applies “in addition to” subsection (a), and the person “must also” satisfy one of its categories. These are additional minimum qualifications. Being an excellent neutral does not, by itself, establish the required experience or training.
Consider a retired judge who spent decades handling criminal cases, family matters, and general civil litigation before becoming a mediator. That judge may be exceptionally fair, patient, and skilled at resolving disputes. But those accomplishments do not necessarily demonstrate experience or training in residential construction, repair, or loss estimating.
The same distinction applies to mediation. An experienced mediator can help settle an insurance case by assessing litigation risk, credibility, expense, and the parties’ competing positions. That type of work does not necessarily require the mediator to decide independently whether an estimate includes the necessary quantities, labor, materials, or construction activities. Serving as an umpire requires an agreement on the amount of loss, and the new rule requires qualifications directed to that work.
Judicial appointment does not appear to cure a missing qualification. Section 5.9801(8) defines an umpire as an individual qualified under the division who is selected by the appraisers or otherwise appointed. Qualification and appointment are separate elements. Section 5.9805 preserves the court’s role in appointing an umpire when the appraisers cannot agree, but it provides no exception to §5.9804 for the court’s preferred candidate.
There is a possible meaningful argument for lawyers and specialized mediators who have spent their careers working with property-loss estimates. Legal practice is an occupation. A lawyer who has substantively evaluated repair scopes, quantities, pricing, depreciation, and reconstruction estimates may have occupational experience relevant to estimating the type of loss. The catchall does not say that qualifying experience must have been acquired while employed by a contractor or adjusting firm. Maybe even Badger would qualify as an umpire!
There is also an important limit on how strictly the rule should be read. It does not require every umpire to have personally installed shingles, framed houses, or worked as an adjuster. Relevant training is an alternative route. TDI expressly declined to require both training and experience, explaining that sufficient training could qualify someone without specific prior experience evaluating that type of loss.
That leaves an opportunity for retired judges, mediators, and lawyers to obtain appropriate training. It also leaves uncertainty. TDI did not prescribe an approved curriculum, minimum training hours, or an examination that establishes qualification. A generic mediation course would not address the construction, repair, or estimating subjects identified in subsection (b)(3). Likewise, a certificate concerning appraisal procedures should not automatically be treated as proof of technical estimating competence.
A strong umpire needs sound judgment, independence, and the ability to assess competing information. Technical knowledge can help the umpire identify an unsupported estimate rather than simply split the difference. At the same time, an experienced neutral may bring valuable skills in evaluating expert explanations and managing a difficult process. TDI chose to impose the same additional qualification categories on both appraisers and umpires in dwelling-loss appraisals, without fully explaining how much technical knowledge is enough for each role.
The practical response should be to establish qualifications before appointment. A proposed umpire’s résumé or declaration should identify the relevant training, actual experience evaluating the type of loss, and the nature of prior appraisal work. A party requesting judicial appointment should give the court that information. A party objecting should identify the particular qualification that is missing and raise the issue promptly. Waiting to investigate qualifications until after receiving an unfavorable award invites another dispute over the appraisal process.
Scope matters here as well. The additional categories in subsection (b) apply when the appraisal involves dwelling damage. Contents-only residential appraisals and personal automobile appraisals remain subject to subsection (a)’s general competence, independence, and disinterest requirements, but not subsection (b)’s additional occupational categories. Commercial policies and TWIA policies are excluded from this division. The new requirements apply to qualifying policies delivered, issued for delivery, or renewed on or after March 1, 2027. They do not automatically disqualify someone serving under an older policy or a policy outside the regulation’s scope.
Steve’s question identifies a genuine change in how parties and courts should approach umpire selection. A retired judge, mediator, or lawyer can remain a strong candidate, provided the person has the qualifications required for the particular appraisal.
I appreciate Steve raising the issue privately after reading my article. Good questions improve everyone’s understanding of a new rule. The goal should be an appraisal panel that understands the loss, evaluates it fairly, and reaches a dependable result without creating another lawsuit over who was qualified to sign the award.
Thought For The Day
“We should put qualified people out in the field on both sides.”
—Steve Badger
