Federal Courts Are Involved Only If the Case Raises a Federal Question

Texas Judiciary

State Courts

•Approximately 85% of ALL criminal and civil cases filed in the United States are handled by state courts

•Federal courts are involved only if the case raises a “federal question”

–The interpretation of federal law or the U.S. Constitution

State Legal Environment

•State criminal laws are contained in the state’s PENAL CODE

•Also defines crimes as either

–Misdemeanor

–Felony

•Civil law is covered under various sections of other parts of the state code

–State code = all laws passed

Primary Characteristics of Texas Judiciary

•1. Multiple courts with complex and overlapping jurisdictions

•2. Problematic selection method for judges

Courts of Limited Jurisdiction

•Broad original jurisdiction

–Federal District Courts have original jurisdiction over nearly all types of civil and criminal cases

•Limited Jurisdiction courts

–Can try only certain types of criminal and civil cases

–E.g., criminal cases punishable by a fine only

–Civil suits of $1,000 or less

Reconstruction Constitution AND Texas’ Rural / Agrarian Culture

•1876 Constitution wanted to spread power around, so

–Multiple courts

–Elected judges

•Rural society meant citizens needed some courts close by

–Part-time judges and limited jurisdiction

The Structure of the Texas Judiciary

•Outline in Article V of Texas Constitution

–Judicial power shall be vested in:

•One Supreme Court

•One Court of Criminal Appeals

•Courts of Appeals

•District Courts

•Commissioners Courts

•Courts of Justices of the Peace

•Any other courts provided by law

–One of the most complex systems in the United States

Municipal Courts

•Any incorporated city is allowed (but not required) to create a municipal court

•May consist of multiple judges and courtrooms, but still called the municipal court (singular)

•Common in cities of 25,000 or above

•City bears cost of court so small towns do not create them

Municipal Courts

•Primary jurisdiction is over minor traffic offenses and violations of city ordinances

•Also some Class C state misdemeanors such as public intoxication

•Can impose a maximum fine of up to $2,000

•May NOT impose any jail time

•In 2005 over 8 million new cases filed in Texas municipal courts

–83% of these were traffic violations

Justice of the Peace (JOP) Courts

•Elected by county and may be more than 1 per county

–925 Texas JOP courts in 2006

•Designed as very simple courts for rural counties when travel was difficult (horses)

–People could resolve small problems without traveling far away to a state court

•Most states have eliminated their JOP courts

Justice of the Peace Courts

•Can handle civil suits and criminal fines up to $5,000

•Can handle Class C misdemeanors

•Currently serve primarily as small claims court

–Simple civil suits

–Attorneys not required

CountyConstitutional Courts

•So-called because the state constitution requires each county to have one

•Again, so rural citizens would have to travel no further than the county courthouse for most legal matters

•Jurisdiction is over civil cases up to $5,000

•And Class A and B Misdemeanors where penalty might be a jail sentence or a fine over $500

CountyConstitutional Courts

•Also have appellate jurisdiction over cases from municipal and JOP courts

•To save money, many municipal and JOP courts are “courts of no record”

•Appeals from these courts result in a trial de novo

County Courts at Law

•State constitution mandates only 1 court per county

•Plus a County Judge who served both as a court judge and head of the county government (the Commissioners Court)

•As population grew, the Constitutional Court became overburdened

•And the CountyJudge spent more time with county government and less time in court

County Courts at Law

•Legislature created additional courts whenever a county requested them

•Since created by legislative statute, not the constitution, entitled County Courts at Law

•Same jurisdiction as County Constitutional Courts, :

•Except may also hear civil suits up to $100,000

Specialized Probate Courts

•A specialized type of a County Court at Law

•Probate:

–Settling a person’s estate after he or she dies

–Affirms an existing will, if legitimately drawn

•Or decides distribution of estate if no legitimate will

•CountyConstitutional and at Law courts also handle probate as long as the will or estate is not contested

•If contested, must go to a state district court

State District Court

•The primary general original jurisdiction courts in the state

•Handle

–Civil suits over $500

–Divorces

–Election contests

–Contested probate

–All Felony criminal cases

Overlapping jurisdiction

•CountyConstitutional Courts, County Courts, and state district courts have overlapping jurisdictions

•Constitutional and at Law both handle Class A and B misdemeanors

•All three handle various civil suits of $5,000 and under, though claims for higher amounts go to at Law or District Courts

Courts of Appeals

•Hear civil and criminal appeals from District and county-level courts

•14 Court of Appeal districts

•Each appeals court has a chief justice and between 2-12 other justices

•Cases usually heard by a panel of 3 judges

Texas Appellate Court Districts

Texas Supreme Courts

•Texas has two “supreme” courts

•Only one has the name “The Supreme Court of the State of Texas”

•The other is entitled the “Texas Court of Criminal Appeals”

•Each is a court of last resort (unless a federal question is involved) one for civil cases and the other for criminal cases

The Supreme Court of the State of Texas

•The Texas Supreme Court handles appeals of civil cases only

•There is one Chief Justice and eight associate justices (9 total)

•Always sit en banc – all 9 justices hear a case (not a panel of only 3)

The Supreme Court of the State of Texas

•Similarities to the U.S. Supreme Court:

–Are able to decide which cases they will hear

–Base their decisions on written briefs

–Render written opinions

•Majority opinions

•Concurrent opinions

•Dissenting opinions

Texas Court of Criminal Appeals

•Hears appeals of criminal cases only

•One Presiding Judge and 8 associate judges

•Base their decisions on written briefs

•Hear cases en banc

•Issue written opinions

–Majority opinion

–Concurrent opinion

–Dissenting opinion

Texas Court of Criminal Appeals

•Can decide which cases appealed from the lower courts to hear

•EXCEPT

•Is required to hear and review all capital cases from state district courts

–Capital case = death penalty case

Judicial Qualifications

•Municipal courts

–Set by the city creating the court

–In 2005 only slightly more than half of municipal court judges held a law degree

•Justice of the Peace Courts

–Required only to be registered voters

•In 2005, only 7% held a law degree

CountyConstitutional Courts

•Texas Constitution requires judges to be “well informed in the law of the State”

•In 2005 14% held a law degree

•But all must 30 hours of instruction (about 1 3 hour college course

County Courts at Law

•At least 25 years old

•Licensed attorney

•Minimum of four years experience as a judge or practicing attorney

District Courts

•Must have resided in the district for at least two years

•Been a licensed attorney or judge in Texas for four years

Appeals Courts, Supreme Court, Court of Criminal Appeals

•At least 35 years old

•A practicing attorney or judge of a court of record for at least 10 years

Judicial Selection

•Partisan election

–All judges in Texas are elected in a partisan (Republican candidate versus Democratic candidate) election

•From Justices of the Peace to the Chief Justice of the Supreme Court

•Only exceptions are some municipal judges

–Selection method decided when city creates its municipal court

–Most elected in a non-partisan election

–Some appointed by the City Council for “good behavior”

Judge’s Terms – Trial courts

•Municipal judge -- 2 or 4 years

–Set by the city

•Justice of the Peace – 4 years

•County Constitutional Court – 4 years

•County Courts at Law – 4 years

•District Courts – 4 years

Judge’s terms, appellate courts

•Courts of Appeals -- 6 years

•Texas Court of Criminal Appeals -- 6 years

•Texas Supreme Court – 6 years

•All courts of appeals judges are elected to staggered terms

–some judges come up for reelection every 2 years

Is Justice for Sale in Texas?

•Title of a 1987 60 Minutes segment

•If you attain office via an election, you must campaign

•Partisan elections mean campaigning in both a primary and a general election

•Campaigns cost money

•In 2000, supreme courts justices spent over $1,000,000 in their campaigns

Sources of Campaign Funds

•Justices of the Peace, CountyJudges, Court of Criminal Appeals judges

–Usually members of the local or state bar (attorneys)

•Means judges will hear civil and criminal cases where one of the attorneys may have been a major contributor to her or his reelection campaign

Sources of Campaign Funds: Texas Supreme Court

•Handles civil matters only

•Interested parties (contributors) are trial attorneys and business corporations

•E.g., Texas’ Deceptive Trade Practices – Consumer Protection Act

–What is deceptive is an interpretation often made by a judge

•Fine print in a purchase contract?

•OR Sexual Harassment of employees

–Is inviting a subordinate to dinner more than once harassment?

•What about out for a drink?

•What about a drink in the supervisor’s apartment?

•Trial attorneys and Texas Trial Lawyers Association

–Handle mostly civil suits

–Income derived from contingency fees

–Largest awards come from suing wealthy corporations

•Business corporations

–Interested in a judiciary that will interpret who can sue and for what very narrowly

–E.g., are class action or only individual suits allowed?

–Class action means low per person costs and high attorneys fees

•Historically, Texas Supreme Court very conservative and pro-business

•In 1970s Texas Trial Lawyers Association started contributing millions to elect justices more favorable to employees and consumers

•Successful in electing justices

•In 1980s and 1990s businesses fought back

•Contributed their own millions to pro-business judges

•Successful in the 1990s and since

•How fair can a justice be if the case being decided involves a business that contributed $10,000 + to your campaign?

Potential Changes / Reforms

•Some argue much can be solved by going to non-partisan elections

•Your brilliant instructor strongly disagrees

•Non-partisan does not mean non-political

–Will still have candidates with different values

•Non-partisan only means a candidate’s party affiliation does not appear on the ballot

Non-Partisan Elections

•Candidates still have to campaign and raise campaign funds

•A party label is often the only information a voter has

–Can make some reasonable guesses about a candidates policy preferences by knowing party

•In non-partisan elections name recognition is all-important

–Comes from incumbency, OR

–Being a community leader – usually business leader

–Produces a general bias in favor of Republicans

•Still issue of whether voting public can make a decision about an individual’s legal qualifications

Are Courts Another Majority Rule Instrument, or a Minority Protection Instrument?

•Any election, partisan or non-partisan, makes the judiciary a vehicle for majority rule

•Federal judges have life tenure so they can make unpopular decisions if justified by the law

•Sometimes means protection of an unpopular minority against the “tyranny of the majority”

–Protecting free speech even when unpopular

–Protecting freedom of religion for different groups

–Perhaps voting pro-life even if majority is pro-choice

Alternatives

•Gubernatorial Nomination with Senate approval

–Usually means judges have life tenure

–Governor usually able to judge a candidate’s legal qualification (or have good advice available from aides)

•OR

•Some form of a merit plan

•Most common is the Missouri Plan

Missouri Plan

•Panel of scholars or members of the state bar association identify 3-5 candidates for any judicial opening

•Governor selects judge form among that group

•Judge / Justice serves a (usually) 4-year term

•At end of term undergoes a retention election

Retention Election

•Only question on the ballot is whether current judge should be retained or not

–No opposition candidate

–No major campaign expenses

•If vote is yes, judge serves another term

•If vote is no, judge removed and begin the process over again

•Combines selection by experts who can judge legal qualifications

•With public’s ability to remove problematic judges

State practices

•Partisan election of judges

–About 8 states

•Non-partisan election of judges

–About 15 states

•Gubernatorial or Legislative Appointment

–About 12 states

•Some form of merit plan

–About 15 states