The Texas Judiciary

 

US is the most litigious society in the world

            --we use our court system very frequently; various rights and privileges at stake

            --Texas is 18^th out of 50 states in litigation

            --US has 332 people per lawyer

            --Texas has 2,600+ courts and around 3,000 judges/justices; 12 million+ cases/yr.

 

Civil cases

            --private rights and remedies

            --private parties and organizations are the parties in most cases

            --preponderance of the evidence is the standard of proof

            --jury trials usually only require a majority of the jury to reach a verdict

            --primarily deal with individual and/or property rights

            --responsibility, not guilt, is determined

 

Criminal cases

            --violations of penal law

            --state is always a party to the case (crimes are breaches of the state’s right to govern.  When people enter civil society, they cede to the state their enforcement power, agree to abide by the decisions of the government. Judges, according to Locke, were the first governing officials to emerge out of the state of nature.  To breach someone’s personal rights is to breach the state’s rights; it is a crime against civil society)

            --standard of proof is “beyond a reasonable doubt”

            --deal with guilt/innocence/not-guilty

            --charges are brought by state, defendant is indicted by grand jury

            --concepts of proper behaviour and morality as determined by law

            --burden of proof is on the state

 

Original jurisdiction: power of a court to try a case for the first time

            --trial determines the facts of the case and the application of law

            --verdict is handed down

            --remedy or sentence is given

 

Appellate jurisdiction: power of a court to review a lower court’s decisions

            --review of the law as applied at trial

            --appeals are based on merits/law, not on facts

            --review of the propriety of the legal process (from processing of evidence, to arrest, to jury selection, to activity of the lawyers, etc., etc., etc.)

            --right against double jeopardy is waived by appealing the case (no appeal is possible, though, for the prosecution, if it loses a criminal case by acquittal of the defendant)

           

Some cases involve dual civil and criminal action (e.g., O.J. Simpson was tried for murder, but was later tried in a civil suit for wrongful death, seeking monetary damages for the grief caused to the families of his victims)

Court Organization in Texas

 

Municipal Courts:

            --authorized by state statute, created by cities and towns

            --status and organization is recognized in city charter or municipal ordinances

            --have exclusive jurisdiction over violations of municipal ordinances (majority of these violations are traffic violations)

            --have jurisdiction over Class C misdemeanors (criminal cases involving fines not to exceed $500, no jail sentence)

            --rarely are courts of record (most appeals from municipal courts are de novo to county courts, where most cases are simply dismissed due to lack of time, interest, etc.)

 

Justice of the Peace Courts:

            --authorized by the state constitution; each county is required to have at least one and not more than 8 JP precincts; serve for 4 year terms

            --jurisdiction over Class C misdemeanors

            --jurisdiction in civil suits involving money amounts <$5000

            --may issue warrants for search and arrest

            --serve as ex officio notaries public

            --may conduct preliminary hearings

            --may perform marriages

            --may act as small claims courts

            --may serve as coroner in counties without a medical examiner

            --All registered voters are eligible to become Justices of the Peace

                        --Low public confidence in JPs

                        --“common sense” approach to law

 

County Courts:

            --set up by the state constitution; presided over by the county judge who is elected for a 4-year term and has no other qualification requirements than that s/he must be “well informed in the law of the state.”

            --jurisdiction over probate and civil matters between $200-$5000

            --jurisdiction over Class A and Class B misdemeanors (minor criminal cases in which fine is over $500 and/or involves a jail sentence)

County-Courts-at-Law: created by statute to supplement the workload of the constitutional county courts (74 of the 254 counties in TX have such courts; 195 such courts total)

            --civil jurisdiction in cases under $100,000

            --criminal jurisdiction over Class A and B misdemeanors (2/3 of county court cases are in this area, including misdemeanor DWI, DUI or theft)

            --qualifications vary according to the particular statute that created the courts (most courts-at-law judges require county residence and 4 years experiences as a practicing attorney or judge)

            --justice is unevenly administered in Texas counties

 

 

District Courts:

            --420 statewide; each is a single-judge court; created by legislative statute or by constitution

            --must be 25 years of age, US citizen, licensed practicing attorney or judge for 4 years; elected for 4-year terms from voters in their districts (usually county-wide)

            --serve as the chief trial courts in Texas for civil and criminal matters

                        --some are exclusively devoted to criminal matters

                        --some are exclusively devoted to civil matters

                        --some are exclusively devoted to other jurisdictions/case-types

            --exclusive jurisdiction over felony criminal cases (approx. 1/3 of total caseload)

            --jurisdiction in civil suits >$200 (approx. 2/3 of total caseload)

            --plea bargaining is the method used in many/most criminal cases filed in district court (e.g., approx. 90% of criminal cases in Harris County are disposed of by plea bargaining arrangements)

 

Courts of Appeals:

            --14 statewide (state is divided into 14 regions; # of judges serving on court will vary depending on the size of the region)

            --elected for 6-year terms; must be 35 years old, 10 years as licensed practicing attorney or judge

            --civil and criminal appeals are heard in these courts (most cases stop at this level, if appealed at all)

                        --jurisdiction over cases appealed from district courts and/or from county courts in the region

 

Court of Criminal Appeals:

            --Highest state appeals court in criminal cases

            --9 judges, elected for 6-year terms in statewide elections (staggered terms)

            --reversal of appeals court decisions at this level usually result in retrial at district court level

            --often criticized for being “nitpicky” and obsessed with technicalities/providing more rights to criminals than the US Constitution warrants

            --exclusive jurisdiction over appeals in capital punishment cases

 

Texas Supreme Court:

            --Final appeals court in civil cases and in juvenile cases

            --makes rules for administration of civil justice and for licensing state bar members

            --9 justices; elected for 6-year/staggered terms; statewide elections; same qualifications as those for Court of Criminal Appeals and Appeals Courts

            --not all appeals are heard

                        --usually only cases with most significant legal issues at stake are heard

                                    --those cases that have an impact on public policy

 

 

 

Juries:

More cases are tried without a jury than with a jury.

            --Rights to trial by jury (guaranteed by the 6^th Amendment to the US Constitution/interpretation of the 14^th Amendment to the US Constitution to apply to states/TX constitution Bill of Rights) in all criminal cases must be waived by the defendant, if the court is to act without a jury

            --Rights to trial by jury in civil suits of more than $20, if one or the other parties asks for it (guaranteed by the 7^th Amendment to the US Constitution/interpretation of the 14^th Amendment to the US Constitution to apply to states); both parties have to waive the right to jury trials in civil cases if the trial is to be by judge alone

 

**Are juries better or worse for justice than trial by professional judges? Is it truly possible to select an impartial jury? To select a jury that is competent enough to understand the intricacies and nuances of what is required by the law?  (The latter may be one reason for the allowance for and frequency of appeals to higher courts, but if that’s the case, why have jury trials at all? Wouldn’t it be more efficient to simply let a judge decide the case the first time around?)

 

 

Grand Jury:

            --12 members, selected from the same pool of potential jurors as those for petit juries. Grand Jury members are chosen by commission of members appointed by the district judge in some counties, others chosen randomly by computer.

            --Serve for a longer period of time and for many cases

            --issue indictments, on vote of at least 9 of the 12 members, (formal charges, after preliminary evidence put forward is determined to be sufficient to warrant a trial) in felony criminal cases (right of indictment by a grand jury is guaranteed by the 5^th Amendment to the US Constitution/incorporated and applied to states by interpretation of 14^th Amendment to US Constitution/TX Constitution Bill of Rights)

            --alternative to grand jury indictment is charges on information (for misdemeanor offenses, and offenses not punishable by time in a state penitentiary)

            --95% of indictments asked for by the prosecution are granted, not all will eventually go to trial (defendants are not allowed attorneys present during Grand Jury proceedings)

            --Prosecutors have discretion over whether to take indicted persons to trial or not

                        --plea bargains may be arranged

                        --trials may not take place because the prosecutor doesn’t believe there is enough evidence to convict or the odds of conviction are low because of public pressure to acquit (helps to have won more cases than lost when facing reelection); other prosecutors may take all indicted defendants to trial, even when conviction prospects are low.

 

Petit Jury:

            --12 members (in district court cases); 6 members (in county court cases); selected from drivers’ license rolls since January 1, 1992

            --attorneys on both sides may, during voir dire (jury selection), bring unlimited challenges for cause against potential jurors; evidence must convince a judge that the juror could not serve fairly and impartially in the particular case

            --peremptory challenges are limited to a set number for each side; no reasons need be given by either attorney for peremptorily striking a potential juror; no juror may be peremptorily struck, however, solely on the basis of race or gender.

            --pick a good jury, and you have a better chance of winning a trial

            --exemptions from jury duty are limited to those who are 65+ years old, students enrolled at an accredited school, women with custody of children <10 years of age; judge may grant other exceptions at his discretion.

            --approximately 1% of all cases in courts across the state are tried by jury each year

            --Unanimous agreement of the 12 members of a jury in a criminal case is needed to reach a verdict (if even one goes against the rest, the jury is hung, and a new trial must be conducted, or a plea bargain must be arranged, or charges must be dropped)

            --Civil cases require only a majority of jurors to agree before a decision is rendered.

 

 

Selection of Judges:

Texas judges are officially elected in partisan elections to their posts (except municipal judges, which are appointed by the mayor or city council or city manager in their respective cities).

            --Texas’s system is roundly criticized for its political/partisan nature, but it is not as political as it may seem.

                        --approximately 50% of all Texas judges come to the bench first by gubernatorial appointment to fill unexpired terms or vacancies on the court. The governor may appoint people who he knows will be likely to be reelected when they face the electorate; he may also appoint people who are politically aligned with him and hope to influence state policy for years to come through those appointments. 

                        --if appointed by the governor, the nominee must face the state senate for confirmation and receive 2/3 of the senate vote to be installed. 

                        --most Texas judges are, when facing re-election, unopposed in the general election. 

                        --it’s also rare to have competition between two non-incumbent candidates for a judicial post.

 

            --Alternative means of selecting judges:

                        --Missouri Plan (merit plan)—governor appoints from a list of three candidates nominated by a judicial commission; the appointed one holds office for at least a year, then is placed on a retention ballot, where the voters simply vote yea or nay on whether the judge should be retained.  No partisan competition is involved. However, there is no evidence to prove that this is any less political than the partisan election system operative in the state of Texas

                        --legislative appointment—legislature makes selections for the court and installs them

                        --non-partisan elections—much like city council elections, there is no formal party membership declared on the ballot, but it is obvious, usually, where the candidates stand on particular party issue.

                        --gubernatorial appointment—would function much like the US system of judicial nomination by the president and confirmation by the senate (perhaps even with lifetime appointments, as in the US system)

 

Politics of Judicial Selection in Texas:

                Building name recognition is crucial; it is a major deciding factor in most state judicial races, as most people will not know anything else about a judicial candidate. 

                Party identification is also important.  The victorious candidate is very often (and in Texas since 1998, on the high courts, always) the member of the majority party in power.  In more localized judicial races, the party in power in the county or district will usually be the victorious party.

 

                Republican spending in judicial races has far outpaced Democratic spending in recent elections.  Several justices on the State Supreme Court raised over $1min for their campaigns, while the Democratic challengers raised not even $100,000 for their campaigns.  In 1998, 3 incumbent Republicans outspent their Democratic rivals 15 to 1. In 2002, 5 Republicans outspent the Democrats by 3 to 1

 

Special interests and the courts: approx. “40% of campaign contributions to supreme court races come from sources with cases before the courts” (Is justice for sale in TX?)

--lawsuits filed over Texas’s judicial elections system, arguing that it’s a violation of rights to a fair trial and violation of due process
                --approx. 83% of the public believes that campaign contributions will affect judicial rulings

--approx. 79% of lawyers believe contributions affect rulings

--approx. 48% of judges themselves believe that contributions will affect rulings

Battles between Texas Trial Lawyers Association (plaintiff’s lawyers in civil suits, usually on the side of consumers and such) and the defense and business attorneys who represent the corporations and professions being sued (e.g., doctors, manufacturers/businesses, insurance companies, etc.)—who can give the most money to judicial candidates? Both groups have cases before the courts all the time and have contributed millions of dollars to campaigns. 

 

Few minorities on the courts, partly due to the at-large elections (countywide and statewide elections typically have the effect of reducing the voter strength of minorities and thus their ability to elect someone from their own race to the bench).

                --advocates of more minority representation on the courts have sought to challenge the Texas system in federal courts, citing the Voting Rights Act of 1965 that elections could not be rigged in such a way so as to automatically exclude minorities from successful candidacies.  They wanted judges elected from districts within the counties, so as to concentrate at least enough minority voters in one district or more to give them sufficient majority status to elect one of their own to the courts.  US Fifth Circuit Court of Appeals in 1993 upheld the current Texas system of countywide elections, and the US Supreme Court rejected the appeal without comment in 1994

                --some minorities have been successful in winning election to the state courts, namely Raul A. Gonzales to the State Supreme Court in 1984, Morris Overstreet to the Court of Criminal Appeals in 1990, Al Gonzales to the State Supreme Court in the ‘90s;

                --Rick Perry has appointed more minorities to the bench, two to the State Supreme Court, one of them the chief justice)