Texas Laws

There are two types of law in Texas: criminal and civil.

Some state courts are granted jurisdiction to hear only cases involving criminal or civil law, whereas other courts may have limited jurisdiction involving criminal and civil matters.

Criminal Laws

Criminal laws are laws that prohibit a behavior that the state has determined to be harmful to society. If someone violates a criminal law, that person commits a crime. Criminal laws in Texas are divided into two broad types of criminal law based on the severity of the crime: misdemeanors and felonies. Misdemeanors are non-indictable offenses (i.e., offenses that do not result in imprisonment in a state penitentiary) such as traffic violations, theft of less than $2500, and DUI; these behaviors, while considered harmful to society, are generally viewed as lesser crimes). Felonies are more serious crimes, such as crimes involving violence, which may result in imprisonment in a state penitentiary.

Within this framework, crimes are further categorized into classes “according to the relative seriousness of the offense” (Texas Penal Code § 12.03., 12.04). Each class corresponds to a sentencing range, with more serious offenses having higher sentencing ranges. These classes, in order of severity (from most serious to least serious), are as follows:

  • Misdemeanors – Class A, Class B, Class C
  • Felonies – Capital felonies, first degree felonies, second degree felonies, third degree felonies, and state jail felonies

Courts that hear criminal cases seek to determine guilt. When determining guilt, the “beyond a reasonable doubt” requirement requires the state to provide a preponderance of evidence. If a court determines guilt, the defendant (i.e., person accused) will be sentenced based on how the crime was classified. Depending on the crime in question, the sentence may involve monetary fines, imprisonment in a state correctional facility, or both.

In criminal court proceedings, the state is required to demonstrate the defendant’s guilt beyond a reasonable doubt.

Civil Laws

Civil laws are laws that regulate interactions between individuals, such as divorces and law suits. The act of violating a civil law by causing injury, harm, or damage to another person or entity is referred to as a tort – regardless of whether the interaction resulted from intentional acts, negligence, failure to act if an individual has a duty to do so, or a violate of civil statutes or laws. In Texas, juvenile proceedings (regardless of whether criminal activity is involved) are considered civil law matters (Texas Family Code §51.10).

Courts that hear civil matters seek to determine liability. If the court sides with the plaintiff (i.e., the party that brought the civil case against the individual) and determines the defendant is liable, the defendant may be required to pay compensatory damages, such as compensation for medical expenses, missed income, or pain and suffering, or punitive damages, or fines that are intended to punish an individual for the civil law violation.

In civil cases, the burden of proof required to demonstrate liability is lower than what is required in criminal proceedings. Instead of requiring proof beyond a reasonable doubt (as is the case when determining guilt), a defendant in a civil case may be found liable if there is a preponderance of evidence that the person is responsible for the injury.

Judicial Selection: How judges make it to the bench

Judicial Selection Methods

States differ in how state court judges are selected.  There are three methods of judicial selection currently utilized by states:

  • Appointment
  • Elections
  • Merit selection

Each of these methods is discussed in more detail below.  There are advantages and disadvantages of each method, and advocates of these methods have long disagreed about the best method to select judges who are accountable and independent.

Appointment

The appointment of state judges occurs in two different ways:

  • Legislative elections, in which judges are selected by the state legislature; and
  • Gubernatorial appointment (appointment by the governor), sometimes requiring approval from the state legislature

With the appointment method of judicial selection, judges may be removed from their offices through the impeachment process.  

This method of judicial selection is based on the belief that appointing judges promotes impartiality and fairness in the judicial system because it allows the judiciary to remain free from political pressure and independent from the other branches of government.

Although judicial appointment is used to select federal judges, this method of judicial selection is not common among states. 

Elections

State judges may be directly elected by the people through either partisan elections, with labels designating party affiliation appearing alongside the candidate’s name on the ballot, or nonpartisan elections, in which judicial candidates are not associated with a party on the ballot. 

Elections are based on the belief that they promote accountability.  With judicial selection through elections, the people theoretically retain popular influence in the judiciary because they choose whether to elect or reelect a judicial candidate.  As we discussed at the beginning of the semester, popular influence is at the heart of democracy.  For this reason, many states use elections to select state judges in some or all of their state courts.

In judicial elections, judicial candidates must act as politicians and engage in fundraising and campaigning.

Merit selection

Merit selection (also known as the Missouri Plan) can be viewed as a hybrid of the appointment and election methods of judicial selection.  In merit systems, a panel develops and submits a list of judicial candidates to the governor, who then appoints judges from this list.  Once appointed, judges face periodic retention elections where the voters decide whether to retain or remove a judge.

The merit system attempts to balance the need for judicial independence with accountability and popular influence while removing the need for campaigning and fundraising.

Judicial Selection in Texas

With the exception of most municipal court judges (whose appointment is defined in individual city charters and typically involves appointment by the city council) and recess appointments to state courts made by the governor when a judicial position vacates between elections, judicial selection in Texas occurs through partisan elections. Although partisan elections are the primary mechanism for judicial appointment to most courts in Texas, a large number of judges initially reach the bench through recess appointments by the governor in non-election years. If the recess appointment occurs between legislative sessions, the judicial vacancy will be filled by the appointee until the next regular legislative session begins (January of odd-numbered years), at which time the vote on whether to confirm the recess appointment occurs.

Distrust in government and popular influence are two elements of political culture in Texas that have most profoundly shaped our state’s governmental institutions; the judicial branch is no exception.  Elections as a method of the selection of state judges align well with Texas political culture in that they remove the choice from the state and allow individuals to shape the state judicial system by deciding who will serve as a judge. 

Impediments to Popular Influence in Texas Judicial Elections

There are several impediments to the effectiveness of popular influence in Texas judicial elections.

Texas has what is known as the long ballot, which results from using elections as the method of appointment for most major political offices in the state.  In Texas, voters are tasked with making decisions regarding who should hold various legislative, executive, and judicial positions in local, county, and state government in addition to voting in support of opposition of propositions and constitutional amendments.  For Texas citizens, the cost of making informed decisions regarding all of the items that appear on a ballot in any given election cycle are very high.  As a result, straight-ticket voting is common practice in Texas.

Further complicating popular influence in Texas judicial elections is the incumbency advantage enjoyed by current officeholders during elections due to greater visibility, a proven record of public service, and often better access to resources. The incumbency advantage is robust in Texas.  The incumbency advantage does not only apply to judges who have previously been successful in a judicial election.  Most judges who enter their offices through recess appointments by the governor receive the majority vote in the next election cycle and continue to serve in these positions.  In this way, the Texas governor plays a role in shaping the judiciary.

Another factor that mitigates the role of popular influence in Texas judicial elections is the fact that judicial candidates often run opposed.

Outcomes of Texas Judicial Elections

In theory, Texas judges should be selected by voters based on their analyses of that candidate’s effectiveness.  In reality, the outcome of Texas judicial elections are based in large part on two factors:

  • Party affiliation – voters in Texas tend to vote along party lines, which is complicated by the fact that Texas allows straight-ticket voting in elections
  • Name recognition – voters choose a candidate based on familiarity with the candidate or previous recognition of a candidate’s name

The Texas Judicial System: Foundations & Structure

In the United States, the concept of federalism, where powers are divided and authority is shared between the levels of government, has shaped the institutions that make up our government.  We have a national (or federal) government consisting of a legislative branch, executive branch, and judicial branch in addition to fifty state governments.  Each state has the authority to establish the structure of its own state government.

The U.S. court system is based on judicial federalism, in which judicial authority is shared between various levels of government. Both the federal and state government operate courts of law.

Legal Foundations of Texas Judiciary

Our current judicial system in Texas, similar to our federal court system, is established in the Texas Constitution, with the Texas legislature granted the power to create additional courts and outline their jurisdiction, or authority to hear a case, as needed.  

“The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.”

– Texas Constitution of 1876, Article V, Section 1

Structure of the Texas Court System

Texas’s judicial system is one of the most complicated, complex, inefficient, and confusing legal systems in the United States.  The Texas Constitution and Texas legislature have established a complex structure of local, county, and state courts. Due to many state courts having overlapping geographical coverage and jurisdiction, it can be difficult to identify the court in which a particular case should originate.  

Local Trial Courts

There are two different types of local trial courts in Texas: municipal courts and justice of the peace courts. 

Municipal courts are established by city charters and serve cities, whereas justice of the peace courts are established by the Texas constitution and serve precincts. Municipal courts exercise exclusive original jurisdiction over municipal ordinance violations and have limited original jurisdiction in civil actions.  Justice of the peace courts have original jurisdiction in civil actions of up to $10,000.  Both municipal courts and justice of the peace courts exercise original jurisdiction in criminal misdemeanor cases that are punishable by fine only and perform magistrate functions, such as issuing search and arrest warrants, conducting preliminary hearings, and setting bail.

County-level Trial Courts

There are three different types of county-level trial courts in Texas: constitutional county courts, statutory county courts, and statutory probate courts. 

Constitutional county courts are established by the Texas constitution.  Constitutional county courts exercise original jurisdiction in civil actions between $200 and $10,000, original jurisdiction over juvenile matters, and exclusive original jurisdiction in misdemeanor cases with fines greater than $500 or a jail sentence.  County constitutional courts also serve as appellate courts for local courts within the county.  Because not all local trial courts are courts of record, some of these appeals are considered appeals de novo; in these cases, the court must review questions of fact and questions of law.  County constitutional courts also perform probate functions (handling matters such as wills, estates, and guardianship). 

Statutory county courts and statutory probate courts are established by the Texas legislature.  Statutory county courts have jurisdiction in civil, criminal, original, and appellate actions prescribed by law for constitutional county courts.  Additionally, these courts have jurisdiction over civil matters up to $200,000, with some courts having a higher maximum jurisdiction amount.  Statutory probate courts are limited in scope and solely perform probate matters.

State Trial Courts

In Texas, district courts function as the trial court at the state level.  District courts are established by the Texas constitution.  The geographical region served by a district court is established by the Texas legislature; the Texas constitution mandates that every county has at least one district court.  These courts exercise original jurisdiction in civil actions over $200, divorce, land titles, and contested elections; felony criminal matters; and juvenile matters.  Thirteen district courts are designated criminal district courts – they focus on criminal cases.  Other district courts are directed to give preference to certain specialized areas, as prescribed by law.

State Appellate Courts

In Texas, there are two types of appellate courts: courts of appeals and high courts. 

Initially, courts of appeals were established by the Texas constitution, and their jurisdiction was limited to appeals of civil actions; however, the Texas constitution was amended to grant the Texas legislature the power to establish new courts of appeals and to expand the jurisdiction of these courts to include criminal cases.

Texas has fourteen courts of appeals, each of which serves a geographic region encompassing multiple counties and district courts.  Similar to U.S. courts of appeals, Texas courts of appeals hear intermediate appeals from trial courts within their geographic regions.  

Texas has two high appellate courts – the Texas Supreme Court, which is granted final appellate jurisdiction in civil and juvenile cases, and the Court of Criminal Appeals, which is granted final appellate jurisdiction in criminal cases.