Category: Texas Judiciary

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Attorney General: The Basics

The attorney general is chosen via statewide election and serves four-year terms with no term limits.  The constitutional qualifications to serve as attorney general are low: 18 years of age, U.S. citizen, resident of Texas for 12 months.  In 2016, the Attorney General was compensated $153,750/year.

As the state’s chief legal advisor, the attorney general is responsible for various functions, including:

  • representing the state in courts
  • filing lawsuits on behalf of the state (usually questioning the constitutionality of federal actions under the principle of federalism)
  • issuing advisory opinions on legal matters to the governor, legislature, and state agencies within the bureaucracy
  • enforcing state anti-trust and consumer protection laws
  • investigating and prosecuting criminal activities, including crimes of human trafficking, internet crimes against children, and election fraud
  • assisting local law enforcement in prosecutions and appeals
  • enforcing open government (i.e., sunset) laws
  • collecting unpaid child support
  • collecting delinquent state taxes
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Popular Influence in Texas Judicial Elections 

In theory, elections as a method of selecting judges align well with Texas political culture because it allows individuals to shape the state judicial system.  As we saw in previous discussions, however, there are some areas of concern when it comes to judicial elections, particularly involving campaign financing.  Here, we’ll expand on our understanding of the effectiveness of partisan elections at realizing the goal of popular influence.

Impediments to Popular Influence

Long ballot

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 is very high.  As a result, straight-ticket voting became common practice in Texas.  The Texas legislature voted to remove the option of straight-ticket voting starting with the 2020 general election; however, this was reversed and straight-ticket voting was allowed for that election.

“At present, an overwhelming majority of Texas judges are elected based not on their legal qualifications and judicial philosophy, or even on their own campaign efforts, but rather on the performance of their party (in the straight-ticket vote) and of their party’s top-tier candidates (e.g., presidential, gubernatorial) within the jurisdiction where their race is being contested.” (Jones, 2017, p. 2)

Incumbency advantage

The incumbency advantage enjoyed by current officeholders during elections due to greater visibility, a proven record of public service, and better access to resources is robust in Texas.

Although partisan elections are the primary mechanism for judicial appointment to most courts in Texas, a large number of judges in state trial courts and state appellate courts initially reach the bench through recess appointments by the governor. Judges who enter their offices through recess appointments usually enjoy the same incumbency advantage at the polls as their colleagues who were previously elected by voters to serve in their offices.

Lack of knowledge about judicial campaigns and candidates

Judicial campaigns are often among the least visible campaigns during an election cycle.  As such, most voters have relatively little knowledge of judicial candidates.  Further complicating this is the fact that relying on party labels does not communicate valuable information to voters about the judicial candidates because voters do not have a good understanding of how partisanship plays into everyday judicial decision-making.

Uncontested Elections

From Reconstruction through the late 1900s, judicial races featured only Democratic candidates, who ran unopposed.  This changed in the 1980s, when “the emerging strength of the Republican party . . . led to contested elections, and straight-ticket voting has swept away many incumbent [Democratic] judges from their benches” (Womack, n.d.).  Today, judicial candidates – particularly those in local or county races – often run opposed.

Outcomes of Texas Judicial Elections

In theory, judges should be selected by voters based on their analyses of that candidate’s effectiveness.  In reality, due to the impediments discussed above, the outcome of Texas judicial elections are based in large part on party affiliation (voters in Texas tend to vote along party lines) and name recognition (voters choose a candidate based on familiarity with the candidate or previous recognition of a candidate’s name)

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State Appellate Courts

State appellate courts review actions and decisions of lower courts that have been appealed due to questions of law or allegations of due process violations.  State appellate courts include courts of appeals, the Supreme Court, and the Court of Criminal Appeals.

Courts of Appeals

The first court of appeals was created by the Texas Constitution of 1876.  The Texas Constitution was amended in 1891 to grant the Texas legislature the power to establish new courts of civil appeals and again in 1980 to rename these courts to “Courts of Appeals” and extend their jurisdiction to include both civil and criminal cases.

Texas has 14 courts of appeals, each of which serves a geographic region encompassing multiple counties and district courts.  Texas courts of appeals hear intermediate appeals from trial courts within their geographic regions.

Map of Texas Courts of Appeals districts
From https://www.txcourts.gov/media/10872/COA05_map2012.pdf

Each court of appeals has at least three justices who serve four-year terms.  Currently, 80 justices serve on state courts of appeals.  The Texas legislature has the authority to increase the number of justices who serve on state courts of appeals when the caseload requires it.

Supreme Court

The Texas Supreme Court was originally created by the Texas Constitution of 1836.  Currently, it consists of nine justices who serve staggered terms.

The Supreme Court has original jurisdiction to issue writs and conduct proceedings for involuntary retirement or removal of judges and statewide, final discretionary appellate jurisdiction in most civil cases and juvenile cases.  For an appealed case to be granted a petition for review, four or more justices must agree to review the case.  Generally, the Supreme Court only grants petitions for review to cases that involve significant legal issues.

The Supreme Court also performs other functions, including:

  • answering questions of state law certified from a U.S. Court of Appeals
  • promulgating rules of civil trial practice and procedure, evidentiary procedure, and appellate procedure
  • promulgating rules of administration to provide for the efficient administration of justice
  • monitoring the caseloads of courts of appeals, transferring cases as appropriate to balance their caseloads
  • assisting with the administration of Basic Civil Legal Services Program funds, which provide basic civil legal services to the indigent, with the assistance of the Texas Equal Access to Justice Foundation
  • supervising the operations of the State Bar of Texas
  • reviewing cases involving attorney discipline upon appeal from the Board of Disciplinary Appeals of the State Bar of Texas

Court of Criminal Appeals

The Texas Court of Criminal Appeals (originally named the Court of Appeals) was created by the Texas Constitution of 1876 to relieve the caseload of the Texas Supreme Court.  Currently, it consists of nine justices who serve six-year, staggered terms.

The Court of Criminal Appeals has both mandatory and discretionary statewide, final appellate jurisdiction in criminal cases.  The court’s mandatory appellate jurisdiction applies to cases that resulted in the death penalty and applications for post-conviction habeas corpus relief in felony cases without a death penalty; only the Court of Criminal Appeals may handle these matters.  The court’s discretionary appellate jurisdiction applies to criminal cases being appealed from courts of appeals.  The Court of Criminal Appeals may also review a decision made by a lower state court in a criminal case on its own motion (i.e., without the case being appealed for review).

The Court of Criminal Appeals also performs other functions, including:

  • promulgating rules of criminal trial practice and procedure, evidentiary procedure, and appellate procedure
  • administering public funds and grants to judicial education (i.e., the education of judges, prosecutors, criminal defense attorneys who regularly represent indigent defendants, and clerks and other personnel who work in the state’s courts)
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State District Courts

In Texas, district courts are the primary trial courts in the state.  Currently, there are 477 district courts, each of which has one judge who serves a four-year term (although the Texas Constitution of 1876 does allow additional judges as required by caseload).  The geographical region served by a district court is established by the Texas legislature.

“The geographic area of most judicial districts is one county, although a populous county has many district courts; Harris County, for example, had fifty-nine. No judicial district is smaller than a county. Some judicial districts in sparsely populated areas comprise more than one county.” (Womack, n.d.)

In many locations, the regional jurisdiction of district courts overlaps.

District courts are courts of general jurisdiction, which means they potentially have original jurisdiction over all matters; however, the Texas Constitution of 1876 limits this jurisdiction by excluding cases in which some other state court has been granted jurisdiction over the matter in question.  Generally speaking, district courts exercise original jurisdiction in:

  • civil matters involving actions over $200*; suits over land titles and enforcement of liens on land; suits for slander and defamation, divorce cases and other family law matters; juvenile law cases; and suits on behalf of the state for penalties, forfeitures, and escheat
  • felony criminal cases and misdemeanor cases involving official misconduct
  • contested elections

*NOTE:  The minimum monetary jurisdiction of district courts in civil cases is disputed due to potential conflict between constitutional and statutory law – some believe the minimum damages must be at least $200.01, and some believe the minimum damages must be at least $500.

Most district courts exercise jurisdiction over civil and criminal matters prescribed to them by law.  “A constitutional district court’s jurisdiction cannot be reduced by the legislature, though the legislature has established some nonconstitutional courts (such as criminal district courts or domestic-relations courts) that have limited jurisdiction” (Womack, n.d.).  Thirteen district courts are designated as criminal district courts – they focus primarily on criminal cases.  Other district courts are directed to give preference to certain specialized areas.

District courts may perform other functions, including issuing writs of habeas corpus, mandamus, injunction, certiorari, sequestration, attachment, garnishment, and all writs needed to enforce their jurisdiction.

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County-Level Trial Courts of Limited Jurisdiction

Constitutional County Courts

The Texas Constitution states that each of the 254 counties in Texas will operate a county constitutional court, each of which will have a constitutional county judge who presides over the constitutional county court in addition to the county commissioners’ court during the office’s four-year term (we’ll come back to county commissioners’ courts when we look at local government later in this course).

Generally, constitutional county courts exercise both original and appellate jurisdiction:

  • concurrent original jurisdiction in civil actions between $200 and $10,000 and cases involving juvenile matters
  • exclusive original jurisdiction in misdemeanor cases (other than those involving official misconduct) with possible fines greater than $500 or a jail sentence of no more than one year
  • general jurisdiction over probate matters (i.e., wills, estates, and guardianship cases)
  • appellate jurisdiction of decisions made by local courts within the county

Thirty-six constitutional county courts have concurrent jurisdiction with the justice of the peace courts in civil law cases.  In counties with at least 1.75 million residents, constitutional county courts may also hear truancy cases.

“In at least seventy-four counties the constitutional county court’s judicial duties have been given, in whole or in part, to statutory county courts” (Womack, n.d.); in these counties, constitutional county courts focus on administrative functions (i.e., running county government).

Statutory County Courts

Statutory county courts, as the name suggests, are created by the Texas legislature.  The first statutory county court was created in 1907.  Currently, we have 249 statutory county courts.

“The . . . jurisdictions of the statutory courts vary greatly from county to county, depending on the decisions of the county” (Womack, n.d.).  Generally, statutory county courts have jurisdiction in civil, criminal, original, and appellate actions prescribed by law for constitutional county courts.  Additionally, these courts have concurrent original jurisdiction over civil matters up to $200,000 and appellate jurisdiction of final rulings and decisions of the Texas Workers’ Compensation Commission, with some courts having a higher maximum jurisdiction amount.  Ultimately, the actual jurisdiction of a statutory court depends on what is prescribed in statute; as such, the jurisdiction of statutory county courts varies greatly.

Statutory Probate Courts

Statutory probate courts, which are created by the Texas legislature, are limited in scope and solely perform probate matters.  Currently, there are 18 statutory probate courts located in ten different counties.

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Local Trial Courts of Limited Jurisdiction

Municipal Courts

The Texas legislature created municipal courts in each incorporated municipality in Texas.  Municipalities may choose to establish their own municipal courts in city charters instead of those established by the state legislature.  Currently, there are 944 municipal courts.

Municipal courts exercise:

  • exclusive original jurisdiction over criminal violations of municipal ordinances
  • exclusive original jurisdiction over criminal cases arising under ordinances authorized by certain provisions of the Local Government Code
  • concurrent original jurisdiction in misdemeanor cases punishable by fine only
  • concurrent original jurisdiction over truancy cases

Municipal courts also perform magistrate functions, such as issuing search and arrest warrants, conducting preliminary hearings, and setting bail.

Most municipal courts, including those created by the Texas legislature, are not courts of record, which means appeals must be heard de novo; county-level courts hearing these appeals must review both questions of fact and questions of law.

Some municipal courts are courts of record; these courts may be granted additional jurisdiction over civil and criminal cases as authorized by the state legislature or municipality.  Appeals from municipal courts of record are treated like appeals from any other court of record: the appellate court considers only questions of law.

Justice of the Peace Courts

Justice of the peace courts are created by the Texas Constitution of 1876, which, as amended, provides that each Texas county be divided into between one and eight justice of the peace precincts.  Each of these precincts has one justice of the peace court and at least one justice of the peace, who serves a four-year term.  Currently, there are 802 justice of the peace courts in Texas.

Justice of the peace courts exercise:

  • concurrent original jurisdiction in misdemeanor cases punishable by fine only
  • exclusive original jurisdiction in civil actions of up to $200
  • concurrent original jurisdiction in civil actions between $200 and $10,000
  • exclusive original jurisdiction over forcible entry and eviction cases
  • concurrent original jurisdiction over repair and remedy cases and truancy cases

Justice of the peace courts also perform magistrate functions, such as issuing search and arrest warrants, conducting preliminary hearings, and setting bail.

Justice of the peace courts are not courts of record, which means appeals must be heard de novo.

 

Most cases heard by local trial courts involve minor traffic offenses.

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Texas Courts: The Basics

The Texas Constitution and Texas legislature have established a complex court system consisting of various local, county, and state courts, some of which have concurrent jurisdiction.  These courts can be classified into four different types: state appellate courts, which include the Supreme Court, the Court of Criminal Appeals, and 14 courts of appeals; state trial courts of general and special jurisdiction, which include 477 district courts; county trial courts of limited jurisdiction, which include 254 constitutional county courts, 249 statutory county courts, and 18 statutory probate courts, and local trial courts of limited jurisdiction, including 802 justice of the peace courts and 944 municipal courts.  That’s A LOT of courts!

Bifurcated High Courts

At the top of the Texas judicial system sit the two highest courts in the state: the Texas Supreme Court, which handles matters involving civil law, and the Texas Court of Criminal Appeals, which handles matters involving criminal law.  Bifurcated court systems in which courts specialize in civil or criminal law are fairly uncommon.  Texas is one of two states that have separate high courts of final appellate jurisdiction for civil law and criminal law (the other state with a bifurcated court system is Oklahoma).

Judicial Selection in Texas

Except for most municipal court judges (whose appointment is defined in individual city charters and typically involves appointment by the city council), judicial appointment in Texas occurs through partisan elections (i.e., with their names appearing alongside a political party on the ballot).  All judges except those serving on the Texas Supreme Court or Court of Criminal Appeals are chosen by voters who reside within a geographic district; justices on the Supreme Court or Court of Criminal Appeals are chosen partisan elections that are conducted statewide (similar to the governor).

Qualifications to run in judicial elections vary depending on the court in question and “increase with the level of the court” (Womack, n.d.), as summarized in the table below.

Type of Judge Qualifications
Justices of the Peace No special qualifications
Municipal Court Judges Must be licensed to practice law in Texas; other qualifications vary
Constitutional County Court Judges Must be “well informed of the law of the State”, which “has not been interpreted to include a law license or formal study of law” (Womack, n.d.)
Statutory County Court Judges Must be licensed to practice law in Texas

Must have practiced law for four years preceding the election

At least twenty-five years old
District Court Judges U.S. and Texas citizen

Must be licensed to practice law in Texas

Must have practiced law as a lawyer or judge for four years preceding the election
Appellate Justices
(Courts of Appeals, Supreme Court, & Court of Criminal Appeals)		 U.S. and Texas citizen

Must be licensed to practice law in Texas

Must have practiced law as a lawyer or judge of a court of record for at least ten years preceding the election

At least thirty-five years old

While there are benefits to partisan elections, many have criticized Texas’s use of partisan elections to select Texas judges.  Among these critics is former Texas Supreme Court Chief Justice Wallace B. Jefferson, who referred to this judicial selection method as “a broken system.”

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Jurisdiction

Jurisdiction refers to a court’s authority to hear a case and render an opinion.  Various types of jurisdiction exist within the federal and state court systems.

Original jurisdiction refers to the authority of a court to hear an initial case.  When a court exercises original jurisdiction, it considers questions of fact and questions of law.  In other words, the court must first determine the facts of the case, or what happened; then, it must determine how the law applies in that particular case.

Appellate jurisdiction refers to the authority of a court to review decisions made by lower courts.  This occurs when one of the parties in the case appeals the case, or requests for a higher court to review the legal decision of a lower court.  When a court exercises appellate jurisdiction, it considers questions of law. (i.e., whether the lower court correctly interpreted and applied the appropriate legal provisions in rendering its judgment).  If there are questions about the facts of the case, the appellate court will remand the case, or send the case back to the lower court for further action (in this case, to review the facts).

Subject matter jurisdiction refers to the authority of a court to hear cases relating to a specific type of claim.  The video below discusses subject matter jurisdiction in more detail, focusing predominantly on federal subject matter jurisdiction.

Regional jurisdiction refers to the authority of a court to hear a case based on where the case originated.  Generally speaking, higher courts have broader regional jurisdiction than intermediate courts, and intermediate courts have broader regional jurisdiction than lower courts within the judicial hierarchy.

Sometimes, due to the type of claim involved in a case, more than one court may exercise overlapping original or appellate jurisdiction.  In this situation, the courts are said to have concurrent jurisdiction.  For example, federal criminal law sometimes overlaps with state criminal law; if someone is accused of committing a crime that falls into this overlap between federal and state criminal law statutes, the case may be initially heard in either a state court or a federal district court.  Exclusive jurisdiction, on the other hand, refers to the sole authority to hear a specific type of case.

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Judicial Federalism: The Dual Court System

The United States court system is based on judicial federalism, in which judicial authority is shared between levels of government.  The structure of the federal court system is outlined by Article III of the U.S. Constitution and statutory laws passed by Congress.  States are given the authority to establish their own court systems.

State courts hear most day-to-day cases (and approximately 90 percent of all criminal and civil cases).  State courts help the states retain their own sovereignty in judicial matters over their state laws, distinct from the national government.

Federal courts only hear cases that involve a “federal question” *(i.e., involve a federal criminal law, bureaucratic rule, etc., or raise the question whether some law or action violates the U.S. Constitution), interstate matters, and diversity of citizenship matters involving parties of two different states or between a U.S. citizen and a citizen of another nation (with a damage claim of at least $75,000).

State and federal court systems sometimes intersect and overlap each other.  When concurrent jurisdiction exists between the federal and state court systems, there are alternative venues in which someone may appeal for assistance.  Concurrent jurisdiction between federal and state court systems also means that there are different courts in which a person can face charges for a crime or violation.  Double-jeopardy only protects the accused from being tried for the same crime in the same court system; it does not protect the accused from being tried of the same crime in a different court system.