Category: Texas Judiciary

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Components of Texas’s Criminal Justice System

Criminal justice systems consist of three major components: law enforcement agencies, courts, and correctional facilities.

Law Enforcement Agencies

Texas has over 1,900 state, county, city, ISD, university, and transit district law enforcement agencies.

State law enforcement agencies include, but are not limited to, the Texas Alcoholic Beverage Commission, Texas Attorney General, Texas Commission on Law Enforcement, Texas Department of Criminal Justice, Texas Board of Pardons and Paroles, Texas Department of Public Safety, Texas Department of Parks and Wildlife, and Criminal Investigations Division – Comptroller of Public Accounts.

Texas Department of Criminal Justice

For the purposes of our discussion, we are going to focus on only one of these state law enforcement agencies: the Texas Department of Criminal Justice (TDCJ).  TDCJ is overseen by the Texas Board of Criminal Justice, which is a nine-member board appointed by the governor.

TDCJ has four goals: (1) to provide public safety; (2) to promote positive change in offender behavior; (3) to reintegrate offenders into society; and (4) to assist victims of crimes.

TDCJ consists of seven divisions, four of which are focused on overseeing the supervision of offenders in various TDCJ-operated and privately-operated state correctional facilities.

TDCJ Divisions that Oversee the Supervision of Offenders

  • Community Justice Assistance Division
  • Correctional Institutions Division
  • Private Facility Contract Monitoring/Oversight Division
  • Parole Division

Other TDCJ Divisions

  • Rehabilitation Programs Division
  • Reentry and Integration Division
  • Victim Services Division

Courts

Texas has nearly 3,000 state, county, and local courts, many of which have jurisdiction over certain criminal offenses.

Correctional Facilities

Texas has a variety of agencies that detain and supervise offenders, including state facilities operated by the Texas Department of Criminal Justice, privately operated facilities, and parole confinement facilities.

TDCJ state facilities include prisons, state jails, transfer facilities, medical facilities, pre-release facilities, substance abuse felony punishment facilities, psychiatric facilities, geriatric facilities, and the mentally challenged offender program.

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Bifurcated Court Systems: A Closer Look

Bifurcated court systems in which courts specialize in civil or criminal law are fairly uncommon.  Only two states have two separate high courts of final appellate jurisdiction (one for civil, one for criminal): Texas and Oklahoma.  The remaining 48 states have a single, unified high court of final appellate jurisdiction.

The merits of a bifurcated court system have been heavily debated by politicians, legal professionals, and political scientists.  Some of the arguments raised by proponents and critics of bifurcated court systems are summarized below.

Arguments For Bifurcated Systems

  1. Separate appellate courts that are specialized in criminal or civil matters allow for more efficient and expedited processing of cases
  2. Specialization and expertise in civil or criminal matters benefits the parties to a case, lawyers, and the legal system
  3. Staff sizes in bifurcated systems do not greatly exceed what they would be in a system with a single, unified court of final appellate jurisdiction because the caseload would remain the same regardless of the structure of the court system

Arguments Against Bifurcated Systems

  1. Bifurcated court systems are inefficient because they require additional court staffs and infrastructures
  2. Bifurcated court systems foster conflict between courts on issues that arise in both civil and criminal cases
    • Civil and criminal courts may have different interpretations of legal provisions that apply in both contexts (ex: standards for expert testimony)
    • Jurisdictional issues arise with cases that involve both civil and criminal matters, with courts  engaging in “hot potato” by sending cases back and forth between civil and criminal courts
  3. Judges who specialize in criminal or civil matters lack a broader perspective on law

Failed Attempts at Court System Reform

Over the past several decades, there have been attempts to reform of court system aimed at eliminating specialized courts and/or merging the Texas Supreme Court and Texas Court of Criminal Appeals into one unified high court of final appellate jurisdiction over both civil and criminal cases (similar to the original Texas Supreme Court, as described in the Texas Constitution of 1836).

At the Constitutional Convention of 1974, the proposal of a single supreme court was introduced; however, the voters ultimately rejected the reform.  Since that point in time, several bills have been introduced during regular legislative sessions to reform the court system, none of which have received any real consideration.  For example, in 1993, 2003, 2011, and 2013, bills to eliminate the Texas Court of Criminal Appeals and transfer its caseload and jurisdiction to the Texas Supreme Court were introduced.

Efforts to revise the structure of our state’s court system have not gained the same level of support as civil tort reform efforts and criminal justice reform efforts.  Some who support reform of the structure of our court system in theory question whether these reforms are practical given the size of the courts’ dockets and the existence of other systematic issues with the structure, scope of jurisdiction, and use of discretionary review utilized within the state’s courts.

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Civil Law in Texas: The Basics

Civil cases in Texas involve the plaintiff, or party bringing the case, and the defendant, or party accused of causing an injury.  Civil lawsuits usually result in some form of restitution, or financial compensation.

Civil cases take two different forms: uncontested, which means both parties agree on the desired outcome but are using the court system to make the agreement legally binding, and contested, which means the parties involved in the case do not agree on what the outcome of the case should be.

Civil Law Process in Texas

Flow chart depicting Texas's civil law process

Pre-Trial

The civil law process begins when a plaintiff files a petition with the court, which asks the court to grant a certain outcome in a civil suit.  Once the petition is filed, the plaintiff is required to arrange for the defendant to be provided legal notice that the petition has been filed.  The defendant is then allowed to respond to the petition by filing a request or special appearance (if the defendant has a jurisdictional challenge to the petition), filing an answer (if the defendant wishes to demonstrate that he is not defying the court’s authority), or filing a counter-petition (if the defendant has his own claims against the petitioner).  Next, the civil case enters the discovery period, during which legal counsel for both parties may request information relevant to the case that the other party has compiled.

Many civil cases end during the pre-trial stage due to a petition for nonsuit being filed by the plaintiff, settlement agreements between the parties involved, or summary judgments issued by judges.

Trial

If the case is uncontested, chances are the trial stage of the civil law process will be fairly short.  If, however, the case is contested, the trial stage of the civil law process will more closely resemble a trial and will include the introduction and cross-examination of evidence.

Post-Trial

Following the trial, the judge will enter a judgment as to whether the defendant is liable and, if so, what restitution is required, along with how long the defendant has to comply with the court order.  If one of the parties disagrees with the judgment, the case may be appealed to a court of appeals for review.

Tort Reform in Texas

“. . . Texas was known as one of the nation’s “judicial hellholes.”  Equal enforcement of the state’s [civil] laws was simply not a certainty upon which a citizen could rely.” – Nixon & Texas Public Policy Foundation (2013)

In 2003, the Texas government took action to provide comprehensive reform of the state’s civil law system:

  • Governor Rick Perry declared medical malpractice reform an emergency legislation item; shortly thereafter, HB4 was passed and signed into law.  HB4 was an omnibus tort reform bill that contained many procedural, substantive, evidentiary, medical malpractice, and general civil law reforms found in other states and in the federal court system.
  • In 2003, the Texas legislature passed Texas Constitutional Amendment Proposition 12, which would give HB4 full effect and overturn a Texas Supreme Court decision against caps on non-economic damages in civil suits.  This amendment was approved by a majority of voters.

Several studies of the Texas civil law system have found that these reforms have had a positive impact on reducing the volume of civil lawsuits, have increased access to healthcare in the state due to an increase in the number of licensed physicians practicing in the state resulting from decreasing malpractice premiums, and has had a positive impact on the state’s economy.

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Criminal Law in Texas: The Basics

Criminal cases in Texas involve the government (prosecution) accusing a defendant of committing a crime listed in the Texas Penal Code.  The Texas Penal Code outlines two categories of crimes: misdemeanors and felonies.

Misdemeanors

Misdemeanors are minor crimes punishable by a fine or up to one year of incarceration in local or county jail.  Misdemeanor offenses are divided into three classifications: Class A misdemeanors, Class B misdemeanors, and Class C misdemeanors.

The Texas Penal Code establishes sentencing ranges and specifies which courts will exercise original jurisdiction in criminal cases for Class A, Class B, and Class C misdemeanors.

Classification of Offense Sentencing Range Trial Court
Class A Misdemeanor
Examples: resisting arrest; theft of $500- $1,500
  • Up to one year of in local or county jail
  • Maximum fine of $4,000
 County-level trial court
Class B Misdemeanor
Examples: driving while intoxicated; theft of $20-$500
  • Up to 180 days in local or county jail
  • Maximum fine of $2,000
 County-level trial court
Class C Misdemeanor
Examples: Traffic violations; theft <$20
  • Maximum fine of $500
 Local Trial Courts

Felonies

Felonies are more serious crimes punishable by incarceration for more than one year in a state jail or prison or by death.  Felony offenses are divided into five classifications: capital felonies, first-degree felonies, second-degree felonies, third-degree felonies, and state jail felonies.

The Texas Penal Code establishes sentencing ranges for capital felonies, first-degree felonies, second-degree felonies, third-degree felonies, and state jail felonies.  District courts exercise original jurisdiction over all felony cases, regardless of classification.

Classification of Offense Sentencing Range
Capital Felony
Capital murder 
  • Life imprisonment, without the possibility of parole, unless the offender was under the age of 18 at the time of the offense or is a certified juvenile
  • death
First Degree Felony
Examples: murder; theft of >$200,000
  • Five to 99 years in state jail or prison
  • Maximum fine of $10,000
Second Degree Felony
Examples: manslaughter; theft of $100,000-$200,000
  • Two to 20 years in state jail or prison
  • Maximum fine of $10,000
Third Degree Felony
Examples: impersonation; theft of $20,000-$100,000
  • 2 to ten years in state jail or prison
  • Maximum fine of $10,000
State Jail Felony
Example: possession of 4 oz. – 1 lb. of marijuana; theft of $1,500-$20,000
  • 180 days to two years in state jail
  • Maximum fine of $10,000

As you may have noted when reviewing the table above, only capital felonies (i.e., capital murder) may be punishable by the death penalty.  Capital murder includes offenses such as:

  • murder of a public safety officer
  • intentionally committing murder while committing/attempting to commit aggravated kidnapping, burglary, robbery, aggravated sexual assault, arson, etc.
  • committing murder for compensation
  • committing murder while incarcerated for murder
  • committing murder while escaping/attempting to escape jail or prison
  • murder of an employee of a penal system while incarcerated
  • murdering more than one person at the same time or at different times if following the same scheme or course of conduct (for instance, serial killers)
  • murdering someone under 15 years old
  • murdering a state or local judge in retaliation for or on account of their service as a judge

Criminal Justice Process in Texas

Flow chart depicting steps in Texas's criminal justice process

Arrest, arraignment, bail, & indictment

Once an individual suspected of committing a crime is arrested, the defendant is arraigned (formally charged and made aware of his rights), and bail may be set.  Bail is not guaranteed by the Texas Constitution.

Felony cases in Texas require an indictment before proceeding to trial.  A grand jury reviews evidence gathered by prosecution to determine if the case should proceed to trial.  If nine out of 12 members of the grand jury agree that the process should continue, a true bill, or indictment, is issued; if not, no bill is issued.  Grand juries and indictments are intended to prevent abusive prosecutions.

Plea bargaining

Plea bargaining occurs when a defendant and a prosecutor negotiate a deal prior to going to trial.  Due to overcrowded court dockets, most criminal cases in Texas are resolved through plea bargaining.  Plea bargains are intended to save both time and money.  However, many have criticized the use of plea bargaining because it removes the defendant’s right to a trial by jury and ability to appeal the case to higher courts for review and because judges are not always required to follow a plea bargain agreement when sentencing.

Trial

If the defendant chooses not to enter a plea bargain, the case will be brought to trial.  The defendant may choose whether to have a trial by jury, which is guaranteed by the Texas Constitution’s bill of rights, or waive that right and choose to be tried by a presiding judge.

If the defendant chooses to have a trial by jury, the trial jury (or petit jury) is responsible for determining guilt or innocence and, in the case of capital felonies, may take part in sentencing.

Post-Trial Sentencing

If the defendant is found guilty of committing a crime, he or she will be sentenced by the judge.  Judges exercise some discretion and latitude within the sentencing framework and guidelines established within the Texas Penal Code.

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Substantive vs. Procedural Laws

One way to differentiate between different types of laws is to look at the content of the laws themselves.

Substantive Laws

Laws whose content, or substance, defines what we can or cannot do are called substantive laws.  Substantive laws fall into two categories: criminal laws and civil laws.

Criminal laws prohibit behavior that the government has determined to be harmful to society.  Violation of a criminal law is called a crime.  Criminal law proceedings involve two parties: the government (prosecution) and the person(s) accused of committing a crime (defendant(s)).  In criminal law cases, the burden of proof lies with the government, which is charged with proving that the defendant is guilty beyond a reasonable doubt, and defendants in both federal and state criminal trials are afforded numerous civil liberties, or protections, such as the right to counsel.  Defendants who are found guilty in criminal cases may be subject to fines, community service, probation, or imprisonment.

Civil laws regulate interactions between individuals.  Violation of a civil law is called a tort.  Civil law proceedings involve two parties: the plaintiff, or person who brings the case in a court of law, and the defendant, against whom the case is brought.  In civil law cases, the burden of proof lies with the plaintiff, who must demonstrate a preponderance of evidence.  Defendants who are found at fault in civil cases may be subject to punitive damages, which are intended to punish the defendant for the action, or compensatory damages, which are intended to compensate the plaintiff for damages, injury, or another incurred loss.

Some actions may violate both criminal and civil law – and may result in both a criminal case and a civil case.

Procedural laws

Procedural laws establish how laws are applied and enforced – in other words, how legal proceedings should take place.  Procedural laws include rules about jurisdiction, plea bargaining, evidence, appeals, legal representation/counsel, due process, etc.  Our federal and state constitution contain many provisions guaranteeing procedural due process to protect the rights of individuals who must deal with the legal system.

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Sources & Hierarchy of Law in Texas

There are various sources of law in Texas.

Federal Law

  1. Constitutional law
    • U.S. Constitution, including amendments
    • Federal court interpretations of constitutional provisions
  2. Statutory law
    • Laws passed by the U.S. Congress
  3. Administrative law
    • Federal bureaucratic agency rules and regulations

State Law

  1. Constitutional law
    • Texas Constitution, including amendments
    • State court interpretations of constitutional provisions
  2. Statutory law
    • Laws passed by the Texas legislature
  3. Administrative law
    • State bureaucratic agency rules and regulations
  4. Local codes and ordinances
    • Laws passed by cities and counties

The U.S. Constitution states that federal laws are higher than state laws within the legal hierarchy (Supremacy Clause, U.S. Constitution).  Similarly, the Texas Constitution states that state laws (constitutional law, statutory law, and administrative law) are higher than local codes and ordinances within the legal hierarchy.Figure depicting legal hierarchy of federal, state, and local laws

Within both the federal and state legal systems, constitutional law is considered the foundation of government and, as such, is viewed as higher than statutory laws created by the legislature under their constitutional authority.  Statutory law is viewed as higher than administrative law, because legislatures create and delegate authority to bureaucratic agencies.

Figure depicting legal hierarchy of constitutional, statutory, and administrative laws

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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.