Lawmaking in the Lone Star State

Quorum Requirement

quorum is the minimum number of members of a legislative chamber (or another assembly) that must be present at a meeting for the proceedings of that meeting to be considered valid.

The Texas Constitution of 1876 established a high quorum requirement for the Texas legislature: at least two-thirds (2/3) of the membership of the Texas House of Representatives (100 out of 150 members) or the Texas Senate (21 out of 31 members) must be present in order for the chamber to conduct business.  Because of our high quorum requirement, the absence of a minority of members in one or both chambers can bring the legislative process to a grinding halt.  During the 12th Legislature, which met from 1870-1871 (Radical Reconstruction era), several Democratic state senators left Texas to prevent a quorum in the Republican-controlled legislature.  This ultimately led to “the arrest of senators by the Senate and the forcible return of enough to make a quorum” (May, n.d.).

How a Bill Becomes a Law in Texas

Introduction & Referral

“Only a legislator may introduce a bill into the legislative process, although the idea for a bill may originate from a source other than the legislator, such as an interested outside party or the findings of a committee study” (Texas Legislative Council, 2021).  Bills that are introduced in the first 60 days of a regular session are subject to the two-thirds quorum described above; after 60 days, a four-fifths quorum is required to introduce a bill.  When being introduced, the bill is read aloud.  It is then assigned a number (ex: HB1) and referred to a committee by the presiding officer.

Committee Action

After a bill has been referred to a committee, the committee will hold meetings and hearings on the bill.  During this process, the bill may go through mark up, or the process of revising, amending, or rewriting a proposed law.  After considering a bill, the committee can:

  • take no action
  • issue an unfavorable report
  • issue a favorable report recommending passage as is, recommending amendments, or providing a substitute bill

Committee chairs can significantly influence the outcome of a bill through their control of the committee’s agenda, schedule of hearings, witnesses to be called, and voting schedule.

Sometimes, a committee will pigeonhole a bill by choosing not to consider it.  When this occurs, a legislator can bring forth a discharge petition to force the committee chairperson to bring the bill up to a vote in the committee (and, if it receives a majority vote, it will proceed to the floor).  A discharge petition requires signatures of two-thirds of the members of the Texas House of Representatives (100) or Senate (21) within the first 76 days of the regular session; after 76 days, only a majority of signatures are needed (76 in the Texas House; 16 in the Senate).

Senate rules allow “any member of the Senate a right to request at least 48 hours written notice of the time and place set for a public hearing on a specific bill” (Rodriguez, 2017), which in effect allows a single state senator to delay a bill’s consideration or even halt a bill from moving further through the legislative process.

Floor Action

The process by which a bill moves from a committee to the floor differs in the Texas House of Representatives and the Texas Senate:

In the Texas House, measures recommended favorably by committee go to the House Calendars Committee for assignment to one of the House calendars, which sets the order of priority for consideration on the floor.  In the Texas Senate, measures recommended favorably go to the Senate Calendar of Bills, which sets the order of priority for consideration on the floor; senate rules require bills and resolutions be considered in the order in which committee reports on the measures are submitted to the Senate.

Because our Texas legislature’s regular session only lasts for 140 days, many of the bills that end up on calendars will not be considered by the full chamber; the higher the bill’s priority for consideration, the sooner it is scheduled to be brought to the floor — and the more likely it will actually make it to the floor.

In order to bring up a bill or resolution prior to its scheduled order in the Texas Senate, a senator may give notice of intent, which places the measure on the Intent Calendar.  The Texas Senate routinely considers only a portion of the items listed on the Intent Calendar; if not considered, a senator must give notice of intent every day they wish for the bill or resolution to remain on the Intent Calendar.  State senators are limited when it comes to notices of intent: they can give notice of intent on no more than three items before April 15 and no more than five items on or after April 15.

Once a bill has made it to the floor, it is read for the second time.  The bill is then debated on its merits.  In the Texas House of Representatives, the debate is limited by House rules.  Debates in the Senate vary greatly due to the filibuster, which differs slightly from the filibuster used in the U.S. Senate: in the Texas Senate, unlike in the U.S. Senate, no more than one senator may filibuster any given bill, and a cloture motion to force a vote is not an option.  During the debate, the bill may be amended to facilitate passage or to incorporate items from other bills that likely will not reach the floor.

Once the debate has ended, the chamber will take a floor vote.  At least one day after floor passage, the bill is read aloud for the third time.

Conference Committee

For a bill to be sent to the governor for action, it must be passed in identical form by both chambers of the Texas Legislature; however, bills passed by the Texas House and Texas Senate often contain differences, even if they were identical when introduced, due to changes being made while in committee and/or on the floor.  This is where conference committees come into play.  Conference committees, which are composed of five members of each chamber (who are appointed by the presiding officers of that chamber) negotiate differences between bills passed by the Texas House of Representatives and the Texas Senate.

Governor Action

Once a bill reaches the Governor’s Office, the governor may:

  • sign the bill into law
  • exercise the line-item veto to strike out specific sections or items on an appropriations (i.e., spending) bill while signing the rest of the bill into law
  • veto the bill, which prevents the bill from becoming law unless the veto is overridden by a two-thirds vote in both chambers (very rarely is a veto successfully overridden)
  • take no action, in which case the bill becomes law:
    • after 10 days, if the legislature is still in session
    • after 20 days, if the bill is given to the governor during the last 10 days of the regular session

Legislative Process: Other Key Players

There are several actors involved in the legislative process that were not referenced in preceding discussion, including:

  • the Comptroller of Public Accounts, which is an office in the plural executive that is responsible for, among other things, certifying revenue projections (and, according to our state’s balanced budget requirement, the state government cannot appropriate more money than it makes in revenue through taxes and fees)
  • the media, which can engage in legislative agenda-setting by drawing the public’s attention to particular bills
  • courts, which can declare state laws unconstitutional
  • lobbyists and special interests, which gain influence by donating campaign funds and providing information to legislators during the legislative process
  • the public, who elect state legislators to represent their interests (and have the ability to hold state legislators accountable for their actions through elections) and can provide input by contacting their legislators’ offices

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

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)

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.

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.

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.”