Judiciary of Texas
The structure is exceedingly complex, featuring many layers of courts, numerous instances of overlapping jurisdiction (both in terms of amount in controversy and territorial), myriad differences between counties, and an unusual bifurcated appellate system at the top level found in only one other state: Oklahoma.
The Municipal Courts are the most active courts, with the County-level and District Courts handling most other cases and often sharing the same courthouse.
Administration is the responsibility of the Texas Supreme Court, which is aided by the Texas Office of Court Administration, the Texas Judicial Council and the State Bar of Texas, which it oversees. The State Bar of Texas (SBOT) is a mandatory bar, rather than merely an association of lawyers (such as the ABA or local bar associations). In order to practice law in Texas courts, an attorney must be licensed, and must pay dues. The public can obtain basic information on all Texas attorneys, including their bar number, license status, and disciplinary record, from the Bar's website.
History and perception
In the 19th century, Texas had a reputation for arbitrary "frontier justice"; in one notorious example highlighted by Stanford legal historian Lawrence M. Friedman, its appellate courts upheld a conviction of "guily" (where the t was omitted) in 1879 but reversed a conviction of "guity" (where the l was omitted) in 1886. The latter decision actually attempted to distinguish the earlier one by trying to explain why the letter l was more important than the letter t. The poor quality of Texas justice has been attributed to the state's shortage of proper law schools and law libraries, as well as the traditional preference of Texans for "'self-help' justice as practiced in the courts of 'Judge Winchester' or 'Judge Lynch.'"
Texas is the only state besides Oklahoma to have a bifurcated appellate system at the highest level. The Texas Supreme Court hears appeals involving civil matters, and the Texas Court of Criminal Appeals hears appeals involving criminal matters. Sometimes, the dividing line is murky, especially with respect to jurisdiction in mandamus and habeas corpus cases. See, e.g. Justice Willet's dissent in In re Reece, 341 S.W.3d 360 (Tex. 2011) (orig. proceeding). Unlike its counterpart in Oklahoma, the Texas Supreme Court is not really supreme when it comes to a jurisdictional ping-pong or tug-of-war between the two high courts because both are co-equal.
Article V, Section 1, states:
[t]he 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.
As such, the Texas Legislature has created additional courts to address caseload pressures driven by population growth in different areas of the state. District courts are (usually) consecutively numbered regardless of whether they are specialize to handle criminal, civil, or family matters (though in some counties, Criminal District Courts have separate numbering systems, an example being Dallas County which has seven such courts numbered 1 through 11). The highest numbers indicate that the court was created recently, but the number alone provides no clue as to location of the new court and the appellate district within which it is located. As such, a comprehensive list of Dallas courts can be found to include 60 courts in Dallas.
Further sections of Article V spell out the basic requirements for each court's jurisdiction and for its officers.
The Texas Supreme Court hears appeals involving civil matters and does not hear any appeals involving criminal matters except when the defendant is a juvenile. Under Texas law, juvenile proceedings (even those involving criminal activity) are considered civil matters under the Texas Family Code; thus, the Texas Supreme Court hears such appeals, but it defers to the Texas Court of Criminal Appeals in matters where the Texas Penal Code must be interpreted. The Supreme Court also maintains responsibility for attorney licensing and discipline.
Court of Criminal Appeals
The Texas Court of Criminal Appeals hears appeals on criminal cases excluding those involving juvenile proceedings. Cases in which the death penalty was imposed are directly and automatically appealed to this court, bypassing the intermediate Courts of Appeals, which hear both civil and criminal cases.
Courts of Appeals
Texas has 14 Courts of Appeals, which have intermediate appellate jurisdiction in both civil and criminal cases. Death penalty cases, however, are automatically appealed to the Texas Court of Criminal Appeals and thus skip the intermediate tier in the appellate court hierarchy.
The total number of intermediate appellate seats is 80, with membership ranging from three to 13 justices per court, as set by statute. All cases are heard by a three-justice panel unless a hearing en banc is ordered (except where a particular court has only three justices assigned to it, in which instance all cases are automatically heard en banc; an example is the 12th Court of Appeals). The en banc process is used to maintain consistency in the court's jurisprudence, to overrule existing precedent that is binding on individual panels, and to set new precedent on an unsettled question of substantive law or procedure.
The Texas Legislature determines which counties are included within a particular court of appeals' district, and has shifted counties between courts to balance the docket. The Texas Supreme Court seeks to even out imbalances in appellate caseloads on an ongoing basis with docket-equalization orders that provide for transfers of batches of cases from the busiest appellate courts to others with spare capacity.
In an oddity, two of the fourteen courts, the First and the Fourteenth, both sitting at the re-purposed historic 1910 Harris County Courthouse in Houston, have concurrent jurisdiction over the same ten counties, the largest being Harris County. Parties who want to appeal a case from a court in any of these counties are required to state in their notice of appeal that they wish to appeal to either the first or the fourteenth court of appeals, and then have to wait and see to which one of the two they are assigned randomly. They will promtly receive a notice from the designated court advising them that they have not yet paid the required $205 filing fee to prosecute the appeal, and that their appeal may be dismissed if they do not do so within 20 days. See TEX. R. APP. P. 5 (requiring payment of fees at time of filing, unless excused). This is a standard form letter that is sent even though nobody knows which court they going to end up in when they filed the notice of appeal. The notice must be filed in the trial court, but the payment has to be made in the court of appeals.
An even more bizarre situation occurs in East and North Texas, where the 6th Court has four counties – Gregg, Rusk, Upshur, and Wood – which overlap with the 12th Court, and also has Hunt County overlapping with the 5th Court.
The district court has exclusive jurisdiction on felony cases, cases involving title to land, and election contest cases. It shares jurisdiction with the county courts, and in some case justice of the peace courts, for civil cases (its lowest limit for hearing a case is a mere $200 in controversy, while JP courts can hear cases up to $10,000). Family law jurisdiction varies depending on the existence of a county court-at-law; in some counties, the district courts share jurisdiction over divorces, child custody and support matters, adoptions and child welfare cases with county courts at law. Also, probate jurisdiction varies depending on the existence of a statutory probate court in the county. In some larger counties, such as Harris County, the district courts are specialized, some hearing family matters, others hearing criminal cases, and a third set hearing non-family civil cases.
In more rural areas, as many as five counties share a district court; urban counties, on the other hand, have multiple district courts, which in some cases specialize in civil, criminal, family law or juvenile matters.
One of the most unusual features of Texas trial courts, including district courts, is the tradition of having only one judge per trial court. Instead of adding more departments to existing courts in response to population growth, Texas adds more courts. The result is that a typical Texas urban courthouse is home to many single-judge trial courts, each of which is legally organized as a separate court with its own unique name and number. This contrasts sharply with the prevailing tradition in the federal judiciary and the courts of virtually all U.S. states, in which a trial court can have multiple judges sitting in separate departments and all of which have authority to act in the name of the same trial court. While Texas law provides for certain specific circumstances in which a judge of one trial court can act for an absent judge of another trial court in the same jurisdiction, it is not as flexible as simply treating all trial judges as members of the same court (and in turn occasionally results in another basis for appeal).
This tradition dates back to the hurried enactment of the Constitution of the Republic of Texas in 1836 by the newborn Republic. Section 2 of Article IV provided for "not less than three nor more than eight" judicial districts, and that "a judge" would be appointed for each district. Similar clauses implying one judge per court appeared in all subsequent constitutions. For example, Section 7 of Article V of the 1876 state constitution provided for 26 judicial districts, and that "a judge" would be elected for each district. This issue was finally remedied by a constitutional amendment in 1985, but the tradition of one judge per trial court was by then thoroughly entrenched.
Some counties, however, have established a centralized docket system. In that system, cases are still assigned to a particular court and a particular judge presiding over that court, but motions and trials are assigned to judges on the day of docket call based on workload considerations and availability. This facilitates more efficient use of judicial resources (judges and staff), but it makes the process less predictable for attorneys. Additionally, rulings in the same case are likely to be made by different judges as the case progresses through the pretrial stages, and hearing judges will be less familiar with cases that they encounter for the first time at the time of the hearing.
In counties that do use this type of system, attorneys know which judge will hear their motion and try the case (except when a visiting judge is assigned to sit for an absent presiding judge), which allows experienced attorneys and law firms to assess likely case outcomes and thus facilitates settlement. In complex cases with multiple hearings, the judge will become familiar with the case and the attorneys litigating it. On the other hand, a local court system in which the case stays with the same judge creates incentives for forum-shopping. To counteract it, Local Rules typically require random assignment of cases when they are first filed, and transfer of re-filed cases after nonsuit to the court to which the prior case was randomly assigned. The same applies to severance and other related cases.
In another unique twist, the Constitution grants the Legislature the authority to determine which court handles probate matters. Thus, in ten of the 15 largest counties (specifically, the counties of Bexar, Collin, Dallas, Denton, El Paso, Galveston, Harris, Hidalgo, Tarrant, and Travis) the Legislature has established one or more Statutory Probate Courts. These specialized courts handle matters of probate, guardianship, trust, and mental health. In some counties, the statutory probate courts also hear condemnation cases. There are no jurisdictional monetary limits on the types of lawsuits that a statutory probate court may hear. As such, their jurisdiction at times overlaps that of the district court.
Constitutional County Courts
Not to be confused with County Courts at Law, which are created by statute, there is a County Court for each of the 254 counties in Texas. The Texas Constitution states that "[t]here shall be established in each county in this State a County Court ..." Sections 15 through 17 of Article V, as well as Chapters 25 and 26 of the Texas Government Code, outline the duties of these Courts and their officers.
The county court has exclusive jurisdiction over "Class A" and "Class B" misdemeanors (these offenses can involve jail time), concurrent jurisdiction over civil cases where the amount in controversy is moderately sized, and appellate jurisdiction over JP and municipal court cases (for municipal court cases, this may involve a trial de novo if the lower court is not a "court of record").
County court judges are not required to be licensed attorneys. Due to this, defendants in counties which only have the traditional constitutional county court may ask to have their cases transferred to that county's district court for trial if the district judge consents . However, defendants in counties with the county court at law structure do not have this option, as the county court at law judges are required to have law degrees.
Section 15 states that the County Court shall be a "court of record". Section 16 states that the County Court "has jurisdiction as provided by law"; Section 17 states that the County Court shall hold terms as provided by law and that County Court juries shall consist of six persons, but in civil cases a jury shall not be empaneled unless one of the parties demands it and pays a jury fee or files an affidavit stating that it is unable to do so.
Since the county judge is also responsible for presiding over the Commissioners Court (the main executive and legislative body of the county), in 94 counties the Texas Legislature has established county courts at law to relieve the county judge of judicial duties. The first multi-county statutory county court (composed of Fisher, Mitchell, and Nolan counties) was created in 2013. In most counties with courts at law, the civil and criminal jurisdiction of the constitutional county court has been transferred to the county courts at law. Unlike the county judge, judges of the county courts of law are required to be attorneys. The county courts at law may hear both civil and criminal matters, or hear them separately, depending on how the Legislature has structured them (Dallas, Denton, El Paso, Harris, and Tarrant counties have "county criminal courts" or "county criminal courts at law" that hear only criminal cases).
Statutory County Courts at Law
Statutory County Courts at Law, not to be confused with Constitutional County Courts, generally have broader jurisdiction than constitutional county courts. Statutory County Courts can generally entertain lawsuits in which the amount in controversy is over $500 but not over $200,000. However, unlike constitutional county courts, the jurisdiction of Statutory County Courts can vary from county to county. For example, in Dallas County, Statutory County Courts have jurisdiction nearly as broad as that of District Courts. In Harris County, the genera jurisdictional cap is $200,000 but these courts also have exclusive jurisdiction of eminent domain proceedings regardless of the amount in controversy. In Travis County, the amount in controversy for matters the Statutory County Court can entertain ranges from $500 to $250,000. There is no clear policy reason for the varying jurisdictions of the Statutory County Courts.
Under the authority granted it by Section 1 of Article V, the Legislature has allowed for the creation of municipal courts in each incorporated city in Texas, by voter approval creating such court. Chapters 29 and 30 of the Texas Government Code outline the duties of these Courts and their officers.
Municipal courts in Texas come into contact with more defendants than all other Texas courts combined. The subject matter of municipal courts relates to crimes relating to public safety and quality of life issues. In recent years, municipal courts and justice court in Texas have become the primary venue for acts of misconduct committed by children.
Within the city limits, these courts have shared jurisdiction with the JP courts on Class C criminal misdemeanor cases, and have exclusive jurisdiction on cases involving city ordinances. Municipal courts have limited civil jurisdiction over public matters relating to public safety (e.g., dangerous dog determinations). Confusion surrounding a municipal court's civil jurisdiction is complicated that if a municipal court is a "court of record," the Legislature has authorized municipalities to adopt ordinances that give municipal courts concurrent jurisdiction over substandard building cases with county and/or district courts. The matter of civil jurisdiction has been further confused by the advent of civil penalties for conduct that can be prosecuted as a Class C misdemeanor (e.g. certain parking violations, red light camera violations).
As a general rule, the municipal courts are not "courts of record" (i.e., no court reporter recorded and transcribed the proceedings), and thus an appeal to the county level would require a whole new trial (i.e., a trial de novo). This proved to be a loophole for some defendants in traffic cases, who betted on the officer not being able to attend, and thus having the case dismissed. Furthermore, the de novo trials crowded the dockets of already busy county courts at law. Many major cities—such as those in Austin, El Paso, Houston, Dallas and San Antonio—have chosen to convert their municipal courts to courts of record (this also requires voter approval) to close this loophole.
Municipal court cases are generally appealed to the county court level, but cannot be appealed beyond that level unless the fine is more than $100 or a constitutional matter is asserted.
Justice of the Peace Courts
The lowest court level in Texas is the Justice of the Peace Court (also called Justice Court or JP Court). Each county has at least one JP Court. Sections 18 and 19 of Article V, as well as Chapters 27 and 28 of the Texas Government Code, outline the duties of these Courts and their officers.
Section 19 sets forth the minimum jurisdiction of the JP court:
- Original jurisdiction in "criminal matters of misdemeanor cases punishable by fine only" (called "Class C" misdemeanor cases under the Texas Penal Code),
- Exclusive jurisdiction in "civil matters where the amount in controversy is $200 or less", and
- "Such other jurisdiction as may be provided by law". Under this provision, the Legislature has raised the top limit on civil matters to $10,000 and assigned the JP courts, among others, the right to hear cases involving eviction as well as cases involving foreclosure and liens against personal property where the amount falls within the (revised) JP Court's jurisdiction. In addition, marriage licenses are obtained through JP offices, and JP's are also legally permitted to perform marriage ceremonies.
JP cases are appealed to the county court level where the case results in a trial de novo. The perfection of the appeal vacates the judgment of the JP court, which means that the higher court does not reverse or affirm the JP court when it resolves the appeal. The case is instead retried on appeal, but the jurisdictional limits of the JP court, rather than those of the court of record, apply. Appeals from JP court also differ from appeals to the courts of appeals in that they require the posting of bond. This makes such appeals more onerous to losing defendants than appeals from county courts to the court of appeals unless the defendant qualifies to proceed in forma pauperis.
In criminal cases, cases beginning in justice court cannot be appealed beyond the county level court unless the fine is more than $100 or a constitutional matter is asserted.
Under Section 18, the number of JP's (and associated constables; each county has as many constables as JP's) is dependent on the size of the county:
- For counties with populations less than 18,000 (as determined by the census), the entire county shall be one JP precinct, unless the Commissioners' Court determines that more are needed, in which case the court can divide the county into no more than four JP precincts.
- For counties with populations at least 18,000 but less than 50,000, the number of JP precincts shall be no less than two nor more than eight.
- For counties with populations 50,000 or greater, the number of JP precincts shall be no less than four nor more than eight.
- In any county with population less than 150,000, if any precinct contains a city with 18,000 or more population, that precinct shall have two JP's.
- In any county with population 150,000 or greater, each JP precinct may have more than one JP.
- Special provisions apply to Chambers and Randall counties (must have no fewer than two nor more than six precincts) and to Mills, Reagan, and Roberts (the Constable office is abolished, with the Sheriff's office performing all duties).
The Texas Supreme Court has constitutional responsibility for the efficient administration of the judicial system and possesses the authority to make rules of administration applicable to the courts in addition to promulgation and amend rules governing procedure in trial and appellate courts, and rules of evidence. The chief justice of the Supreme Court, presiding judge of the Court of Criminal Appeals, chief justices of each of the 14 courts of appeals, and judges of each of the trial courts are generally responsible for the administration of their respective courts.
There is a local administrative district judge in each county, as well as a local administrative statutory county court judge in each county that has a statutory county court. In counties with two or more district courts, a local administrative district judge is elected by the district judges in the county for a term not to exceed two years; in counties with two or more statutory county courts, a local administrative statutory county court judge is elected by the statutory county court judges for a term not to exceed two years. The local administrative judge is charged with implementing the local rules of administration, supervising the expeditious movement of court caseloads, and other administrative duties.
eFileTexas.gov is the official electronic court filing (e-filing) system. Each county maintains (or does not maintain) their own docket management and retrieval systems, similar to PACER for the federal government. There is no longer an officially published reporter. West's Texas Cases (a Texas-specific version of the South Western Reporter) includes reported opinions of the Supreme Court, the Court of Criminal Appeals, and the Courts of Appeals. The Texas Reports includes Supreme Court opinions until July 1962, and the Texas Criminal Reports includes Court of Criminal Appeals opinions until November 1962. There is no systematic reporting of decisions of trial courts. Court opinions can generally be freely accessed on the web from the various courts' websites, with appellate opinions generally being available from 1997–2002 onwards.
In 2014 the Texas Court of Appeals's web sites were updated and migrated to new web addresses (with automatic forwarding from the old URLs). Each court's website allows for case and opinion searches using various types of input in addition to cause number, such as party name, attorney name, attorney bar number, file date/date range, and full-text search using key words. All current opinion are now released as pdf documents, rather than html, and thus standardized, although different courts use different templates and citation/footnoting styles, which makes for some degree of variation in appearance. Additionally, courts of appeals are now also making procedural orders, briefs, and motions available online.
Appellate opinions are also available through Google Scholar. Google Scholar presents them in a format that is more user-friendly for online viewing (compared to the double-spaced PDFs in small font released by the courts), hotlinks cited cases, and provides other functionality, such as identification of subsequent citing cases and ranking of search results by relevancy or time (recency) and time-frame delimited searches. Google Scholar versions also include attorney information for each decided case, but they do not (as of May 2018) provide a hotlink to the appellate dockets, which would be a very useful additional feature. Google instead uses the hot-linked cause numbers internally to link opinions in a case with the procedural orders issued in the same case that are also included in its database.
The Texas Judicial Council is the primary policy-making body for the judiciary. It is responsible for studying and recommending changes to improve the administration of justice. The Administrative Director of the Office of Court Administration serves as Executive Director for the Council.
The Texas Office of Court Administration provides information and research, technology services, budgetary and legal support, and other administrative assistance to a variety of judicial branch entities and courts, under the supervision of the Supreme Court of Texas and the Chief Justice. The office is led by an Administrative Director appointed by the Supreme Court and reporting to the Chief Justice.
The State Bar of Texas (the Texas Bar) is an agency of the judiciary under the administrative control of the Texas Supreme Court. The Texas Bar is responsible for assisting the Texas Supreme Court in overseeing all attorneys licensed to practice law in Texas.
Judges, Judicial Selection, and Judicial Succession
In Texas, state judges are elected in partisan elections. Trial judges are elected for 4 years, and appeals court judges are elected for 6 years. The Governor fills vacancies until the next election, and judges traditionally leave office before their last term is completed. Early resignation followed by gubernatorial appointment of a successor is now part of the established practice of judicial selection in Texas. It serves as a mechanism whereby the party in control at the state level seeks to assure replacement of incumbents with successors of the same party, who then contest the elections as incumbents. It does not always work, however. All elective positions in the executive and judicial branch are controlled by Republicans because the state as a whole is solidly red. Appellate and trial court judges, however, are elected from districts, and some of those districts are more competitive that the state as a whole, and some even have a clear Democratic majority.
There are other scenarios that can result in turnover on benches, but they are rare. Judges may be removed by voters in retention elections, by trial by jury, or by legislative address or impeachment if state judges. The predominant source of change in the composition of the judiciary involves politics.
Some incumbent judges/justices who seek reelection are defeated in primary elections, others in general elections. The probability of election-driven turnover on district and appellate benches is affected by the nature of the concurrent elections (presidential or mid-term) and by partisan tides, at least in the more competitive counties and appellate districts, e.g. Dallas and Harris County/Houston (county-level) and San Antonio (appellate district level).
In 2006, several dozen Republican incumbents were swept off their benches by Democrats in Dallas County, and in 2008, many incumbents lost in Harris County. But there is a remedy for the "problem" of judgeships changing hands at the whim of the voters: The Governor has the authority to fill vacancies, and has used that authority to bring back Republican judges that had been voted out of office. Additional slots and reappointment opportunities can be, and are, created when the Governor fills a vacancy on a higher court with a sitting judge on a lower court.
District court judges are required to be licensed attorneys. In addition to judicial powers, district judges also have administrative duties as well. District judges may remove county officials , officials of a general-law municipality , and municipal court judges under certain circumstances. Also, they appoint and supervise the county auditor, oversee the operations of the adult and juvenile probation offices, and are granted "supervisory" jurisdiction over the county commissioners court.
County judges do not need to be lawyers, and most are not. Sections 15 through 17 of Article V, as well as Chapters 25 and 26 of the Texas Government Code, outline the duties of County Court officers. Section 15 states that the county judge shall be "well informed in the law of the State", "a conservator of the peace", and shall be elected for a four-year term. The county judge is also responsible for presiding over the Commissioners Court (the main executive and legislative body of the county). County court at law judges are required to be lawyers.
In one of the odd provisions of the Texas Government Code, there is no requirement that a municipal judge be an attorney if the municipal court is not a court of record (Chapter 29, Section 29.004), but the municipal judge must be a licensed attorney with at least two years experience in practicing Texas law if the municipal court is a court of record (Chapter 30, Section 30.00006). The Code provides for differing requirements for municipal judges in certain cities, such as:
- Lubbock (five years experience, Section 30.00044)
- El Paso (provides for a presiding judge to be paid 20% above the other judges, Section 30.00128)
- San Antonio (must be have resided in the city for three years prior to appointment, Section 30.00224)
- Wichita Falls (need not be a resident of the city when appointed but must be a resident during his tenure, Section 30.00304),
- Sweetwater (need only be a licensed attorney in good standing, Section 30.00464)
- Lewisville ("shall devote as much time to the office as it requires", Section 30.01326)
- Houston ("may only be removed under Article V, Section 1-a, of the Texas Constitution", Section 30.00674)
- Bullard (the requirement for being a licensed attorney does not apply, Section 30.01482)
- Westlake and Trophy Club (both cities are located in Tarrant and Denton counties; for Westlake criminal appeals are taken to the Tarrant County Courts at Law, while for Trophy Club criminal appeals are taken to the Denton County Courts at Law, Sections 30.01781 and 30.01811)
The thirteen-member Texas State Commission on Judicial Conduct hears complaints against judges, and may censure, reprimand, or recommend removal by the Supreme Court. It very rarely punishes judges; out of more than 1,110 complaints it resolved in fiscal year 2009, only 70 disciplinary actions were taken.
Justices of the Peace
There is no requirement that the JP be an attorney. However, the Texas Government Code requires a JP to attend an 80-hour course involving the performance of JP duties within one year after initial election, and a 20-hour course every year thereafter. In addition, the JP is an ex officio notary public.
A "magistrate" can be any judge or JP and can set bonds, arraign defendants, issue search and arrest warrants, and conduct criminal bond forfeiture hearings. Five counties (Bexar, Dallas, Lubbock, Tarrant, and Travis) have district court magistrates who are appointed by district court judges and do not conduct trials.
There are several prosecution offices: district attorneys, county attorneys, criminal district attorneys, and city attorneys. District attorneys prosecute criminal cases in district courts and serve one or more counties in which they are elected for four-year terms. County attorneys prosecute misdemeanor criminal cases and serve a single county in which they are elected for four-year terms. Criminal district attorneys prosecute both felony and misdemeanor criminal cases and serve a single county in which they are elected for four-year terms. City attorneys prosecute criminal cases in municipal courts. If a county has only a district attorney or county attorney, this official prosecutes all criminal cases within the county.
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