9.5: Conclusion

Judicial selection has essentially been an issue in flux for the last 180 years. The Constitution of the Republic of Texas provided for a Supreme Court consisting of a chief justice and associate justices. The associate justices were the judges of the eight, newly-created district courts of Texas. The district judges, whose first session was January 13, 1840, served with the chief justice as associate justices from 1840–1845 (when Texas was admitted into the United States). In 1845, all judges were appointed by the governor with senate consent and served six-year terms. Under the Constitution of 1866 (the first Reconstruction Constitution), the Supreme Court was increased from three judges to five, each with a ten-year term of office. The chief justice was to be selected by the five justices on the court from their own number. All judges were elected by popular vote, but some ran on “tickets” and were all elected at the same time. Judicial term lengths were adjusted. Supreme Court justices served for ten years, and district and county court judges served for eight and four years, respectively.⁵¹

Under the Constitution of 1869, the number of justices was reduced from five to three, and most judicial positions were appointed. Supreme Court justices were appointed by the governor with Senate consent (as were district court judges) to nine-year terms. District judges served eight-year terms. County court judges were elected to four-year terms. Under the Constitution of 1876, the number of Supreme Court justices remained at three, and the positions were once again elected with a term of six years. A court of civil appeals was created, and its justices were elected to six-year terms. District court judges were elected to four-year terms, and the terms of county court judges were reduced to two years. Of lasting importance, after the Texas Court of Criminal Appeals was created in 1891, its justices were chosen in partisan elections to serve six-year terms.⁵²

Responding to the perception that justice might be for sale in these increasingly expensive campaigns required by these partisan elections, the legislature passed the Judicial Campaign Fairness Act (JCFA) in 1995. The act applies to all judges in the state except for Justice of the Peace and municipal court judges. The JCFA limits the time frame during which a judicial candidate can accept a political contribution, sets contribution limits for judicial races, and establishes voluntary expenditure limits. The contribution limits apply to individuals and political action committees based upon whether the office sought is statewide or local. The act also places expenditure limits on candidates, also depending on the level of court for which the candidate is seeking election.

Attempts to further limit the ability of individuals or other interests to financially sway the outcomes of elections have been virtually non-existent since 1995. In a 2017 analysis of the prospect of exploring judicial selection reform, Ross Ramsey opined, “Even the Texas lawmakers who want to change the way the state selects judges are wary of taking that power away from voters. The politics are more difficult, in some ways, than the proposed policy changes.”⁵³ Truer words could not be spoken.

There seems to be a marked difference in the way Texas voters and the state’s judges view the judicial selection process. While partisan election of judges remains popular with voters, some judges believe it is unbefitting the profession to join political parties, solicit campaign funds from individuals (including lawyers) and business entities with matters before the courts, and to shamelessly pander to voters like other politicians. Voters, however, still favor directly electing judges and are very resistant to relinquishing that right to an alternative method. In addition, up until recently, political parties—especially the one in power—lacks the incentive to alter a system that favors and bolsters their party.

In the 2021 report on judicial selection, which was conducted by an state panel appointed by the legislature, judges on the panel were some of the most vocal against partisan elections. There appears to be some support from elected officials in the other two branches. But one needs to recall history to determine whether there will be any substantial progress in this area in the future. The last time the legislature created a commission to study the way Texas judges are selected was in 2013, and that body failed to meet a single time.⁵⁴ That fact alone should warn reformers that interest in this issue is lukewarm at best.

Key Terms and Concepts

Abstract of Judgment – a written summary which states how much money a losing defendant (the debtor) owes to the winning plaintiff (the creditor) in a lawsuit.

appellate jurisdiction – the power of an appellate court to review, amend and overrule decisions of a trial court.

arraignment – one of the first step in criminal proceeding where the defendant is brought in front of the court to hear the charges and enter a plea.

bail – the amount of money that secures the temporary release of a prisoner in exchange for security given for the prisoner's appearance at a later hearing.

Batson challenge – an objection to the validity of a peremptory challenge, on grounds that the other party used it to exclude a potential juror based on race, ethnicity, or sex.

bifurcated trial – a judicial proceeding that is divided into two stages in which the different issues of guilty/non-guilt and punishment are addressed in separate parts of a criminal trial. challenge for cause -– A challenge that seeks to disqualify a potential juror for some stated reason. Typical reasons include bias, prejudice, or prior knowledge that would prevent impartial evaluation of the evidence presented in court.

civil law – the branch of law that deals with disputes, usually between private individuals over relationships, obligations, and responsibility

common law – the part of the law that is derived from custom and judicial precedent rather than statutes.

constitutional law – the body of law that evolves from a constitution which sets out the fundamental principles according to which a state is governed and defines the relationship between the various branches of government within the state.

contested election – an adversary proceeding between a candidate for a public office who has received the greatest number of votes and any other candidate for that office or, in certain cases, any registered voter of the appropriate political subdivision, for the purpose of determining the validity of an election.

courts of appeal – the 14 intermediate-level appellate courts that hear appeals from district and county courts to determine whether the decisions of these lower courts followed legal principles and court procedures.

criminal law – the branch of law that regulates the conduct of individuals, defines crimes, and specifies punishments for criminal acts.

deposition – a legal proceeding in which the sworn, out-of-court testimony of a party or witness in a legal proceeding is taken before trial and recorded by an authorized offer for later use in court.

discovery – Discovery, in the law of common law jurisdictions, is a pre-trial procedure in
a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions.

district courts – the major trial courts in Texas, which usually have general jurisdiction over a broad range of civil and criminal cases.

double jeopardy – a prosecution pursued twice at the same level of government for the same criminal action

due process – provisions of the Fifth and Fourteenth Amendments that limit government power to arbitrarily deny people “life, liberty, or property.”

error of fact – an error raised by a party to a lawsuit on appeal contending that the jury made a mistake when it resolved a factual dispute or controversy that was exclusively within the sphere of the decisions to be made by a jury. An error could include the assumption of wrong facts or an improper interpretation of those facts.

error of law – an erroneous determination by a judge of the legal rules governing procedure, evidence or the matters at issue between the parties.

exclusive jurisdiction – the power of a court to adjudicate a case to the exclusion of all other courts.

exculpatory evidence – evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt.

felony – a serious crime punishable by incarceration or by death.

grand jury – a jury that determines whether sufficient evidence is available to justify bringing a formal charge against an offender.

inculpatory evidence – any evidence favorable to the prosecution in a criminal case.

indictment – an official charge against an accused individual; also known as a “true bill.”

information – a formal charging document that does not require a grand jury’s vote and that describes the criminal charges against a person and the factual basis for those charges.

Judicial Campaign Fairness Act (JCFA) of 1995 – an act passed by the Texas legislature to regulate financing of judicial elections. The JCFA is located in Title 15 of the Texas Election Code.

justice courts – local, county-administered trial courts with limited jurisdiction over small claims and very minor criminal misdemeanors

misdemeanor – a minor crime, punishable by incarceration in the county jail and/or a fine.

municipal courts - local trial courts with limited jurisdiction over violations of city ordinances and very minor criminal misdemeanors

original jurisdiction – a court's power to hear and decide a case before any appellate review.

peremptory challenge – a party’s or lawyer's objection to a proposed juror which is made without the necessity of providing a reason.

plea agreement – an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question or perhaps to less serious charges, in exchange for more lenient punishment than if convicted after a full trial.

statutory law – written law that is usually enacted by a legislative body.

statutory probate courts – courts having jurisdiction of wills and estates for deceased persons, guardians and heirships, and mental health commitments in Texas’ largest counties

tort – a personal injury caused either by an act or an omission that amounts to a civil wrong for which courts impose liability.

trial de novo – a new trial by a different, higher court. A trial de novo in Texas is usually ordered by an appellate court when the original trial was held in a court that did not make or preserve a record of the proceedings

voir dire – the examination of a juror by a judge or an attorney.

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51. Texas Judicial Branch, “Court History,” https://www.txcourts.gov/supreme/abo...blic-of-texas/.
52. Texas Judicial Branch, “Court History,” https://www.txcourts.gov/supreme/abo...blic-of-texas/.
53. Ross Ramsey, “Voters Elect Texas' Judges. The State Might Take That Power—But It's Risky,” Texas Tribune, Jan. 20, 2020, https://www.texastribune.org/2020/01...but-its-risky/.
54. Emma Platoff. “Advocates Have Long Tried to Change Judicial Selection in Texas. Is Dan Patrick Their Newest Obstacle?” Texas Tribune, Jan. 15, 2020, . https://www.texastribune.org/2020/01...e-dan-patrick/.