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9.6: Critical Thinking Questions

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    Judicial Selection

    Question 1: Determine which one of the selection methods NOT currently used by Texas would best serve the interests of the state’s population and explain why you have selected that method of judicial selection.

    Feedback: Answers will vary.

    Judicial selection has been the subject of a long-standing debate both in Texas and in other states. The Texas Constitution provides for the election of most of the state's judges. However, the governor appoints district and appellate judges to vacant positions. County courts at law judges and justices of the peace are also elected, and vacant positions are filled through appointment by the county commissioners' court. Municipal judges may either be appointed or elected depending on the city charter or ordinance.

    Proposals for constitutional amendments to change the system of selection have been made frequently. In 1974, the Constitutional Revision Commission offered two judicial selection proposals: one for a system based on the Missouri plan and the other for nonpartisan election of judges. Those proposals were rejected, and over the next four legislative sessions, at least fifteen unsuccessful proposals were offered favoring either the Missouri plan or nonpartisan election.

    Methods of judicial selection vary substantially across the United States. Though each state has a unique set of guidelines governing how they fill their state and local judiciaries, there are five main methods: partisan elections; nonpartisan elections; legislative elections; gubernatorial appointment; and assisted appointment, also known as merit selection or the Missouri Plan.

    Qualifications of Justices of the Peace

    Question 2: Can we trust the judgment of a jurist who has never handled a jury trial of any kind or argued a motion in state or any other court? Should all judges in the State of Texas be licensed by the State Bar of Texas to practice law?

    Feedback: Justices of the Peace once formed the political backbone of towns and villages, where state and federal officials rarely traveled, during the colonial era. Because America lacked an aristocracy (from which men were selected to fill these positions), offices were manned by respectable local leaders who were often non-lawyers. However, as American law became more complex and evolved and the number of law schools and internships related to law firms dramatically increased, there arose a greater demand that justices of the peace should be licensed attorneys.1

    Fast forward to Texas in the twenty-first century. To serve on any of the appellate courts, including the Supreme Court of Texas, the Texas Court of Criminal Appeals, and the fourteen Courts of Appeals, a judge must be licensed to practice law in the state and be a practicing lawyer and/or judge for at least 10 years. To serve on the district courts, a judge must be licensed to practice law in the state and be a practicing lawyer and/or state judge for at least four years. All of Texas's 254 counties have a constitutional county court, and the county judges serve ex officio as the head of each county's commissioners court. Judges of these courts are not required to be licensed attorneys. Rather, they must be “well informed in the law of the state."

    To serve on a county court at law, a judge must have practiced law or served as a judge for at least four years preceding the election. Qualifications for probate judges are identical to those of county court at law judges. But Justices of the Peace are not required to be licensed attorneys. However, they must complete a 40-hour course on relevant duties within one year of his or her election and a similar 20-hour course each year they continue to serve. And municipal court judges are either appointed or elected in accordance with the rules laid out by each municipality's charter or ordinances.2

    Admittedly, most of the functions performed by justices of the peace in the state do not require a formal legal education. Yet, trials are a lot more complicated than they used to be. When JPs make decisions, those decisions can have lasting effects on the parties who come before them, and their errors can result in especially punishing consequences for criminal defendants.

    1. Matt Ford. When Your Judge Isn't A Lawyer. Atlantic Monthly (Feb.2017).

    2. Ballotpedia – The Digital Encyclopedia for American Politics and Elections. Judicial Selection in Texas (2020).

    This page titled 9.6: Critical Thinking Questions is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Andrew Teas, Kevin Jefferies, Mark W. Shomaker, Penny L. Watson, and Terry Gilmour (panOpen) via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.