GOVT 2306

The Texas JudiciaryConstitutional Design

In this section we walk through the various sections in Article 5 of the

Texas Constitution.

These establish the constitutional structure of the Texas Judiciary.

Click here for the State Legislative Library’s detailed overview of the history of Article V of the Texas

Constitution.

We looked at some of its language in the previous. Here we plow

through the bulk of it in order to understand what the section

contrains.

As stated repeatedly, the Texas Constitution is far more detailed

than the US Constitution.

Article 3 of the US Constitution, which establishes the federal

judiciary contains 3 sections and 375 words. It was modified in the

11th Amendment. The federal judiciary has been designed and redesigned over time in various

judiciary acts.

Article 5 of the Texas Constitution contains 31 sections and 8,528

words

And here we go . . . .

Sec. 1. JUDICIAL POWER; COURTS IN WHICH VESTED.

The 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.

This is the vesting clause. We’ve noted that all sections which

establish the branches begin with similar terminology.

Seven specific courts are established constitutionally. Other courts may be established, or can be authorized – municipal courts

are one example.

Recall this diagram from the previous set of slides from Texas

Courts Online:

From the previous set of slides you should know which are appellate courts and which are trial courts.

Links to each will be provided below:

Sec. 1-a.

RETIREMENT, CENSURE, REMOVAL, AND COMPENSATION OF JUSTICES AND JUDGES; STATE

COMMISSION ON JUDICIAL CONDUCT; PROCEDURE.

This sets a 75 year old retirement age for Texas judges. They can complete their term of office if they turn 75 during that term.

Click here for Judgepedia’s page listing the retirement ages for judges of different states

and the debate regarding judicial retirements. Are they a good idea? Is 75 an appropriate age?

It also establishes the State Commission on Judicial Conduct

“that is responsible for investigating allegations of judicial

misconduct or judicial disability, and for disciplining judges.” It has the power to censure or remove

judges in the state.

Any judge can be “removed from office for willful or persistent violation of rules

promulgated by the Supreme Court of Texas, incompetence in performing the

duties of the office, willful violation of the Code of Judicial Conduct, or willful or

persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice.”

The Texas Code of Judicial Conduct contains the “precepts that judges, individually and collectively, must

respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal

system.”

See: The Texas Center for Legal Ethics, and: Texas Legal Ethics Resources.

Much of this section details the process for removing judges from

office. Given the severity of the effort, the process is very involved.

The American Judicature Society outlines different ways that judges can be removed from office in the

states.

Here are recent stories regarding investigations of judges in Texas:

- Judge Is Censured Over Remark on Homosexuals.- A "Public Warning" for Criminal Court of Appeals Judge.

- Texas Judicial Panel Investigates Beating Video.

It doesn’t happen that often.

Sec. 2.

SUPREME COURT; JUSTICES; SECTIONS; ELIGIBILITY; ELECTION;

VACANCIES.

Sec. 3.

JURISDICTION OF SUPREME COURT; WRITS; CLERK.

Sec. 3-b. APPEAL FROM ORDER GRANTING OR DENYING

INJUNCTION

These sections establish the design of the Texas Supreme Court and

detail its jurisdiction.

This is the court with final appellate jurisdiction in civil and

Juvenile cases.

Websites:

Texas Supreme CourtJudgepedia: Texas Supreme Court

Meet your TSC Justices (as of summer 2012)

A quick look at the language of this section:

- It is composed of one Chief Justice and eight Associate Justices. Five are necessary to have a quorum and do business.

- Only people licensed to practice law in Texas, and who have practiced for at least 10 years and are at least 35 years old can serve on it.

- Members are elected for overlapping six year terms, and can be compensated for their services. (This is not in the Constitution, but the Chief Justice earns $152,000, the Associate Justices earn $150,000).

- It has appellate jurisdiction, which is final over all matters except criminal law matters.

- The legislature can grant it original jurisdiction to issue writs of mandamus and habeas corpus, among others writs.

- They have the power to obtain matters of fact if necessary.

A quick qualifier regarding elections. In the section on the executive we noted that the governor can appoint justices and judges to vacancies. Sometimes they will resign

from office prior to an election in order to allow the governor to make appointments.

We will discuss this and other matters related to judicial elections in a separate

section.

Sec. 3-c. JURISDICTION TO ANSWER QUESTIONS OF STATE LAW CERTIFIED FROM FEDERAL

APPELLATE COURT

(a) The supreme court and the court of criminal appeals have jurisdiction to

answer questions of state law certified from a federal appellate court.

(b) The supreme court and the court of criminal appeals shall promulgate

rules of procedure relating to the review of those questions.

This establishes a relationship between the federal and state courts. If a federal court has a question related to state law,

either of the two top appellate courts can answer them in a

process they create.

Sec. 4.

COURT OF CRIMINAL APPEALS; JUDGES

Sec. 5.

JURISDICTION OF COURT OF CRIMINAL APPEALS; TERMS OF

COURT; CLERK.

These sections establish the design of the Texas Court of Criminal

Appeals and detail its jurisdiction.

This is the court with final appellate jurisdiction in criminal

cases.

Links:

Texas Court of Criminal AppealsJudgepedia: Texas Court of Criminal

Appeals

Here are its members, awful picture.

A quick look at the clauses in these sections:

- It is composed of eight Judges and one Presiding Judge, and are to have the same qualifications and benefits as members of the Texas Supreme Court.

- They are elected to six years terms, as are members of the Supreme Court.

- Judges can hear cases in panels of three, with two constituting a quorum.

- The Presiding Judges can convene the court to hear cases en banc (all nine judges present). The court has to meet en banc for capital punishment cases.

- The court has final jurisdiction within the states on any matter of criminal law.

- The court can issue writs of mandamus and habeas corpus among others.

Death penalty cases are automatically appealed to the

Court of Criminal Appeals.

Sec. 5a.

SUPREME COURT, COURT OF CRIMINAL APPEALS, COURT OF

APPEALS; CLERK OF COURT; TERMS.

Sec. 5b.

SUPREME COURT, COURT OF CRIMINAL APPEALS; LOCATION;

TERM

All appellate courts can appoint a clerk who serves for four years,

though can be removed for good cause.

- Texas Supreme Court Clerk’s Office- Texas Court Clerks Association

- Clerks of the Texas Courts

The courts can sit anywhere they choose, and their year begins and

ends with the calendar year.

Sec. 6.

COURTS OF APPEALS; TERMS OF JUSTICES; CLERKS.

The Court of Appeals is divided into 14 districts around the state.

They hear intermediate appeals from trial courts (both civil and

criminal) in their respective courts of appeals districts.

Click here for the website: Court of Appeals.

Brazoria and Harris Counties are partly in the First and Fourteenth

Districts.

Click here for the justices in the First District Court of Appeals.

Click here for the justices in the First District Court of Appeals.

Section 6 establishes that there shall be court of appeals

throughout the state, though it does not state that there shall be 14, this was established by law.

Each district is to have a Chief Justice and at least two other justices. Most

have many more.

It states that the Court of Appeals meet at places defined by the

Legislature.

They are to be elected for six year terms and shall be compensated

for their work.

Sec. 7.

JUDICIAL DISTRICTS; DISTRICT JUDGES; TERMS OR SESSIONS;

ABSENCE, DISABILITY, OR DISQUALIFICATION OF JUDGE

Here s the language from Section 7:

The State shall be divided into judicial districts, with each district having one or more Judges as may be provided by

law or by this Constitution. Each district judge shall be elected by the qualified voters at a General Election and

shall be a citizen of the United States and of this State, who is licensed to practice law in this State and has been a

practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election,

who has resided in the district in which he was elected for two (2) years next preceding his election, and who shall

reside in his district during his term of office and hold his office for the period of four (4) years, and who shall receive

for his services an annual salary to be fixed by the Legislature.

The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law. He shall hold the regular terms of his Court at the County Seat of each County in his district in such manner as may be prescribed by law. The Legislature shall have power by General or Special Laws to make such provisions concerning the terms or

sessions of each Court as it may deem necessary.

The Legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is

from any cause disabled or disqualified from presiding.

For details click on the TCO Page on District Courts

These are state trial courts of general and special jurisdiction.

There are 456 district courts in the state, and each is presided over by

one judge.

(that means that there are 456 district court judges – if you didn’t figure that one out yourself)

Click here for a map of District Courts of Texas as of 2010.

And here for a statement about the complexities of the

geographical design.

There are five district courts in Brazoria County, the 23rd (which it

shares with Matagorda and Wharton Counties) , the 149th,

239th, 300th, and 412th.

Harris County has 59 District Courts:

011 055 061 080 113 125 127 129 133 151 152 157164 165 174 176 177 178 179 180 182 183 184 185189 190 208 209 215 228 230 232 234 245 246 247248 257 262 263 269 270 280 281 295 308 309 310

311 312 313 314 315 333 334 337 338 339 351

Many of these have been designated for certain purposes.

Click here for detail:

Civil CourtsCriminal CourtsFamily Courts

Juvenile CourtsTreatment Courts

Sec. 7a.

JUDICIAL DISTRICTS BOARD; REAPPORTIONMENT OF JUDICIAL

DISTRICTS.

(a) The Judicial Districts Board is created to reapportion the judicial

districts authorized by Article V, Section 7, of this constitution.

There seems to be no website for this board.

Texas Government Code – Chapter 71 Texas Judicial Council.

The Texas Redistricting website states the following about the judicial redistricting process:

Texas law states that the purpose of reapportionment of the judicial districts for the district courts is to

promote "prompt and efficient" administration of government by equalizing the "judicial burdens" of the

district courts. This differs from the purpose of redistricting representative districts, which is to

equalize the populations of the districts. Caseloads and a number of other variables, some of which are difficult to quantify, may be factored into the measurement of "judicial burden." Judicial districts are not covered by the one-person, one-vote requirement and may have

whatever populations the legislature considers appropriate.

The remainder of the section details the process.

Sec. 8.

JURISDICTION OF DISTRICT COURT

District Court jurisdiction consists of exclusive, appellate, and original

jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive,

appellate, or original jurisdiction may be conferred by this Constitution or other law

on some other court, tribunal, or administrative body. District Court judges

shall have the power to issue writs necessary to enforce their jurisdiction.

The District Court shall have appellate jurisdiction and general

supervisory control over the County Commissioners Court, with

such exceptions and under such regulations as may be prescribed

by law.

This alludes to the fact that the county commissioner’s court can

serve as a judicial tribunal on occasion. If so, it is supervised by

the district courts.

A bit on jurisdiction from TCO: District Courts have original jurisdiction in all felony criminal

cases, divorce cases, cases involving title to land, election contest cases, civil matters in which the amount in controversy (the amount of money or

damages involved) is $200 or more, and any matters in which jurisdiction is not placed in

another trial court. While most district courts try both criminal and civil cases, in the more

densely populated counties the courts may specialize in civil, criminal, juvenile, or family law

matters.

Sec. 9.

CLERK OF DISTRICT COURT

There shall be a Clerk for the District Court of each county, who shall be elected by the

qualified voters and who shall hold his office for four years, subject to removal by information, or by indictment of a grand

jury, and conviction of a petit jury. In case of vacancy, the Judge of the District Court shall have the power to appoint a Clerk,

who shall hold until the office can be filled by election.

This establishes the elected position of clerk that is elected by the qualified voters in the county

for four year terms. It is also covered below.

Brazoria County ClerkHarris County Clerk

Sec. 10. TRIAL BY JURY.

In the trial of all causes in the District Courts, the plaintiff or defendant shall,

upon application made in open court, have the right of trial by jury; but no jury shall

be empaneled in any civil case unless demanded by a party to the case, and a

jury fee be paid by the party demanding a jury, for such sum, and with such

exceptions as may be prescribed by the Legislature.

Sec. 11.

DISQUALIFICATION OF JUDGES; EXCHANGE OF DISTRICTS;

HOLDING COURT FOR OTHER JUDGES.

Judges cannot sit in any case where they have on interest in the case: “No judge

shall sit in any case wherein the judge may be interested, or where either of the

parties may be connected with the judge, either by affinity or consanguinity, within

such a degree as may be prescribed by law, or when the judge shall have been counsel

in the case.”

But no process is established in the Constitution for determining

whether such a conflict exists and how to remove judges from cases

where they have a conflict of interest.

Conflict of interest laws do exist however:

2012 Conflict of Interest Laws Made Easy.2012 Texas Ethics Laws Made Easy.AOG: Past opinions on the subject.

Is an affair between a judge and a prosecutor a conflict of interest?

Not necessarily.

Sec. 12. JUDGES TO BE CONSERVATORS OF THE PEACE;

INDICTMENTS AND INFORMATION.

(a) All judges of courts of this State, by virtue of their office, are

conservators of the peace throughout the State.

The term “conservator of the peace” applies to other public

officials also authorized to conserve and maintain the public

peace.

This section defines the words “indictment” and “information.”

(b) An indictment is a written instrument presented to a court by a grand jury charging a person with the

commission of an offense. An information is a written instrument presented to a court by an attorney for the

State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their

contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment

or information to a court invests the court with jurisdiction of the cause.

Sec. 13.

NUMBER OF GRAND AND PETIT JURORS; NUMBER CONCURRING

This defines the nature of grand and petite juries.

Grand and petit juries in the District Courts shall be composed of twelve persons, except that

petit juries in a criminal case below the grade of felony shall be composed of six persons; but

nine members of a grand jury shall be a quorum to transact business and present bills. In trials of civil cases in the District Courts, nine members of the jury, concurring, may render a verdict,

but when the verdict shall be rendered by less than the whole number, it shall be signed by

every member of the jury concurring in it.

When, pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to

render a verdict.

Texas Grand Jury FAQ’s.Info from Harris County Courts.

Sec. 14.

JUROR QUALIFICATIONS.

(a) The legislature shall prescribe by law the qualifications of grand

jurors and petit jurors.(b) The legislature shall enact laws to exclude from serving on juries

persons who have been convicted of bribery, perjury, forgery, or

other high crimes.

Relevant info about legislative action here:

Texas Government Code: Petite Juries.

Sec. 15.

COUNTY COURT; COUNTY JUDGE.

This section establishes county courts – which are also dealt with

in Article IV.

This helps explain some of the confusion about the Texas

Constitution. There is a lot of duplication in it.

Sec. 17.

TERMS OF COUNTY COURT; PROSECUTIONS; JURIES.

Sec. 18.

DIVISION OF COUNTIES INTO PRECINCTS; ELECTION OF

CONSTABLE AND JUSTICE OF THE PEACE; COUNTY COMMISSIONERS

AND COUNTY COMMISSIONERS COURT.

Sec. 19.

JUSTICES OF THE PEACE; JURISDICTION; EX OFFICIO

NOTARIES PUBLIC.

Sec. 20.

COUNTY CLERK.

Sec. 21.

COUNTY ATTORNEYS; DISTRICT ATTORNEYS.

Sec. 23.

SHERIFFS.

Sec. 24.

REMOVAL OF COUNTY OFFICERS.

Sec. 26.

CRIMINAL CASES; APPEAL BY STATE.

Sec. 28.

VACANCY IN OFFICE OF SUPREME COURT, COURT OF CRIMINAL

APPEALS, COURT OF APPEALS AND DISTRICT COURTS TO BE FILLED BY

THE GOVERNOR

Sec. 29.

COUNTY COURT; TERMS OF COURT; PROBATE BUSINESS;

COMMENCEMENT OF PROSECUTIONS; JURY.

Sec. 30.

JUDGES OF COURTS OF COUNTY-WIDE JURISDICTION; CRIMINAL

DISTRICT ATTORNEYS.

Sec. 31.

COURT ADMINISTRATION; RULE-MAKING AUTHORITY; ACTION ON

MOTION FOR REHEARING.

Financing the Judiciary in Texas: Legislative Primer