GOVT 2306
The State Judiciary
In this section, we begin a
discussion of the last of the three
branches of government.
Here we try get comfortable with what the
judiciary is and key aspects of it. Here a
couple of Wikipedia sites that might be
useful to look through to get an overview
of the subject: The Judiciary, The Texas
Judicial System.
I recommend the following as well:
TSHA: Judiciary
Texas Politics: The Justice System
And the Office of Court
Administration has produced this
handy pamphlet on The Texas
Judicial System.
You might also want to take a quick
look at Article 5 of the Texas
Constitution. It designs the states’
judicial system. We will walk
through its sections in the next set
of slides.
To assist in this discussion, here are
key terms. If you can learn, identify
and use them, you are ahead of
the game:
Adjudication . Judge . Justice . Due
Process . Common Law . Criminal
Law . Criminal Trial. Precedence .
Stare Decisis . Judicial Restraint .
Judicial Activism . Judicial
Independence . Litigant . Plaintiff .
Defendant . Legal Counsel .
Adversarial System . Jurisdiction .
And overtime I’ve posted a variety of
stories in the blog about the Texas
Judiciary. Click on these to fill yourself in on
them.
Appeals
Common Law
The Judiciary
Judicial Elections
Judicial Review
Texas Judiciary
Trials
Very quickly, as with the legislative
and executive branches, judicial
branches exist on all levels of
government in the Unites States
and exist within the system of
checks and balances.
While the legislative and executive branches are
accountable to the electorate, the national
judiciary is subject to the law and the
Constitution as they interpret it. This checks the
majority – the judiciary is the institution most
able to secure the rights of the minority.
In fact, an appointed judiciary is intended to be
independent from all other forces in society – so
long as they do not need to be reappointed.
Because they are appointed, the
federal judiciary is not considered
to be a political branch. It does not
make decisions subject to public
approval. It generally refuses to
rule on political questions, leaving
those to the legislative and
executive branches.
The courts are fully detached from
the general public, yet public
opinion on the court tends to be
higher than of the elected
institutions.
Obviously, Texas is different.
We will explore this issue later.
The Texas judicial branch is one of
fifty separate state courts systems
around the nation. As in all other
states, the Texas Constitution
authorizes the establishment of
local court systems as well,
including those related to
municipalities.
Texas has an unusually complex
court system. This will become
more apparent when we look at its
design below. Jurisdiction is often
confusing.
As with other governing
institutions colonial courts sprang
up quickly in the North American
British colonies as means of quickly
resolving disputes in accordance
with settled procedures such as
common law.
As discussed in 2305, British courts slowly, over
the course of British history, established
themselves as independent of the executive and
legislative branches. This allowed then to
become independent, and more effectively limit
the powers of the others branches – and of
government in general.
This principle of judicial independence has been
maintained – more or less – ever since.
They also became places where people (at
least those who had access to the courts)
were able to challenge the activities of the
British crown and the agents in the
colonists.
The following author argues that
colonial judicial institutions were
instrumental in establishing
individual liberty in the new
nation.
Judicial Supremacy in America:
Its Colonial and Constitutional History
This is a bit of a high brow read is
you are up to it: Reception of
English Common Law in the
American Colonies.
For something more lowbrow:
Here’s a K12 look at colonial
courts.
For detail on the development of
state judicial systems, click on
these:
- History and Organization of State
Judicial System.
- Historic Roots of the Judicial
Branch.
FYI: State courts have interest
groups to represent them. Why
not? Everything does. Here are a
few:
- The National Center for State Courts
- Conference of Chief Justices
- Conference of State Court
Administrators
The Texas Judiciary fits within this
broad history.
The TSHA section on the Judiciary
contains a good look at the history and
development of the Texas Judiciary.
For additional detail on the history of Texas
Court, click on these:
Court History: The Supreme Court of Texas
Texas Supreme Court Historical Society
Over time, the state and federal courts
have developed independently. For
contemporary differences between the
federal and state courts click on the
following:
Understanding Federal and State Courts.
Comparing Federal and State Courts.
Federal vs. State Courts - Key Differences
One of the principle differences
between the national judiciary and
that of Texas is that the former are
appointed and the patter are
elected.
As with the other two branches, those in
Texas are designed to be more closely
connected to the electorate than those on
the national level.
On the national level, judges are
appointed.
The framers of the Constitution
emphasized the importance of this.
Judicial appointments were meant to
ensure the judges would have the
“peculiar qualifications” necessary to
hold the office. They are expected to
know a few things about the law.
But this can also make judges
unaccountable to the preferences of
the electorate.
In order to ensue that judges are
not controlled by whatever entity
is appointing them to office, they
are given lifetime tenure.
This is the source of their
independence.
For the framers of the US
Constitution, this that was a way to
guarantee against “mob rule.”
For those of the Texas Constitution, it
allowed for elite, unaccountable
control. Recall that this was a constant
concern of the Jacksonian Democrats.
All judges in Texas, therefore, are
elected. Appellate and Supreme Court
judges are elected in overlapping 6
year partisan elections.
This makes them accountable to the
general public, but this can make them
subject to majoritarian pressures to
act against minorities.
It can also politicize them and make
them subject to control by whoever
funds their campaigns. Majoritarian
forces can tie them into the actions of
the executive and legislative branches,
which can compromise the separation
of powers.
This will be discussed more fully later.
Here’s an appropriate introductory
question:
What is the judiciary and what
does it do?
Here’s a fancy definition of “Judiciary”
1611, from L. judiciarius "of or belonging to
a court of justice," from judicium
"judgment," from judicem (see judge). The
noun meaning "a body of judges, judges
collectively" is from 1802.
- online etymology dictionary
So there’s one answer: the Judiciary is a
collection of judges that preside over a
court of justice. The word “judge” refers to
the person who presides over court
proceedings and must ensure they
conform to established principles.
By the way, the word “justice” is used to
refer to members of the Supreme Courts
on the national or state level.
There’s a very tricky word here:
Justice
What on earth is that?
Is there anyway to answer this
question in a noncontroversial
manner?
As a substantive matter, justice is a very
difficult goal to obtain since many people
have different ideas about what is and is
not just.
The court tends to look at justice as a
procedural matter. As long as the process
that led to a given result adheres to long
standing tradition – is not arbitraty – then
the result can be argued to be just.
Sometimes judges like to argue
that justice, in a broader sense, is
something that should come from
the legislative branch (through the
lawmakers).
This can be a problem because
some judges do not necessarily
care if the occasional case convicts
the innocent.
More on this controversy later.
Judges can look something like this
By the way, what’s with the robes?
Here’s a video about training
people to be judges.
Its produced by the National
Judicial College.
Courts tend to look something like this:
On the inside, they can look something like this:
Courts exist on all levels of
government in the United States.
As with all aspects of the American
federal system, they can be broadly
divided into the national and state
levels.
Texas contains with in it, both
federal and state courts, and the
state also authorizes the existence
of a large number of local court –
county and municipal courts.
Federal Court have jurisdiction
over federal matters.
State Courts have jurisdiction over
state matters.
Federal courts were discussed in 2305. The
US Constitution guarantees that violations
of federal laws shall be prosecuted in state
where the crime was committed.
This means that each state has at least one
federal court. Texas, due to its population
has four. Our area is in the Southern
District of Texas (wikipedia).
There are over 3,000 state
courthouses across Texas.
Here’s a quick overview:
The Texas Judiciary is headed by
two top courts – The Texas
Supreme Court and the Texas Court
of Criminal Appeals. Beneath these
are 14 Courts of Appeals, district
courts, county courts, municipal
courts, and justice of the peace
courts.
The next slide contains a
commonly reproduced graphic
showing the court structure of
Texas.
Note the following numbers:
913 Municipal Courts
821 Justice Courts
499 County Level Courts
449 District Courts
14 Courts of Appeals
1 Court of Criminal Appeals
1 Supreme Court
Here is the Texas Judicial System
Directory from Texas Courts Online.
More detail on these to follow, but
a quick note: many of these
courtrooms have one presiding
judge. All of these judges are
elected to office. Federal judges
are all appointed to office. This
matters, but more on this point in
later slides.
For more info:
The Texas Judicial Council studies
and reports regularly on the
organization and practices of the
Texas judicial system.
Something else you might want to
peruse through:
Texas Municipal Courts Education Center.
So what does the judiciary do?
In a broad sense, the Judiciary in the American
governing system does three things:
1 – it provides a forum for the reconciliation of
disputes in society
2 – it interprets statutory and constitutional law
3 – checks the legislative and executive branches
Let’s look at each in turn, and
apply each to the circumstances in
the state.
1 – The Judiciary provides a forum
for the reconciliation of disputes in
society.
This forum is a courtroom. This is
where the disputes are actually
heard and reconciled.
Texas Courts Online
So we should probably look at the word
“court,” which refer broadly to the
institutions that have the authority to
adjudicate legal disputes, but at its
simplest refers to a place – a courtroom –
where the disputes can be heard and
decisions regarding those disputes can be
made in a manner that is considered to be
legitimate by the participants.
Very few people in a court proceeding
actually work for the judiciary. The
following web page details who
actually participates in trials, so does
this page in the uscourts website.
Only the judge and members of his
staff are employees of the
Judiciary. A bailiff is assigned to a
courtroom to keep the peace, but
the bailiff is an employees of the
executive department.
Non of the other major players, the
prosecutor, the defense attorney,
the members of the jury, are
employed by the judiciary.
It is a remarkably small branch.
One of the principles embodied in
the general concept of sovereignty
in the US and Texas is that disputes
ought to be reconciled within the
districts where the disputes arose.
This was the subject of one of the
grievances contained in the
Declaration of Independence.
[He has] “transport[ed] us beyond
Seas to be tried for pretended
offences.”
Colonists were taken to Britain to
be trial in order to ensure
convictions.
This is one of the reasons why courts can
be found not only in every state across the
nation, but in practically every community
as well: To ensure that justice is applied in
a manner consistent with local morays.
But local areas can also make fair trial
difficult, which is why defendants have the
opportunity to request a change of venue.
The precise design of the
courtroom varies depending on
whether it is a trial court or an
appellate court, but either simply
provide a venue where parties to a
dispute (litigants) can make their
respective points and have a
decision rendered by neutral
parties.
The fancy word for this process of
arbitrating disputes is
“adjudication”
Adjudication: The legal process by which
an arbiter or judge reviews evidence and
argumentation including legal reasoning
set forth by opposing parties or litigants to
come to a decision which determines
rights and obligations between the parties
involved. - Wikipedia
At its simplest, the judicial branch
contains the institutions responsible
for adjudicating disputes in society.
It does so according to procedures that
have evolved over several centuries
and are contained in various
documents, such as Magna Carta.
The judiciary provides a court
where litigants – the plaintiffs that
initiate bring cases and the
defendants who are charged in the
case – have their disputes heard.
Generally these litigants are
represented by legal counsel, what
we know as lawyers, or attorneys.
So its not just that the judges in
the judiciary settle disputes. They
settle disputes in accordance with
long standing practices. Several key
terms relate to this: common law,
due process, precedence, stare
decisis.
Magna Carta has several clauses
that established, or solidified, legal
processes.
The same is true for the Bills of
Rights in the Constitutions of both
the US and Texas.
The US Bill of Rights contains five
amendments that outline the due
process rights that people had to
protect them from the American
government – and originally these
applied only to the national
government.
4th Amendment – search and seizures
5th Amendment – subject to trial
6th Amendment – right of defendants
7th Amendment – civil trials
8th Amendment – cruel and unusual
punishment
The 14th Amendment made these
applicable to the states – including
th
Texas. Through the 14
Amendment, the courts in Texas –
among other institutions – are
required to recognize rights
established in the US Constitution.
The Texas Bill of Rights contains a
large number of clauses which
establish due process rights that
are to be followed and recognized
by the Texas courts.
In other words – judges are supposed to
follow these rules in their courtrooms.
Section 5
Section 9
Section 10
Section 11
Section 11a
Section 11b
Section 11c
Section 12
Section 13
Section 14
Section 15
Section 15a
Section 16
Section 18
Section 19
Section 20
Section 21
Section 22
Section 23
Section 30
Section 31
Sections 30 and 31 are unusual.
Most of the rest of the sections
concern the rights that defendants
have in a trial.
The last two concern the rights
that victims of crime have before
the court.
The general point here is that the
court, and the judges who preside
over them, have to abide by rules
of procedure that determine how
different disputes are to be
reconciled.
Why is this important?
In order to guarantee that decisions
regarding guilt are not arbitrary.
Arbitrary decision-making embodies
the concept of the rule of man.
Decision-making based on established
procedures ensures the rule of law.
A quick word on jurisdiction before
we go any further.
The first decision a judge has to make is
whether the court can even hear the case
that is brought to it. Has the Constitution –
or statutory or common law – granted the
court the authority to hear a specific
dispute? And if so, which court has the
jurisdiction to hear a case? We will touch
on the specifics of this as we go forward.
The courts are also able to determine
whether a plaintiff (the person initiating a
court proceeding) has the standing to do
so. Have they suffered a direct harm from
the application of a law or a specific action
by the defendant. If the court rules that
they did not, then they do not have
jurisdiction over the dispute and the case is
dismissed.
Here’s one other quick point to make
about the judicial system in Texas and
the US as a whole. It is an adversarial
system, which means that it is based
on the idea that the truth of a case is
best determined by having advocates
representing opposing sides of a case,
make their case before a impartial jury
overseen by a disinterested judge.
Not all legal systems are based on this
system. Some are based on the
inquisitorial system (the name has a bad
rap I know) where judges are tasked with
determining the actual truth behind a
dispute.
FYI: Military tribunals in the US are based
on the inquisitorial system.
What kind of disputes do the
courts rule on?
At its simplest, there are two
categories of disputes:
criminal / civil
trial / appellate
A criminal proceeding places
a group or a citizen in
a confrontation with the state.
The accusation is made that a law
has been violated.
A civil proceeding places the
individuals or groups in a
confrontation with each other.
Most typically it is argued that a
contract has been violated, or a
damage inflicted (tort).
Criminal and Civil proceedings are
distinct. Each has its own set of
rules for how to arrive at a decision
and determine punishment.
Disputes involving state laws are
handled in state courts, though
lower level disputes are handled in
county and city courts.
Disputes involving federal laws are
handled in federal courts.
Ultimately all laws have to abide by
the U.S. Constitution which means
that disputes from any level of
government can ultimately be
heard by the U.S. Supreme Court.
The Texas Courts
By the way, alternative dispute
resolution centers do exist. Click
here for a link to those in the state,
and here for the one nearest to us,
in Harris County.
In the first category we have
criminal cases and civil cases.
These generally involve two
different courts and always involve
two different procedures and
standards of evidence.
A criminal trial involves a dispute
between an individual and the
state.
The legislative branch establishes what is legal
and not legal to do, the executive enforces these
laws, and, if it comes to it, takes accusations that
someone has broken a law to the courts for
adjudication.
The state (specifically the executive
branch – and even more specifically
the district attorney’s office of the
relevant district) initiates these cases.
That person is called the prosecutor.
Since the state of Texas is a party to
the case, it is generally labeled as
follows: Texas v. ______.
Insert your name if you wish.
The burden of proof is on the state
to prove without a reasonable
doubt to an impartial jury that
unanimously agrees that the
defendant is guilty of a specific
offense.
(we go into more detail on this in
the section on criminal justice)
Note that there is nothing in the US or
Texas Constitutions that state the
people are considered innocent before
being proved guilty, though that is n
fact the case. Defendants do not need
to prove they are innocent. If the state
cannot prove guilt, the defendant is
acquitted of the charge.
If you like, click here for the
relevant section in the Texas Penal
Code.
Click here for a more thorough
look at the Texas Criminal Trial
Procedure, and Texas Rules of
Evidence.
From the Attorney General’s Office:
Penal Code Offenses by
Punishment Range.
From FindLaw:
Texas Criminal Laws.
Texas Criminal Procedures are
outlined here.
FindLaw also provides an overview
of the criminal trial process, So
does the website of the US Court
System. We discuss this more
thoroughly in the section on
criminal justice, but click on
through if you want a head start.
The purpose of a criminal trial is to
punish people for violating
society’s laws.
A civil case involves legal disputes
between two parties that involves
a claim that one damaged the
other (torts), or broke a contract,
or injured the other in some way
that can be redressed in some legal
manner, by a lawsuit.
Law suits can also involve an individual in a
dispute with the government. Sometimes
the state or national government can allow
a lawsuit to be a legal remedy for a
transgression it commits against people.
Normally a sovereign state cannot be sued
unless it allows for such lawsuits to go
forward: see state sovereign immunity.
Civil cases can be initiated by
individuals (plaintiffs) against other
individuals (defendants) and the
state. The name of the plaintiff
precedes that of the defendant’s in
the case’s title: ex: Jones v Smith.
In a civil case the plaintiff has the
burden of proof to prove to a jury (or
judge if it is chosen) that a
preponderance of the evidence shows
that the defendant is liable for
damages caused by the subject of the
lawsuit. This is a lower standard than
that in criminal cases, so it is easier to
win civil cases than criminal cases.
For some additional detail:
- Civil Procedure in the US.
- Texas Rules of Civil Procedure.
- US Courts: Civil Cases.
Note that criminal cases and civil cases are
distinct – they involved separate offenses
and separate court proceedings. This
means that double jeopardy protections do
not apply. After one is tried for a criminal
case, one can be subject to a civil action
related to the criminal case even if one was
acquitted of the crime.
Now for the second category of
disputes in the judicial process:
trial and appeals
A trial is a matter of fact
An appeal is a matter of process
In both the US and Texas
Constitutions, distinctions are
made between courts of original
jurisdiction and courts of appellate
jurisdiction.
The former is a trial court. These
were described in the previous
slides. This is where facts of a case
are introduced in order to
determine whether someone is
either guilty of committing a crime,
of liable for a damage resulting in
some action.
A prosecutor presents a case, in the
form of evidence and testimony, to a
jury. The manner in which this is done
is overseen by a judge. The defense
attorney can rebut the evidence and
cross-examine witnesses. When the
prosecution rests it case, the defense
attorney can present its side of the
case before the jury. This process is
also overseen by the judge.
When the testimony is concluded,
the judge provides instructions to
the jury – giving them guidance on
what questions they are to
deliberate over. The jury issues
then issues a verdict, and if the
defendant is guilty, a separate
process ensues where punishment
is determined.
The judge is supposed to be an
engaged observer of the process
with no stake on one side or the
other of the case.
Here’s a huge controversy:
How much discretion should the jury have?
Can they rule on the justification of the
law, or just on the simple question of
whether an existing law was broken by a
defendants?
See: jury nullification.
Trial courts are called courts of
original jurisdiction because this is
where the process begins.
In Texas these include Justice
Courts, Municipal Courts, County
Level Courts, and District Courts.
These were introduced earlier.
More detail on these later.
Trial procedures were introduced
previously, so there’s reason to review it
here. But it is important to note that fewer
and fewer cases actually go to trial.
A large number of cases are plea bargained
prior to going to trial. Prosecutors offer
lesser sentences to defendants in exchange
for guilty please.
Controversy: Are defendants
coerced into making plea bargains?
Do rules associated with the right
to counsel in trials apply to plea
bargains?
Here is some general advice
concerning pleas bargains.
Appellate court are different than
trial courts.
These courts review – on request –
the court record associated with a
trial in order to determine whether
the process was constitutional. Did
it follow accepted rules of due
process?
Texas has three different appellate
courts. The first is the Court of
Appeals, which hears appeals from
District Courts. The other two are the
Court of Criminal Appeals and the
Texas Supreme Court. These are the
state’s highest appellate courts – the
first for criminal maters, the second for
civil matters.
Any case to the Texas Supreme
Court or the Texas Court of
Criminal Appeals can then be
appealed to the US Supreme Court.
Remember that all laws in the US –
meaning also all state laws and city
ordinances - have to comply with the US
Constitution and applicable US laws.
Not all cases are guaranteed appellate
review. The court has to be convinced that
there is sufficient reason to believe that
there was a procedural irregularity in the
trial court.
They rarely do.
See: Discretionary Review.
For a more thorough look at the
process, read: Roadmap of Texas
and Federal Standards of Review.
You can download a Texas Writ of Certiorari form here.
The process in appellate courts is
different from that in trial courts.
Once a decision has been made to review a lower court case –
based on a request sent by the losing party (the winner would
rather not have the review) – each side of the case sends briefs
to the court outlining their positions. Once those are read,
attorneys from each side present oral arguments before a panel
of judges – or justices. The judges are active participants in this
process. When the oral arguments are over, the judges write out
their decisions and sign on to those they agree with.
The majority not only wins the
case, but has the opportunity to
define or redefine statutory or
constitutional language.
A discussion of appellate courts
allows us to look at the two other
functions the courts play:
Defining the meaning of statues
and Texas Constitution
Checking the Texas legislative and
executive branches
In a sense these are related.
Since the constitutions of both the
US and Texas define the powers of
different institutions, interpreting
constitutional language often
involves determining whether one
institution overstepped its bounds.
The interpretation of the Texas
Constitution is far less problematic
than that is the US Constitution for
a simple reason: the length and
comprehensiveness of the Texas
Constitution make sit less subject
to different interpretations.
Contrast this with the US
Constitution which contains brief
and vague language.
On the national level there is an
argument between those who
think the US Constitution should
be strictly or loosely interpreted.
This is less subject to debate in Texas.
Compare what the US and Texas
Bills of Rights have to say about
eminent domain.
US: Fifth Amendment
“nor shall any person . . . be
deprived of life, liberty, or
property, without due process of
law; nor shall private property be
taken for public use, without just
compensation.”
Texas: Sec. 17. TAKING,
DAMAGING, OR DESTROYING
PROPERTY FOR PUBLIC USE;
SPECIAL PRIVILEGES AND
IMMUNITIES; CONTROL OF
PRIVILEGES AND FRANCHISES.
(a) No person's property shall be taken, damaged, or destroyed for or applied to public
use without adequate compensation being made, unless by the consent of such
person, and only if the taking, damage, or destruction is for:
(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental
use, by:
(A) the State, a political subdivision of the State, or the public at large; or
(B) an entity granted the power of eminent domain under law; or
(2) the elimination of urban blight on a particular parcel of property.
(b) In this section, "public use" does not include the taking of property under
Subsection (a) of this section for transfer to a private entity for the primary purpose of
economic development or enhancement of tax revenues.
(c) On or after January 1, 2010, the legislature may enact a general, local, or special
law granting the power of eminent domain to an entity only on a two-thirds vote of all
the members elected to each house.
(d) When a person's property is taken under Subsection (a) of this section, except for
the use of the State, compensation as described by Subsection (a) shall be first made,
or secured by a deposit of money; and no irrevocable or uncontrollable grant of
special privileges or immunities shall be made; but all privileges and franchises
granted by the Legislature, or created under its authority, shall be subject to the
control thereof.
Note the clarity in the latter.
This makes interpretation less an
issue in Texas than nationally.
Example:
The fate of the Texas Open Beaches
Act, info from the GLO.
Chron: Federal Court Strikes it Down.
AAS: Supreme Court affirms ruling
But the looseness of US Constitutional
language can impact the state when its
laws are challenged for having
violating US laws or part of the US
Constitution.
Given Texas’ racial history, this happened
often prior to Brown v Board of Education
in disputes over the meaning of the equal
protection clause of the 14th Amendment.
This raises a very important point.
Texas laws can also be subject to
challenge in the federal courts if
they are argued to violate federal
laws or the US Constitution.
This means that someone who wishes to
challenge the constitutionality of a Texas
statute has a choice. You can challenge
whether it violates the Texas Constitution,
which means it goes through the Texas
courts. Or you can challenge whether it
violates the US Constitution, which means
it goes through the federal courts. The
latter might be more inclined to agree.
In the American System, US
Constitutional Law is supreme –
that’s the point made by the
Supremacy Clause. Disputes are
resolved in favor of the
Constitution since it is argued to
more reflect the will of the people.
The Constitution was ratification by
the states, statutory law was not.
The fact that Texas judges are
elected means that they are less
likely to interpret statutory and
constitutional law in a manner that
varies far from what the electorate
would accept.
They are also less likely to be able
to engage in judicial review.
Remember that judicial review is
the key check that the judiciary has
on the legislative and executive
branches. It can negate their
actions.
Also remember that the
Constitution (of the US or Texas)
would be effectively meaningless
without this power residing
somewhere.
In Federalist #78 Alexander
Hamilton argues that the
judiciary must have the
power of judicial review.
This was the basis of the
decision in Marbury v. Madison
where the courts claimed the
power for themselves.
Judicial review rests on the idea
that Constitutional law is superior
to statutory law, and if there are
conflicts between the two
statutory law yields to
constitutional law.
As with the US Constitution, there
is no explicit mention of judicial
review in the Texas Constitution,
but there is a clearer statement of
the functions of each branch, and a
requirement that each stay within
their limits.
ARTICLE 2. THE POWERS OF
GOVERNMENT
Sec.1. DIVISION OF POWERS;
THREE SEPARATE DEPARTMENTS;
EXERCISE OF POWER PROPERLY
ATTACHED TO OTHER
DEPARTMENTS.
The powers of the Government of the State of
Texas shall be divided into three distinct
departments, each of which shall be confided to
a separate body of magistracy, to wit: Those
which are Legislative to one; those which are
Executive to another, and those which are
Judicial to another; and no person, or collection
of persons, being of one of these departments,
shall exercise any power properly attached to
either of the others, except in the instances
herein expressly permitted.
Stare Decisis – the fact that the US
Supreme Court had ruled that the
courts can have the power of
judicial review led to the
assumption that the Texas Courts
could apply it to Texas statutes and
administrative activities.
But as with its use on the national
level, its existence creates a
problem because it allows the
court to become involved in public
policy issues.
Is this an appropriate use of the
judicial power?
Two terms are relevant here:
Judicial Activism
Judicial Restraint
But it is assumed that an elected
judiciary is less likely to
aggressively strike down legislation
as being unconstitutional because
they might be removed from the
office by an unhappy electorate.
Conversely, since judges are elected,
wealthy interests can more easily negate
policies they do not care for by running
judges for office that will make decisions
they will benefit by.
This complicates the idea that Texas has a
truly independent judiciary.
Judicial Activism holds that judges
or justices should not hesitate to
strike down statutes and rules that
violate their understanding of the
proper role of the legislative and
executive branches.
Judicial Restraint holds that the
judiciary is not a political branch
and should defer to the legislature
and executive when it passes laws
and rules since they are more
closely connected to the
population. This doesn’t mean that
they do not use judicial review, but
that its use should be very limited.
The theory of judicial restraint
argues that judges need to stick to
settled precedence when making
decisions.
Here are two hugely related
concepts:
Stare Decisis
“the legal principle by which judges are
obliged to obey the set-up precedents
established by prior decisions. The words
originate from the Latin phrase Stare
decisis et non quieta movere, “’Maintain
what has been decided and do not alter
that which has been established’". –
Wikipedia.
Precedence
In common law legal systems, a
precedent or authority is a legal
case establishing a principle or rule
that a court or other judicial body
utilizes when deciding subsequent
cases with similar issues or facts. –
Wikipedia.
Here is one example of the Texas
Supreme Court striking down a law
as being unconstitutional:
Robinson v. Crown Cork
From the Texas Law Review:
Separation of Powers Under the
Texas Constitution
And if you want to spend a little
money: SYMPOSIUM ON THE
TEXAS CONSTITUTION: The New
Federalism: Judicial Legislation by
the Texas Court of Criminal
Appeals?
Here’s an interesting document.
What if you are a city and you want
to draft an ordinance that will
withstand c constitutional
challenge? Here’s how you do it.