GOVT 2306
The Texas Judiciary
Constitutional 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
th
11 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 Court
Judgepedia: 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 Appeals
Judgepedia: 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,
th
th
th
239 , 300 , and 412 .
Harris County has 59 District Courts:
011 055 061 080 113 125 127 129 133 151 152 157
164 165 174 176 177 178 179 180 182 183 184 185
189 190 208 209 215 228 230 232 234 245 246 247
248 257 262 263 269 270 280 281 295 308 309 310
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 Courts
Criminal Courts
Family Courts
Juvenile Courts
Treatment 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 Clerk
Harris 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 COUNTYWIDE JURISDICTION; CRIMINAL
DISTRICT ATTORNEYS.
Sec. 31.
COURT ADMINISTRATION; RULEMAKING AUTHORITY; ACTION ON
MOTION FOR REHEARING.
Financing the Judiciary in Texas:
Legislative Primer