By: Paul Womack

Type: General Entry

Published: 1976

Updated: April 27, 2019

Three characteristics of the judicial system in Texas distinguish it from the national norm: it has two appellate courts of last resort, its trial courts do not have uniform jurisdiction of subject matter, and its judges are chosen in partisan elections.

Constitutional history. Stephen F. Austin's appointment of Josiah H. Bell as provisional justice of the peace for the province of Texas in 1822 was supplanted by the Mexican provisional governor's institution of three positions for elected alcaldes. The alcalde, who had both administrative and judicial duties, applied Spanish law, both civil and criminal, in Austin's colony. The system did not please the Texans, but attempts to reform it were made moot by the revolution.

In 1836 the Constitution of the Republic of Texas established a judicial department that was predominantly Anglo-American. The judicial power was vested in one Supreme Court, which had jurisdiction over appeals only, and such inferior courts as the Congress might establish. Congress might divide the republic into judicial districts, each having a judge, who served as trial judge and member of the Supreme court. The chief justice and district judges were elected by joint ballot of both houses of Congress. Each county had a county court and justice of the peace courts; the judges of these lower courts were elected by popular vote.

The state constitutions of 1845, 1861, 1866, and 1869 all retained the structure of the judicial system established in the constitution of the republic. The role of the district judges in the Supreme Court was eliminated in 1845, and two associate justices were provided for. In the first years of statehood, the justices of the Supreme Court and the district judges were nominated by the governor with the advice and consent of the Senate, but in 1850 the constitution was amended to make the offices elective, and they have remained so (except under the Reconstruction Constitution of 1869. The revival of the economy after Reconstruction increased the business of the courts, and the Supreme Court fell behind in its docket of civil and criminal appeals. To relieve it, the Constitution of 1876 established another appellate court of last resort-the Court of Appeals, which was given jurisdiction of appeals in criminal, probate, and county court cases. The Supreme Court neither had nor desired jurisdiction to review the decisions of the Court of Appeals, which was the court of last resort for its classes of cases. The intent was to leave the Supreme Court free to decide the civil appeals from the district courts. The Court of Appeals failed to rescue the Supreme Court, which continued to fall behind in its work. The second plan to relieve the Supreme Court was to establish an intermediate level of appeals courts for civil cases. This was done by constitutional amendment in 1891. The new courts of civil appeals were given jurisdiction over most civil appeals from the district and county courts; further review by the Supreme Court was discretionary with that court. The system of intermediate appellate courts made it possible for the Supreme Court to regulate its docket by exercising its discretion to deny review of most appeals. Another advantage of the new courts was that the capacity of the civil appellate system could be expanded by the formation of more courts of civil appeals; originally three in number, the courts of civil appeals had increased to fourteen by 1980.

Despite its failure to rescue the Supreme Court, the Court of Appeals was not abolished in 1891 but was renamed the Texas Court of Criminal Appeals. It has jurisdiction over appeals in criminal cases from district and county courts. The Supreme Court has no jurisdiction in such matters; the Court of Criminal Appeals is the court of last resort in criminal cases. Though several states have intermediate appellate courts whose jurisdiction is limited to criminal cases, only Texas and Oklahoma have separate courts of last resort in civil and criminal cases. As the population of Texas grew, so did the caseload of the Court of Criminal Appeals. Since the Court of Criminal Appeals had neither the discretion to deny review of appeals nor the assistance of intermediate courts of appeal, the only way for it to cope with more cases was to add more judges. Constitutional amendments increased the number of judges from three to five in 1966 and to nine in 1978, but the court was still unable to stay current with its caseload. In 1980 the constitution was amended to give the legislature the same tools to manage the criminal docket that it had acquired over civil cases in 1891. The courts of civil appeals (renamed courts of appeals) were given original jurisdiction of appeals in noncapital criminal cases, and the Court of Criminal Appeals was given jurisdiction for discretionary review of the decisions. The legislature increased the number of justices on the intermediate courts of appeals. The Texas Supreme Court and Court of Criminal Appeals are careful to remain within their respective jurisdictions and to avoid issuing conflicting interpretations of the same laws. This policy prevents the confusion caused in 1911 when the two courts rendered conflicting decisions on the validity of a provision for initiative and referendum in a city's charter.

Organization of courts. The Texas judicial system has been called one of the most complex in the United States, if not the world. The state has three levels of trial courts-district, county, and inferior-and there is no uniformity of jurisdiction among the courts at each level. To be sure of a trial court's jurisdiction, one must examine the statute that established it. There are two levels of appellate courts: the courts of appeals and the two courts of last resort, which are the Court of Criminal Appeals and the Supreme Court.

The inferior courts are the justice courts and the municipal courts. They come closest to having uniform jurisdiction throughout the state. Most of their cases are traffic offenses. Their collection of fines in traffic and criminal cases makes them net revenue producers for the jurisdictions that fund them. Justice of the peace precincts are required in each county; the least populous counties may have one precinct, but counties of 30,000 or more population must have from four to eight precincts. Each precinct has one justice of the peace, who serves a term of four years. The justice courts are not courts of record, which means that appeals from them to the county-level courts are de novo proceedings: they are tried again. Justice of the peace courts have jurisdiction over criminal offenses that are punishable by fine only, and over civil cases in which the amount in controversy is small (not more than $5,000 in 1995). In at least sixty counties the county-level courts have been given concurrent jurisdiction with the justice of the peace courts. Justices of the peace have important functions as magistrates who can issues warrants to arrest or search in felony and misdemeanor cases, and as coroners in counties that do not have medical examiners (see FORENSIC MEDICINE).

Municipal courts have been established by the legislature in each of the approximately 840 incorporated cities of Texas; large cities usually have more than one judge. Though most judges of municipal courts are appointed by the governing body of the city, a few are elected by the voters of the city. Most municipal courts are not courts of record, which means that a case is retried on appeal to a county-level court, but the legislature has formed municipal courts of record in at least twenty-three cities. Appeal from conviction in such courts is on the record to a county-level court. Municipal courts have exclusive jurisdiction of violations of city ordinances, as well as jurisdiction of the lowest class of state misdemeanors, which are punishable by fine only. They have virtually no civil jurisdiction.

The county-level courts are the constitutional county courts and the statutory county courts. Each of the 254 counties has a constitutional county court. In addition to its jurisdiction over appeals from the inferior courts, the constitutional county court has criminal jurisdiction over the higher range of misdemeanors, general jurisdiction of probate matters, and jurisdiction (concurrent with the justice court) on civil matters in which the amount in controversy is from $200.01 to $5,000. The office of county judge is reminiscent of the colonial alcalde's: The county judge presides over the county commissioners' court, which exercises powers over all county business. This legislative and executive function is by far the most important role of the constitutional county judge, whose term of office was increased from two to four years by constitutional amendment in 1954. In at least seventy-four counties the constitutional county court's judicial duties have been given, in whole or in part, to statutory county courts (which may be called county courts at law, probate courts, county criminal courts, or other designations). The civil, criminal, family-law, and probate jurisdictions of the statutory courts vary greatly from county to county, depending on the decisions of the county. Some of them exercise jurisdiction over matters that are usually reserved for district courts, but others have concurrent jurisdiction with justice courts. There were 185 statutory county courts operating in state fiscal year 1994. The populous counties may have many statutory courts; there were twenty-three in Harris County, for example. Each court has one judge, who serves a four-year term.

District courts are the trial courts of general jurisdiction in law and equity. This classification includes criminal cases of the grade of felony and misdemeanors involving official misconduct, divorce, cases of title to liens to land, election contests, and civil actions where the amount in controversy is at least $200. A constitutional district court's jurisdiction cannot be reduced by the legislature, though the legislature has established some nonconstitutional courts (such as criminal district courts or domestic-relations courts) that have limited jurisdiction. Most district courts exercise criminal and civil jurisdiction, but in the metropolitan areas there is a tendency for the courts to specialize in either civil, criminal, or family-law cases. A few district courts also exercise the subject-matter jurisdiction exercised by county courts. In state fiscal year 1994 the state had 386 district-level courts. The geographic area of most judicial districts is one county, although a populous county has many district courts; Harris County, for example, had fifty-nine. No judicial district is smaller than a county. Some judicial districts in sparsely populated areas comprise more than one county. Each court has one judge, who serves a four-year term.

The appellate level courts are the courts of appeals, the Texas Court of Criminal Appeals, and the Supreme Court. An appeal to these courts is based on the written record of a trial. The appellate courts do not hear witnesses. Courts of appeals hear most appeals from the county and district trial courts (the biggest exception being death-penalty cases, which go directly to the Court of Criminal Appeals). The state is divided into fourteen court of appeals districts; in each is a court of appeals that has a chief justice and at least two other justices, who serve four-year terms. The decisions of the courts of appeals may be reviewed by the Court of Criminal Appeals (in criminal law matters) or the Supreme Court (in other kinds of cases), except that the decisions of the courts of appeals on questions of fact are conclusive. The Court of Criminal Appeals hears appeals from death-penalty convictions and denials of bail. It has discretion to review the decisions of the courts of appeals in other criminal cases, although it may refuse to review any decision without explanation. Its determinations in criminal cases are final unless they involve a question of federal constitutional law reviewed by the United States Supreme Court. There is no appeal from the Court of Criminal Appeals to the state Supreme Court. In addition to its appellate jurisdiction, the Court of Criminal Appeals has exclusive jurisdiction to grant habeas corpus relief from a final felony conviction, and each year it receives thousands of petitions from inmates of Texas prisons. In 1981 the court was given authority to make rules of appellate procedure in criminal cases, and in 1986 to make rules of evidence for the trial of criminal cases. The legislature has not relinquished its authority to make the other laws for criminal procedure before and during trial. The court administers grants for judicial education. The court comprises a presiding judge and eight other judges, who serve six-year terms. It sits in Austin.

The Supreme Court of Texas exercises the judicial power of the state. Its authority to do so was made explicit by a constitutional amendment in 1980, which gave the court a basis to regulate the legal profession of the state. (The State Bar of Texas, a quasi-public agency to which every licensed attorney must belong, had been at risk of being abolished or radically reformed by the legislature in the late 1970s.) The court has statutory authority to supervise the operations of the state bar and the rules for admission, discipline, and disbarment of attorneys, for approving the law schools in the state, for promulgating the rules of evidence and the rules of civil procedure and appellate procedure for the conduct of civil litigation, for promulgating the rules of the Commission on Judicial Conduct and for disciplining or removing judges, for promulgating rules of administration for the judicial system, for equalizing the dockets of the courts of appeals by transferring cases among them, and for promulgating the rules of the Court Reporters Certification Board (see EXAMINING BOARDS). The court's judicial jurisdiction includes a small class of appeals from injunctions and a general discretion to review the decisions of the court of appeals in cases other than criminal-law matters. It may deny review without explanation. The court comprises a chief justice and eight other justices, who serve six-year terms. It sits in Austin.

Judges. Except for some municipal judges, the judicial officers of Texas are chosen in partisan elections by the voters of the geographical jurisdiction that the court serves. For a hundred years after Reconstruction, during which the Democratic party dominated the elections, judicial races were often uncontested. Two-thirds of judges gained office by appointment when a bench became vacant, and most appointees retained their seats at the next election. The emerging strength of the Republican party in the 1980s has led to contested elections, and straight-ticket voting has swept many incumbent judges from their benches. Judicial races do not attract as much attention or funding as do the campaigns for other offices, and it is sometimes doubtful that the voters are well-acquainted with the qualifications of the candidates. In 1976 Donald B. Yarbrough, a lawyer who was distinguished only by the similarity of his name to that of a better-known politician, was elected to the Supreme Court; he resigned during impeachment proceedings after being indicted for a felony offense of aggravated perjury before a grand jury, and he was convicted and sent to prison. Stephen W. Mansfield was elected to the Court of Criminal Appeals in 1994 despite having made false claims about his experience and personal background, for which he was later reprimanded by the State Bar of Texas. After the Constitutional Convention of 1974 voters did not adopt a new state constitution that would have permitted non-partisan election of judges. The legislature has rejected many proposals for the appointment or nonpartisan election of judges, and the topic is still hotly debated.

The qualifications required of judicial officers, other than the ability to be elected, increase with the level of the court. Justices of the peace are not required to have special qualifications; only about 5 percent of the state's 885 justices of the peace were lawyers in state fiscal year 1994. The compensation and qualifications of municipal judges vary, except that all statutes establishing municipal courts of record require the judges to be licensed to practice law in Texas. The judge of the constitutional county court is required by the constitution to be "well informed in the law of the State." The requirement has not been interpreted to include a law license or formal study of law, and about 85 percent of county judges are not lawyers. Judges of the statutory county courts must be licensed to practice law in Texas and (beginning in 1991) must be at least twenty-five years old and must have practiced law for four years preceding election. The county judge is a state official, whose minimum salary must be $1,000 less than the salary of a district judge. The law does not set a maximum salary; the judges of some statutory county courts have higher salaries than that of the chief justice of the Texas Supreme Court. A district judge must be a citizen of the United States and of Texas, be licensed to practice law in Texas, and have been a practicing lawyer or a judge for four years before election. Justices of the courts of appeals, judges of the Court of Criminal Appeals, and justices of the Supreme Court must be licensed to practice law in Texas, be citizens of the United States and of Texas, have attained the age of thirty-five years, and have been practicing lawyers or judges of courts of record for at least ten years. The justices of the court of appeals are elected by the voters in their court of appeals district. Court of Criminal Appeals and Supreme Court elections are conducted statewide.

In 1965 retirement and removal provisions were added to the constitution. Judges of the district courts and judges and justices of the appellate courts must retire when they reach age seventy-five; the legislature may reduce that age to as low as seventy. Judges may be removed from office, suspended, censured, or disciplined by the State Commission on Judicial Conduct (which comprises five judges from all levels, two lawyers, and four citizens) for incompetence, willful violation of the Code of Judicial Conduct, willful or persistent violation of rules promulgated by the Supreme Court, or conduct that is clearly inconsistent with the performance of judicial duties or that casts public discredit upon the judiciary or the administration of justice. A judge may be removed or involuntarily retired for permanent disability that seriously interferes with the performance of duties. See also LAW, TEXAS COURT OF CLAIMS.

George D. Braden, ed., The Constitution of the State of Texas: An Annotated and Comparative Analysis (2 vols., (Austin: Advisory Commission on Intergovernmental Relations, 1977). Texas Judicial Council, Texas Judicial System Annual Report, Fiscal Year 1994 (Austin: Office of Court Administration). Vernon's Annotated Constitution of the State of Texas, 1993.


  • Law, Law Enforcement, and Outlaws
  • Politics and Government
  • Courts and Judiciary

The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this entry.

Paul Womack, “Judiciary,” Handbook of Texas Online, accessed October 25, 2021, https://www.tshaonline.org/handbook/entries/judiciary.

Published by the Texas State Historical Association.

April 27, 2019