History: Judicial Selection
1985. The legislature passed a constitutional amendment that addressed the League position of centrally administered statewide courts. The League supported this amendment, and voters adopted it.
1989-95. Merit selection (or election, as some call it) has been an active issue for the LWVTX during this period. Reform efforts have been spurred and complicated by federal lawsuits challenging the at-large election of district and appellate judges as a violation of the Voting Rights Act because the system dilutes minority votes. The most recent development in this lengthy litigation is Texas' appeal from a U.S. Justice Department finding that countywide partisan election of judges in the major urban areas infringes minority lawyers' right to win seats on the bench under the Voting Rights Act. Using the LWVUS position supporting the Voting Rights Act, the LWVTX has supported single-member judicial districts as part of a merit system plan.
In the 1995 Legislative Session, the League lobbied in support of Senate-passed measures that called for appellate judges to be appointed by the governor with approval by the Senate and subject to retention/rejection elections on a nonpartisan ballot; and for district judges to first run on a nonpartisan ballot and then face retention/rejection elections for the next two terms. The House, however, failed to pass the Senate's reform initiative, instead reporting out of committee a version that included partisan elections. This version did not reach the House floor.
During the 1995-97 interim, the League was represented on the newly created Commission o Judicial Efficiency. The Commission, appointed and chaired by Texas Supreme Court Justice Tom Phillips, was charged by the legislature with studying various issues related to the state judiciary, including judicial selection. The commission made several recommendations, but their most significant success was their recommendation for the creation of a Judicial Committee on Information Technology, which passed the legislature with funding. The 15-member committee, made up of judges, court personnel, legislators, attorneys, and citizens will gather information for a statewide network and justice information system.
1997. The House passed a bill changing appellate judicial selection to nonpartisan elections, an attempt to move the procedure at least one step away from the current partisan election system.
The Senate companion bill differed, proposing an appoint/elect/retain system for appellate judges. This bill failed and time did not permit the Senate to take up the House bill.
2001. Legislation was introduced, supported by the League, which offered a viable, nonpartisan approach that would have reformed the electoral process for the selection of the chief justice and justices of the Texas Supreme Court, and the judges of the Court of Criminal Appeals. The bills would have required nonpartisan judicial elections of the highest courts in the state. Candidates would have sought certification from the secretary of state to be put on the ballot and would have been required to submit a petition signed by 1,000 registered voters in connection with a request for public financing. Testimony given during the hearings on the legislation raised many issues of concern that surround judicial elections: the necessity for judges to become involved in party politics, to raise large sums of money in order to run, and the perceived influence on the system as a result. Many supported the certification process as opening the doors for increased minority participation, but testified that a selection commission could act as a barrier. The League restudied this issue in 2001-03.
2003. Following the adoption of the new judicial selection consensus, the LWVTX supported a number of bills during the 78th Session. None of these bills passed, and the lack of legislative support for these bills during the session was a real disappointment. Some bills and joint resolutions (possible constitutional amendments) focused on all of the judiciary, others only on appellate judges. Both appointments, followed by nonpartisan retention elections at the end of their terms, and nonpartisan elections were considered along with terms of office and for public financing of such elections.
In line with the League’s new position, there is a great deal of support in Texas for the nonpartisan selection of appellate judges, but less for the selection or appointment of district judges. Opposition to the appointment of district judges was one factor leading to the defeat of introduced bills.
2005. Companion bills were introduced in the 79th Regular Legislative Session that would provide for the appointment and a nonpartisan election for the retention or rejection of justices and judges. The bill included all appellate courts and all types of district court judges, with appointments made by the governor as currently provided for in the Texas Constitution. No hearing was held for the Senate bill, but the House bill was heard in the House Judiciary Committee. The League presented written testimony to explain the League position that supports nonpartisan election of appellate court judges nominated by a nonpartisan diverse commission. The bill was left pending in committee. The House leadership was not supportive of the issue.
We supported and testified for Senator Duncan’s bill that would increase salaries for state and county judges who had not had a salary increase since 1998. This issue had widespread support. However, after passing out of the conference committee, the bill was scuttled in the House over a dispute with an amendment that included increases for indigent defense. Although this item was not on the agenda, Senator Duncan introduced a similar bill in the special session without the indigent defense provision. The League presented written and oral testimony at the Senate State Affairs Committee in favor of the bill. The committee voted in favor of the bill. It was hoped that the issue would be included in the special session.
2007. As in the 79th Legislative Session, Senator Duncan filed SB 806 with its companion SJR 32 for a constitutional amendment. The enabling bill would provide for a nonpartisan merit selection system of appointment of judges followed by a retention or rejection election of judges after a specified period of time of service. Identical bills were filed in the House. None of the bills were heard by their respective committees. However, both bills contained a position the League cannot support at this time, the inclusion of state district courts judges. The bills would provide for initial appointments that would be made by the governor as provided in the Texas Constitution during the interim in 2008. The League spoke with the general counsel for Senator Duncan to ask for a filing of a bill in 2009 Legislative Session with modifications that can meet the League position. In April 2007 the LWVTX, through the assistance of KLRN, produced and televised a program, "Conversation on Judicial Independence."
2009. In the 81st Legislative Session, Senator Duncan, supported by the League, filed an enabling bill and constitutional amendment that would provide for a nonpartisan appointment/retention system to select appellate judges. This was slightly different from previous sessions. Not included were state district judges. However, the bills were withdrawn. Subsequently, the Senator filed SB 2226 and SJR 44 to provide for partisan judicial elections in the primary followed by a nonpartisan appointment/retention election. The League remained neutral as our position for judicial selection clearly states it be nonpartisan. The bills were not placed on the Senate calendar. In the House, HB 3995 provided for a nonpartisan appointment/retention system. The League presented oral and written testimony. Although the bill was voted out of the House Civil and Jurisprudence Committee, it did not pass out of the Consent Calendars Committee.
Early in the session Chief Justice Wallace Jefferson of the Texas Supreme Court made a strong case for the adoption of an appointment/retention system for judicial selection during his State of the Judiciary speech to the Legislature. Early in the same day, the League participated in a press conference with several other organizations in anticipation of the Chief Justice’s speech.
A group to which the League is a collaborator, Clean Elections Texas, supported a bill that would provide for public financing for judicial candidates. Although the League supports public financing of campaigns this measure was not nonpartisan as required by our judicial position. As a result, the League did not support it.
2011. In the 82nd Legislative Session, Senator Duncan filed SB 1718, which proposed filling vacancies in appellate judicial offices by appointment, partisan elections for all judicial offices, and nonpartisan elections for retention or rejection of all judicial offices. The League remained neutral as our position for judicial selection clearly states election be nonpartisan. There was a hearing on this bill in State Affairs Committee, testimony was taken, but the bill was left pending in committee.
In February, Chief Justice Wallace Jefferson of the Texas Supreme Court urged the Legislature to "send the people a constitutional amendment that would allow judges to be selected on their merit." He also urged "common-sense solutions to the problems that plague partisan election of judges."
2019: After nearly a decade of inaction and disinterest, the Legislature woke up to the need to at least examine our state’s system of selecting judges. The result was the passage of one of three bills supported by LWVTX, calling for an interim study of methods of choosing judges. Though not the strongest of the three proposed bills, the new law presents an opportunity to move forward, away from partisan judicial elections toward a fairer system for selecting qualified, impartial judges. The measure calls for appointment of an Interim Commission on Judicial Selection that is tasked with considering the fairness, effectiveness and desirability of electing Texas’ judges through partisan elections.
The Commission’s study must also consider judicial selection methods proposed or adopted by other states, as well as the merits of using a public member board to nominate or assess the qualifications of candidates for judicial offices, among other specified methods of selecting judges. The Commission must submit a report to the Governor and Legislature by December 31, 2020 that includes specific recommendations for statutory and constitutional changes.
The statute specifies that the Commission include: four members appointed by the governor; four senators appointed by the lieutenant governor (including one senator who is a member of the political party with which the lt. gov. is affiliated and one senator who is a member of a political party other than the party with which the lt. gov. is affiliated); four members of the house of representatives appointed by the speaker of the house of representatives (including one representative who is a member of the political party with which the speaker is affiliated and one representative who is a member of a political party other than the party with which the speaker is affiliated); one member appointed by the chief justice of the Texas Supreme Court; one member appointed by the presiding judge of the Texas Court of Criminal Appeals; and one member appointed by the board of directors of the State Bar of Texas.
The makeup of the Commission will be critical to its deliberations and recommendations. LWVTX, as an affiliate of the Texas Fair Courts Network that supported the new law, suggested suitable and qualified candidates to those appointing Commission members. We were pleased that two members recommended by the Network were appointed: Former Texas Supreme Court Chief Justice Wallace Jefferson (by Chief Justice Hecht, current Chief Justice of the Texas Supreme Court) and former Texas Supreme Court Chief Justice Tom Phillips (by Texas Court of Criminal Appeals Presiding Judge Keller).
The Commission held its first meeting in January 2019 and has been holding monthly meetings, with a hiatus due to the pandemic in April and May. The Fair Courts Network has had a representative in attendance at each Commission meeting. At the Commission’s meeting on June 5, 2020 (held via Zoom because of the pandemic), the Texas Fair Courts Network presented testimony, with LWVTX signing on to most of the points made. In addition, LWVTX presented its own testimony, highlighting our Judicial Selection position.
LWVTX applauds the bill creating the Interim Commission and is cautiously optimistic that we will be able to support at least some of its recommendations in accordance with the Judicial Selection position. As always, the “devil will be in the details.”