After holding several months of public hearings, the Texas Judicial Selection Commission issued its final report on December 30. By a narrow 8-7 majority, the Commission voted against the continuation of the current system of partisan judicial elections at all levels of the judiciary. On whether to adopt an appoint/retain system similar to the Texas Plan proposed by TCJL and Texans for Lawsuit Reform, the Commission split 7-7 with one abstention. The Commission achieved a general consensus on the need to enhance minimum judicial qualifications and further regulate money in judicial elections. Sen. Joan Huffman (R-Houston) indicated that she is working on a proposed constitutional amendment regarding judicial qualifications, but we do not yet know what it will contain.
In March 2019, TCJL and TLR presented to the Commission a comprehensive plan for overhauling the judicial selection process. The basic components of the Texas Plan are as follows:
- Nominations by the Governor. The Governor nominates judges to the Texas Supreme Court, Texas Court of Criminal Appeals, the fourteen intermediate appellate courts, and all district trial courts (not county courts at law, probate courts, justice of the peace courts, or municipal courts). All judges sitting on the bench at the time the constitutional amendment becomes effective will serve out their terms.
- Review by an Independent Panel. The nominee’s qualifications are assessed by either a statewide panel or one of 12 regional panels specific to the judge’s local district. Based on statutorily prescribed criteria, the panel rates a nominee as “not qualified,” “qualified” or “well qualified.” The panel’s rating and explanation are provided to the Senate.
- Each panel is comprised of non-lawyer citizens, current or retired judges, and members of the Texas House of Representatives appointed by the Lieutenant Governor, Speaker of the House, Chief Justice of the Supreme Court and Presiding Judge of the Court of Criminal Appeals.
- Seats on each panel have staggered six-year terms. A person may not serve for more than 12 consecutive years on a panel.
- Senate Confirmation. The nominee must be confirmed by an affirmative vote of a majority of the members of the Texas Senate. The Senate bases its decision on the panel’s assessment, its own application of the statutory list of qualifications, and other factors it deems relevant. A nominee assumes office only upon confirmation by the Senate.
- Voter Ratification of Appointment. The appointed judge will face the voters in a “ratification election” held at the first general election occurring more than one year after the date the person is confirmed by the Senate. If a majority of voters ratify the judge’s appointment, the judge continues serving in office; otherwise, the judge must step down. There will be no partisan designation on the ballot for a judge in a ratification election.
- Twelve-Year Terms. All judges serve a 12-year term, subject to winning a ratification election and subject also to removal for cause through established procedures. At the end of an appointed term, a judge can be nominated to serve in the same or another judicial office.
- Enhanced Constitutional Qualifications. The constitutional qualifications for serving as a judge are enhanced, including, for example, that a person must have prior judicial experience to be appointed to either the Texas Supreme Court or the Texas Court of Criminal Appeals.
- Enhanced Removal Mechanisms. Existing mechanisms for removing judges are clarified and strengthened, making certain that judges who are corrupt, convicted of a crime, incompetent, inattentive to the judge’s responsibilities, persistently abusive, extremely prejudicial, or blatantly discriminatory or unfair can be removed by the Legislature or the Judicial Conduct Commission.
Given the strong support on the Commission for raising the minimum qualifications for judicial office, we should note the specific provisions of the Texas Plan that address this issue. Article V, §§ 2, 4, 6, and 7, Texas Constitution establish minimum requirements for trial and appellate courts. To be eligible for election to a district court bench, a candidate must be a U.S. citizen licensed to practice law in Texas, a resident of the district for at least 2 years, and have practiced in Texas for at least 4 years. For the appellate courts (courts of appeals, Texas Supreme Court, and Texas Court of Criminal Appeals), the candidate must be a U.S. and Texas citizen licensed to practice law in Texas citizen, of least 35 years of age with 10 years of law practice (not limited to Texas).
The Texas Plan proposes to require a candidate for a district court to be at least 35 years of age, be a citizen of Texas, and have at least 10 years (as opposed to 4) of practice experience. The Plan would raise the age and practice thresholds for the courts of appeals from 35 to 40 and from 10 years to 12 years, respectively. It would further require candidates for the Supreme Court or Court of Criminal Appeals to be at least 45 years old, have practiced in Texas for at least 15 years, have resided in Texas for at least 2 years, and have served as a judge for at least 4 years.
For more than three decades TCJL has sought meaningful changes to the judicial selection process to promote an independent and highly qualified judiciary. We are very appreciative that the We TCJL is deeply appreciative that the Judicial Selection Commission has recognized the inherent flaws in the current system, reviewed in detail other methods of selecting judges and justices, and offered an exhaustive report and recommendations for improvements in the system. Though the Commission was divided over the nature of judicial elections, it nevertheless came together with a constructive basis for progress on the issue. Many thanks go out to Chair David Beck, Rep. Todd Hunter (R-Corpus Christi) and Sen. Joan Huffman (R-Houston), who carried the legislation to create the Commission and then served on it, and to the distinguished members who have dedicated their time, wisdom, and experience to the effort: Senators Juan “Chuy” Hinojosa (D-Edinburg), Brian Birdwell (R-Granbury), and Robert Nichols (R-Jacksonville); Reps. Brooks Landgraf (R-Odessa), Ina Minjarez (D-San Antonio), and Carl Sherman (D-Dallas); former Texas Supreme Court Chief Justices Tom Phillips and Wallace Jefferson; former district court judge and appellate justice Martha Hill Jamison; and attorneys Chip Babcock, Lynn Liberato, and David Oliveira.