As we reported last fall, one aspect of the larger debate over the manner in which Texas selects its judiciary has attracted a higher degree of consensus than the process of selection itself: judicial qualifications. All parties to the debate agree that it is a good thing to have well-qualified candidates for judicial offices from the trial courts on up. In 2021 the Texas Legislature adopted and the voters approved a constitutional amendment raising the practice requirements for appellate and district court judges. But beyond that, Texas law, unlike 40 other states, does not requirethat new judges receive training regarding the administration of justice in the courtroom or discharging the responsibilities of the office. That is, until now.
HB 2384, which the Governor signed into law on June 12, will go a long way toward prioritizing the education and training that newly elected or appointed judges with little or no appreciable prior experience must obtain when they arrive for work on the first day. The near unanimous passage of the bill in the Legislature acknowledges the question that we have been asking for years: is it good for the system—and by the “system” we mean the prompt, efficient, and scrupulously impartial administration of justice to the parties in any type of case—to hand over matters with enormous consequences to the people involved to somebody just because he or she has completed a minimum number of years of practice? Put another way, would you like your case to be a new and inexperienced judge’s first case? Wouldn’t you want a judge with at least some prior exposure to the relevant subject matter or, at the very least, the rules of procedure and evidence? Are there ways to ramp up the training of new judges to make that transition both shorter in time and less problematic for parties with the “first” cases?
That is precisely what HB 2384 aims to do. While not a perfect solution by any means (we think thorough vetting of judicial candidates by lawyers and judges with extensive trial or appellate experience would be the best approach), we think that much will be achieved by requiring new judges to meet heightened education and training requirements for the judicial office to which they have been elected. The bill does not go as far as to require the candidates to meet these higher standards as a prerequisite to standing for the office in the first instance (that might narrow the pool of judicial candidates too much). Instead, HB 2384 ensures that newly minted judges will complete a rigorous program to bring him or her up to speed within a year of taking the bench—or face suspension by the Judicial Conduct Commission if they don’t.
We realize, of course, that current rules of the Texas Court of Criminal Appeals direct first-year judges to complete 30 hours of instruction and 16 additional hours in the second and third years of their terms. (To provide some perspective, licensed attorneys in Texas are required to complete 15 hours in continuing legal education each year.) These requirements can be met by taking courses, whether in person or remotely, sponsored by organizations specified by Rule 2 of the Rules of Judicial Education. Such organizations include the Judicial Section of the State Bar of Texas, Texas Center for the Judiciary, Texas Association of Counties, National Judicial College in Reno, Nevada (that one sounds fun), and several other national and state-based organizations. It is interesting to note that Rule 3 requires new justices of the peace to complete an 80-hour course of instruction from the Texas Justice Court Training Center, 40 hours of which must be live training, within the first year in office, and 20 hours of continuing education each year thereafter. Of course, justices of the peace do not have to be lawyers (a vestige of the days when the population was widely scattered and there weren’t many lawyers around), so one can understand the disparity (though the required number of hours is arbitrary). In either case, however, it seems to us that these minimum requirements are woefully inadequate in a general one-size-fits-all sense.
That’s why HB 2384, in addition to mandating training and penalizing judges for not completing it, directs the Texas Board of Legal Specialization to develop a board certification in judicial administration for attorneys and sitting judges. This program would set standards comparable to existing board certification programs. To give you some perspective on what these programs look like, to become board certified in civil trial law, a lawyer must:
- practice law fulltime for at least five years as an active member of the State Bar of Texas;
- have at least three years of civil trial law experience with a yearly minimum of 30% substantial involvement in civil trial law matters;
- try at least 15 civil trials that meet certain substantive requirements;
- have qualified vetted references from lawyers and judges in the area;
- complete 60 hours of board-approved continuing legal education in civil trial law;
- meet all board standards for attorney certification; and
- pass a comprehensive six-hour examination in civil trial law.
Compare that to the judge school that is currently required, and you can see how dramatic the difference really is. As the example above demonstrates, lawyers who undertake board certification must have three things: significant relevant practice experience, a good reputation in the legal community, and a lot of additional education. If a lawyer can run that gauntlet, it’s a pretty good bet that that lawyer will be more well-prepared to take the bench (though we fully understand the practice requirements will have to be different where sitting judges are concerned). To incentivize lawyers who want to be judges and sitting judges to become board-certified, moreover, HB 2384 establishes the basis for future appropriations for judicial salary supplements, not only for those who get the board certification in judicial administration, but other board certifications in relevant specialties as well. The hope is that HB 2384 will establish a culture of excellence in which all sitting judges and justices, at some point or another, will become board certified in something relevant to their responsibilities to the judicial system.
Policymakers have time and time again shied away from making any major changes in the judicial selection process that would depart from the partisan election of judges. But that doesn’t mean that the candidates who win those elections (or who are appointed to fill vacancies) should not be the very best and most qualified lawyers available for the job. Hb 2384 places no limitations on who can run for judicial office (beyond the constitutional minimum practice and residency requirements), but it would raise the bar for those who get elected. In our view, no one should be happier to see such a program than judges themselves. Board certification is widely accepted as the gold standard in education and training for lawyers. It will quickly become the same for judges.
