Texas voters set to pass propositions aimed at improving judiciary

HOUSTON (CN) — Running for judgeships in Texas is set to become more difficult as voters are expected to approve two amendments on the November ballot that will enhance required qualifications for the bench and subject candidates to oversight of a state ethics commission.

Texas is one of just six states where all judges, from municipal courts to its supreme court, are selected in partisan elections. But many Texas jurists are elected after running unopposed and others are appointed by the governor to fill in for presiding judges who don’t finish their terms.

A frequent critique of the system is it opens the door for judicial bias, as attorneys often represent clients before judges to whom they have given campaign contributions.

Texas Supreme Court Chief Justice Nathan Hecht, a Republican from Dallas, has served on the court since 1989, successfully running six times for associate or chief justice.

Despite his enduring popularity with voters, Hecht believes their role in selecting judges should be toned down because they are prone to voting against highly experienced, quality judges, knowing nothing about them, simply because they belong to a different party than them.

Lamenting the fact so many incumbents had been unseated in “partisan sweeps” in the November 2018 election, the Texas judiciary had lost more than “seven centuries of judicial experience at a single stroke,” Hecht advocated for wholesale changes to the state’s judicial selection process in his February 2019 “State of the Judiciary” speech to the Texas Legislature.

“Merit selection followed by nonpartisan retention elections would be better,” Hecht said.

In that kind of system, nonpartisan commissions of lawyers and laymen vet judgeship applicants, make a list of the best ones and give it to an appointing authority, usually a governor, to pick who should fill each bench.

An election is held after the judge has served a few years where voters decide with a yes or no vote whether they should keep their jobs.

Such a radical change to judicial selection is not up for a vote on Texas’ Nov. 2 ballot — Proposition 4 is.

If approved, it will make moderate changes to the state Constitution on the qualifications needed to run for state trial court and appellate court judgeships, namely barring candidates whose law licenses have been suspended or revoked in the past eight or 10 years.

Anthony Gutierrez, executive director of Common Cause Texas, a left-leaning lobbying group, said Prop. 4 is a “tiny step in the right direction” for the state’s judiciary.

“The legislature did literally the very least it could do,” he said. “There is so much more that could be done to increase the independence of our judiciary, from increasing qualifications for judges at all levels to requiring judges to recuse themselves when campaign donors appear in their courtrooms.”

Of the 577 judges in courts subject to this proposition, less than five would not meet the new qualifications, according to an analysis by legislative staff.

Besides, incumbents are insulated: The new qualifications would apply to judicial candidates running for the office at stake for the first time in 2024, or who are appointed after Jan. 1, 2025.

Some lawmakers have questioned why Proposition 4 did not include more rigorous qualifications for justices of the peace.

The 799 Texans who serve as justices of the peace — an elected office with jurisdiction over civil cases with no more than $20,000 in dispute, landlord-tenant disputes and low-level misdemeanors — do not have to be licensed attorneys. In fact, there are no qualifications listed for them in state statues or the state Constitution.

In the more rural of Texas’ 254 counties, these so-called justice courts have never had a lawyer presiding over them, according to state Representative Mike Schofield, a Houston Republican.

“It’s considered a common-sense court. You know, they go in and get a dispute between neighbors resolved quickly,” Schofield said during a Texas House committee hearing in May, discussing the resolution lawmakers passed to put Prop 4 on the ballot.

Due to their relative inexperience with blackletter law, justices of the peace are reprimanded more often than any other type of judge by the State Commission on Judicial Conduct.

Over the past six months, for instance, the commission has admonished a justice of the peace for closing their courtroom to the public; gave a warning to another for excluding the defendant from his courtroom in an eviction trial; and reprimanded a third, and ordered him to take four hours of instruction from a mentor on racial diversity issues, after law enforcement overheard him say a Black man who had been arrested for public intoxication “’needs to be hung’ and ‘with a fucking noose around his neck.’”

Though the commission can only investigate ethics complaints against sitting judges, a proposition on the November ballot would expand its mandate to also evaluating complaints against judicial candidates.

The commission’s executive director, Jacqueline Habersham, said it is a challenge for the eight people who do investigations on her staff to process the roughly 1,800 complaints the commission receives per year.

And if Proposition 5 passes, she estimates it will add another 200 to 300 complaints per year, and those would only involve alleged campaign violations.

Such public discipline could serve to screen judicial candidates, as voters typically know little about their backgrounds beyond their party affiliation and blurbs they submit about themselves for voting guides.

“I fully expect it to pass. Simply because I think most people don’t know who we are or what we do. So they’ll probably see something on the ballot, read it and say, ‘Oh that makes sense,’” Habersham said in a phone interview.

Even with passage likely, Habersham said, the Legislature — in approving the resolution earlier this year that put Proposition 5 on the ballot, and another piece of legislation, House Bill 4344, that requires the commission to complete its investigations more quickly — did not allocate funds for the commission to hire more staff for the expected increased workload.

“We will do what we can with what we have. And just try to move forward and get those cases resolved as quickly as possible,” Habersham said.

State Senator Judith Zaffirini, D-Laredo, who sponsored the judicial commission-related legislation, is confident the Legislature can rectify any understaffing issues.

“I expect the commission to request and receive more funding for additional staff during the next regular session [in 2023]. If the situation becomes dire before then, more positions could be funded by budgetary transfer authority,” she said in a statement to Courthouse News.

“Many of us are highly interested in improving the judicial commission to ensure it is protecting the public from the misdeeds of bad judges and enhancing transparency and accountability. Count me among those who will champion the budgetary needs for staff who will ensure its success, which is critical to access to justice for all,” she added.

In addition to Propositions 4 and 5, Texans are voting on six other proposition this election, including one that would bar cities, counties or the state from prohibiting or limiting religious services.

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