The Texas Constitution mandates that "[t]here shall be established in each county in this State a County Court ... and there shall be elected in each county, by the qualified voters, a County Judge, who shall be well informed in the law" (Article 5, Section 15). Thus, each of the 254 counties of the state has a single County court presided over by a county judge.
These courts have concurrent jurisdiction with Justice of the Peace courts and state District courts in civil cases in which the dollar value of the issue in dispute is small. Usually, the Constitutional County courts hear the probate cases (those related to wills) filed in each county, and they have original jurisdiction over all Class A and Class B misdemeanor criminal cases.
These courts generally have appellate jurisdiction in cases appealed from Justice of the Peace and Municipal courts. The main exception is in those counties where County Courts at Law have been established. Appeals take the form of a trial de novo (completely new trial), unless the appeal is from a designated Municipal court of record in which trial proceedings are recorded by a court reporter.
The county judge also serves as the administrative head of the county government. These administrative duties tend to occupy most of the county judge's time in the more populated counties. In response, the Legislature created County Courts at Law and statutory Probate courts to relieve the county judge of most (sometimes all) of the county judge's judicial duties.
County Courts at Law
The constitutional limit of a single county court for each of the state's 254 counties created a need for additional county courts in the more populous counties. Consequently, the Legislature has created over time additional statutory County Courts at Law in the larger counties to aid the single Constitutional County court in its judicial functions.
The legal jurisdiction of these statutorily-created County Courts at Law is usually concurrent with the jurisdiction of the County and District courts in the county. However, the jurisdictions of these special county-level trial courts are established by the statute that creates a particular court and can vary considerably. This adds considerable complexity to the state's lower court system.
Though the civil jurisdiction of County Courts at Law varies, it is usually more extensive than that of the Justice of the Peace courts, but less extensive than that of the state District courts. Generally, County Courts at Law have appellate jurisdiction in cases appealed from Justice of the Peace and Municipal courts.
Statutory Probate Courts
The part of the Texas court system governing probate, the disposition of wills, is one of the most complicated.
In most counties, the Constitutional County Court has original probate jurisdiction. In some counties, the Legislature has authorized County Courts at Law to share this original jurisdiction.
Additionally, the state District courts (see the next section) have original jurisdiction in probate cases, but only when the probate matter is transferred from a Constitutional County court and where the Legislature has granted the District court original control and jurisdiction over personal representatives.
Things get still more complex. The Legislature saw a need for yet another type of court to deal with probate matters in the state's six largest metropolitan areas. So, it created statutory Probate courts. These courts have original and exclusive jurisdiction over their counties' probate matters, guardianship cases, and mental health commitments.
In summary, the Texas Constitution grants the Legislature the authority to determine which Texas courts have jurisdiction over probate matters. So, depending on how the Legislature assigned jurisdiction to the courts in a particular county, probate matters might be heard in the County court, County Court at Law, statutory Probate court, or District court.
3.3 Statutory Courts of General Jurisdiction - Texas District Courts
There is only one type of statutory court of general jurisdiction, the Texas District courts. The District courts are the trial courts of general jurisdiction in Texas. Each county must be served by at least one District court, but the size and shape of each district is determined by the Legislature, primarily on the basis of population.
Most District courts try both criminal and civil cases. District courts have original jurisdiction in all felony criminal cases, divorce cases, cases involving title to land, election contest cases, civil matters in which the amount in controversy (the amount of money or damages involved) is $200 or more, and any matters in which jurisdiction is not placed in another trial court. In densely populated counties the District courts may specialize in civil, criminal, juvenile, or family law matters.
The state District courts handle a huge number of cases. In 2003 alone, Texas District courts took on more than 800,000 new cases. And though the U.S. District courts are the workhorses of the national court system, this chapter's feature Caseloads in the Courts illustrates that the state courts handle many more cases.
3.4 Appellate Courts - Texas Courts of Appeals
The state's fourteen Courts of Appeals have intermediate appellate jurisdiction in both civil and criminal cases appealed from District or County courts. Like the District courts, each Court of Appeals has jurisdiction in a specific geographic region of the state.
Each Court of Appeals has at least three justices, including a presiding chief justice. The number of justices on the Courts of Appeals ranges from three to thirteen, with the specific number of justices on each court established by the Legislature. Judges on the Texas Courts of Appeals serve six-year terms, a medium -length term compared to other states, as this chapter's feature Judicial Terms of Office illustrates.
Presently there are a total of eighty (80) justices authorized for all the Courts of Appeals. Appeals are usually heard by a panel of three justices; however, in particular cases an en banc hearing may be ordered. In these cases all the justices of that particular Court of Appeals hear and consider the case.
3.5 Supreme Courts - Court of Criminal Appeals and Texas Supreme Court
The complicated nature of the Texas court system is seen even at the very top. Texas has two supreme courts - the Court of Criminal Appeals and the Supreme Court of Texas. The first is dedicated to criminal matters, while the latter handles only civil cases and cases involving juveniles.
Court of Criminal Appeals
The Court of Criminal Appeals is the highest state court for appeals resulting from criminal cases. This court has statewide, final appellate jurisdiction over criminal cases. It also makes rules of post-trial and appellate procedure for criminal cases. The Court is composed of nine members, a presiding judge and eight judges, and holds its sessions throughout the year in Austin, Texas.
Most of the cases heard by this Court are appeals from one of the fourteen intermediate Courts of Appeals. Decisions in criminal cases made by the Courts of Appeals may be subsequently appealed to the Court of Criminal Appeals. Such appeals are made by petition filed either by the state, the defendant, or sometimes both.
The court has the power of discretionary review, meaning it does not have to hear a case if it so chooses. The one exception to this discretionary power is in the area of capital punishment. All cases in which the death penalty has been assigned are automatically directed to the Court of Criminal Appeals from the original trial court, bypassing the Courts of Appeals.
The Supreme Court of Texas
The Supreme Court of Texas has statewide, final appellate jurisdiction in all civil and juvenile cases. Like the State Court of Criminal Appeals, it is composed of a chief justice and eight justices.
The majority of the cases heard by this court are appeals from appellate rulings by the intermediate Courts of Appeals. The Supreme Court of Texas also has the authority to make legal determinations in instances in which no other court has jurisdiction - basically, anything that does not fall under the jurisdictions and responsibilities of the other courts becomes the responsibility of the Supreme Court. It can also issue orders to enforce its jurisdiction as the highest civil court in the state.
The Supreme Court also has many administrative duties. The Supreme Court makes the rules of practice and procedure governing trials and appeals in civil and juvenile cases. These duties are similar to those of the Court of Criminal Appeals. The only difference is the types of cases involved.
But the Supreme Court of Texas has additional administrative responsibilities. These include establishing the rules of administration for the Texas judicial system, as well as the rules of operation of the state Office of Court Administration, the Commission on Judicial Conduct, the State Bar of Texas, and other state agencies in the judicial branch of government.
4. Judicial Selection, Qualifications and Performance
In order to make impartial and well reasoned rulings, the judges in any judicial system must display two characteristics: independence and capability. These are the same criteria used to evaluate the judicial system overall in order to assess the ability of the system to deliver justice.
The independence of judges and justices is perhaps most closely related to their ability to deliver just, unbiased rulings. Judges' own personal ideas and perceptions cannot be completely removed from their rulings. However, it is possible to reduce considerably the impact of any other influences, such as judges' personal economic interests.
Also, it is critical that judges have the basic experience and intellectual capacity to adjudicate issues that are often extremely complex. Intellectual capacity has two related components: powers of logical reasoning and the ability to perceive subtleties and nuance.
Some people believe that accountability is also a critical criterion for evaluating the judicial branch. They argue that judges, just like our other public officials, must be held accountable for their decisions and actions. More specifically, some mechanism for removing or replacing judges is thought to be critical to ensuring justice.
To some degree, independence and accountability are contradictory goals, because accountability necessarily imposes some limits on independence. In Texas, these contradictory goals crystallize in judicial elections. Texas is among the few states that use partisan elections to select judges at all levels of the court system. While appointments are made at various levels to fill vacancies between elections, the central question in evaluating the selection process in Texas is how the partisanship and need to appeal to voters can be reconciled with the need for impartial judicial procedure. As the interviews with judicial candidates in this section reveal, judges and candidates for the bench see differing ways of resolving such tensions.
4.1 Justice and the Law
Legal experts often claim that the law and justice are two completely different things. Certainly this distinction reflects the daily operating environment for lawyers, who must of necessity focus on the best interests of their clients. In the adversarial system that forms the foundation of our legal tradition, lawyers necessarily focus on winning the case for their clients rather than on achieving justice. This system is based on the idea that encouraging lawyers to pursue the best interests of their respective clients is the best way for the system overall to deliver justice.
For society as a whole, however, the degree to which its judicial system delivers justice is of paramount concern. Biases and breakdowns in the carriage of justice threaten both our freedom and our democracy. Further, even single instances of bias or breakdown undermine faith in the system.
Unfortunately, the partisan election of most judges in Texas has caused many to question seriously the degree of independence and capability of many of these jurists. In political settings like elections, these questions are often asked of individual judges. But they are also part of a broader critique of the system of judicial selection in the state, and its overall consequences.
The Texas Constitution establishes the basic qualifications for most judges in the state. Additional qualifications for statutory courts are established in the legislation creating the particular court. In general, the qualifications are not strict.
At the level of appeals courts (Courts of Appeals, Court of Criminal Appeals and Supreme Court) judges must have been licensed to practice law for at least ten years, be citizens of both the United States and Texas, and be at least thirty-five years old. District judges must have been licensed to practice law in Texas for at least four years, be residents of the judicial district in which they serve for at least two years, and be citizens of the state. For County Courts at Law and statutory Probate courts qualifications vary according to the specific statute that created the court.
All judges in these courts are required to be licensed to practice law.
Most are required to be county residents and have experience as practicing attorneys.
Judges of the County Courts at Law must be at least 25 years of age.
Judges of the Constitutional County courts must only be "well informed in the law of the State" but are not required to be lawyers. Most of the 254 constitutional county judges are not licensed to practice law. There are no constitutional or statutory qualifications to serve as a justice of the peace, and very few are lawyers.
All judges of Municipal courts of record must be attorneys, but no statutory qualifications are required of other municipal judges, most of whom are not lawyers.
The state does require that judges throughout the court system complete training courses. Judges in the Constitutional County courts, the County Courts at Law, District courts and appellate courts must complete Supreme Court approved courses in court administration, trial procedure and evidence.
Additionally, justices of the peace are required by law to complete a forty hour course covering the proper execution of that office's duties the first time they serve. After that, they must complete twenty hours of relevant coursework per year. The More Info box contains information about training for Justices of the Peace.
4.3 Characteristics of the Judiciary
The formal qualifications identified in the previous section set the outside parameters for serving on the bench of the various Texas courts. However, a review of the demographic background of the members of the judiciary indicate additional "informal qualifications" for serving on the Texas judiciary.
The table Profiling Texas judges shows that an overwhelming majority of jurists in Texas are men (72 percent), and an even greater percentage are Caucasian or white (83 percent). Women and minority groups in Texas are significantly underrepresented, although to different degrees.
Though the gap in Texas between the proportion of women in the population and the proportion of judges who are women is greater than the comparable gap for any of the minority groups, the overall number of women judges is substantial. Asians, on the other hand, have extremely little representation and African Americans have very low representation in these courts.
The low representation of African Americans is especially noteworthy since African Americans have disproportionately high rates of arrest and conviction in criminal cases. Worse, they represent an extremely high proportion of death row inmates. Though recent appointments to the Supreme Court have increased the visibility of African American judges, the racial make-up of the defendants and judges in the criminal court system continues to draw criticism.
The recent appointment of African Americans to the Texas Supreme Court by Republican Governor Rick Perry has drawn attention to Republican efforts to court conservative and moderate African Americans. But whatever the mix of policy, politics, and legal reasoning behind recent appointments, the Supreme Court is currently more diverse than ever before. A video clip featured on this page captures the complexity of the history and the politics surrounding Perry's appointment of Wallace B. Jefferson to the court. Perry was speaking at the Texas Republican Party state convention in June 2004. The following September, the Governor elevated Jefferson to the position of Chief Justice after the resignation of Chief Justice Thomas Phillips - making Jefferson the first African American Chief Justice in Texas history.
Other notable aspects of the profile of Texas judges concern age and experience. The median age of judges is quite consistent across the six courts shown - ranging from 49 to 55 years. The number of years these judges have been licensed to practice law is similarly consistent, ranging from a considerable 21 to 25 years.
This suggests that, at least for the higher courts in the system, the judges bring considerable experience, in contrast to the relative inexperience among justices of the peace and judges in the Constitutional County courts.
The years of experience might, in fact, be a clear reflection of the selection process for judges on these courts. The direct, partisan election of judges in Texas favors well funded, well connected lawyers with significant private law experience.
Finally, it should be noted that along with other elected offices, the state's judicial bench has become increasingly Republican. This is especially true on the higher court levels, with Republicans holding all nine of the seats in both the Court of Criminal Appeals and the state Supreme Court since 1999. The first Republican ever elected to the Court of Criminal Appeals, Larry Myers, was elected in 1992. By 1999 all nine of the justices were Republicans. In the 2002 election Republicans swept all five of the contested seats for the Supreme Court and all three of the contested seats for the Court of Criminal appeals - both statewide offices.
4.4 Selection and Terms of Office
With the exception of most municipal judges, all judges in the state of Texas are elected in partisan elections by the registered voters of the geographic areas they serve. Most municipal judges are appointed by the governing body of the municipality (e.g., a city council), although a few are elected.
The terms of office for judges in Texas vary (as one would expect) by the particular court on which they serve:
- municipal judges usually serve two year terms
- district judges, county-level judges, and justices of the peace serve four-year terms
- appellate judges serve six-year terms
Illness, personal circumstances or even misconduct (see below) may cause judges to vacate their offices before their terms are completed. Vacancies in county-level and Justice of the Peace courts are filled by appointment of the County Commissioners courts. For Municipal courts, vacancies are filled by appointment of the mayor or governing body of the city. Judicial vacancies in District and appellate courts, including the Supreme Court, are filled by appointment of the Governor, with the advice and consent of the Texas Senate.
4.5 Judicial Conduct and Discipline
In order to fill the gap between the formal training and the duties of office, and ensure that judges are kept up to date with legal developments, the Legislature has provided for the mandatory continuing professional education of judges. As discussed in section 4.2, judges are generally expected to be knowledgeable in the law, but only a few need be licensed attorneys. They are also expected to dispense justice in a fair and impartial manner.
To ensure the fair and impartial dispensation of justice the Texas Supreme Court has promulgated the Code of Judicial Conduct. This code establishes professional standards which the state Constitution makes mandatory for judges, masters, and magistrates.
The Constitution also establishes a special commission - the Commission on Judicial Conduct - to review complaints concerning the conduct of judges. The Commission considers whether the conduct in question is inconsistent with the proper performance of judicial duties or whether it discredits the judiciary or the administration of justice.
The Commission may reprimand or publicly censure a judge, or recommend to a review tribunal that the judge be retired or removed from office. The review tribunal, in turn, has ninety days to accept or reject the Commission's recommendation. The Commission may also suspend judges who are indicted for felony offenses or charged with official misconduct. It may not review the legal results of a trial; such review is a responsibility of the appellate courts.
4.6 Impact of Judicial Selection in Texas
Selecting our judges through direct, partisan elections means that candidates for the bench must organize electoral campaigns and run for office just like any other individual running for elective office. They must raise campaign donations, hire staff, make speeches, advertise, organize events, and (more ominously for judicial neutrality) take policy positions.
Direct partisan elections impact the accountability, independence and professional ability of the state's judges, but in different ways and to differing degrees.
The system of judicial selection reflects the sentiment prevailing when the Texas Constitution was drafted. There was a strong reaction against the activism of the Radical Republican government established after the Civil War. The writers of the Constitution deliberately sought mechanisms to hold accountable public officials - including the members of the judiciary. Direct, partisan elections seemed a sure way to regularly review the performance of judges.
Critics of this system list numerous concerns. They argue that in the modern era citizens do not truly get to review the performance of judges because elections for offices so far down the ballot provide precious little useful information. This is especially true because judicial posts are quite different from legislative and executive positions for which candidates can legitimately promise to pursue policy changes.
One of the few credible campaign promises judges can make to is to be tough on crime. Crime seems easy to understand and resonates with voters - much more so than, say, corporate mergers and acquisitions, which also affect our day-to-day lives but evoke less visceral responses. Consequently, Texas judges may seem more committed to racking up convictions than to ensuring justice, especially during campaign season. The controversial Tulia drug busts might not have been prosecuted if they had not occurred just prior to a big election year. An electoral system that seems designed to serve the goal of accountability to the public sometimes has the unintended consequence of providing judges with incentives to pursue criminal convictions for political advantage at the expense of impartial adjudication.
The state's judicial selection process also compromises independence. In addition to concerns over judges' zealousness in criminal cases because of their dependence on voter support, there are concerns that judges may be overly protective of big-money campaign contributors. This has been alleged in the granting of appeals hearings by the Texas Supreme Court.
Under the principle of discretionary review, the Supreme Court and the Court of Criminal Appeals may choose the appeals cases they wish to hear. When either of our two top courts decides to hear an appeal, it is essentially indicating that it will consider reversing an outcome from a lower court that went against the appellant party.
Ideally, the choice is based on some combination of factors, including the urgency of providing a just remedy, the relevance of the case to issues of the day, or the effect of the case on the shape of the law in our precedent-based, common law system.
However, in its report "Billable Ours: Texas Endures Another Attorney-Financed Supreme Court," the public policy watchdog group Texans for Public Justice (TPJ) argues that the Supreme Court of Texas is more likely to hear appeals filed by large campaign contributors than non-contributors. 
The TPJ report found that $2.3 million was raised by the four Texas Supreme Court justices who ran for a seat on the Court in 2006. Of this total, 51 percent (or $1.2 million) came from lawyers, law firms and litigants who filed appeals with our highest court during this same period.
Because of the volume of requests, the Court accepted only 11 percent of the 3,942 petitions for appeal during this period. But they were seven and one-half times as likely to accept petitions filed by contributors of at least $100,000 than by non-contributors. Further, they were ten times as likely to accept petitions filed by contributors of $250,000 than by non-contributors.
The former law firm of then Chief Justice Tom Phillips - Baker Botts - was one of the two firms that contributed more than $250,000 to the justices' campaigns. This firm also had an impressive 74 percent of its petitions for appeal accepted during the period.
The Supreme Court of Texas may be particularly susceptible to improper influence by big-money interests because the Court does not reveal how the justices voted in each decision to accept or reject a petition for appeal.
In order for the Court to hear an appeal four of the nine justices must agree to support the litigant's "petition for review." The Court's policy - which it sets for itself under its constitutional authority - is to keep these voting records secret, too. Although individual justices may voluntarily reveal how they voted, they rarely do. Fourteen other states disclose such voting records to the public. Another section of Texas Politics discusses the difficulty of gauging the impact of money on politics.. Many of the same difficulties assessing the impact of campaign contributions on elected legislators and elected executive branch officers apply even more pointedly to the judicial selection process.
Choosing our judges through popular elections probably has a greater negative impact on the quality and professional ability of judges in the lower trial courts of limited jurisdiction than on judges in the higher trial and appellate courts.
The judicial profile data in the feature Profiling Judges indicates that judges on these higher courts have considerable experience in the practice of law.
Nevertheless, it is possible that Texas's partisan judicial elections produce a state bench with less experience overall than other states with non-partisan judicial elections, merit appointment systems or lifetime appointment systems. Judges in those states are likely to have longer judicial careers because they are less susceptible to being voted out of office.
4.7 The Future of Partisan Judicial Elections in Texas
Critics have made numerous calls in recent years for a new system for filling judicial posts. Allegations of wrong-doing and general concerns over perceived injustices in criminal cases have caused numerous professional and citizen groups to become disaffected with the present system.
The state Constitutional Convention of 1974 proposed a new constitution that would have made judicial elections non-partisan. However, voters did not ratify that proposed constitution.
Since then, the Legislature has debated numerous proposals for either an appointive system or non-partisan elections. All have been rejected.
Support exists for changing our system of judicial selection. As the feature How Should Judges Be Selected? illustrates, a poll of members of the Houston Bar Association conducted by the Houston Chronicle in 2001 showed that an overwhelming 81 percent believed that Texas should change its method of electing judges. Almost half (49 percent) believed that the state should adopt some sort of merit selection process. Another 39 percent said the state should adopt a non-partisan election process.
Others see it differently. Writing in Veritas, the journal of the nonprofit Texas Public Policy Foundation, Justice Tom James of the Fifth District Texas Court of Appeals argued for fixing the existing system of partisan judicial elections as opposed to fundamentally changing it.
Rather than serving the goal of independence, James argues, the army of critics of partisan judicial elections include numerous well funded lobbyists and special interests that see an opportunity for control of the appointment process. From this perspective, many of the critics of the current system represent powerful competing interests seeking other avenues for influencing judicial selection and judicial behavior, presumably because their particular interests do not fare very well under the current system.
An additional dynamic in debates over judicial selection is the changing nature of party competition in the state. The recent electoral success of the Republican Party in the state may reinforce those wishing to keep the current system of judicial selection. Republicans have swept all eighteen of the seats on the Texas Supreme Court and the Texas Court of Criminal Appeals. These are statewide offices, for which all Texas voters may cast a ballot. So the shift in the state over the past decade to majority support for Republicans has given the party monopoly control over the two highest courts in the state. Republicans also have made significant inroads at all other levels of the state court structure. Preserving the current system thus means protecting many incumbent Republicans. This chapter's feature Judging Texas Justice in the Court of Opinion discusses public opinions about various aspects of the justice system.
5. The Criminal Justice System
There are many different philosophical approaches to how society should treat convicted criminals. Some say that society should punish crime harshly in order to deter to potential future crimes. Others argue that this runs the risk of creating lifetime criminals with high rates of recidivism - the tendency to return to criminal habits. Overshadowing debates on the most effective way to reduce crime is a moral trade-off between ensuring the public safety on the one hand, and protecting the rights of the accused and providing humane punishments for the convicted.
Texas political culture strongly favors swift and stern punishment for offenses against the law, especially in the areas of violent and so-called blue-collar crimes. But, the cultural current that favors stern punishment for criminal offenses also carries with it a concern with justice. How well the Texas criminal justice and criminal corrections systems deliver on that obligation to ensure justice is examined here. Before we get there, a quick review of the structure and process of the criminal justice system is required.
As in most such systems, the structure of the criminal justice system in Texas has three distinct components:
Law enforcement and criminal prosecution - primarily the municipal police, county sheriffs and the Texas Department of Public Safety (including the Texas Rangers), but also district attorneys offices and technical investigative organizations like crime labs
Criminal trial and appeals - the criminal trial and appeals court system, including public defenders, the jury system and other court procedures
Corrections - the system of incarceration and parole, including prisons, parole boards, and the capital punishment apparatus
Each of these three components of the criminal justice system is a sprawling system comprising numerous levels, units, and thousands of personnel. The law enforcement system is perhaps the most decentralized. As noted above, it includes sheriffs departments for the state's 254 counties and police departments for its 1,202 incorporated municipalities. In addition, the state operates the Department of Public Safety, which is dedicated primarily for patrolling state roadways and other state facilities.
The court system, as we have already seen, is quite complex and decentralized at the lower levels. Yet these lower courts remain regulated by the Supreme Court of Texas. So, although county and municipal courts can vary considerably in their approaches to criminal justice, they function within a clearly identifiable court hierarchy.
The corrections system is perhaps the most tightly organized component of the state's criminal justice system. Although there are numerous municipal and county jail systems, most criminal offenses involving substantial incarceration are classified as state crimes that are punishable by serving time in state jails and prisons.
Each of these three components of the criminal justice system in Texas operates under its own authority and obligations, and within its own structure of incentives. There can be significant variation from locality to locality, and from county to county, in the way crimes are investigated, prosecuted and ultimately tried. Large differences in police resources and investigative standards across the state - as well as variations in prevailing local attitudes - means that law enforcement and justice itself may depend on where you are. The Tulia drug arrests mentioned at the beginning of this chapter hint at some of this variability. Overall, as the Texas Politics feature examining some public opinion research on attitudes toward police illustrates, Texans register less confidence in the police than the national average.
Despite the formal independence and decentralized structure of the criminal justice system (and the decentralized nature of each of the three components) their collective behavior has made Texas tougher than most states in the prosecution and conviction of criminal offenses.
5.1 Criminal Trial Procedure
The rules of criminal procedure and the penal code in Texas are established by the Legislature, and are rarely revised or updated. The last time the Legislature engaged in a substantial revision of the [link]289|Texas Code of Criminal Procedure[/link] was in 1965, largely in response to the need to make state procedures for prosecuting violations of Texas law conform to a series of U.S. Supreme Court rulings related to searches and seizures, arrests, and confessions.
The 1965 code - with its sixty-eight sections and hundreds of individual articles - still contains today the basis for the system of criminal prosecution in Texas. Despite this continuity in criminal procedure, some important updates have been made, such as the prohibition on racial profiling (Article 2.131).
The cornerstone of the Texas Code of Criminal Procedure can be found in Article 1.05 of the Code which affirms the basic rights of the accused, including the right to a speedy public trial by an impartial jury, and the right not to be compelled to give evidence against oneself.
These rights, in turn, rest on the principle in American jurisprudence of the presumption of innocence. This presumption has been incorporated in the Texas Penal Code, which defines crimes and appropriate punishments in the state. Section 2.01 of the Penal Code states that:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
We tend to focus on criminal trials when we think of criminal prosecution - a judge, jury, prosecutor, defense lawyer, witnesses, evidence and the accused. But these elements form only part of the larger process. Before a serious criminal case (one that involves a felony) goes to trial, the accused must be indicted for the crime. In this phase of the prosecution the original accusation must be found to have merit worthy of the time, expense and impact on the accused of going forward with a trial. So, the prosecuting attorney - either the district attorney or an assistant district attorney - prepares a formal written accusation charging a person or persons with a specific crime and presents it to a grand jury which decides if enough evidence exists to merit a trial.
If the grand jury agrees that the accusation merits a trial, then it issues an indictment . If not, the accused goes free. In the case of misdemeanors, a grand jury indictment is not necessary. Law enforcement officials or other persons may issue a complaint accusing an individual of a specific crime.
If indicted, the accused can request release from custody for the duration of the trial. Sometimes, the accused may be released on his or her own personal recognizance , a promise to appear as ordered for trial. This is granted only if the crime was not of an aggravated or violent nature, and if the accused has a good reputation as a responsible citizen and is not considered either a threat to the community or a flight risk.
In cases where the defendant is considered a flight risk, but otherwise not a threat to the community, the court may grant release on bail, requiring the accused to surrender a specified sum of cash that would be seized by the court should the defendant flee.
Before a case goes to trial the accused is asked to enter a plea, either guilty, not guilty or nolo contendere (no contest). This last, like a guilty plea, avoids a trial and the case proceeds to the penalty phase. But unlike a guilty plea, it avoids admission of guilt, recognizing that the costs and difficulty of successfully defending oneself are too high to make it worthwhile.
Texas law guarantees a trial by jury in all criminal cases, even those involving minor misdemeanors. However, with the agreement of the prosecuting attorney, defendants may waive this right in all cases except those in which the district attorney is seeking the death penalty. When trial by jury is waived and the judge finds the accused guilty, the judge determines the sentence.
Jury trials often touch the lives of average citizens, who may be called for jury duty . But many criminal cases never go to trial. Instead, prosecutors and defense attorneys frequently engage in a process of plea bargaining, in which the accused agrees to plead guilty to a lesser charge or to the same charge, but with a promise that the prosecutor will seek a lighter sentence from the court. Judges usually accept such plea bargains.
Plea bargaining no doubt expedites what could be a long and expensive process of criminal prosecution. Such economies are even viewed as necessary if our criminal justice system is going to be able to handle its very large caseload. Nevertheless, some critics have raised concern that this process effectively denies a fair hearing of criminal cases, and emboldens prosecutors to pursue cases they would otherwise discard if they had to be brought to trial. In short, plea bargaining risks sending innocent people to jail.
5.2 Sentencing and Penalties
As indicated in this chapter's feature Crime and Punishment in Texas, criminal justice in Texas is based on a system of graded penalties that specifies different degrees of punishment depending on the severity of the alleged crime.
The primary distinction in crime severity, of course, is between misdemeanors and felonies. A misdemeanor is a relatively minor, non-violent crime that involves property of only limited value, minor drug possession, or other prohibited acts that do not involve bodily injury. These cases are generally heard by the local trial courts of limited jurisdiction (Justice of the Peace courts, the various county courts, and Municipal courts).
Felonies are crimes that are deemed to pose a much more serious threat to society. Theft or burglary involving property of substantial value, assault, and distribution of controlled substances are all felonies. The state District courts have exclusive original jurisdiction in these cases.
Both misdemeanors and felonies, in turn, are graded according to severity. Misdemeanors are graded in classes (class A, B, and C), while felonies are graded in degrees (first-degree through third-degree, with first being the worst).
Felony grades also include capital felony and state jail felony. Capital felonies are crimes involving murder punishable upon conviction by death. The creation of state jail felonies - so-called fourth-degree felonies that are serious, but less so than other felonies - reflects the continuing evolution of societal problems and changing social mores.
Repeat offenders may be punished more harshly than first-time offenders with enhanced punishment. These punishments involve assigning the penalty for the next higher degree of felony to a repeat offender. Enhancement may apply in the case of a second conviction for a second-degree or third-degree felony, or a third conviction for a state jail felony.
5.3 Decentralization and Criminal Prosecution
The decentralization of prosecution and trials in Texas has produced uneven justice across the state. Because prosecutions are carried out by local officials, the characteristics of criminal prosecutions across the state vary greatly.
Much depends on the charges that a district attorney brings against a particular defendant. District attorneys are politicians who often campaign on their success in fighting crime. As a result, they generally have an incentive to bring the strongest charges possible against any given defendant. But district attorneys must assess their investigative resources and the financial resources of their district when considering whether to bring a case to trial and under what classification of charges. Criminal court trials are expensive, and those involving more serious charges generally require greater resources and time, and consequently cost more.
The uneven distribution of capital murder cases across the state offers a compelling view of the variability of criminal prosecution in the Lone Star state. As Michael Hall describes it in his Texas Monthly article "Death Isn't Fair":
Only about one in a hundred killings ends up as a death penalty case. Who decides? The local district attorney. What does he base his decision on? There's no simple answer. Prosecutors have enormous discretion and are accountable to no one, except to the voters who elect them. You might think that politics would cause all DAs to be death penalty advocates, but this is not borne out by the facts. 
As Hall notes, a big factor is money. Capital murder cases are enormously expensive for the jurisdiction bringing the charges. It costs between $50,000 and $100,000 to prosecute a capital murder case. Most small municipalities and counties cannot afford the costs of long jury trials, laboratory testing, and the cost of expert witnesses.
Consequently, capital murder charges are likely to be brought in communities with relatively large criminal trial budgets and existing investigative infrastructure. Indeed, according to data provided by the Texas Department of Criminal Justice, fewer than half (46 percent) of the state's 254 counties have brought capital murder charges against a defendant.
Since 1976, slightly more than one in four counties (26 percent) have brought such charges more than once. And, 763 of the 937 individuals sentenced to death from 1976 to early 2003, received their death sentences from one of only twenty-seven counties, or just more than 10 percent of Texas counties. Michael Hall observes that: "Since 1976, only 116 of Texas's 254 counties (fewer than half) have sentenced a person to death; more than half the counties (138) have never sent anyone to death row." These figures differ only slightly from updated figures provided by the Texas Department of Criminal Justice, which in March 2008 reported that 119 counties had sentenced at least one person to death. Hall's overall point - that only a minority of the state's countries account for all the death row convictions - remains correct.
One can also consider Texas's place in carrying out the death penalty in a national context. The Texas Politics feature Executing Justice compares Texas willingness to carry out the death penalty in comparison to the rest of the United States. As the feature illustrates, since 1984 Texas, along with other southern states, has led an increase in executions. Texas and the other southern states have carried out more than 72 percent of all executions. Despite variability in the process inside the state, on a state-by-state basis, Texas has demonstrated a real willingness to issue and carry out the death penalty.
5.4 Law Enforcement, Race, and Ethnicity
The variability of law enforcement and prosecution in Texas can also be seen in the race and ethnicity of those incarcerated in state facilities. In general, minorities represent disproportionately high numbers of those incarcerated. A survey done by the Texas Department of Criminal Justice in August 2002, showed that African Americans constituted 41 percent of detainees - far above their portion of the population. This chapter's interactive feature Profiling Texas Prison Inmates allows you to compare the ethnic and racial characteristics of the state's inmate population in 1975 and 2002, and to explore the overall demographics of the prison population in those years.
Latinos constituted 28 percent of the inmate population, again higher than their numbers in the general population, but not as disproportionate as for African Americans. Whites constituted only 30 percent of the inmate population, even though they represent the largest single ethnic category in the general population.
These patterns are also reflected in the proportions of various minorities on death row. Of the inmates on death row as of March 18, 2008, 40.9 percent were African American and 27.9 percent were Latino.
As with any complex social problem, especially one involving race and ethnicity, the demographic over-representation of African Americans and Latinos, and under-representation of Anglos in the prison system has multiple causes. Statistically, for example, minorities tend to be poorer, and criminal activities tend to be inversely related to income and wealth. Critics of the criminal justice system argue that beneath such statistical descriptions are historical patterns that bear close examination. Despite legal progress in guaranteeing civil rights, African Americans and Latinos continue to bear the brunt of the punitive end of the criminal system, as the feature on this page illustrates. Debates continue over the relative importance of different factors such as poverty, the practices of law enforcement agencies and the criminal justice system, and other social factors.
5.5 Criminal Corrections
The corrections system in Texas has long had an outsized reputation for being especially tough on inmates. The stories below the headlines tell of major problems in the infrastructure and management of the corrections system, including prison overcrowding, inhumane treatment and conditions, and the great size of its incarcerated population. All of these problems fueled lawsuits that resulted in a long period of judicial supervision of the Texas prison system, as this chapter's feature on Ruiz v. Estelle describes.
Like most criminal justice systems in the United States, Texas's approach to punishment and rehabilitation combines conflicting impulses. On the one hand, Texas tends to punish criminals harshly. The state has one of the highest rates of imprisonment in the country (and the U.S. has one of the highest rates of imprisonment in the developed world). Only Louisiana has experienced higher rates of incarceration than Texas over the course of the 1990s. And, Texas is the undisputed execution champion among the fifty states.
On the other hand, the state maintains an extensive system of specialized facilities for criminal offenders with specific needs - from psychiatric and mentally retarded offenders to drug abuse offenders.
The Substance Abuse Felony Punishment program (SAFP) provides a state-operated alternative to incarceration where offenders are sentenced to nine months confinement and intensive treatment in a substance abuse treatment facility. Boot Camps are community-based, highly structured residential punishment programs modeled after military basic training. These programs emphasize physical exercise, strict supervision and discipline, and are typically designed for young, first-time offenders.
Over the course of the 1990s, the prison population both nationally and in Texas began to grow at notable rates. Even though crime rates peaked in 1990-1991, prison populations and incarceration rates continued to grow for most of the rest of the decade. (This chapter's feature Rating Crime in the U.S., Texas, and the South summarizes trends in crime rates beginning in 1960.)
In part, prison population growth reflected new trends in law enforcement and sentencing. These included new guidelines on minimum sentencing and mandatory time served, in addition to numerous state-level "three strikes" laws (requiring enhanced sentencing) and zero-tolerance for drug related crimes.
Taken together, the proliferation of tougher law enforcement and stiffer sentencing caused an unprecedented increase in incarceration rates across the nation. Yet, in Texas this rate of incarceration accelerated at a breathtaking pace. By 1995, the state's incarceration rate was almost two-thirds higher than for the nation as a whole.
This trend has moderated somewhat, but the state's incarceration rate still remained more than 50 percent above the national rate in 2001. By the end of the 1990s approximately one Texan in one hundred (or over one hundred and fifty thousand people) was behind bars.
To accommodate this surge in the inmate population, the state corrections system has expanded dramatically. The operating budget (excluding construction) has grown by $1.6 billion since the 1990 fiscal year, a 205 percent increase.
Over the same period the number of new corrections facilities (either stand-alone units or expansions of existing units) increased by almost 190 percent, or at almost the same rate as the corrections budgets. The number of state corrections facilities grew from 39 to 112 in 2005 (including privately run facilities).
The explosive growth in Texas of what some have called the "prison-industrial" complex (a variation of the "military-industrial complex" famously coined by outgoing President Dwight D. Eisenhower) is the result of a confluence of factors.
The incentives of a variety of actors throughout the justice system - individual police officers, their police departments, district attorneys, judges, legislators, the governor, corrections officials, construction companies, and companies that sell to or operate prisons for the state of Texas - dovetail to create powerful momentum behind vigorous law enforcement and prosecution and harsh sentencing, all contributing to high incarceration rates.
Other forces have been at work as well. At least in the late 1980s and early 1990s crime across the nation had surged, particularly the more serious violent and drug-related crime. So, states and localities responded accordingly.
Additionally, crime and its opposite - security - came to preoccupy many middle-class voters. The growth of the suburbs around Texas cities was both a cause and an expression of a general cultural shift oriented toward the pursuit of social and geographical boundaries thought to protect our families and ourselves.
In short, the confluence of motivations driving the creation of the massive incarceration complex in the state occurred against the backdrop of key social and cultural trends.
6. Voters and Crime
The criminal justice system in Texas could not have grown at such a tremendous rate in the 1990s without significant public support. Voters represent a powerful force that shapes the criminal justice system. Many Texans celebrate the state's reputation for being tough on criminals. This cultural trait combined with increasing popular concern with crime during the 1990s to create powerful political momentum. Candidates for public office - especially sheriffs, district attorneys and judges - ignored "law and order" at their own political peril in the face of public concerns with crime and punishment.
The 2000 Texas Crime Poll, an annual public opinion poll of Texans' attitudes toward crime and the state justice system, showed that by 1994, crime was identified by a significant plurality of respondents (35 percent) as the single, most important problem in the state. Drugs - the illegal use of controlled substances - placed second on the list (cited by 17 percent of those polled). Taken together, these two issues, both crime related, were identified by a majority of respondents as the most important issues in the state.
This was also the period of fastest growth of the Texas prison system. By 2000, education had become the most important issue for the most people. Meanwhile, the number of people most concerned with crime and drugs dropped considerably.
The billions of dollars that Texas has devoted to its prison system during the 1990s (over $2.3 billion alone for prison construction between 1988 and 1997, according to the Texas Department of Criminal Justice) represent a huge expenditure. These are funds that elected representatives in the Legislature in Austin and in city halls and on county commissions throughout the state have chosen not to spend on other programs.
7. Conclusion: Justice and Democracy
Fulfilling the lofty ideals of a just law enforcement and judicial system that treats people fairly and equally, that is firm but not overly harsh, efficient but adequately resourced, and independent yet accountable, is a daunting challenge. Meeting these challenges is especially difficult in Texas because of the state's unique constellation of institutions and political culture and their interaction with broader social transformations in the state.
Perhaps the most critical challenges to achieving both a secure and just society in Texas are the contradictions created between the broad reliance on democratic elections to fill positions in judicial and law enforcement institutions and the generally weak and improvisational nature of these institutions.
Texans are asked to select officials for every office from county Sheriff all the way up to the state Attorney General and the Texas Supreme Court. The system fundamentally requires an active and informed citizenry. Yet, the sprawling growth of the system of justice over the decades has made this requirement increasingly difficult to meet. Worse, the patchwork nature of this institutional growth, particularly in the judiciary, compounds the difficulties citizens face in fulfilling their critical role. The result is that we rely on a method for selecting justice system officials that is democratic in spirit but often less inclusive in practice.
The reliance on popular elections to fill most of the senior law enforcement ranks on the local and state levels and virtually all of the judicial positions in the court system creates considerable potential for miscarriages of justice, inefficient use of public resources and inappropriate influence of powerful economic interests. Running for elected office in law enforcement and the judiciary often involves appealing to - and exacerbating - public fears related to crime and security. No candidate for public office in law enforcement or the judiciary, particularly in Texas, wants to go on the record as saying we need to be less tough on crime, or that crime isn't such a big problem, even if crime rates are declining.
Running for elected office also requires raising campaign funds through political contributions. In general, the higher the office, the more money is needed to run a successful campaign. So candidates for Texas District courts and Courts of Appeals, and the statewide offices of the Texas Supreme Court, Texas Court of Criminal Appeals, and Texas Attorney General, are especially dependent on big-money contributors. In most cases, such contributions play no role in the actions and decision-making of elected officials. However, there is some evidence that private campaign finance in judicial elections has influenced judicial decisions and outcomes.
The state has begun to see some moderation of the trends that encouraged many of the excesses of the 1980s and 1990s. Overall, crime rates are falling in Texas and across the country. In the area of law enforcement and criminal corrections, the public has become less concerned with crime, partly as a result of falling crime rates and partly because other issues like education have surged in importance. Increasing numbers of voters, elected officials and policy experts have come to recognize that long sentences in high security prisons are extremely expensive. Meanwhile, the fallout from high profile cases of injustice like the drug arrests in Tulia have eased some of the aggressiveness of local law enforcement.
In the area of campaign finance in judicial elections two trends may have an impact. First, the dominance over all the statewide and many local judicial posts achieved by Republicans in the past decade may have the effect of reducing the intensity of partisan competition for these posts. As a result, officeholders may feel somewhat greater independence from their campaign contributors.
More broadly, we have witnessed a much more vigorous and public debate in Texas over the best method for selecting our judges. This debate may not lead to substantial change in judicial selection procedures, but at least it calls attention to judicial institutions and behavior. In turn, these debates invite citizens to be more engaged in the dynamics and challenges confronted by the state's justice system.
Together, these trends provide new opportunities for rebalancing our justice system. Our institutions do indeed respond to public opinion and citizen action, but only imperfectly. The design of judicial institutions places a continuing and substantial burden on Texans to know the law, understand the organization and procedures of the justice system, and exercise their right to hold elected officials accountable through elections.