Trying to eliminate the Texas Court of Criminal Appeals: will fourth attempt in 20 years succeed?

Only two states, Texas and Oklahoma, bifurcate their courts of last resort into civil (Supreme Court) and criminal (Court of Criminal Appeals). The history of why Texas wound its way into this situation is complex (the Texas State Historical Association has an overview) and has prompted one justice of the state’s Supreme Court to declare in a recent dissenting opinion “We Have Arrived Here through Historical Happenstance”. The introduction last month of HJR 36 of 2013 to eliminate the Court of Criminal Appeals represents the fourth such legislative effort to merge the courts, or eliminate the Court of Criminal Appeals, in the last 20 years.

1993: Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

The 1993 effort (HJR 97 / SJR 39) went nowhere in House, but was at least the subject of a hearing before the Senate Jurisprudence Committee 4/6/1993.

1999: Merge the Court of Criminal Appeals into Supreme Court; change judicial selection; create judicial term limits

A 1999 proposal (HJR 96) would have effectively merged the two courts, creating a mega-court consisting of 15 justices (Chief Justice + 14), 8 of whom would form a quorum generally. The proposal would have required the concurrence of eight justices to decide a case, authorized the court to sit in panels of at least five justices, and required the court to sit en banc during proceedings involving capital punishment, rehearings of cases on granted motions, and other cases as required by law.

Perhaps even more intriguing about the 1999 proposal was the method of selection for the 15 member court.

  • 7 would be elected by district in partisan elections for their initial terms and yes/no retention elections thereafter
  • 7 would be appointed by district by the governor
  • The chief justice would be appointed by the governor but could not be from the same district has the immediate past chief justice

Finally, HJR 96 would have imposed judicial term limits of 20 years (terms would remain at 6 years).

HJR 96 got a hearing before the House Judicial Affairs Committee on April 26, 1999 and proceeded no further.

2003: Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

HJR 67 and SJR 40 of 2003, as well as HJR 5A of the First 2003 Special Session, picked up where their 1993 counterparts left off and met substantively the same fate: none received a committee hearing.

2011/2013:  Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

HJR 35 of 2011 and HJR 36 of 2013, both introduced by the same House member, repeat almost verbatim the original 1993 proposal(s). The 2011 version failed to have so much as a committee hearing. The 2013 version was prefiled in mid-November.