Texas: judicial salary plan calls for 3-part formula; computation includes other states, US Court of Appeals, in-state first year attorneys

A unique plan to change the way Texas sets judicial salaries has been introduced in the House and Senate.

HB 3971 / SB 1938 provide two major changes:

1) Most state judicial salaries would be set as a percentage of the salary of a justice of the Texas Supreme Court (other than chief justice). Presently District Courts receive a salary equal “of at least $125,000” made up of state and county funds. Judges of the Court of Appeals would receive a salary equal to 91% of a Supreme Court justice; they currently make 110% of a District Court justice.

2) The salary of a Texas Supreme Court justice (other than Chief Justice) would be set annually using a three-part formula

1/3 of the average salary of the justices (other than chief justices) of the highest appellate courts of the 9 most populous states

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1/3 of the salary of a judge of the US Court of Appeals

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1/3 average starting base salary of first-year associate attorneys employed with the five private law firms with the largest number of attorneys licensed in Texas

Data for these computations would come from the Office of Court Administration and the state bar.

The formula would have a limit, however. Under no circumstances could an adjustment in salary be greater than 4% or the % increase in CPI for the last year.

Texas: bill to end straight-ticket voting, including for judicial races, clears first committee; former judge noted impact of STV on judiciary

A Texas bill that would end straight-ticket voting (STV) for all  races, including judicial ones, cleared the House Elections Committee earlier this week.

The move to end straight-ticket voting comes after the state’s chief justice call to end the practice for judicial races in his state of the judiciary address and backing by the Speaker of the House.

During testimony at least one judge noted the impact straight-ticket voting has on the judiciary.

Another notable witness was Erin Lunceford, a Harris County judge, appointed by Gov. Greg Abbott in 2015, who said she was swept out of office with partisan tides in the 2016 general election.

Lunceford, who ran as a Republican, in a county that voted majority Democrat, said she lost to her Democrat opponent, who has never even tried a case before.

She said without taking into account those who voted straight-ticket, she would have won the election by a 10-point margin.

HB 25 cleared the Elections Committee on a 5-2 party-line vote. The bill’s Senate counterpart SB 2175 has yet to be taken up. A bill to end straight-ticket voting for judicial races only (SB 1989) also has not been taken up.

Texas becomes 4th state to consider bill to permit/require judges give jury nullification instructions; Utah House rejected plan 29-45

Texas this week becomes the 4th state this legislative session to consider a bill to permit or require judges give a jury nullification instruction.

HB 3911 as filed would amend Government Code 23 (General Provisions for Trial Courts). The new subchapter would require a judge’s charge to a jury instruct the members of the jury of their duty to:

  1. judge the law to determine whether the law is unjust or unjustly applied to a party in a case
  2. determine the validity of the evidence and
  3. vote on the jury verdict according to the members’ consciences.

The Texas bill is similar to one filed in Utah (HB 332). That bill would have required judges inform jurors of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

The bill was rejected by the full Utah House on a 29-45-1 vote earlier this month.

The other two bills (Oregon 924 discussed here and New Hampshire HB 133 discussed here) have not advanced in the last several weeks.

 

Texas: bills to end straight-ticket voting for judicial races filed; hearing on bill today to eliminate straight-ticket voting for all races

Several bills that would end straight-ticket voting for judicial races, called for by the state’s chief justice in his state of the judiciary address and backed by the Speaker of the House, have now been filed. One in particular filed late last week would focus exclusively on judicial races.

SB 1989 would impact only races for courts with elected judges (i.e. all courts but Municipal Courts). Some prior bills past only affected some courts.

Other bills (HB 25 / SB 2175 and the duplicate HB 433) appear to eliminate straight-ticket voting for all races, judicial included. HB 25 is set for a hearing today in the House Elections Committee.

 

Adding to Texas’ unique court structure and organization: brand new Chancery trial and appellate court system re-introduced; Governor would select judges

A plan first introduced in 2015 and discussed here to create a Chancery Court system in Texas has been reintroduced to hear business cases. As I noted at the time, Texas already has one of the largest number of court types in the United States with 6 trial court types (Constitutional County, Statutory County, Statutory Probate, District, Justice of the Peace, and Municipal), 14 separate Courts of Appeal, including a unique two-courts-in-one-county (the 1st and 14th Court of Appeals both serve Houston) and two courts of last resort (civil: Supreme; criminal: Court of Criminal Appeals).

The latest iteration of the plan, introduced this year as HB 2594 would add not only a new trial court (Chancery made up of 7 judges) but a new intermediate appellate court (Court of Chancery Appeals made up of 7 judges). The Chancery Court would have concurrent jurisdiction with the state’s District Courts over 10 specified complex civil litigation actions or proceedings. The Court of Chancery Appeals would operate as effectively a specialized 15th intermediate appellate court for business cases only, something no other state has.

No state has a trial court whose sole purpose is to hear business or complex litigation cases. Even Delaware’s Chancery Court hears cases other the business ones such as disputes involving the purchase and sale of land and questions of title to real estate. Much more common is for the creation of special divisions of existing courts. For example, Delaware’s Superior Court makes use of a Complex Commercial Litigation Division.

Making things more unique is the method of judicial selection. Judges of both courts would not be subject to elections but instead chosen solely by the Governor from a list provided by a Chancery Court Nominations Advisory Council to which the Governor would name all the members. The Governor’s hand-picked Commission would have to provide 5 names for each court vacancy, however the Governor could ask for another 5 for a total of 10 names. Judges of the Court of Chancery Appeals would have to be existing Justices of a Court of Appeals. Judges so chosen would be subject to Senate confirmation.

There is also a fail-safe: in case this particular manner of judicial selection is found unconstitutional the court(s) would be staffed by sitting or retired justices who are appointed by the Supreme Court.

HB 2594 has been filed in the House but not yet assigned to a committee.

Texas: bill removes power of State Commission on Judicial Conduct to discipline judges who refuse to follow federal court rulings; claims state judges have free speech right to refuse to obey federal court rulings

A bill introduced into the Texas Senate late last week would prohibit the State Commission on Judicial Conduct from pursing disciplinary action against a state judge who refused to obey federal court rulings.

SB 1307 as filed specifically provides

a judge is not subject to any disciplinary action, investigation, censure, or sanction for criticizing or refusing to follow an action or ruling of a federal court. A judge’s criticism of or refusal to follow an action or ruling of a federal court is considered the judge’s right to freedom of speech, protected under Section 8, Article I, Texas Constitution.

SB 1307 has been filed in the Senate but not yet assigned to a committee.

Texas: bill similar to Arizona “anti-commandeering” legislation would ban state appellate courts from enforcing federal court orders

A version of the Arizona bill that would ban state courts from enforcing federal court decisions has now been filed in the Texas House.

HB 2808 as filed amends Government Code Chapter 2113 by creating a new Subchapter F to prohibit a “state agency” from using any money in enforcing any “federal action.”

Under Gov. Code Ch. 2113 “state agency” includes “the supreme court, the court of criminal appeals, another entity in the judicial branch of state government with statewide authority, or a court of appeals.”

Moreover, HB 2808 specifically defines “federal action” to include “order of a federal court.”

Enforcement of the federal court order could only occur if permitted by the Texas legislature via the General Appropriations Act or some other state law.

HB 2808 has been filed but not yet assigned to a committee.