Texas Judicial Council

1999-2000 REPORT OF ACTIVITIES AND RECOMMENDATIONS

I. INTRODUCTION

In 1997, the 75^th Legislature passed House Bill 2297 which restructured the membership of the Council and placed it under the direct supervision of the Chief Justice. These changes, along with legislative appropriations for the hiring of two full-time staff persons, have substantially improved the Council's ability to address the most pressing issues facing Texas' judicial system.

This report discusses the activities, findings, and recommendations of the Texas Judicial Council since December 1, 1999. The following supplemental reports and recommendations are pending final approval by the Texas Judicial Council at its December 2000 meeting:

• Texas District Court Performance Measures;
• Texas Courts of Appeals Performance Measures;
• Examining Juror Pays and Other Ways to Encourage Jury Service in Texas; and
• Guidelines for Coverage of Judicial Proceedings in Texas Trial and Appellate Courts.

In addition the Texas Judicial Council's 72^nd Annual Report on the Texas Judicial System, which is published by the Office of Court Administration, will be available in January 2001.

II. DUTIES, MEMBERSHIP, MEETINGS, AND COMMITTEES

• Duties. Chapter 71, Government Code, charges the Council with the following duties ⁽¹⁾:

(1) continuously study the organization, rules, procedures and practice, work accomplished, results, and uniformity of the discretionary powers of the state courts and methods for their improvement;

(2) receive and consider advice from judges, public officials, members of the Bar, and citizens concerning remedies for faults in the administration of justice;

(3) design methods for simplifying judicial procedure, expediting the transaction of judicial business, and correcting faults in the administration of justice;

(4) file a complete detailed report with the Governor and the Supreme Court before December 2 of each year on Council activities, information from the Council's study, and Council recommendations;

(5) investigate and report on matters concerning the administration of justice that the Supreme court or the Legislature refers to the Council; and

(6) gather judicial statistics and other pertinent information from the several state judges and other court officials of the state.

• Membership. The Council consists of 22 members. Chief Justice Thomas R. Phillips serve ex officio as chair, and Presiding Judge Michael J. McCormick of the Court of Criminal Appeals serves ex officio as vice-chair. Chief Justice Phillips has appointed the following judges to serve on the Council:

Chief Justice Marilyn Aboussie (3^rd Court of Appeals);

Chief Justice John H. Cayce (2^nd Court of Appeals);

Judge Jim Parsons (3^rd Judicial District);

Judge David Peeples (224^th District Court);

Judge Martin Chiuminatto, Jr. (Kleberg County Court-at-Law);

Judge Mike Wood (Harris County Probate Court No. 2);

Judge David Patronella (Justice of the Peace Precinct 1, Harris County);

Judge Rodolfo Tamez (Presiding Judge, Corpus Christi, Municipal Court); and

Judge Robin Smith (Presiding Judge, City of Midland, Municipal Court).

Lieutenant Governor Rick Perry appointed Senator Rodney Ellis of Houston (serving in his capacity as chair of the Senate Jurisprudence Committee) and Senator Robert Duncan of Lubbock to the Council. Speaker Pete Laney appointed Representative Senfronia Thompson of Houston (serving in her capacity as chair of the House Committee on Judicial Affairs) and Representative Pete Gallego of Alpine to represent the Texas House of Representatives on the Council.

Ms. Willie Jean Birmingham (Marshall)

Mr. James R. Brickman (Dallas);

Mr. Joseph A. Callier, Esq. (Houston);

Ms. Delia Martinez-Carian, Esq. (San Antonio);

Deacon Jose Luis Lopez (Uvalde); and

Ms. Ann Manning, Esq. (Lubbock).

• Meetings. The Council has met two times since December 1, 1999 ⁽²⁾:

February 29, 2000 (Austin)

September 14, 2000 (Austin)

• Appointment of Judicial Council Committees. The Council accomplishes much of its work through committees and subcommittees. Each committee and subcommittee is directed to obtain input from the public and all interested parties and submit its work and recommendations to the Council for consideration. The following committees and subcommittees were created by the Council during the 1999-2000 reporting period:

(1) Committee on Judicial Performance Measures

(a) Subcommittee on District Court Performance Measures

• Subcommittee on Appellate Court Performance Measures

• Committee on Law Clerk Recruitment

• Committee on Media and the Courts
• Committee on Judicial Campaign Finance
• Subcommittee on Juries

III. 1999-2000 COUNCIL ACTIVITIES AND RECOMMENDATIONS

A. Directives from the 76^th Legislature.

1. Judicial Performance Measures. In 1997, the Texas Commission on Judicial Efficiency (Commission) recommended that Texas courts "establish, adopt, and regularly report uniform measures and standards of performance." ⁽³⁾ As a result of that recommendation, the 75^th Legislature enacted several provisions to facilitate the collection of data relating to the performance of appellate and district courts. ⁽⁴⁾ In May 1999, the 76^th Legislature attached two riders to HB 1 (the Appropriations Act) . The first rider required the Office of Court Administration (OCA) and the Texas Judicial Council (Council) to "conduct a pilot project to develop and implement performance measures for the individual district courts of this state." ⁽⁵⁾ The second rider required the Texas Judicial Council to:

"...develop measures to evaluate the work of individual justices on the courts of appeals. The measures must be approved by the Legislative Budget Board and the Governor's Office. The data obtained for these measures will be reported in the Texas Judicial System Annual Report." ⁽⁶⁾

In August 1999, the Council formed the Committee on Judicial Performance Measures (Committee) and its attendant subcommittees, the Subcommittee on District Court Performance Measures, and the Subcommittee on Appellate Court Performance Measures. The Council appointed a district clerk, a county clerk, and members of the Judicial Section of the State Bar of Texas to serve as advisory members of the Committee. The Committee is chaired by Representative Pete Gallego (Alpine).

The Committee and its subcommittees held nine public hearings on the issue of judicial performance measures from the period of November 1999 to December 1, 2000. Below is a summary of the work of the subcommittees to date:

a. Subcommittee on District Court Performance Measures (District Court Subcommittee). The District Court Subcommittee's performance measures pilot project consisted of two components: (1) the analysis of self-reported statistical data related to case filings and dispositions for a stratified, random sample of 75 district courts from counties of various sizes and with varying subject-matter jurisdiction (e.g., civil, criminal, family law, and general jurisdiction); and (2) the analysis of responses received from a comprehensive survey of all district court judges whose courts were in operation during State Fiscal Year 1999. ⁽⁷⁾

This District Court Subcommittee's study provided meaningful input from judges regarding appropriate performance measures for district courts and the many factors that impact the rate at which cases are disposed in Texas courts. In addition, statistical data collected from district courts for State Fiscal Year 1999 illustrated that there was significant variation in case disposition activity among Texas district courts. The District Court Subcommittee, which is chaired by Mr. Jim Brickman (Dallas) submitted its recommendations to the Performance Measures Committee on November 3, 2000.

b. Subcommittee on Appellate Court Performance Measures (Appellate Court Subcommittee). Under current Texas law, the courts of appeals report performance measurement data to the Legislative Budget Board, the Governor's Office of Budget and Planning, and the Office of Court Administration. This data is used, inter alia, to set budgetary priorities for the courts of appeals. In addition, the Office of Court Administration publishes performance data relating to the workload of individual justices in its Annual Report of the Texas Judicial System and has done so since 1966.

As part of its work, the Appellate Court Subcommittee (which is chaired by Chief Justice Marilyn Aboussie): (1) analyzed the results of a survey of each of the justices of the intermediate appellate courts to obtain their input regarding the development and implementation of performance measures; (2) obtained comments from the chief justices of the 14 courts of appeals about how various court policies, resources and technological capabilities affect their courts' disposition of cases; (3) contacted the 49 other states to determine what, if any, performance measures are used to evaluate the work of individual justices who serve on intermediate appellate courts; and (4) studied whether there is other data that can be collected that would more fully reflect the work of the Texas courts of appeals (e.g., the number and disposition of motions). ⁽⁸⁾

A final draft of the Appellate Court Subcommittee's report is pending adoption at its December 1, 2000 meeting.

c. Additional Comments. The Committee on Judicial Performance Measures will meet on December 6, 2000 to discuss the subcommittee reports and its final recommendations to the Texas Judicial Council.

2. Student Loan Repayment Program. The 76^th Legislature appropriated funds by rider to the Texas Judicial Council to establish a student loan repayment program for those who accept clerkships or temporary attorney positions in the courts. ⁽⁹⁾ The rider, which follows the recommendations of the Texas Commission on Judicial Efficiency, ⁽¹⁰⁾ allocated $255,763 for each fiscal year of the biennium (for a total of $511,526) to the program. The Committee on Law Clerk Recruitment for the Courts, with assistance from each of the state's law schools, the staff of the Higher Education Coordinating Board, the Judiciary, and members of the Bar, developed administrative guidelines for the program which were approved by the Council on February 29, 2000. ⁽¹¹⁾

During the first fiscal year of the program, 63 appellate court law clerks participated in the student loan repayment program. On average, a law clerk received a loan repayment of $4215.87 for 12 months of service at an appellate court.

3. Judicial Internship Program. In addition to funding a student loan repayment program, a rider to HB 1 (The Appropriations Act) required the Council, the Judicial Branch, and the Texas law schools to develop a judicial internship program. ⁽¹²⁾ In June 2000, the Committee on Law Clerk Recruitment for the Courts (which is chaired by Ms. Delia Martinez Carian of San Antonio) approved the following recommendations for the creation of a Judicial Internship Program: ⁽¹³⁾

• The final decision as to which candidate should be selected for an internship should be made by the individual court in accordance with its current administrative policies.

• The Office of Court Administration (OCA) should develop a web page describing internship opportunities with the courts in detail. The web page should include instructions on how to apply, important dates (by court), comments from previous program participants, and a contact person. There should be links from the page to each of the appellate courts throughout the state.


• OCA should develop a short video presentation and brochure for use by OCA and the courts to describe internship opportunities in appellate courts.


• OCA and the Judicial Council should distribute information about internship opportunities to law school organizations, student bar associations, the Texas Young Lawyers Association, and the Judicial Section of the State Bar (and any other relevant sections of the State Bar or local bar associations). There should also be a short write-up in the Bar Journal.

• Each of the nine law schools should be asked to designate official contacts (preferably in the placement office) to receive information about judicial clerkships and briefing attorney positions in the appellate courts. These designees would communicate directly with OCA's "judicial liaison" (i.e., person who is designated by OCA to answer questions about internships and briefing attorney opportunities in the courts) about job fairs and other school-sponsored job search programs. ⁽¹⁴⁾

• OCA should post a blank application (preferably a state application) and instructions for completing the application on its web page. The application process should also be described in the recruitment video and brochure. The judicial liaison would have the primary duty to distribute the application materials to the appellate courts, law schools, job fair attendees, and law-related organizations. After a candidate completes an application and sends it to OCA, OCA's judicial liaison will promptly notify the appellate courts that there are completed applications on file in the office. The judicial liaison then forwards the applications to the appellate courts at their request. After receiving the applications from OCA, the courts schedule interviews with the candidates in accordance with their existing timelines and administrative procedures for selecting interns and briefing attorneys.

4. Media Pooling in Texas Courts. The 76^th Legislature also passed SCR 23 which requires the Office of Court Administration "to study and develop uniform guidelines for media pooling agreements for courtroom coverage" and to "solicit and consider the opinions and advice of the Judiciary in developing the uniform guidelines." ⁽¹⁵⁾ At the request of the Office of Court Administration, the Council has created the Committee on Media and the Courts which consists of judges from the trial and appellate courts, and an attorney who specializes in media law. The Committee has held three open meetings and is currently drafting uniform guidelines to assist trial and appellate court judges who, in their discretion, wish to allow audio and video coverage (as well as still photography) of court proceedings.

The Committee, which is chaired by Judge Robin Smith (Midland), plans to submit its recommendations to the Texas Judicial Council in December 2000.

5. Jury Service. The jury's role in protecting the rights of citizens is recognized in both state and federal law and is a vital component of the American judicial system. In spite of this, many individuals who are summoned for jury service do not appear because they are either disinterested or are simply unable to fit this important civic obligation into their busy lives. "The treatment of jurors is an issue that has a profound effect on the functioning of the jury system," ⁽¹⁶⁾ and numerous studies have shown that citizens are more likely to serve as jurors if the financial hardships and inconveniences that often accompany jury service are minimized.

In 1999, the 76^th Legislature passed Senate Concurrent Resolution 15, by Senator Rodney Ellis, which directed the Judicial Council "to examine the costs of increasing juror pay to $40 per day after the first day of trial and to examine the feasibility of allowing counties to offer other incentives to jurors for service." ⁽¹⁷⁾ On February 29, 2000, the Texas Judicial Council created the Subcommittee on Juries ("Subcommittee") and asked the Subcommittee to study SCR 15 and recent efforts to encourage jury service in El Paso County and in other states. The Subcommittee is chaired by Senator Robert Duncan (Lubbock).

The Subcommittee held a public hearing on May 31, 2000 in El Paso, Texas, where Judge William Moody (34^th District Court, El Paso) testified that juror participation increased significantly after El Paso County increased jury pay to $40 per day after the first day of service. Witnesses from throughout the legal community (i.e., the civil and criminal defense bars, prosecutors, and the local bar associations) testified in support of El Paso's increase in juror pay and generally commented that the increased compensation contributed to a diverse jury pool by encouraging individuals who could not serve due to financial hardships (e.g., lost wages) to answer jury summonses and serve on juries.

In addition to examining recent efforts in El Paso and other Texas counties, the Subcommittee studied efforts by other states (including Arizona, California, New Jersey, New York, and Minnesota) to encourage citizens to serve as jurors. As a general rule, states vary in their policies regarding the minimum daily amount of juror compensation, payment of incidental fees and out-of-pocket expenses (e.g., mileage, parking, and meals), employer compensation of jurors, and differential pay for unemployed jurors.

The Subcommittee is currently finalizing its report and recommendations for approval by the Council in December 2000.

B. Directives from the Supreme Court of Texas. In October 1999, the Supreme Court

of Texas created the Judicial Campaign Finance Study Committee and asked the Committee to "propose both rule and statutory changes to improve the way in which campaigns for the Texas judiciary are financed." ⁽¹⁸⁾ In February 1999, the Committee issued its final report and recommendations to the Supreme Court. The Court then held two public hearings with invited public testimony on the Committee's report. As part of its disposition of the Committee's recommendations, the Court directed the Texas Judicial Council to do the following:

(1) review the Judicial Campaign Finance Study Committee's recommendation that limits be placed on the amount of campaign funds that judges can retain between elections and determine whether legislative changes or amendments to the Code of Judicial Conduct are necessary to address this recommendation;

(2) review the Judicial Campaign Finance Study Committee's recommendation that limits be placed on judges' use of political contributions to make donations to political organizations and determine whether legislative changes or amendments to the Code of Judicial Conduct are needed to address this recommendation; and

(3) review the Judicial Campaign Finance Study Committee's recommendation that voter guides be developed to inform the public about judicial candidates. Also, study H.B. 59 as passed by the 76^th Legislature, the Governor's veto message to H.B. 59, and similar efforts in other states to inform voters about judicial candidates. Determine whether legislative changes or amendments to the Code of Judicial Conduct are needed to address this recommendation. ⁽¹⁹⁾

In August 1999, the Council created the Committee on Judicial Campaign Finance (which is chaired by Judge David Patronella) to study the issues outlined in the Court's directive and to develop recommendations for consideration by the full Council. In September 2000, the Committee recommended that the Council support legislation that would substantially limit the contributions that a candidate who is unopposed can accept from a person. The Council amended the recommendation to prohibit a candidate who is unopposed in the general election from accepting contributions and that recommendation has been filed as HB 167 by Representative Pete Gallego (Alpine). The following legislative recommendations are pending before the Committee as of December 1, 2000:

• A recommendation to create a voter information guide for judicial elections; and
• A recommendation to limit the use of judicial officeholder funds to subsidize other activities.

C. Other Council Activities

1. Strategic Planning. In 1996, the Texas Commission on Judicial Efficiency found that the "Judicial Branch currently lacks any permanent, coordinated process for long-range planning." ⁽²⁰⁾ As a result of this finding, the Commission recommended that a strategic planning function be established as an arm of the Office of Court Administration operated under the direction of the Texas Judicial Council. ⁽²¹⁾ To support that process, the Council in September 1998 established the Committee on Strategic Planning and asked the Committee to examine the strategic planning efforts of other states and to develop recommendations for a strategic plan for the Texas Judicial Branch. ⁽²²⁾ A draft of the Committee's plan is pending before the Council.

2. 72^nd Annual Report of the Texas Judicial Council. As previously noted in this report, the Texas Judicial Council's 72^nd Annual Report on the Texas Judicial System, which is published by the Office of Court Administration, will be available in January 2001. The Annual Report, which contains detailed statistical data about the Judiciary , has historically been a valuable source of judicial information for courts, government agencies, legislators, and the public.

1. See §§ 71.031-71.035, Government Code.

2. See Appendix A for a complete list of meetings held by the Council and its committees.

3.

³ Governance of the Texas Judiciary: Independence and Accountability, Texas Commission on Judicial Efficiency, V.2, p.33 ( January 1997).

4.

⁴ See Chapter 72, Subchapter E, Government Code.

5.

6. See Appendix D, Article IV of HB 1, the General Appropriations Act, 76 R.S. (1999).

7. See Appendix B to view the district court surveys.

8. See Appendix B to view the appellate surveys.

9. See Appendix D, Article IV of HB 1, the General Appropriations Act, 76 R.S. (1999).

10. Governance of the Texas Judiciary: Independence and Accountability, Texas Commission on Judicial Efficiency, V.1, p.19 (November 1996).

11. See Appendix C.

12. See Appendix C. The rider follows the recommendations of the Texas Commission on Judicial Efficiency. Also see Governance of the Texas Judiciary: Independence and Accountability, Texas Commission on Judicial Efficiency, V.1, p.19 (November 1996).

13. See Appendix C for more discussion of the Law Clerk Recruitment Committee's recommendations.

14. The Committee also recommended that the Council work with the courts of appeals to develop "for credit" externships in the appellate courts.

15. See Appendix D, Senate Concurrent Resolution 23, 76^th R.S. (1999).

16. Judicial Attitudes Towards Jury Reform, Judicature, Vol. 83, Number 6, pg 299 (May-June 2000).

17. See Appendix D, Senate Concurrent Resolution 15, 76^th R.S. (1999). SCR 15 was developed from recommendations by the Supreme Court Jury Task Force and the Senate Jurisprudence Committee.

18. See Appendix E (Misc. Docket No. 99-9112, Page 1, citing Order in Misc. Docket No. 98-9179, Par.1).

19. See Appendix E.

20. Governance of the Texas Judiciary: Independence and Accountability, Texas Commission on Judicial Efficiency, V.1, p. 25 (November 1996).

21. Id.

22. See generally, The Texas Judicial Council: 1997-1998 Report of Activities and Recommendations, p. 9.