1997-1998 REPORT OF ACTIVITIES AND RECOMMENDATIONS
I. INTRODUCTION
The Texas Judicial Council was created in 1929 by the 41st Legislature to
study and make recommendations for improving the administration of the Texas judicial
system. Since its inception, the Council has collected comprehensive statewide statistics
on the operation of Texas' courts. The Office of Court Administration (OCA) helps the
Council fulfill its functions by collecting and annually publishing information on the
docket activities of each appellate, district, county, justice, and municipal court in the
state.
In 1997, the 75th 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 September 1, 1997. In addition, the Texas Judicial Council's 70th
Annual Report on the Texas Judicial System, which is published by the Office of Court
Administration, will be available in January 1999.
II. DUTIES, MEMBERSHIP, AND MEETINGS
A. Duties. Chapter 71, Government Code, charges the Council
with the following duties:
(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.
B. 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 appointed the following judges to serve on the Council:
Justice Marilyn Aboussie (3rd Court of Appeals);
Chief Justice John H. Cayce (2nd Court of Appeals);
Judge Jim Parsons (3rd Judicial District);
Judge David Peeples (224th 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 Penny L. Pope (Justice of the Peace Precinct 2, Galveston County);
Judge Stella Ortiz-Kyle (Presiding Judge, City of San Antonio, Municipal Court); and
Judge Robin Smith (Presiding Judge, City of Midland, Municipal Court).
Lieutenant Governor Bob Bullock 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.
Governor George W. Bush appointed the following members to the Council:
Mr. James Boswell (Plano);
Mr. James R. Brickman (Dallas);
Mr. Joseph A. Callier, Esq. (Houston);
Mr. Kathleen Cardone, Esq. (El Paso);
Mr. Diego Pena, Esq. (San Antonio); and
Ms. Sharon Warfield Wilkes (Bastrop).
C. Meetings. The Council has met six times since September 1, 1997:
October 30, 1997 (Austin)
February 19, 1998 (Austin)
April 16, 1998 (Austin)
June 25, 1998 (Austin)
September 29, 1998 (Austin)
November 20, 1998 (Austin)
III. 1997-1998 COUNCIL ACTIVITIES AND RECOMMENDATIONS
A. Appointment of Judicial Council Committees. The Council has
accomplished much of its work through its nine committees, each with distinct functions.
Each committee 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 have been established by the Council:
(1) Committee on Court Records
(2) Committee on Visiting and Retired Judges
(3) Committee on Juvenile Justice Reform/Impact on the Courts
(4) Committee on Judicial Redistricting
(5) Committee on Judicial Selection
(6) Committee on Trial Court Reorganization
(7) Committee on Strategic Planning
(8) Committee on Judicial Law Clerk Recruitment
(9) Committee on Appellate Criminal Records Storage and Retention
B. Development of Proposed Judicial Records Rule. In September
1997, questions arising from a request under the Public Information Act prompted the
Supreme Court of Texas to ask the Texas Judicial Council to study ways to improve access
to court administrative records and to propose a rule to the Court for promulgation.
In October 1997, the Texas Judicial Council appointed several of its members to the Committee
on Court Records and asked the committee to examine open records' statutes
and rules as they apply to courts in other states and to use this information to develop
language for a proposed rule governing access to judicial records in Texas.
The committee conducted eight public hearings around the state to obtain input from members of the general public about each change to the proposed rule. Drafts of the rule were published on the internet, and input was solicited from the general public, the media, freedom of information organizations, and other public interest groups. The diverse composition of the Council also provided a constructive forum for developing a proposed rule. A number of Council members not on the Committee also made significant contributions to the discussion, drafting, and publication of the rule.
In addition to devoting the bulk of three of its meetings to revising and discussing
the Committee's draft, members of the Council attended the regional judicial conferences,
the annual convention of the State Bar of Texas, and the annual convention of the Texas
Municipal Courts Association to solicit suggestions for improving the rule's language.
Many of the suggestions from each of these groups and from the general public were
included in the Council's final draft of the rule which was submitted to the Supreme Court
in September 1998.
In October 1998, the Supreme Court revised the judicial records rule ( now Rule 12, Rules
of Judicial Administration), and pursuant to Section 74.024, Government Code, began taking
public comment. Rule 12 is scheduled to take effect on April 1, 1999.
C. Recommendations for Improving the Visiting Judges' Program. Although
the visiting judge program is vital to the operation of the state's justice system and has
been a substantial savings to the taxpayer, it has been criticized recently by the general
public and the bar. These concerns and the general desire to increase public confidence in
the visiting judge program, prompted the Council to create the Committee on
Visiting and Retired Judges with the charge to study the current visiting
judge program and make recommendations to the Texas Judicial council on ways the program
could be improved. To meet this charge, the Committee has held six public meetings and
obtained valuable input on recommended legislative and rule changes from all interested
parties, including members of the general public.
Legislative Recommendations. At its November 20th
meeting, the Council agreed to submit the following recommendations of the committee to
the 76th Legislature:
(1) Extension of years-of-service qualification. The Council's proposal would
amend current law to require a judge to have served as an active judge
for at least 96 months, as opposed to 48 months before being eligible for assignment.
Under the proposal, a judge who is currently eligible to sit by assignment would
not be affected by the new eligibility provisions. However, a defeated judge who is
eligible to sit by assignment under existing law would still be subject to unlimited
strikes under § Section 74.053, Government Code.
(2) New qualifications for assignment to appellate court. The Council's
legislative recommendations would also establish new qualifications for the assignment of
visiting judges at the appellate level. Like the trial court provision summarized above,
this change would not apply to former judges who are currently qualified to be listed for
assignment.
(3) Procedures for notice and objections to the assignment of a visiting judge. Presently,
a party in a civil case may object to the assignment of a visiting judge. If the objection
or "strike" is to a "retired" judge, each party to the case is
entitled to only one objection for that case. However, if the strike is against a
"former" judge who is not a retired judge, each party may exercise an unlimited
number of strikes. The Council's legislative recommendation would change current procedure
by:
Proposed Rules for Monitoring and Supervision of Visiting Judges.
Visiting judge activities are presently supervised by the presiding judges of the
administrative judicial regions. There are, however, no rules or statutes that require
presiding judges to monitor the performance of visiting judges.
The Committee on Visiting and Retired Judges has proposed that the Council recommend
amending Rule 5 of the Rules of Judicial Administration to expressly require that the
presiding judge periodically monitor and evaluate the performance of assigned judges who
are chosen for service on the bench. In addition, the committee has drafted a proposed
rule that would require each administrative judicial region to conduct periodic peer
reviews of visiting judges.
The committee's amendment to Rule 5 and its proposed rule for the peer review of visiting
judges will be considered by the Council at its next meeting.
D. Better Use of Juvenile Laws by Justice and Municipal Courts. The
Council has also dedicated a substantial amount of time to studying and improving the
administration of the juvenile justice system in Texas. In the Fall of 1997, the Council
created the Committee on Juvenile Reform/Impact on the Courts
and asked the committee to report on the impact on the courts of recent juvenile justice
legislation, with particular emphasis on justice and municipal courts. To meet its charge,
the committee drafted a report with legislative recommendations that were developed after
obtaining input from the bench, the bar, and the general public in a series of 10 open
meetings throughout the state.
At its September 29th meeting, the Council agreed to submit the following
recommendations to the 76th Legislature:
(1) Amend existing law to clarify that justice and municipal courts have jurisdiction
over all Class C misdemeanors for completion of teen court, including Class C offenses
that carry an additional sanction as well as a fine;
(2) Amend Article 45.55, Code of Criminal Procedure, to give justice and municipal courts
the discretion to transfer enrollment in a teen court program to teen court in another
jurisdiction;
(3) Amend the statutes to place fewer restrictions on the type of community service that a
justice or municipal court may order for a child who is convicted of an alcohol-related
offense that is punishable as a Class C misdemeanor;
(4) Amend Section 52.027, Family Code, to make the age provisions for taking a child into
custody consistent by providing that a child can be treated as an adult at the age of 17,
regardless of the age at which the child engaged in criminal conduct;
(5) Establish a clearinghouse to inform courts with jurisdiction over juvenile cases of
available community services for at-risk youth. In addition, require a service provider
under Chapter 264, Family Code, to, as a condition of receiving state funds, to inform
courts in the community served by the provider of the availability of the provider's
services;
(6) Authorize justice and municipal courts to order a child to be tested for GED exams
without being required to maintain continuing jurisdiction over the child(1);
and
(7) Amend Sections 54.022(a)(3), Family Code and 106.071(e) Alcoholic Beverage Code to
create a provision that, like juvenile courts(2), allows
justice and municipal courts to attribute more of the responsibility for compliance with
court orders to parents of juveniles.
In addition to developing legislative recommendations for Council approval, the
Committee on Juvenile Justice Reform/Impact on the Courts assisted the staff of the Office
of Court Administration in revising reporting requirements for justice and municipal
courts. These modifications will reflect more accurately the number of cases that are
actually heard by justice and municipal courts.(3) The
committee is also working with the Judicial Committee on Information Technology
("JCIT") to develop a pilot program for a centralized reporting system for
juvenile cases in justice and municipal courts.
E. Abolition of the Judicial Districts Board. The state's district courts have not been comprehensively redistricted since 1883, and the work of the Judicial Districts Board after the last census was not addressed by the Legislature. The Committee on Judicial Redistricting was created by the Council to study and make recommendations for improving the method of reapportioning judicial districts in Texas.
The committee has developed a legislative proposal that would abolish the Judicial
Districts Board but retain the constitutional provision that requires the Legislative
Redistricting Board to reapportion state judicial districts. The Council will consider
this legislative proposal at its next meeting.
F. Study of Proposed Methods for Judicial Selection in Texas. In January 1997, the Texas Commission on Judicial Efficiency submitted two proposals for selecting and retaining judges in Texas to the 75th Legislature: (1) Appoint-Elect-Retain; and (2) the Modified Bullock-Ellis-Duncan Plan(4). Despite the Commission's recommendations and the efforts of several legislators in both the House and the Senate, only one bill, House Bill 1175, by Representative Senfronia Thompson, successfully passed either chamber.(5)
In September 1997, the Council created the Committee on Judicial Selection and asked the committee to determine which method of judicial selection could enhance the diversity of Texas courts. The committee is studying recent legislative proposals for Texas and methods of judicial selection in other states and will present its recommendations to the Council during the 76th Legislative Session.
G. Streamlining Texas' Trial Courts. The Texas judicial system is one of the most decentralized in the nation. It includes two courts of last resort, 14 intermediate appellate courts, 396 state district courts, 254 constitutional county courts, 194 statutory county courts, 843 justice courts, and 850 municipal courts - a total of nearly 2,600 courts. A study by the Texas Research League indicated that the jurisdictional overlap of statutory county and district courts is overly-complex and is an inefficient use of judicial resources.(6)
In June 1998, the Council created the Committee on Trial Court Reorganization and asked the committee to develop legislative recommendations for unifying and simplifying the organization of trial courts in Texas. Since its first meeting in August, the committee has researched the trial court unification efforts in other states, and has discussed the following issues relating to the unification of trial courts in Texas:
(1) the jurisdiction of county courts-at-law;
(2) the costs associated with merging county courts-at-law with district courts;
(3) the funding and revenue sources of county courts-at-law; and
(4) the statutory and constitutional implications (at both the state and federal levels) of merging the county courts-at-law and the district courts.
At its November 20th meeting, the Council directed the committee to identify
specific issues relating to a merger of the county courts-at-law and the district courts
and to begin developing a legislative proposal for consideration by the Council.
H. Development of a Strategic Plan; Judicial Impact Statements. In November 1996, the Texas Commission on Judicial Efficiency recommended that a permanent long-range and strategic planning function in the Texas judicial branch be established to:
"develop strategic plans, assist in the development of strategies for change, continually evaluate the effectiveness of the strategies, and actively consult with all levels of the Texas court system and other branches of government."(7)
The Commission further recommended that this planning function be "established as an arm of OCA and operated under the direction of the Texas Judicial Council."(8) The Commission's findings were echoed when, in March 1998, three highly-respected state court administrators visited OCA to evaluate the agency's strategic planning and recommended:
(1) that the Texas Judicial Council develop a strategic plan for both itself and for the Texas Judicial System; and
(2) that the Office of Court Administration's mission and goals be guided by the Council's strategic plan.
The Council believes that the strategic planning process will help the Council identify and solve important issues in judicial administration; it will help judges, court personnel, judicial agencies, and the Texas Legislature set and meet priorities. In September 1998, the Council created the Committee on Strategic Planning and asked the committee to examine the strategic planning efforts of judicial councils in other states and to report its findings to the Council. In November 1998, the committee made three preliminary recommendations to the Council:
(1) The committee should first develop a strategic plan for the Texas Judicial Council with practical goals and strategies.
(2) After the development of a strategic plan for the Council, a strategic plan for the judicial system should be developed. The planning process would involve judges, legislators, court personnel, administrators of judicial agencies and the bar.
(3) The committee should develop criteria for judicial impact statements that can be used by legislators.
The committee will make a full report to the Council in early next year.
I. Expanding Opportunities for Judicial Clerkships. In
November 1996, the Texas Commission on Judicial Efficiency recommended that the judicial
branch increase its efforts to encourage and expand the applicant pool for judicial
clerkship positions. (9) In 1997, the 74th
Legislature responded to these recommendations by:
(1) requiring the judges of the supreme court, court of criminal appeals, and courts of
appeals to "encourage the recruitment of judicial law clerks and staff attorneys that
reflect the gender, racial, and ethnic diversity of this state";(10)
and
(2) requiring the Office of Court Administration to "annually publish a report regarding the demographic profile of the judicial law clerks and attorneys employed by the courts of this state."(11)
In September 1998, the Council established the Committee on Judicial Law
Clerk Recruitment to provide policy direction to the Office of Court
Administration and to assist both OCA and the courts in meeting these statutory mandates.
In the upcoming year, the committee will seek assistance from each of the Texas law
schools, judges, and the bar to develop recommendations for expanding the pool of
applicants for judicial clerkships in Texas courts.
J. Storage and Retention of Criminal Records in Appellate Courts.
Currently, the Code of Criminal Procedure provides no clear guidance for the destruction
of criminal case records by the courts of appeals. As a result, it has been the practice
of the Texas courts of appeals to retain criminal case records permanently.(12)
By the end of the next biennium, these courts will store 20 years' worth of criminal
case records and a minimum of 10 years' worth of civil case records. Due to the volume of
criminal and civil case records, most of the appellate courts are encountering difficulty
in obtaining storage space. Current space is often provided at the discretion of the
county where the court is located. In addition, there is the concern that counties will
stop providing storage space altogether or substantially increase the charges for storing
appellate case records.
At the request of the Office of Court Administration the Council has created the
Committee on Appellate Criminal Records Storage and Retention and asked
the committee to determine whether intermediate appellate criminal case records should
continue to be stored permanently. The committee and the staff of OCA's Research and Court
Services Division will present their recommendations to the Council early next year.
IV. OTHER COUNCIL ACTIVITIES
A. Study and Research for the Texas Legislature. The Texas
Judicial Council has worked closely with legislative committees this legislative interim
on matters that impact the judiciary.
1. Juvenile Case Processing Study. At the request of the Senate
Interim Committee on Gangs and Juvenile Justice, staff from the Texas
Judicial Council and the Office of Court Administration conducted a comprehensive study of
juvenile courts and juvenile probation departments to analyze the efficiency of processing
cases in Texas. The TJC/OCA study was intended to assist the Senate Interim Committee on
Gangs and Juvenile Justice in addressing the following charge:
"Study the need, if any, for additional juvenile court masters to assist courts with
juvenile jurisdiction in providing speedy and effective justice for juvenile offenders and
their victims."
On October 1, 1998, after extensively evaluating the TJC/OCA study and its conclusions,
the Senate Interim Committee on Gangs and Juvenile Justice made the following
recommendation:
"The Legislature should charge the Texas Judicial Council with the responsibility of
developing objective criteria for determining the need for additional juvenile court
masters. These criteria should be developed with substantial input from judges,
legislators, the Governor's Office, and juvenile justice system personnel"(13)
2. Judicial Selection; Judicial Redistricting. In addition to
providing the Senate Jurisprudence Committee with demographic
information about Texas judges, members of the Council testified before the Committee on
judicial selection, appellate redistricting, and judicial campaign finance reform. With
the assistance of staff from the Office of Court Administration, information relating to
civil court filing fees was also provided to assist the Committee in meeting the following
charge:
"Study the costs assessed on parties filing civil lawsuits and appeals in district county appellate courts and evaluate whether those costs are unreasonable or overly burdensome."(14)
In its interim report, the Jurisprudence Committee made the following recommendation:
"Amend Senate rules so that any bill filed to change the amount of civil and criminal court fees include information in the fiscal note that identifies the number and amount of such fees being assessed by the state and each affected county. The Legislative Budget Board shall work with the Texas Judicial Council in completing the fiscal notes. The Committee encourages the Texas House of Representatives to adopt similar rules."(15)
3. Public Access to Court Information. While the Senate Interim Committee on Public Information devoted most of its time to addressing problems related to public information held by state agencies, the issue of public access to judicial records was also within the Committee's jurisdiction.
Members and staff of the Texas Judicial Council testified at several public hearings on the Council's proposed court rule for public access to judicial records and on the legal and fiscal implications of placing the entire judiciary under the Public Information Act. After considerable study of the issue and receipt of public testimony, the Senate Interim Committee on Public Information made the following recommendation:
"The Legislature should let the Judicial Records Rule, if adopted without
substantive changes that would diminish the accessibility of judicial records, stand. The
Committee however, recommends one addition to the Judicial Records Rule. The Committee
recommends that the Judicial Records Rule and the Code of Judicial Conduct contain
language clearly stating that the State Commission on Judicial conduct shall have the
ability to take disciplinary action against judges who violate the rule."(16)
B. 70th Annual Report of the Texas Judicial Council . As
previously noted in this report, the Texas Judicial Council's 70th Annual
Report on the Texas Judicial System, which is published by the Office of Court
Administration, will be available in January 1999. The Council's annual report has
historically been a valuable source of judicial information for courts, government
agencies, legislators, and the general public. In addition to containing judicial
statistics and useful information about the structure, jurisdiction, and administration of
Texas courts, the 70th Annual Report will discuss the activities of the Texas
Judicial Council, the Judicial Committee on Information Technology, and the Office of
Court Administration.
1. While current law allows a justice or municipal court to order a child who has engaged in truant conduct to attend a preparatory class for a GED exam, there is no statutory language to allow the court to enter as part of its order language requiring the child to take the examination. See Section 54.021(d), Family Code. Moreover, Section 7.111, Education Code, requires the school board to provide for the administration of GED exams under certain circumstances, but does not authorize the board to administer an exam if the child is younger than 17 years of age and has been ordered to take the exam by a justice or municipal court.
2. See Section 54.041, Family Code.
3. Prior to these revisions, OCA's reporting requirements for justice and municipal courts focused mainly on the number of juvenile warnings that were given by these courts.
4. For a detailed description of the Commission's recommendations, see Governance of the Texas Judiciary: Independence and Accountability. Report of the Texas Commission on Judicial Efficiency, Volume 2, 1997.
5. House Bill 1175 provided for the nonpartisan election of appellate judges. After passage by the House, the bill died in the Texas Senate.
6. See The Texas Judiciary: A Proposal for Structural and Functional Reform. The Texas Research League, Vols. 1 and 2, 1991.
7. Governance of the Texas Judiciary: Independence and Accountability. Report of the Texas Commission on Judicial Efficiency, Page 25, Vol. 1, November 1996.
8. Id.
10. Section 72.041, Government Code.
11. Section 72.042(a), Government Code. The legal and research divisions of the Office of Court Administration conducted a demographic census of the appellate courts in October 1998.
12. A nationwide survey conducted by the Office of Court Administration on the retention of appellate records revealed that of the 10 most populous states, only Texas, New York, Michigan, and New Jersey had permanent retention periods.
13. See Senate Interim Committee on Gangs and Juvenile Justice, Interim Report, Page 99 (1998).
14. See Senate Jurisprudence Committee Interim Report, Page 12 (1998).
15. Id.
16. See Senate Interim Committee on Public Information, Interim Report to the 76th Legislature, Page 59 (October 1998).