Performance Measures
for Texas District and Appellate Courts

In 1997, the Texas Commission on Judicial Efficiency (Commission) recommended that Texas courts Aestablish, adopt, and regularly report uniform measures and standards of performance."⁽¹⁾ 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.⁽²⁾ In 1999, the Legislature attached riders to H.B. 1 (the Appropriations Act) which require the Office of Court Administration and the Texas Judicial Council to develop and implement measurements to evaluate the performance of the appellate and district courts in Texas.

This report: (1) summarizes the procedures that are currently used in Texas for performance measurement; and (2) summarizes the trial and appellate court measures developed by the National Center for State Courts.

II. Performance Measures: An Overview

A. Definition. In general terms, a performance measure is a quantifiable indicator used to determine how well the goals of an agency or governmental body are being met. In the absence of established goals or standards for performance, measures are sometimes used by legislatures or budgeting agencies to evaluate the performance of an entity over time.⁽³⁾

B. General Policy Considerations

1. Goals of performance measures. There are two general purposes of performance measures: (1) to help legislatures allocate limited financial resources to government entities in a fiscally responsible manner; and (2) to ensure that government is accountable to taxpayers. Performance measures are also used in the strategic planning process.⁽⁴⁾

2. Advantages of performance measures. In addition to helping legislatures set budgetary priorities, performance measures can help courts manage and improve their operations. Court managers can use reported data to ensure that judicial resources are allocated as needed. Also, with increased accountability, the courts can raise the public trust and confidence by assuring that the justice is accessible, efficient, and fair.

3. Limitations of performance measurement. Although performance measures can be very useful tools, several factors can limit the development and implementation of a performance measurement system.

(a) Availability or lack of data. The availability or lack of data should be considered when selecting performance measures. Any new data needed beyond that currently reported by the courts should be weighed in terms of quality versus the cost of collection. Consideration should also be given to monitoring and updating a chosen performance measurement system.

(b) Judicial and staff resistance. Some judges view efforts to monitor or evaluate their performance as an infringement on their judicial independence. Judicial staff are sometimes reluctant to participate in an evaluative or measurement system because they view the process as a criticism of their work.⁽⁵⁾

(c) Accuracy and completeness of quantitative data. In the absence of a process or methodology that identifies unique types of cases or that explains variances in statistical data, performance measures can provide inaccurate or incomplete information about court operations:

"Court managers and funding bodies should recognize that [measures] are significant only as to the functions covered and not as overall indicators of the system=s success in providing justice. Judges and other court officials who have been reluctant to accept the introduction of quantitative measures or standards in judicial administration should be encouraged to recognize both their utility and their limits for budget and management purposes."⁽⁶⁾

III. Performance Measurement in Texas

A. Development and administration. In Texas, there are five entities involved with the development and assessment of performance measures: (i) governmental bodies; (ii) the Legislative Budget Board (LBB); and (iii) the Governor's Office of Budget and Planning (GOBP); (iv) the State Auditor's Office (SAO); and (v) the Texas Legislature. Under the state budgeting system, a governmental body develops and revises its performance measures. The LBB and the GOBP approve the governmental body's measures (and proposed changes to the measures) that are submitted by governmental bodies, and use the measures as a basis for making funding recommendations to the Texas Legislature. The Legislature uses the measures to make funding decisions. The State Auditor's Office is charged with auditing performance measure data for accuracy.

B. Elements of a performance measure. According to the Legislative Budget Board, the Governor's Office of Budget Planning, and the State Auditor's Office, the following five criteria can be used to ensure that the information captured by a performance measure is valuable:

(1) The measure should be responsive (i.e., reflecting changes in the entity's levels of performance);

(2) The measure should be valid (i.e., capturing the information intended);

(3) The measure should be cost effective (i.e., justifying the cost of collecting and retaining data);

(4) The measure should be comprehensive (i.e., incorporating the significant aspects of the entity's operations); and

(5) The measure should be relevant (i.e., logically and directly related to agency goals, objectives, strategies and functions.⁽⁷⁾

C. Describing or defining a performance measure. Each performance measure should have definitions that make the measure reasonably understandable and that show how the measure is to be calculated. For example, a performance measure that requires the Office of Court Administration to report the "aggregate clearance rate of cases for the district courts"⁽⁸⁾ defines clearance rate as "the number of cases disposed of by the district courts divided by the number of cases added to the dockets of the district courts." ⁽⁹⁾

The LBB and the GOBP have developed the following four elements for use in drafting an accurate and complete performance measure definition:⁽¹⁰⁾

(1) The definition should explain what the measure is intended to show and why it is important;

(2) The definition should describe where the information comes from and how it is collected;

(3) The definition should describe clearly and specifically how the measure is calculated; and

(4) The definition should identify any limitations about the measurement data, including factors that may be beyond the entity's control.

IV. District Court Performance Measures

A. Texas Law. Under current law, the Office of Court Administration (OCA) reports the aggregate clearance rate of cases for the district courts.⁽¹¹⁾ This information is based on county-wide statistics provided by the district clerks. As a general rule, no statistics relating to the caseloads of individual district courts are collected by OCA. However, the rider that was passed by the 76^th Legislature increases the probability that OCA will be required to collect this data in the future:

"The Office of Court Administration and the Texas Judicial Council shall engage in a pilot project to develop and implement performance measures for the individual district courts of the state. This study shall include no fewer than 20 courts of varying jurisdictions. The Office of Court Administration shall report the results of this study to the Legislature and the Governor no later than January 2001."⁽¹²⁾

B. NCSC Performance Measures. In 1990, the Commission on Trial Court Performance and the National Center for State Courts published Trial Courts Performance Standards.⁽¹³⁾ The goal of these standards was to provide a means for the nation's general jurisdiction state trial courts to assess their ability to adjudicate and dispose of cases fairly and efficiently. The five performance areas established by the Commission are:

- Access to Justice
- Expedition and Timeliness
- Equality, Fairness, and Integrity
- Independence and Accountability
- Public Trust and Confidence

(1) Access to Justice. To succeed in this performance area, trial courts should, within the bounds of the law and reasonable public expectation, ensure that their proceedings are open and accessible to the public.⁽¹⁴⁾ Under the NCSC system, there are 21 measures that can be used to gather information for determining how accessible trial courts are to the public.⁽¹⁵⁾

(2) Expedition and Timeliness. This performance area requires courts to fulfill their duty to administer justice in a timely and expeditious manner. It stresses that unnecessary delay produces injustice and hardship and is the primary cause of diminished public trust and confidence in the court.⁽¹⁶⁾ NCSC has developed 10 measures to assess how efficiently a trial court operates (i.e., how well the court processes cases, files required reports, and implements new legal and procedural changes). Four of those measures are outlined below:

a. The clearance ratio is used to evaluate a district court's ability to manage its incoming caseload. The clearance ratio is calculated by dividing the number of cases disposed in a year by the number of cases filed in the same year. Taking into account extraordinary cases, the resulting ratio represents the court's annual efficiency in case dispositions.⁽¹⁷⁾ While a court might strive to dispose of at least as many cases as are filed each year, a clearance ratio of 1.0 or higher, a ratio of <1.0 might indicate a growing backlog of cases. Knowledge of clearance ratios for various case categories over a given period can help to pinpoint any inefficiencies or emerging problems that are in need of improvement.

b. The time to disposition measure tracks the time that elapses between the date the case is filed and the date of disposition. While general case categories should be identified, this measurement allows courts to compare their own processing times with other courts. Individual courts experiencing a number of lengthy and complex cases can also use this measure to explain why another court might have a higher clearance ratio. In addition, any pretrial, trial, or post-trial events causing undue delay might be identified in the various courts.

c. The age of the pending caseload identifies existing backlogs in the courts. Any cases pending beyond a predetermined standard (i.e., one year) represent a backlog. The percentage of cases that exceed that timely disposition represents the size of the backlog. The average number of days that those cases have been pending represents the age of the backlog. Again, general case types might be designated to allow for the lengthier processing of complex cases.

d. By evaluating the extent to which a court hears a case as originally scheduled, the certainty of trial dates indicates whether there is a pattern of continuances. This measure minimizes inconvenience to litigants and witnesses and helps the court control proceedings by assuring that matters will be heard as scheduled.

3. Equality, fairness, and integrity. In support of the principle that trial courts should follow their constitutional duty to provide due process and equal protection of the law to all who have business before them, the NCSC developed 23 performance measures for assessing how trial courts exercise equality, fairness, and integrity in their procedures and decision making.

4. Independence and Accountability. Judicial independence refers to the right of the judicial branch to "operate according to procedural rules and administrative machinery that it fashions for itself through its own governance structures."⁽¹⁸⁾ This principle is balanced against the judiciary's responsibility to use public resources wisely. In order to evaluate the courts activities in pursuing independence and accountability, the NCSC recommends that a committee composed of judges and court managers be formed to:

(i) collect data and make an assessment of the utility of the measures in light of the court's interest and circumstances;

(ii) consider its significance for court performance; and

(iii) integrate the findings into a review of court performance.⁽¹⁹⁾

5. Public Trust and Confidence. Because compliance with the law is dependent on the public's respect for the judicial system, it is important that all of the constituencies served by the trial courts have trust and confidence in those courts.⁽²⁰⁾ Performance measures with regard to public trust and confidence depend largely on how well a trial court does in the four performance areas mentioned above.

V. Appellate Court Performance Measures

A. Texas Law. In 1997, the 75^th Legislature enacted several provisions to require the courts of appeals, the Court of Criminal Appeals, and the Supreme Court to report performance statistics to the Office of Court Administration. The 1997 statutory reporting requirements were based primarily on the recommendations of the Texas Commission on Judicial Efficiency.⁽²¹⁾

Under the statute, the courts of appeals are required to report the following annually to OCA:

(1) the number of cases filed with the court during the reporting year;

(2) the number of cases disposed of by the court during the reporting year;

(3) for active cases on the docket of the court on the reporting date, the average number of days from the date of submission of the case to the court until the reporting date; and

(4) for each case disposed of during the reporting year by the court, the number of days from the date of submission of the case to the court until the date of disposition of the case by the court.⁽²²⁾

The Court of Criminal Appeals is required by statute to report the following statistics to OCA:

(1) the number of cases filed with the court during the reporting year involving:

(A) capital punishment;

(B) an application for writ of habeas corpus; or

(C) a petition for discretionary review;

(2) the number of cases disposed of by the court during the reporting year involving:

(A) capital punishment;

(B) an application for writ of habeas corpus; or

(C) a petition for discretionary review;

(3) the average number of days from the date a case was filed with the court until the reporting date, for each active case on the docket of the court on the reporting date involving:

(A) capital punishment;

(B) an application for writ of habeas corpus; or

(C) a petition for discretionary review; and

(4) the average number of days from the date a case was filed with the court until the date the case was disposed of by the court, for each case disposed of during the reporting year by the court involving:

(A) capital punishment;

(B) an application for writ of habeas corpus; or

(C) a petition for discretionary review.⁽²³⁾

The Supreme Court reports the following statistics to OCA:

(1) the number of cases filed with the court during the reporting year;

(2) the number of cases disposed of by the court during the reporting year;

(3) for the active cases on the docket of the court on the reporting date, the average number of days from the date a case was filed with the court until the reporting date; and

(4) for the cases disposed of during the reporting year by the court, the average number of days from the date a case was filed with the court until the date of release of the court's opinion for the case or the date the case was otherwise disposed of by the court.⁽²⁴⁾

For cases on the docket of the court during the reporting year, the Supreme Court reports:

(1) the average number of days from the date a case is filed with the court until the date the court releases an order announcing its decision granting, overruling, denying, or dismissing an application, petition, or motion;

(2) the average number of days from the date of the granting of an application, petition, or motion until the date of oral argument of the case;

(3) the average number of days from the date of the oral argument of the case until the date the court issues a signed opinion and judgment for the case; and

(4) the average number of days from the date of filing of a case with the court until the date of the release of a per curiam opinion.⁽²⁵⁾

In addition to publishing statistics about each of the appellate courts in its annual report, Office of Court Administration also publishes information about the work of each individual judge and justice of each appellate court.⁽²⁶⁾

Last session, the 76^th Legislature, by rider, added the following reporting requirement:

"It is the intent of the Legislature that the Texas Judicial Council develop measures which evaluate the work of individual justices on the courts of appeals. The measures developed by the Texas Judicial Council 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."⁽²⁷⁾

B. NCSC Performance Measures. In June 1999, the Appellate Court Performance Standards Commission and National Center for State Courts published the Appellate Court Performance Standards and Measures⁽²⁸⁾. The Appellate Court Performance Standards Commission (Commission) was initially created by the National Center for State Courts to develop performance standards and measures for state appellate courts. The Commission was asked to define a "good" appellate court using criteria that litigants, attorneys, policy makers, the public, and the courts could also use to set goals and identify problems.⁽²⁹⁾ As a result, the Commission established performance measures for state appellate courts.

While NCSC's recommendations include the traditional measures of efficiency (e.g., case disposition rate or clearance ratio) as part if its methodology for assessing and improving appellate courts, it does so only in the context of examining the work of courts as organizations, systems, or groups of courts over an extended period of time. NCSC's standards and measures are not intended to be used to evaluate the work of individual judges.⁽³⁰⁾

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

2. See Chapter 72, Subchapter E, Government Code.

3. See generally, Instructions for Preparing and Submitting Agency Strategic Plans. Governor=s Office of Budget and Planning and the Legislative Budget Board, (1995).

4. Strategic planning and budgeting in Texas is defined as Aa system of mission/goal driven, results-oriented management in which funding and other decisions are based upon what an organization is accomplishing, rather than what that organization is doing.@ A detailed discussion of the role of strategic planning is beyond the scope of this paper. AGuide to Performance Measurement@, page A-2 (1995).

5. See Workload Measures in the Courts. National Center for State Courts. Page 7. (1980).

6. Id. At 15.

7. Guide to Performance Measurement. State of Texas. Aug. 1995 Report No. 95-158 p. A-6

8. Section 72.083, Government Code.

9. Id.

10. Instructions for Preparing and Submitting Agency Strategic Plans (Fiscal Years 1999-2003). Governor=s Office of Budget and Planning and the Legislative Budget Board. January 1998. A fifth element, that the definition, identify whether the data is cumulative or non-cumulative, is not included in this paper because it is not necessary for the accurate reporting of annual performance measures.

11. Section 72.083, Government Code.

12. House Bill 1.

13. Trial Court Performance Standards. National Center for State Courts. 1990

14. Id.

15. Trial Court Performance Standards and Measurement System Implementation Manual. U.S. Department of Justice, Bureau of Justice Assistance.

16. Id. at 73. (1997).

17. Governance of the Texas Judiciary: Independence and Accountability. Texas Commission on Judicial

18. Federal Judges and the Judicial Branch: Their Independence and Accountability. 46 Mercer Law Review 845 (1995). (Describing judicial branch independence as a corollary of the separation of powers doctrine and administrative independence as a key component of judicial branch independence).

19. Trial Court Performance Standards and Measurement System Implementation Manual. U.S. Department of Justice, Bureau of Justice Assistance. Page 212. (1997).

20. Id. @ p. 157

1998-1999 Texas Judicial Council Annual Report