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Why Is the Governor's Position Weak?

The office of the governor of Texas is one of the more intriguing positions in politics. It is the most visible of all state offices and he or she is the most well-paid public official in the state. The governor is on TV all the time and people expect him or her to lead. We expect the governor to implement his or her campaign promises and to oversee the bureaucracy.

However, it is also among the weakest offices in the state and, arguably, the weakest executive office in the fifty states. The governor of Texas has limited appointive powers, weak judicial powers, and almost nonexistent budgetary powers. When North Carolina became the last state to give its governor the veto, the governor of Texas became the weakest governor in the country, based on formal powers. According to the formal powers of the office, the governor of Texas is the weakest governorship in the country.

The reasons for this are many, but most are steeped in the history and political philosophy of the state. First, as discussed earlier, previous experiences with strong executives (Santa Anna). Let's look at the sources of weakness for the Texas governor:

1. First, the governor is not the only statewide elected officer. Indeed, he or she is one of more than a dozen officials elected statewide who have the same constituency and base of political support as the governor. This concept is referred to in Texas as the plural executive (I think this may be the most unique characteristics of the Governor of Texas). While other governors can appoint many of these officeholders, the governor of Texas must compete with them: lt. governor, comptroller of public accounts, general land use office, attorney general, commissioner of agriculture, railroad commissioner and public utilities commissioner. Each of these folks, who may be of the other political party, can derail the governor’s agenda.

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Why is the Governor's Position Weak? continued

1. Second, the governor and lt. governor do not run as a team. Indeed, it is often the case that the lt. governor, who should be his major assistant, may be his primary competitor for the office of governor. He may also be of the other party.

2. Third, the budget powers of the governor of Texas are among the weakest in the nation. Recall the influence of the Legislative Budget Board. The governor, as a candidate, makes all kinds of promises about what he or she is going to do regarding state spending (increase education, cut taxes, etc.). But, the governor does not have the power to do that unless he or she can persuade the LBB and a majority of the legislature.

3. The governor has limited appointment powers. He or she can appoint people, but only to the positions of people who are at the end of their terms. Many of these are appointed for six year terms, so they will stay in office while he or she is governor and the governor can’t touch them.

Understand that the weakness of the Texas governor is rooted in our history. Abraham Lincoln, and E.J. Davis both provided negative experiences of strong leaders. So, Texas restricted the powers of the executive. Also, the philosophy that governs Texas politics suggests minimal government and the best way to limit government is to minimize the power that any one person has. Finally, weak governors and plural executives are indicative of the South. The ten weakest governors in the country govern Southern states.

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The Plural Executive

Perhaps the most unique quality of the Office of Governor in Texas is that of the plural executive. As the name suggests, this implies that Texas has more than one executive in charge. This is because five officers are elected statewide in addition to the governor.

They are:

Lt. Governor

This person is elected statewide just like the governor, but independent from the governor (unlike most states). In addition to serving as governor if the governor is unable to do so, the lt. governor presides over the Texas Senate and serves on a variety of boards and commissions. As President of the Texas Senate, the Lt. Governor has significant power over state policy and the state budget- in fact, he or she usually has more power than the governor over these matters.

Attorney General

This elected officer serves as the lead attorney of the state, overseeing the court system, representing the state in cases of lawsuit, and providing legal advice to the Office of the Governor. The Attorney General also oversees consumer protection, worker's compensation and environmental protection. His or her most important job, however, is issuing opinions on the legality of existing or proposed legislation and administrative (governor) actions.

Comptroller of Public Accounts

This officer is the primary fiscal and budget officer of the state. Providing information to the governor and legislature regarding the economy and the amount of revenues available in a given budget year, He or she is responsible for administering the state’s tax system and provides to the legislature with an estimate of the approximate revenues that will be available for the budget. This office is also responsible for the review of agency actions through the Texas Performance Review.

Commissioner of General Land Office

This office is, in large part, an outdated one left over from the time when most of the land in the state of Texas was owned by the state of Texas. Historically, the land commissioner was responsible for maintaining, and when necessary, selling, that land. He or she is now responsible for about twenty million acres, including leasing for oil and natural gas, administering land programs for veterans, and protecting the environment on these public lands.

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The Plural Executive, continued

Commissioner of Agriculture

This statewide elected officer is the head of the state’s Department of Agriculture and regulation and promotion of the state’s farming and agribusiness industry. They also determine weights and measures- are you really getting gallon of gas?

Statewide Appointed Office:

Secretary of State

Among other things, the secretary of state is the primary elections officer of the state. He or she oversees, regulates, and certifies all elections within the state.

Elected Boards and Commissions:

Texas Railroad Commission

The three members of the TRC are very powerful, because they regulate all mining and extracting industries (gas, coal, etc.). Further, they control interstate transportation, including trucks, busing, and railroads. This Board has evolved from regulating railroads to being, basically, the department of transportation for the state.

State Board of Education

The fifteen members of the State Board of Education are elected from fifteen districts across the state. They are responsible for supplying guidance and direction regarding the selection of curricula and textbooks for the school districts across the state.

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Other Qualities of the Governor’s Office

In addition to the plural executive, let’s look at 5 other characteristics of the Office of Governor in Texas:

Gubernatorial Perks: What do you get for being governor? First and foremost, the governor gets a pretty good salary, especially relative to the $7,200 salary of the state legislators. In 2011, his or her salary was about $50,000 annually, plus a house (the governor’s mansion), car and driver and travel expenses. The salary ranks him or her 11th for salaries of governors in the United States. Interestingly, as recently as ten years ago, this salary was much higher-however, the salary has remained the same while many others have gone up. The governor also gets a security detail to protect the governor and his or her family.

Legal (Formal) Qualifications to Serve: The legal qualifications for service are quite minimal: you must be at least thirty years old, a citizen of the United States and a resident of Texas for the five years immediately prior to the election during which he or she is seeking office.

Informal Qualifications: While the vast majority of adult Texans could legally become governor, the reality is that most could not. These are the informal qualifications to be governor of Texas: have money or access to money, be white, male (historic), Protestant, conservative (or not liberal), and Republican (modern). It costs, at minimum, $25 million to mount a credible campaign for the office of governor of Texas-that eliminates most of us!

Also, while Texas has had two female governors, Miriam Ferguson 1925-27, 1933-35; and Anne Richards (1991-1995), the rest of the governors have been male. In a similar manner, while the demographics of Texas are changing such that one may see an Hispanic Governor in the near future, as of 2007, all Texas governors have been white. Texas governors have only been able to run again for office since the 1980s, but Rick Perry has made the most of that change, getting re-elected three times. Current Governor Greg Abbott (elected in 2014) broke another barrier, becoming the first person to serve as Texas Governor from a wheel chair.

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Other Qualities of the Governor’s Office, continued

On the other hand, while the vast majority of governors in the history of Texas have been Democrats, the last two (George W. Bush and Rick Perry) have been Republican and recent trends would suggest that most future governors will be of the Republican party. Finally, regardless of party, only one governor ever elected in Texas (James V. Allred, 1935-37) could be considered liberal. Even recent Democrats might be considered moderate at best, but never liberal. So, in the twenty-first century, the informal characteristics necessary to be governor include being wealthy, white, male (maybe female), protestant, Republican, and conservative. Most Democratic governors tend to come up through the chain of government (attorney general, treasurer, lt. governor, etc.), while Republicans are more likely to come from a business background.

The Removal Process (The Impeachment Process)

How do we get rid of a governor during the middle of his or her term? We do this through an impeachment process very similar to the process in Washington to get rid of the president. The process involves the Texas House of Representatives (bringing indictment on impeachable offenses), the Texas Senate (declaring guilt or innocence). The chief justice of the Texas Supreme Court will preside over the trial in the Senate.

The only governor Texas to be impeached was James M. (Pa) Ferguson in 1917. While the constitution offers no reasons for impeaching a governor, the Senate in this trial determined there were three impeachable offenses: malfeasance (doing the job illegally) misfeasance (doing the job poorly), and nonfeasance (failing to do the job at all).

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Formal Powers of the Office of Governor

As noted above, when it comes to formal powers, the Texas governor is among the weakest in the country. Formal powers are those powers that are associated with the office of governor rather than the person holding that office. Rick Perry has the same formal powers as George W. Bush or Anne Richards had when they were in the same position. Formal powers of the governor do not vary from person to person within the state. In determining the strength of a governor’s formal powers, we generally look at six different dimensions of that power:

1. Tenure Potential: How long can a person hold the office of governor assuming the voters want to keep him or her in that office? In Texas, there is no limit on how many four-year terms the governor can serve if he or she continues to seek and win re-election to the office. This is a very significant power, because it means that opponents to the governor cannot just wait until he or she is out of office to oppose legislation because it is not clear when that governor will be out of office.

2. Appointive Powers: How many officeholders can the governor appoint? The governor of Texas can appointabout 3,000 different people during a four-year term. This is a significant power because the governor can put people in positions that support him or her and can use the appointments to get favors with legislators. For example, the governor can appoint the friend of a senator to a particular board and that senator may support the governor's budget proposal or bill. Take a look at these press releases for some of the most recent appointments. Unfortunately, most people only are aware of a gubernatorial appointment if it is poorly done and the appointee does something illegal, immoral, or stupid.

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9. Formal Powers of the Office of Governor, continued

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11. Formal Powers of the Governor (Continued)

12. 3.  Removal Powers: What power does the governor have to remove appointees who are not doing the job to his or her satisfaction? The Governor of Texas does have the power to remove appointees from office, however, it is very limited in scope. First, he or she can only remove people that he has appointed. The governor cannot come in and replace all of the people appointed by his or her predecessor. The governor can only replace them as their terms end. Second, the governor must get approval from the Senate to remove an office holder-this is a very severe and unusual limitation.
    4.  Budgetary Powers: How much control does the governor have over the state budget? As discussed under the legislature, the power to write the budget lies in the hands of the Legislative Budget Board. The governor can try to persuade them, but he cannot act for them. He does have one strong budget power-the line-item veto, the power to strike out or eliminate particular items from the budget. This can be overridden by the legislature, but, as long as the Governor does not get carried away, it seldom is.
    5. Supervising Powers. In addition to overseeing the development of the biennial budget, the governor also helps the state dvelope and implement longterm strategies for planning and development. Effective governments are those that don't just react, but plan and look ahead, anticipating problems and developing solutions. Included in this power is the ability to review state agencies on a regular basis (Texas Performance Reviews).

13. 6. Legislative Powers: How can the governor influence the activities of the Texas Legislature? The most important power the governor has relative to the legislature is the veto, which enables governors to nullify bills, concurrent resolutions, and appropriation items. A skillful governor can use the threat of the veto to influence legislation during the session. The veto can also be used as a last resort intervention in the budget process to affect spending priorities at the end of a legislative session. The governor seldom uses the veto (from 2000-06, Rick Perry vetoed just forty-five pieces of legislation).The governor does have an override-proof veto-any veto sent to the legislature after the legislature has ended its session.

14. The power to veto specific budget items, called the line-item veto, adds another dimension to the governor's veto power. The line-item veto provides a surgical tool that governors can use to cut elements out of a bill without vetoing the entire measure. But as with other vetoes, a governor who has not laid the political groundwork for such action may be subject to criticism and can expect to be called upon publicly to justify such action in high-visibility cases. If a governor neither signs nor vetoes a bill, it automatically becomes law without the governor's signature.

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21. Formal Powers of the Office of Governor, continued

22. The governor also has the power to informally set the legislative agenda with his or her message power by giving two constitutionally mandated speeches: The State of the State Address and the biennial (every two years) Budget Address. With each of these speeches, the governor establishes which issues he or she is most concerned with and, usually, the legislature will listen and at least consider these issues as part of its agenda. When he was governor, George W. Bush used these speeches effectively to promote his key issues: tax cuts, education reform, welfare reform, and tort (lawsuit) reform).

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24. The final legislative power of the governor of Texas is his or her power to call the legislature into special session - bringing them back to Austin to conduct business when they have already adjourned. The governor is the only person, not the speaker, not the lt. governor, who can call a special session of the Texas Legislature. He also has the power to limit which issue (or issues) they will consider in this session. A special session cannot exceed thirty days, but if the legislature has not completed business in that time, the governor can just call another session. Most of the time, governors use this power when there is some kind of crisis-the budget is out of whack, there has been a natural disaster, a scandal, or a court order (education reform).

25. Judicial Powers

26. Finally, while the powers are rather limited, the governor of Texas does have some relative to the judicial branch. First, he or she appoints and oversees the Texas Board of Pardons and Paroles. This Board determines if people convicted of crimes in Texas will be paroled or pardoned, and if the death penalty will be carried out. Texas is the only state in the country where the governor does not determine if the death penalty will be carried out. He can recommend a pardon be given, but the decision is up to the Board of Pardons and Paroles.

27. His second power is related to this. He can give a thirty-day “stay of execution” while the Board considers a pardon, but, at the end of that stay, if the Board wants to go forward with the execution, he cannot stop it.

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29. To conclude, the formal powers of the governor of Texas are very weak. We expect great things of the governor when we elect him or her to office, but we then tie the governor's hands when it comes to actually getting things done.

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Informal Powers (Roles) of the Office of Governor

Now, let's turn to the informal powers or roles associated with the office of governor of Texas. These roles are not guaranteed by the constitution or the rules, but their strength will vary from governor to governor. These powers have to do with the abilities, experiences and, situations of each governor. Rick Perry has different strengths than George W. Bush or Anne Richards.

Party Power (Chief of Party)

The governor is the symbolic head or leader of his or her political party in the state. In this role, he or she raises money, recruits candidates, and tries to coordinate the members of the party behind his or her legislative agenda. He or she usually works closely with the members of the party in the legislature and appoints members of his or her party to commissions and boards. Historically, when Democrats controlled almost all or all of the offices, the party role was very weak. This has changed in recent years, although Governors Bush and Perry have worked as closely with Democrats as with Republicans.

Power of Popularity (Leader of the People)

A governor that has the public behind him or her can get a lot more done than a governor that is unpopular (duh!). Legislators that disagree with a governor are not willing to risk their own positions to make that opposition public if 80% of the public approves of the job the governor is doing.

Power to Represent the State (note: your text considers this a formal power, but I disagree)

Perhaps the fastest growing informal role of the governor is the power to represent the state of Texas on the national and international stage. The governor represents the state in negotiations with other states and with other countries. With its proximity to Mexico, the international role is a particularly important one for the governor of Texas. The governor also represents Texas in its efforts to persuade the national government-for example, the governor of Texas has voiced his opinion on the new immigration legislation being considered in Washington. Finally, governors can represent the state in negotiations with businesses that are considering bringing a plant, factory or office to Texas.

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Informal Powers (Roles) of the Office of Governor, continued

Power of Staff (Staff Leader)

One power that the governor has relative to the legislature that is very important is the ability to put together and use a large staff (note these are staff positions, not appointments to boards or commissions or formal positions). Remember that most legislators have, at most, eight people on his or her staff. The governor of Texas has between two hundred and three hundred people on his or her staff. Effective staff can make or break a governor, because they are the governor's mouthpiece and physical presence in so many places. Consider the following three types of staff positions:

Political positions: These spots can be and are filled by people as political rewards. The son or daughter of a big contributor or the big contributor him or herself. Make sure you put these people in positions where it does not matter if they screw up, it will not hurt you.

Personal positions: These are people who have known the governor for a long time and that have the trust of the governor. These people are appointed to positions where loyalty is important. You also want these people in positions close to you (such as chief of staff) so they have the courage to tell you when you do or say something stupid. These folks are often the moral compass of the administration.

Professional positions: Finally, most positions should be filled by folks who bring a unique quality or skill to the position that makes them uniquely qualified to do it. For example, you want your staff person in charge of health care policy to know health care policy. You want your press agent to know how to deal with the press. If these positions are filled by unqualified people, you will have significant problems. You also must let them do their job-if they disagree with you, that is okay. You have hired them because of their expertise.

Power of Agenda Setting

This power has to do with the formal power of message noted above in combination with the governor’s relation to the press. It has to do with how effectively the governor is able to set the agenda. Every governor gives speeches, but not all governors are good it. This has to do with how effectively a governor can use her public and private speaking abilities to persuade the public and the legislature to address issues he or she deems important. An effective governor is one who can persuade the public and the legislature to consider the issues that he or she thinks are important and, thus, set the agenda for the state.

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Why are Some Governors More Effective than others?

Variations in Formal Powers

As noted above, governors in almost every other state have more formal powers (tenure, appointment, budget, removal, legislative, message, and judicial) than the governor of Texas. The governor of New York or Maryland starts off at a significant advantage over the governor of Texas because he or she has some formal powers that are much stronger (appointment, judicial, budget, and removal) than the governor of Texas. While formal powers are unlikely to vary from one Texas Governor to the next, political resources are likely to vary a great deal.

Variations in Political Resources

For example, some governors have the ability to move the public and increase their popularity, while others do not. As governor of Texas, Anne Richards seemed pretty good at this, while Rick Perry does not. Popularity is also tied to the situation-when the economy is in trouble, a governor’s popularity will fall. Second, political party strength can be a good resource-has not usually been the case in Texas, although this is changing. Finally, what experience does the governor bring to the office? Former governors who have served in the legislature or other statewide offices where they have had to work with the legislature will generally be at an advantage. This experience will help them lead more effectively.

Variations in Political Skills

While all governors have an array of political skills (they have to have some skills to have been elected governor), they all have strengths and weaknesses. Are they good at one-on-one negotiations? Do they give a good speech? Are they good on television? Are they good at understanding the complexity of public policy? All of these skills will help to make a person a more or less effective governor.

Variations in Personality

What kind of feeling does a person give us? The success of a governor (or anyone else for that matter) relies as much on how they make us feel as what they believe or do. If they have a personality that attracts people, governors are more likely to be successful than if they give us the chills and the willies!

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Characteristics of the Bureaucracy

The bureaucracy is the delivery mechanism of the government- they are the hands, face and feet of government. They are the ones who deliver the government services. Because Texas is such a large state, bureaucracy in the state is also large- the proposed 2012/2013 budget exceeds $180 billion! However, because the state is so large and has a generally conservative approach to governing, the per capita spending is second lowest in the country. More than one million of the citizens of Texas work for the government (teachers, bureaucrats, elected officials, etc.). The word bureaucracy conjures up all kinds of negative images in the minds of most people: big, impersonal, red tape, inefficient, etc. We all have horror stories of the unresponsive bureaucracy blocking what we wanted or needed to do for "no good reason." However, bureaucracies are the basic structure by which the government in Texas and any large organization generally operates.

The great German economic and political theorist Max Weber (note: you don’t have to read the bio of Weber - it is just for your information) outlined the basic characteristics of a bureaucracy. According to Weber, a bureaucracy, although not liked by many, is the best way to achieve the provision of services that a government must provide. He describes bureaucracies as goal-oriented organizations designed according to rational principles in order to efficiently attain their goals. He felt that as organizations (including government) got larger, it was inevitable and necessary that they move toward a bureaucratic structure and approach. Do you agree or disagree with this? According to Weber, the modern bureaucracy has five characteristics: hierarchical, specialization, compartmentalized, routinization, and politically neutral (merit-based). Let’s take a look at each one briefly:

Hierarchical: Bureaucracies are hierarchical. That means they are organized like a pyramid, with one person at the top (i.e., the governor) and increasing numbers of secretaries, section heads, departments heads, assistants, and associates below. Each person is responsible for the people below him or her and responsible to the people above. While this organization is efficient in terms of chain of command, it makes it easy to pass the buck "it was not my fault" and sometimes information gets distorted in passing it up and down the chain. Remember the game of operator you played as a kid where you whispered a secret to the person behind you to the point that it was unrecognizable by the end?

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Characteristics of the Bureaucracy, continued

Specialization: Bureaucrats are specialized-each person in the bureaucracy does a certain thing and is responsible for just that thing. In theory, this means that the best persons are responsible for each thing. In practice, it means that for someone seeking multiple government services, he or she may have to go through numerous hoops and chase down several people to get anything done ("Get it signed here, here, here and over there!"). Think about all of the hoops you have to jump through to drop one course and add another.

Compartmentalization: Not only are the people in a bureaucracy specialized, so are the positions and tasks. Each unit of the bureaucracy is relatively self-contained, focusing on its own thing and often giving little consideration to what is going on elsewhere. They are each designed to do a certain, limited thing and do it well, but, not to do anything else. Again, this is good in terms of focus, but difficult in terms of building communication. IT makes it difficult to coordinate large projects-sort of like trying to herd cats!

Routinization: Over time, Weber argues, a bureaucracy develops the best and most effective way to perform certain tasks. This leads to routines-certain things are always done a certain way to ensure uniform performance and consistency. This assumes that the routine is indeed the most effective and efficient. However, sometimes routines outlive their purpose and their logic. Government does not always keep up with change and advances. Too often, the reason things are done a certain way is not “because it is best,” but rather, “because we have always done it that way.”

Politically Neutral (Merit-Based): In order to apply the laws and policies effectively and fairly, bureaucrats are supposed to be politically neutral. That means that individuals are hired, promoted, and fired according to how well they do the job and not according to whom they know, their political party, or whom they help or don’t help. In theory, this works well, but the reality is (as noted above in talking about governor’s staff), hiring is often political.

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Growth of the Bureaucracy

As noted above, Texas has much more government that it had just a decade ago, much less fifty years ago. Why has government grown so much, especially in light of the conservative nature of the state and its recent Republican control?

1. Greater Demands by the People: While people in Texas talk about wanting less government, they keep demanding more services-somebody has to teach the children, clean the streets, pick up the garbage, regulate the air, regulate the nursing homes, regulate the day care centers, etc. As people moved away from family and rural communities, they needed (and demanded) more government services.

2. Federal Government Growth has Required State Growth: As the national government has gotten more active in the environment, education (No Child Left Behind), social security, Medicare, Medicaid, etc., state government has grown to deliver the services created and mandated by the state.

3. A More Complex Society: When you hear your grandparents talking about a time when there was no “big government,” they may be exaggerating, but they may also be correct. Fifty-sixty years ago, we did not need as much government-a simpler time called for a simpler government, which did not need to worry about regulating the Internet, television, cloning, partial-birth abortions, etc.. As society has grown more complex, so have the problems government must deal with.

4. Increased Party Competition: You may recall that earlier in the semester, we talked about political parties as being like competitors in a market place, each trying to “buy” votes. As the party “market” in Texas has become more competitive, government has grown as the two parties try to provide more services or more regulation or more government in order to increase their share of the votes.

As the population of Texas continues to grow, and the demands of the public become greater and greater, one can expect the bureaucracy to continue to grow. Do you think we will arrive at a point where government will not grow anymore? Why or why not?

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Controlling the Bureaucracy

One particular quality sets the bureaucracy apart from the executive (governor), legislative (legislature ) and judicial (courts) branches of government in Texas: they are NOT elected by the public. Therefore, public control over the bureaucracy, if it is to happen at all, must come through some other mechanism(s). Let's look at three possible sources for controlling the bureaucracy as noted in your textbook: the executive branch (the Governor), the legislature, and the public.

The Executive Branch

Probably the best hope for the executive to control the bureaucracy is the appointive power of the executive. However, as noted earlier, that power is pretty weak and the power of removal is even weaker. If a governor does not like what a bureaucrat is doing, but he or she did not appoint that person (and the action is not illegal), he really cannot control that person. In other states, the governor can control the bureaucracy, at least so some extent, by controlling the budget. However, we know that the budget power in Texas resides much more with the Legislative Budget Board than with the executive. Finally, because the government in Texas is so large (with numerous elected and appointed leaders), the governor has little real contact with most of the agencies and therefore, little control.

The Legislative Branch

Probably the best hope for regulating the bureaucracy comes from the legislative branch because of their budget powers and oversight responsibilities. They have the legal power of legislative oversight, with the ability to make sure that the agency is doing what it is supposed to. They often do this with their biennial budget hearingsduring which the agencies must defend their requests for money and the legislature may deny them. However, because of the iron triangle (cozy triangle), true and effective oversight seldom happens. Remember, it is often in the interest of the legislators, the agency, and the interest group to keep the money coming even if the agency is not using it wisely. While the legislature has more formal tools to regulate the bureaucracy than does the governor, it often lacks the desire or will to use them.

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Controlling the Bureaucracy, continued

In order to supposedly set aside some of the political pressure to keep funding agencies, in 1977, Texas established a process for all existing boards to periodically (Sunset Act) review agencies - if they do not choose to renew the agencies, they automatically end (the sun sets on them, in other words). The Sunset Advisory Commission includes five House members, five senators and two citizen members and has eliminated more than a dozen agencies and merged almost a dozen more.

The Public

Unlike most states, the public does have some electoral control, albeit not much, over the bureaucracy. They elect four department heads (comptroller, attorney general, land use and agriculture) and some commissioners. However, most voters have little real understanding about who these people are or what they do. Even if they cannot control the agencies, they can at least observe them- according to the 1973 Texas Open Records Act, the public has access to most of the publications and meetings of bureaucratic agencies. If they are aware of significant problems, the public can get the media involved.

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The Judicial Branch

The legislature is a public branch of government. The governor is a public official and everyone knows who he or she is and has a basic understanding of what he or she does. The actions of these two branches are public and scrutinized by the media and the public. On the other hand, the judicial branch is veiled in secrecy, with decisions made behind closed doors and presented in cryptic legal terms that most people do not understand, or have little desire to understand. Although we elect judges as we do other officers, most votes for them are cast with virtually complete ignorance of the candidates or the issues involved.

And yet, this branch of government may have the most significant long-term impact on your life of any of the three branches of government. While the legislature can pass laws, the courts can strike them or change their meanings with the stroke of a pen. While the governor signs and vetoes laws, the courts can find his or her acts unconstitutional or illegal, without justification. And, the decisions of the court are made more significant by the fact that those decisions are permanent unless changed by another court. The legislature can change them. The governor can't change them. You can't change it. Only another court at the same or higher level can alter the ruling or decision of a court in Texas.

The judicial branch is different from the executive and legislative branches in three important ways: its source of legitimacy, the limited checks on its power, and the secrecy of its decision making process.

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The Judicial Branch, continued

Source of Legitimacy: Both the governor and the members of the legislature derive their legitimacy (why we listen to them) from the fact that they are elected by the voters. We choose them, so we listen to them. While judges in Texas are elected, I would suggest that their legitimacy comes from the fact that we generally respect the law and they enforce the laws. Their legitimacy comes not from fear or elections but from an understanding that without the law, we would have chaos.

Limited Checks on Its Power: Throughout this semester, we have made a big deal about the importance of checks and balances in democracy. The governor can check the legislature and the legislature can check the governor However, the checks on the courts are pretty limited. If the courts rule a piece of legislation or an act of the governor to be unconstitutional, there is nothing the governor can do about it. There are only two ways that an act of the court can be altered: 1) overruled by a higher court (not really a check because it is part of the same branch) and 2) by changing the constitution (that does involve the legislature and the public). Beyond this, there is little that you and I can do to affect the courts other than just get pissed off.

Secrecy of Its Decisions: When the governor and the legislature meet, they are required to make those meetings public and are required to explain why the made the decisions they made. The courts, on the other hand, make their decisions in private and often will not explain exactly who or how the decisions were made

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Functions of the Courts

Function 1: Dispute Resolution

The first function of a court system, and the reason that court system was initially developed, is to have some nonviolent way of settling disputes.

While the judicial branch is responsible for interpreting laws, the initial reason for the development of a judiciary was the settlement of disputes between individuals. In the days of the cave dwellers, someone was needed to settle the dispute between two people over property or food, etc. Who really killed the dinosaur and who should get the food? While our courts and our system of government are much more complex now, the basic role of the courts is the same: to settle disputes between individual parties or individuals and the government within the legal framework that the state of Texas has established.

Disputes can be divided into two broad categories: criminal and civil. Criminal disputes involve the violation of a state or local law or ordinance. Someone is accused by the government of violating a law. Civil law involves a dispute between two private parties: a company and a person, two individuals, or two groups. Most lower courts are dominated by low-level criminal law, particularly traffic violations. For example, in 1998, 74.9% of all 763,941 cases handled by the county level courts in Texas were traffic cases. At the municipal court level and the justice of the peace courts, the significance of criminal and traffic cases is even more striking. In Fiscal Year 1997, 82% of all cases in municipal courts were traffic related. 90% of all cases in the justice of the peace courts were criminal cases, usually very minor violations. It is not until they reach district level courts that civil cases become a significant part of the docket.

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Functions of the Courts, continued

Criminal Cases: There are some important differences between the way criminal and civil cases are handled by the courts. Let's look first at criminal cases, which are cases that involve the supposed violation of a law or ordinance. The key players in a criminal case are the defendant (person charged) and the prosecutor (state). The question in a case is one of guilt or innocence-is the person guilty or innocent of violating a particular law? Finally, a unanimous verdict from the jury (in a jury trial) is necessary to find someone guilty of a criminal offense and to find a person guilty, you must prove the case beyond a reasonable doubt. There are two types of criminal offenses: misdemeanors and felonies. Misdemeanors (crimes that are nonviolent and have a punishment of a fine or less than a year in jail) are minor offenses, and felonies (usually any crime in which the potential punishment can be more than a year in jail) are much more serious offenses.

Civil Cases: On the other hand, in civil cases, the case is about one person (or entity) doing another person (or entity) wrong. Did I sell you a defective car? Did a faulty product cause you to lose your sight? The question to be answered is not guilt or innocence, but rather one of liability - is one party liable (responsible) for what happened? The two players in a civil case are the plaintiff (person bringing the charges) and the defendant (person charged with wrong doing). Finally, a unanimous verdict is not necessary, but rather a super majority, two-thirds or three-quarters to nine out of twelve, is required and the decision is based not on “beyond a reasonable doubt,” but rather on the “preponderance of evidence.”

This is a much lower threshold to prove. If a person is found liable in a civil case, then you have to decide what to do about. Because it is about doing someone wrong, the consequences have more to do with compensating the person who was wronged (the plaintiff) than with punishing the defendant. In assessing damages, the judge will consider the real damages (what did it cost to fix the car, rebuild the house, etc.) and punitive damages (money paid to compensate for suffering and to send a message to the company that this is serious).

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Function 2: Interpreting the Law

As noted above, when it comes to separation of powers, the primary function of the judicial system is to interpret the meaning of the laws that have been passed by the legislature and signed by the governor. This function is very important because laws, as written by the legislature and signed by the governor, are often very vague and leave a lot of room for interpretation as to what they mean in application. How does a very general law apply to a very specific case? When trying to apply a particular law and make a decision (ruling), judges make their decision in light of four different kinds of laws that are their guiding principles: common law, constitutional law, statutory law, and equity law.

Common Law

Common law is not written down, but refers to the sort of acceptable code of behavior that has governed the behavior of civilized man for generations-accepted norms of behavior. It refers to the way things were done historically in England on which our system of law is based. It is normally the basis for laws that are written down. You can use it to explain your decision as a judge, but you cannot convict on it.

Statutory Law

This is the formal law written down and passed by the legislature and signed by the governor. That is usually based on common law. When legislators write laws, they usually base them on the commonly accepted practices (common law). However, for it to be considered legally binding, common law needs to be written down as statutory law.

Equity Law

Equity law, like common law, has as much to do with how the judge makes a decision as it does with the law itself. The purpose of equity law is to look at whether or not the outcome will be fair and equitable, especially relative to groups (minorities, women, etc.) that have often found themselves treated unequally. It is designed to make the economic, political, or social system more equitable. Think about civil rights legislation or the Equal Rights Amendment. Equity law is any application of law any application of law to make things equal or, at least more equal.

Constitutional Law

Constitutional law is like statutory law in that it is written down (in a Constitution), but it is more powerful. Constitutional law overrides all the other three. The only way to defy Constitutional law is to change the Constitution.

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Function 3: Making Public Policy

While we tend to think of the state legislature as the branch of government most involved in making and setting public policy, we cannot get away from the fact that the judicial branch is heavily involved in making policy. They do this in two intermingled ways. First, we charge them with interpreting what a law means. They are supposed to interpret the "legislative intent" of a law and then apply that law. By determining what they believe a law meant, they are, in effect making policy, especially, if their interpretation is contrary to general belief or the original meaning of the legislature. Further, and interrelated, on each case they make a decision that affects future cases and future law. In this way, they are making public policy. If the courts rule that a law is unconstitutional, then that law no longer has an effect- that is making public policy. If the court rules that a law must be upheld a certain way or under certain conditions- that is making public policy.

The judicial branch makes public policy in two distinct and very important ways: judicial review and setting precedent.

1) Judicial Review: The courts have the power to review and, if they wish, nullify the decisions f other branches or of lower courts. They can overturn the decisions of the governor, the legislature or lower courts. Relative to the acts of the legislature, (which formally makes policy), this is, in effect, making policy. Further, because no one can overrule the acts of the courts, the policy they make is much more permanent. When reviewing the acts of the legislature n light of the Constitution, judges take one of two approaches: public reading and original intent. Public readingsuggests that judges look at the Constitution in the context of the demands of the modern worlds (the public) rather than in the context of the world in which it was written in 1874. These folks are likely to reinterpret the Constitution. On the other hand, some suggest that it is better to look at the strict interpretation of the authors of the Constitution and try to figure out what they meant 175 years ago. Judges who use this approach are less likely to seek change.

2) Setting Precedent: The courts also make policy by setting precedent. Every decision they make may be used to explain and justify decisions twenty, thirty or one hundred years from now. A decision today sets precedent (sets an example or justification) for future decisions.

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Characteristics of the Court Structure

Court systems are supposed to serve the needs of the public and be their advocates in the political process. However, the court system of Texas dramatically fails to meet this qualification. It is among the most confusing court systems in the country. If you are involved in a crime involving $3,000 worth of goods, your case could go to a constitutional county court, a statutory court (one of many) or a district court, and there appears to be no rhyme nor reason for these different options.

First, the Texas Judicial system is very complex and confusing. There are overlapping jurisdictions and multiple courts that might hear the same case. Why is the system so confusing? First, like everything else in the Texas process, the court system was developed over one hundred years ago for a sparsely populated rural state, but now must govern a large, urban state. In order to keep up, rather than restructure the system, pieces and parts have been added as needed, creating a matrix of courts, with some handling only civil cases, others only family cases, others only juvenile cases, and others only probate cases. Second, with its separate high court for criminal and civil cases, the court system was relatively complex from the start. Finally, it should surprise no one that a legislature which is traditionally about 50% attorneys would want to perpetuate a court system that is complex. A simple court or legal system would mean less necessity for attorneys and that just would not do!

Second, the method for selection of judges in Texas is the election. Unlike at the national level or in most other states, the vast majority of judicial positions in Texas are electoral positions. More than half of the judges initially get on the bench by being appointed (to replace someone else who has retired, died, or taken another job). The judges must face the voters if they wish to keep their jobs and that affects how they make their decisions.

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Characteristics of the Court Structure, continued

The Texas Judicial System is Bifurcated (split)

It is one of only two court systems in the country (the other is Oklahoma) that have two courts at the top of their court system: the Court of Criminal Appeals and the Supreme Court. The Court of Criminal Appeals hears all criminal cases that get to that level (including death penalty cases). The Supreme Court of Texas hears only civil cases-those not looking at guilt or innocence, but rather looking at liability. The Supreme Court also regulates judges and lawyers in the state and oversees the judicial system.

Judicial Elections are partisan. Just like elections for governor, legislature and other statewide offices, elections for judges in Texas are partisan. Candidates declare their party affiliation (Republican or Democrat) and run their campaigns based on that appeal. This means that they are often elected not because they are going to be effective, intelligent, or reasoned judges, but because they are from one political party or the other.

Judicial Qualifications vary from level to level and court to court. The legal requirements to serve as a judge in the Texas Court System vary considerably across the system. To serve on the Appellate Courts or the Supreme Court or on the Court of Criminal Appeals: you must be at least thirty-five years old and have at least ten years of judicial experience as a practicing attorney or practicing attorney and judge. On the other hand, there are no statutory (written in statutes) requirements to be a Justice of the Peace and only (6%) are lawyers! Judges of the county courses also need not be lawyers, but merely “well-informed in the law of the state.”

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Courts of Original Jurisdiction

In Texas, there are three different courts that one can consider as courts of original jurisdiction (courts that hear only cases that are being heard for the first time- not on appeal): Justice of the Peace Courts, Municipal Courts and District Courts. Original jurisdiction means that these courts do not hear any case that has been heard previously by another court. They are trying to determine guilt or innocence in a criminal trial, or liability in a civil case. Justice of the Peace and Municipal Courts hear primarily misdemeanor criminal violations (minor offenses), mainly traffic cases.

Justice of the Peace (JP) Courts: In Fiscal Year 2011, the 817 Justice of the Peace Courts heard over 3.1 million cases! Of those cases, 90 percent were minor criminal offenses (mainly tickets for speeding or parking violations), with civil cases making up the remaining ten percent. 2/3 of these cases never went to trial. Most were settled out of court, with the payment of a fine. By the way, only 6% of the Justice of the Peace officers graduate from law school!

Municipal Courts: Municipal Courts are the courts that try violations of city ordinances, usually speeding, parking and other traffic offenses. They have exclusive jurisdiction over city ordinances (like parking and speeding in the city), and share jurisdiction for Class C misdemeanors (fine of no more than $500 with no chance of jail time). Municipal judges may be appointed by the city council or elected by the voters - depending on the city. In Fiscal Year 2011, Municipal Courts operated in 923 Texas cities, hearing over 7 million cases! Over eighty percent of those cases were traffic violations, with over half being settled out of court, usually with a payment of the ticket. Of all cases that did go to trial, 96% received a guilty verdict. Less than 1% of the cases were appealed to the next level.

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Courts of Original Jurisdiction, continued

Note: Neither JP or Municipal Courts are courts of record, so that transcripts are not kept of the proceedings. If the case is appealed, you pretty much have to start over.

District Courts. The 456 district courts in Texas hear mostly costly civil cases (especially divorce cases and disputes over wills) and felony cases (major crimes like theft, robbery, assault and murder). In 2011, they heard 547,355 civil cases, 277,201 criminal cases and 22,569 juvenile cases. The largest category of criminal cases was theft, followed burglary, and robbery. The district courts imposed thirty-six death penalties and 374 life sentences. In criminal cases, the defendant entered a guilty plea 37% of the time and was acquitted in less than 1% of the cases! It is estimated that about ninety percent of the cases are disposed of with plea bargains, where the prosecutor and the defense attorney agree to allow the defendant to plead guilty to a lesser charge. The civil cases are generally divorce and probate (arguments over wills) cases. At this level, you do have to have at least four years of service in a judicial position to serve as a judge in this court.

In short, the vast majority of people tried in a criminal trial in Texas are found (or plead) guilty, and the vast majority of people tried in civil courts are found liable. In fact, Texas has more people on death row than all other states combined!

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Courts of Original Jurisdiction and Appellate

Texas contains two courts that might hear cases either on original jurisdiction or on appeal: the 254 constitutional county courts and the 209 statutory county courts at law. If you are not satisfied with the guilty verdict in a criminal case, or the liability decision in a civil case, you can appeal that decision to the next level. County court judges may be paid as high as $100,000 in large cities and as low as $10,000 in rural areas.The constitutional county courts and the statutory county courts (county courts at law) can hear any civil case with a value of between $200 and $5,000 and misdemeanors or Class C felonies (major crimes that are not violent). However, they can also hear cases on appeal from the justice of the peace and municipal courts. Because these lower courts keep no records, these appeals are treated like new trials.

Of the almost 860,000 cases heard by these courts in Fiscal Year 2011, almost seventy percent were criminal cases, including check bouncing, driving while intoxicated, or simple assault. Of the 25% of the cases that were civil cases, about one-third were suits of debt, 19% concerned personal injury, and 7% were divorce related. As noted in the lecture and text, judges of the constitutional county courts are not required to be attorneys. In 2005, 31% had not graduated from college, 83% had not graduated from law school, and 88% are not licensed to practice law!!!

Courts of Appellate

Texas has three courts that only hear cases on appeal: The courts of appeal, the court of criminal appeals and the supreme court. The court of criminal appeals only hears criminal cases and the supreme court only civil cases. Members of all three of these courts are elected in partisan elections. These courts do not look at guilt or innocence (or liability), but rather at the process by which the lower court decision was made. There is no jury. It is generally the judges (three or nine) and the attorneys who represent the two sides. When a case is appealed to either of these courts, they have three options: 1) affirm the lower courts decision, 2) overturn the lower courts decision, or 3) remand the case back to the lower court for reconsideration (get it right this time).

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Courts of Appellate, continued

Court of Criminal Appeals

During Fiscal Year 2006, the Court of Criminal Appeals was asked to consider more than 10,000 cases, ranging from death penalty appeals to extensions of time to file court transcripts. This Court hears only criminal cases. Of those 10,623 cases (including 78 death penalty cases), they supported the lower court in more than 7,000 of those cases, most often refusing to hear the appeal, thus letting the decision of the lower court stand. They overturned only two death penalty convictions.

In other words, in well over half of the cases, the appeal failed, from the perspective of the person charged with the crime. This should not be surprising in a state where the judges are elected by a very conservative, get-tough-on-criminals, voting public. Cases are normally heard by a three judge panel, except death penalty cases which are heard by all nine judges (called en banc).

Courts of Appeals (14)

The Texas Courts of Appeals include fourteen courts that are assigned geographic areas of the state. There are about eighty judges, ranging from thirteen in the largest region to three in the smallest. They hear cases in groups of three, with two votes required to make a decision. In 2011, the fourteen Courts of Appeals disposed of 11,936 total cases during the year. They overturned the lower court decision in just under 700 of the cases, upholding the lower court in more than 95 percent of the cases.

The Supreme Court of Texas and the Texas Court of Criminal Appeals are the courts of last resort (end of the line) for your case unless you have raised a question about your constitutional rights under the US Constitution in your original appeal after the initial trial. In that case, and only in that case, you can appeal to the United States Supreme Court.

In 2013, the Texas Supreme Court was asked to hear 778 cases and agreed to hear just over fifteen percent of those cases (94).In that same year, the Court of Criminal Appeals heard more than 6,000 cases, becasue over 3/4 of thier cases are mandatory (they have to hear them).

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Steps in the Criminal Justice Process

Very few cases actually make it to the top of the criminal justice process in Texas, the Supreme Court for civil cases and the court of criminal appeals for criminal case. While over ten million cases started at the district, justice of the peace courts or municipal courts in fiscal year 2002, the Supreme Court wrote opinions on only 128 cases and the Criminal Court of Appeals wrote opinions on 306 cases during the same period. Less than one-tenth of 1% of all cases made it to the top. Why is that?

As you will note in the lecture, the judicial process is designed to weed out cases each step of the way. First, notice that the vast majority of cases at the lowest level never go to trial but rather result in a guilty plea. Second, because the lowest courts are not courts of record, they must start anew with an appeal to the county level, a daunting task if you have already gone through the process and been found guilty. Finally, the appellate courts tend to reject most cases without even a hearing, upholding the lower courts. The Supreme Court received more than 3,000 cases in 2002, but rendered opinions on only 128. The top two courts can refuse to hear a case without ever giving a reason as to why!

Let’s look briefly at the steps of the Criminal Justice Process (note: for an outline of the structure of the Texas court system go the Web site for the Office of Court Administration:

Step 1: Investigation and arrest

The first step in the criminal justice process is the investigation and arrest in the commission of a crime. A crime is committed and investigators find enough evidence to bring charges against someone. Based on the evidence they have, the police make an arrest and turn the case over to the prosecutors for step 2.

Step 2: Trial Court

In Texas, there are three potential trial courts, depending on the nature of your case: Justice of the peace (minor offenses), municipal courts (violation of city laws) and county-level courts (major offenses). (See your textbook, Chapter 10, for a thorough discussion of these distinctions.) The trial court has two responsibilities - the first is to decide if there is enough evidence to bring charges (indictment). This is done by the Grand Jury - they look at all of the evidence and determine if there is enough evidence to proceed with the trial (they are not looking at guilt or evidence, just enough evidence to proceed with a trial) - grand juries will hear a lot of cases and the vast majority of the time, they will agree with the prosecutor and proceed with the trial. In determining if you will proceed, the grand jury does not hear from the defendant, only from the prosecutor. If the grande jury decides to proceed with an indictment, then the case will go before the traditional Petit (Trial) Jury. This is the traditional jury from television shows like Matlock or Law and Order. The petit (trial) jury is responsible for determining guilt or innocence. As noted earlier, the petit jury hears the evidence and decides guilt or innocence based on their belief beyond a reasonable doubt. Quite often, the defendant in a criminal case will opt for Deferred Adjudication- a type of probation where a person is not convicted, but sentenced to probation. If they complete the probation, their record is wiped clean- no conviction is recorderd If they fail to complete probation, they will be sentenced.

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Steps of the Criminal Justice Process, continued

Step 3: Appellate Courts

Assuming you are found guilty, but do not believe that verdict is correct, or, more properly, that the process by which you were found guilty was not correct, then you will appeal the verdict to the next level. The purpose of the appellate court is not to determine guilt or innocence, but to determine if that guilty verdict was found by a fair and just process. Cases are overturned on appeal because of the process not the verdict. You are better off being guilty, but found so by a faulty process, than being innocent and found guilty by a fair process. This is about process.

Texas has fourteen courts of appeals with about eighty judges. They hear appeals in teams of three, with a majority vote (two of the three) necessary to overturn a decision of the lower court. The appellate court has three options:

1. To uphold the lower court decision (most common)

2. To overturn the lower court decision

3. To vacate the lower court decision and ask them to try again- get it right this time

Step 4: Court of Criminal Appeals

For criminal cases, in Texas, this is the highest state court in the land. The Supreme Court of Texas does not hear criminal cases. If your appeal is turned down at the Court of Appeals level, you can appeal to the court of criminal appeals. In a death penalty case, that appeal is automatic and bypasses the lower Court of Appeals. The Texas court of criminal appeals may choose not to hear the case-and it usually does not. Of the thousands that it considers, it seldom hears more than three hundred cases a year. Like the court of appeals, the criminal court of appeals can choose to uphold the lower court decision, overturn that decision, or remand the case back to the lower court to do again without the mistakes.

Step 5: Appeal to US Supreme Court

If, and only if, the attorneys have made a claim in the initial appeal (after the initial verdict) that their client's Constitutional rights were violated, the case can be appealed to the United States Supreme Court. The US Supreme Court can choose to hear or not to hear the case-most often it chooses not to hear them. If it does decide to hear it, the court may overturn the decision, uphold the decision, or remand it back to the court for reconsideration.

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Political Characteristics of the Texas Courts

When you and I were growing up, we were all taught in elementary school that justice is blind. We have this image that the judicial system, unlike the other branches, is somehow void of politics. It is all about what is fair and right and just. I would suggest that the judicial system is indeed political for the following five reasons:

The Judicial Selection Method

In Texas, judges are elected, just like the governor, the lt. governor, and the members of the legislature. Further, the elections are partisan, so we often vote for a person simply because they are a Democrat or a Republican, whether or not we know anything about their qualifications. We also often vote based on name recognition (a name that we think we recognize). Further, because they must run for office, judges and justices must raise money and they often raise it from people that will (or have been) before them in the courtroom. I think it is naïve to believe that a judge can forget a $50,000 campaign donation and rule impartially.

Interestingly, while Texas judges are elected, the majority get on the bench initially by appointment by the governor. An elected judge resigns, retires, dies, or gets a better job and the governor has to appoint his or her replacement. The appointment process is all about being of the right party and having the right connections- again a very political process.

Discretion of the Judges

Judges have a considerable amount of discretion when it comes to making a decision on a case. They have a great deal of freedom in determining what evidence can be heard, which witnesses can be heard and the severity of the sentence. Therefore, a particular decision may be as much a function of the whims of the judge as it is of the facts of the case. Conservative judges rule differently than liberal judges. Republican judges rule differently than Democratic judges. That is political.

Judicial Lobbyists

Believe it or not, there are lobbyists in the judicial system-they take a different form and work differently than in the legislature or the executive, but they still work on behalf of the defendant to get the judge to rule in the defendants favor, just as they do in the other branches. There are two types of lobbyists, depending on the stage of the process: character witnesses and amicus curaie briefs (friends of the court).

Character Witnesses

In the jury stage of the trial, when the jury or judge are determining guilt or innocence or trying to determine the appropriate sentence, attorneys of the defendant will bring in character witnesses to establish that this person either would not have committed the crime or is just a good person who made a mistake. We know that defendants with more character witnesses generally get a more lenient sentence or punishment.

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Political Characteristics of the Texas Courts, continued

Amicus Curaie (Friends of the Court) Briefs

Once the person has been found guilty or liable and the case is being appealed in the appellate courts, attorneys will often gather friends of the court briefs which are letters from other legal entities (perhaps judges, attorneys, etc.) who support their motion and logic regarding the appeal. Once again, we know that cases with the most such briefs are likely to be viewed more favorably.

• Some People Win More Often: A fourth political quality of the courts has to do with winning and losing. We know that particular types of participants win more often than others.

First and foremost, the wealthy do better than the poor for a variety of reasons

• They can afford better attorneys.

• They can afford to post bail and they don’t come into court wearing the traditional prison jumpsuit and already looking guilty.

• The kinds of crimes wealthy people commit tend to have less harsh sentences - the punishment for an ounce of crack cocaine (poor folks) is ten times that for the same amount of powder cocaine (wealthy folks). Robbing a person on the street of $50 is likely to get a harsher sentence than stealing $50,000 from a company.

Second, businesses do better than individuals. Because they have likely been there before and will be there again (repeat offenders), businesses and their attorneys (who are on retainer)  are more familiar with the system, often have relationships with judges, and have attorneys on retainer (are paid whether they work or not), so they can drag out the case until the individual suing is broke or just gives up. 

Third, the importance of race is unclear. If you control for the type of crime and the circumstances, the results for minorities and non minorities appear about the same. It appears that that racial discrepancies are primarily a function of the wealth discrepancies noted above. Minorities tend to be less wealthy, so they do less well.

• They make public policy. As noted above, while they are supposed to be merely interpreting the law, judges really do make public policy with their power of judicial review and their ability to influence future cases by setting precedent. (See notes on the characteristics of the judicial system to refresh your memory of this).

How do we explain the political nature of the courts in Texas? First, Texans believe strongly in the right to vote and to control officials by elections. However, they do not adequately practice that right to vote. In a recent poll, 70% favored electing judges. Most do not vote and those who do, especially for lower-level races like judges, do so with limited knowledge or interest. For example, in 1998, we elected three justices to the Texas Supreme Court and three justices to the court of criminal appeals with a turnout rate of less than 30% and I would venture to guess that 90% had no idea who they were voting for or against. Second, while judges may argue they do not like running for election, they play the game very well, most spending in excess of $1,000,000,000 on their campaigns. Finally, companies and big businesses like the political nature of the process, because they can use campaign assistance to influence the judges and justices in their favor. Do you think this influences the way judges in Texas make decisions? What are the chances that judges will be chosen by some process other than elections in the near future?

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Efforts to Depoliticize the Courts

As noted above, it is unlikely that the judicial system in Texas can ever be completely depoliticized. However, several steps have been taken in Texas to try and weaken the power of individual judges and at least minimize the importance of personality. These are steps we have taken to try and limit the impact of the bias of judges:

Sentencing Requirements

More and more the state legislature is giving particular sentencing requirements such that the judges cannot just randomly apply sentences. For example, the legislature will say for a particular crime the sentence must be at least five years and no more than ten years. This restricts the leeway of the judge.

Power of the Jury

Judges have a great deal of control in the courtroom regarding what can be heard, done, and said relative to the trial. However, at the end of the day, the jury makes the final decision-it can be overruled by the judge, but that is very rare. The jury is the final decision maker, especially in Texas, where it not only determines guilt or innocence, but also determines punishment. If you are on trial in Texas, you have the power to call for a trial by a jury of your peers.

Judicial Selection

While the election of judges makes the process political in some ways (see above), it also does limit the degree to which judges can go wild-if they get too out of line regarding their sentencing, the voters will remove them.

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Efforts to Depoliticize the Courts, continued

The Adversarial System of Justice

Understand that the purpose of the defense attorneys in our system is not to find the truth or to seek justice, but rather to provide the strongest and most effective defense for his or her client, whether they are guilty or not. The role of the prosecutor is to present the strongest evidence possible that the person did commit the crime. If everyone does their job effectively, then the result should be truth and justice. The power of the attorneys provides some limitations on the judge- if a defense attorney is effective, it makes it difficult for the judge to arbitrarily rule or make a decision that does not match the facts as presented.

The Public Nature of the Process

A fourth limitation on the power of judges is the public nature of the process. At minimum, this means that the decisions a judge makes must be announced in public and that the trial is conducted in public. In recent times, this means that many trials are broadcast on television or the Internet and strange or ridiculous behavior is likely to show up on You Tube! Public embarrassment is a pretty strong control!

Finally, let's take a look at some proposed reforms for the Texas court system:

First, and foremost, the method of judicial selection should move away from partisan elections. In this system, most judges are elected simply because they are in the popular party at the right time, rather than for any judicial qualifications. About one-half of the states use either partisan or bipartisan elections to choose their judges (eighteen nonpartisan; nine partisan). In four states, the governor is responsible for the appointments, and in two others, the legislature makes the appointments. All of these processes are very political. Eighteen states have gone to a merit-based plan, called the "Missouri Plan," in which judges are selected by the governor from a list of qualified candidates and then the voters vote whether or not to keep them in office. Such a plan has been recommended in Texas for years, but is always stopped by politicians and lobbyists.

Second, if judges and justices are to be elected, the regulation of "conflict of interest" violations must be more closely regulated. It must be made very clear that any judge or justice who receives financial assistance from a political party cannot hear a suit related to that party. At present, such activity is legal.

Third, many argue that the power of juries in Texas should be curtailed. Texas is one of the few states where juries may determine the sentence as well as the verdict. Many argue that jurists are not capable of making a rational decision regarding sentencing, especially in emotionally charged cases like child abuse or injury lawsuits.

Are such changes necessary? They are if people are to keep faith in the judicial system. Almost half of the public does not have a positive impression of the Texas judicial system, according to a survey by the Office of Court Administration. More importantly, almost 60% of the respondents felt that all people are treated alike in the courts and 78% felt that the wealthy are treated better than the poor.

The Judicial Branch

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The Purpose of Justice: Civil Liberties and Civil Rights

While the short term role of the judiciary may be to interpret the laws as passed by the legislature and signed by the governor, its true objective is to ensure justice. In doing that, it addresses the real world application of two key concepts: civil liberties and civil rights.

Civil liberties refers to the basic individual freedoms from government interference that are crucial to sustaining democratic government. These are rights granted to all Texas citizens that cannot be controlled or restricted by the government. Among these very important rights are the freedom of expression and freedom of religion - both generally accepted in theory. However, in practice, there is much disagreement. Is flag burning free speech (many veterans don’t think so)? Should a radical Muslim be able to speak ill of America in the name of his or her religion? Should an evangelical Christian be fired for witnessing to her students about the salvation of Jesus Christ? If you think these questions are difficult, think about some other issues that many think fall under civil liberties-the right to bear arms (guns) and abortion! Does a law requiring parental notification in case of abortion violate a young woman’s civil liberties? Where does my freedom meet your liberty? Is it a violation of a hunter’s rights if he or she cannot legally purchase a semi-automatic weapon at a gun show?

Civil rights: Refer to the rights of all citizens to be treated equally in the eyes of the law and of the public. While the government has often violated the civil rights of its citizens, it is now generally viewed as the protector of civil rights. Some critical areas of civil rights include school integration (Brown vs. the Topeka Board of Education, 1954), housing discrimination (renting or selling only to one ethnic group), and affirmative action (requiring that traditionally disadvantaged groups be given a “leg up”).

Some less traditional civil rights about which there is limited agreement include: civil rights for convicted criminals, civil rights based on sexual orientation, discrimination based on age, mental or physical disabilities, and even weight. The definition of civil rights is, and always will be, a moving target. How far should the government go to see that everyone is treated equally?