GOVT 2306

The State Judiciary

In this section, we begin a discussion of the last of the three

branches of government.

Here we try get comfortable with what the judiciary is and key aspects of it. Here a couple of Wikipedia sites that might be

useful to look through to get an overview of the subject: The Judiciary, The Texas

Judicial System.

I recommend the following as well:

TSHA: JudiciaryTexas Politics: The Justice System

And the Office of Court Administration has produced this

handy pamphlet on The Texas Judicial System.

You might also want to take a quick look at Article 5 of the Texas Constitution. It designs the states’

judicial system. We will walk through its sections in the next set

of slides.

To assist in this discussion, here are key terms. If you can learn, identify and use them, you are

ahead of the game:

Adjudication . Judge . Justice . Due Process . Common Law . Criminal Law . Criminal Trial. Precedence . Stare Decisis . Judicial Restraint .

Judicial Activism . Judicial Independence . Litigant . Plaintiff .

Defendant . Legal Counsel . Adversarial System . Jurisdiction .

And overtime I’ve posted a variety of stories in the blog about the Texas

Judiciary. Click on these to fill yourself in on them.

AppealsCommon LawThe Judiciary

Judicial Elections Judicial Review Texas Judiciary

Trials

Very quickly, as with the legislative and executive branches, judicial

branches exist on all levels of government in the Unites States

and exist within the system of checks and balances.

While the legislative and executive branches are accountable to the electorate, the national

judiciary is subject to the law and the Constitution as they interpret it. This checks the

majority – the judiciary is the institution most able to secure the rights of the minority.

In fact, an appointed judiciary is intended to be independent from all other forces in society – so

long as they do not need to be reappointed.

Because they are appointed, the federal judiciary is not considered to be a political branch. It does not

make decisions subject to public approval. It generally refuses to

rule on political questions, leaving those to the legislative and

executive branches.

The courts are fully detached from the general public, yet public

opinion on the court tends to be higher than of the elected

institutions.

Obviously, Texas is different.

We will explore this issue later.

The Texas judicial branch is one of fifty separate state courts systems around the nation. As in all other

states, the Texas Constitution authorizes the establishment of

local court systems as well, including those related to

municipalities.

Texas has an unusually complex court system. This will become

more apparent when we look at its design below. Jurisdiction is often

confusing.

As with other governing institutions colonial courts sprang up quickly in the North American

British colonies as means of quickly resolving disputes in accordance with settled procedures such as

common law.

As discussed in 2305, British courts slowly, over the course of British history, established

themselves as independent of the executive and legislative branches. This allowed then to

become independent, and more effectively limit the powers of the others branches – and of

government in general.

This principle of judicial independence has been maintained – more or less – ever since.

They also became places where people (at least those who had access to the courts)

were able to challenge the activities of the British crown and the agents in the

colonists.

The following author argues that colonial judicial institutions were

instrumental in establishing individual liberty in the new

nation.

Judicial Supremacy in America: Its Colonial and Constitutional History

This is a bit of a high brow read is you are up to it: Reception of English Common Law in the

American Colonies.

For something more lowbrow: Here’s a K12 look at colonial

courts.

For detail on the development of state judicial systems, click on

these:

- History and Organization of State Judicial System.

- Historic Roots of the Judicial Branch.

FYI: State courts have interest groups to represent them. Why

not? Everything does. Here are a few:

- The National Center for State Courts- Conference of Chief Justices- Conference of State Court

Administrators

The Texas Judiciary fits within this broad history.

The TSHA section on the Judiciary contains a good look at the history and

development of the Texas Judiciary.

For additional detail on the history of Texas Court, click on these:

Court History: The Supreme Court of Texas

Texas Supreme Court Historical Society

Over time, the state and federal courts have developed independently. For

contemporary differences between the federal and state courts click on the

following:

Understanding Federal and State Courts.Comparing Federal and State Courts.

Federal vs. State Courts - Key Differences

One of the principle differences between the national judiciary and that of Texas is that the former are

appointed and the patter are elected.

As with the other two branches, those in Texas are designed to be more closely

connected to the electorate than those on the national level.

On the national level, judges are appointed.

The framers of the Constitution emphasized the importance of

this.

Judicial appointments were meant to ensure the judges would have the

“peculiar qualifications” necessary to hold the office. They are expected to

know a few things about the law.

But this can also make judges unaccountable to the preferences of

the electorate.

In order to ensue that judges are not controlled by whatever entity is appointing them to office, they

are given lifetime tenure.

This is the source of their independence.

For the framers of the US Constitution, this that was a way to

guarantee against “mob rule.”

For those of the Texas Constitution, it allowed for elite, unaccountable

control. Recall that this was a constant concern of the Jacksonian Democrats.

All judges in Texas, therefore, are elected. Appellate and Supreme Court

judges are elected in overlapping 6 year partisan elections.

This makes them accountable to the general public, but this can make them

subject to majoritarian pressures to act against minorities.

It can also politicize them and make them subject to control by whoever funds their campaigns. Majoritarian

forces can tie them into the actions of the executive and legislative branches, which can compromise the separation

of powers.

This will be discussed more fully later.

Here’s an appropriate introductory question:

What is the judiciary and what does it do?

Here’s a fancy definition of “Judiciary”

1611, from L. judiciarius "of or belonging to a court of justice," from judicium

"judgment," from judicem (see judge). The noun meaning "a body of judges, judges

collectively" is from 1802.

- online etymology dictionary

So there’s one answer: the Judiciary is a collection of judges that preside over a

court of justice. The word “judge” refers to the person who presides over court proceedings and must ensure they conform to established principles.

By the way, the word “justice” is used to refer to members of the Supreme Courts

on the national or state level.

There’s a very tricky word here:

Justice

What on earth is that?Is there anyway to answer this question in a noncontroversial

manner?

As a substantive matter, justice is a very difficult goal to obtain since many people have different ideas about what is and is

not just.

The court tends to look at justice as a procedural matter. As long as the process that led to a given result adheres to long

standing tradition – is not arbitraty – then the result can be argued to be just.

Sometimes judges like to argue that justice, in a broader sense, is something that should come from the legislative branch (through the

lawmakers).

This can be a problem because some judges do not necessarily

care if the occasional case convicts the innocent.

More on this controversy later.

Judges can look something like this

By the way, what’s with the robes?

Here’s a video about training people to be judges.

Its produced by the National Judicial College.

Courts tend to look something like this:

On the inside, they can look something like this:

Courts exist on all levels of government in the United States.

As with all aspects of the American federal system, they can be

broadly divided into the national and state levels.

Texas contains with in it, both federal and state courts, and the

state also authorizes the existence of a large number of local court –

county and municipal courts.

Federal Court have jurisdiction over federal matters.

State Courts have jurisdiction over state matters.

Federal courts were discussed in 2305. The US Constitution guarantees that violations of federal laws shall be prosecuted in state

where the crime was committed.

This means that each state has at least one federal court. Texas, due to its population

has four. Our area is in the Southern District of Texas (wikipedia).

There are over 3,000 state courthouses across Texas.

Here’s a quick overview:

The Texas Judiciary is headed by two top courts – The Texas

Supreme Court and the Texas Court of Criminal Appeals. Beneath

these are 14 Courts of Appeals, district courts, county courts,

municipal courts, and justice of the peace courts.

The next slide contains a commonly reproduced graphic showing the court structure of

Texas.

Note the following numbers:

913 Municipal Courts821 Justice Courts

499 County Level Courts449 District Courts

14 Courts of Appeals1 Court of Criminal Appeals

1 Supreme Court

Here is the Texas Judicial System Directory from Texas Courts

Online.

More detail on these to follow, but a quick note: many of these

courtrooms have one presiding judge. All of these judges are

elected to office. Federal judges are all appointed to office. This

matters, but more on this point in later slides.

For more info:

The Texas Judicial Council studies and reports regularly on the

organization and practices of the Texas judicial system.

Something else you might want to peruse through:

Texas Municipal Courts Education Center.

So what does the judiciary do?

In a broad sense, the Judiciary in the American governing system does three things:

1 – it provides a forum for the reconciliation of disputes in society

2 – it interprets statutory and constitutional law

3 – checks the legislative and executive branches

Let’s look at each in turn, and apply each to the circumstances in

the state.

1 – The Judiciary provides a forum for the reconciliation of disputes in

society.

This forum is a courtroom. This is where the disputes are actually

heard and reconciled.

Texas Courts Online

So we should probably look at the word “court,” which refer broadly to the

institutions that have the authority to adjudicate legal disputes, but at its

simplest refers to a place – a courtroom – where the disputes can be heard and

decisions regarding those disputes can be made in a manner that is considered to be

legitimate by the participants.

Very few people in a court proceeding actually work for the judiciary. The

following web page details who actually participates in trials, so does

this page in the uscourts website.

Only the judge and members of his staff are employees of the

Judiciary. A bailiff is assigned to a courtroom to keep the peace, but the bailiff is an employees of the

executive department.

Non of the other major players, the prosecutor, the defense

attorney, the members of the jury, are employed by the judiciary.

It is a remarkably small branch.

One of the principles embodied in the general concept of sovereignty in the US and Texas is that disputes ought to be reconciled within the

districts where the disputes arose.

This was the subject of one of the grievances contained in the

Declaration of Independence.

[He has] “transport[ed] us beyond Seas to be tried for pretended

offences.”

Colonists were taken to Britain to be trial in order to ensure

convictions.

This is one of the reasons why courts can be found not only in every state across the nation, but in practically every community as well: To ensure that justice is applied in

a manner consistent with local morays.

But local areas can also make fair trial difficult, which is why defendants have the opportunity to request a change of venue.

The precise design of the courtroom varies depending on whether it is a trial court or an

appellate court, but either simply provide a venue where parties to a dispute (litigants) can make their

respective points and have a decision rendered by neutral

parties.

The fancy word for this process of arbitrating disputes is

“adjudication”

Adjudication: The legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning

set forth by opposing parties or litigants to come to a decision which determines

rights and obligations between the parties involved. - Wikipedia

At its simplest, the judicial branch contains the institutions responsible for adjudicating disputes in society.

It does so according to procedures that have evolved over several

centuries and are contained in various documents, such as Magna Carta.

The judiciary provides a court where litigants – the plaintiffs that

initiate bring cases and the defendants who are charged in the case – have their disputes heard.

Generally these litigants are represented by legal counsel, what we know as lawyers, or attorneys.

So its not just that the judges in the judiciary settle disputes. They settle disputes in accordance with

long standing practices. Several key terms relate to this: common

law, due process, precedence, stare decisis.

Magna Carta has several clauses that established, or solidified, legal

processes.

The same is true for the Bills of Rights in the Constitutions of both

the US and Texas.

The US Bill of Rights contains five amendments that outline the due process rights that people had to protect them from the American

government – and originally these applied only to the national

government.

4th Amendment – search and seizures5th Amendment – subject to trial

6th Amendment – right of defendants7th Amendment – civil trials

8th Amendment – cruel and unusual punishment

The 14th Amendment made these applicable to the states – including

Texas. Through the 14th Amendment, the courts in Texas –

among other institutions – are required to recognize rights

established in the US Constitution.

The Texas Bill of Rights contains a large number of clauses which

establish due process rights that are to be followed and recognized

by the Texas courts.

In other words – judges are supposed to follow these rules in their courtrooms.

Section 5Section 9

Section 10Section 11

Section 11aSection 11bSection 11c

Section 12Section 13Section 14Section 15

Section 15aSection 16Section 18

Section 19Section 20Section 21Section 22Section 23Section 30 Section 31

Sections 30 and 31 are unusual. Most of the rest of the sections

concern the rights that defendants have in a trial.

The last two concern the rights that victims of crime have before

the court.

The general point here is that the court, and the judges who preside over them, have to abide by rules of procedure that determine how

different disputes are to be reconciled.

Why is this important?

In order to guarantee that decisions regarding guilt are not arbitrary.

Arbitrary decision-making embodies the concept of the rule of man.

Decision-making based on established procedures ensures the rule of law.

A quick word on jurisdiction before we go any further.

The first decision a judge has to make is whether the court can even hear the case that is brought to it. Has the Constitution – or statutory or common law – granted the

court the authority to hear a specific dispute? And if so, which court has the

jurisdiction to hear a case? We will touch on the specifics of this as we go forward.

The courts are also able to determine whether a plaintiff (the person initiating a court proceeding) has the standing to do so. Have they suffered a direct harm from the application of a law or a specific action

by the defendant. If the court rules that they did not, then they do not have

jurisdiction over the dispute and the case is dismissed.

Here’s one other quick point to make about the judicial system in Texas and the US as a whole. It is an adversarial system, which means that it is based on the idea that the truth of a case is best determined by having advocates representing opposing sides of a case, make their case before a impartial jury

overseen by a disinterested judge.

Not all legal systems are based on this system. Some are based on the

inquisitorial system (the name has a bad rap I know) where judges are tasked with

determining the actual truth behind a dispute.

FYI: Military tribunals in the US are based on the inquisitorial system.

What kind of disputes do the courts rule on?

At its simplest, there are two categories of disputes:

criminal / civiltrial / appellate

A criminal proceeding places a group or a citizen in

a confrontation with the state.

The accusation is made that a law has been violated.

A civil proceeding places the individuals or groups in a

confrontation with each other.

Most typically it is argued that a contract has been violated, or a

damage inflicted (tort).

Criminal and Civil proceedings are distinct. Each has its own set of

rules for how to arrive at a decision and determine

punishment.

Disputes involving state laws are handled in state courts, though

lower level disputes are handled in county and city courts.

Disputes involving federal laws are handled in federal courts.

Ultimately all laws have to abide by the U.S. Constitution which means

that disputes from any level of government can ultimately be

heard by the U.S. Supreme Court.

The Texas Courts

By the way, alternative dispute resolution centers do exist. Click

here for a link to those in the state, and here for the one nearest to us,

in Harris County.

In the first category we have criminal cases and civil cases. These generally involve two

different courts and always involve two different procedures and

standards of evidence.

A criminal trial involves a dispute between an individual and the

state.

The legislative branch establishes what is legal and not legal to do, the executive enforces

these laws, and, if it comes to it, takes accusations that someone has broken a law to

the courts for adjudication.

The state (specifically the executive branch – and even more specifically the district attorney’s office of the

relevant district) initiates these cases. That person is called the prosecutor. Since the state of Texas is a party to

the case, it is generally labeled as follows: Texas v. ______.

Insert your name if you wish.

The burden of proof is on the state to prove without a reasonable doubt to an impartial jury that unanimously agrees that the

defendant is guilty of a specific offense.

(we go into more detail on this in the section on criminal justice)

Note that there is nothing in the US or Texas Constitutions that state the

people are considered innocent before being proved guilty, though that is n

fact the case. Defendants do not need to prove they are innocent. If the state

cannot prove guilt, the defendant is acquitted of the charge.

If you like, click here for the relevant section in the Texas Penal

Code.

Click here for a more thorough look at the Texas Criminal Trial Procedure, and Texas Rules of

Evidence.

From the Attorney General’s Office:

Penal Code Offenses by Punishment Range.

From FindLaw: Texas Criminal Laws.

Texas Criminal Procedures are outlined here.

FindLaw also provides an overview of the criminal trial process, So

does the website of the US Court System. We discuss this more thoroughly in the section on criminal justice, but click on

through if you want a head start.

The purpose of a criminal trial is to punish people for violating

society’s laws.

A civil case involves legal disputes between two parties that involves

a claim that one damaged the other (torts), or broke a contract, or injured the other in some way

that can be redressed in some legal manner, by a lawsuit.

Law suits can also involve an individual in a dispute with the government. Sometimes

the state or national government can allow a lawsuit to be a legal remedy for a

transgression it commits against people.

Normally a sovereign state cannot be sued unless it allows for such lawsuits to go forward: see state sovereign immunity.

Civil cases can be initiated by individuals (plaintiffs) against other

individuals (defendants) and the state. The name of the plaintiff

precedes that of the defendant’s in the case’s title: ex: Jones v Smith.

In a civil case the plaintiff has the burden of proof to prove to a jury (or

judge if it is chosen) that a preponderance of the evidence shows

that the defendant is liable for damages caused by the subject of the lawsuit. This is a lower standard than that in criminal cases, so it is easier to

win civil cases than criminal cases.

For some additional detail:

- Civil Procedure in the US.- Texas Rules of Civil Procedure.

- US Courts: Civil Cases.

Note that criminal cases and civil cases are distinct – they involved separate offenses

and separate court proceedings. This means that double jeopardy protections

do not apply. After one is tried for a criminal case, one can be subject to a civil action related to the criminal case even if

one was acquitted of the crime.

Now for the second category of disputes in the judicial process:

trial and appeals

A trial is a matter of factAn appeal is a matter of process

In both the US and Texas Constitutions, distinctions are

made between courts of original jurisdiction and courts of appellate

jurisdiction.

The former is a trial court. These were described in the previous

slides. This is where facts of a case are introduced in order to

determine whether someone is either guilty of committing a crime, of liable for a damage resulting in

some action.

A prosecutor presents a case, in the form of evidence and testimony, to a jury. The manner in which this is done

is overseen by a judge. The defense attorney can rebut the evidence and cross-examine witnesses. When the

prosecution rests it case, the defense attorney can present its side of the case before the jury. This process is

also overseen by the judge.

When the testimony is concluded, the judge provides instructions to the jury – giving them guidance on

what questions they are to deliberate over. The jury issues then issues a verdict, and if the defendant is guilty, a separate

process ensues where punishment is determined.

The judge is supposed to be an engaged observer of the process with no stake on one side or the

other of the case.

Here’s a huge controversy:

How much discretion should the jury have? Can they rule on the justification of the law, or just on the simple question of

whether an existing law was broken by a defendants?

See: jury nullification.

Trial courts are called courts of original jurisdiction because this is

where the process begins.

In Texas these include Justice Courts, Municipal Courts, County Level Courts, and District Courts. These were introduced earlier.

More detail on these later.

Trial procedures were introduced previously, so there’s reason to review it

here. But it is important to note that fewer and fewer cases actually go to trial.

A large number of cases are plea bargained prior to going to trial. Prosecutors offer

lesser sentences to defendants in exchange for guilty please.

Controversy: Are defendants coerced into making plea bargains? Do rules associated with the right to counsel in trials apply to plea

bargains?

Here is some general advice concerning pleas bargains.

Appellate court are different than trial courts.

These courts review – on request – the court record associated with a trial in order to determine whether the process was constitutional. Did

it follow accepted rules of due process?

Texas has three different appellate courts. The first is the Court of

Appeals, which hears appeals from District Courts. The other two are the

Court of Criminal Appeals and the Texas Supreme Court. These are the state’s highest appellate courts – the first for criminal maters, the second

for civil matters.

Any case to the Texas Supreme Court or the Texas Court of

Criminal Appeals can then be appealed to the US Supreme

Court.

Remember that all laws in the US – meaning also all state laws and city

ordinances - have to comply with the US Constitution and applicable US laws.

Not all cases are guaranteed appellate review. The court has to be convinced that

there is sufficient reason to believe that there was a procedural irregularity in the

trial court.

They rarely do.

See: Discretionary Review.

For a more thorough look at the process, read: Roadmap of Texas and Federal Standards of Review.

You can download a Texas Writ of Certiorari form here.

The process in appellate courts is different from that in trial courts.

Once a decision has been made to review a lower court case – based on a request sent by the losing party (the winner would

rather not have the review) – each side of the case sends briefs to the court outlining their positions. Once those are read,

attorneys from each side present oral arguments before a panel of judges – or justices. The judges are active participants in this

process. When the oral arguments are over, the judges write out their decisions and sign on to those they agree with.

The majority not only wins the case, but has the opportunity to define or redefine statutory or

constitutional language.

A discussion of appellate courts allows us to look at the two other

functions the courts play:

Defining the meaning of statues and Texas Constitution

Checking the Texas legislative and executive branches

In a sense these are related.

Since the constitutions of both the US and Texas define the powers of different institutions, interpreting

constitutional language often involves determining whether one institution overstepped its bounds.

The interpretation of the Texas Constitution is far less problematic than that is the US Constitution for

a simple reason: the length and comprehensiveness of the Texas Constitution make sit less subject

to different interpretations.

Contrast this with the US Constitution which contains brief

and vague language.

On the national level there is an argument between those who

think the US Constitution should be strictly or loosely interpreted.

This is less subject to debate in Texas.

Compare what the US and Texas Bills of Rights have to say about

eminent domain.

US: Fifth Amendment

“nor shall any person . . . be deprived of life, liberty, or

property, without due process of law; nor shall private property be taken for public use, without just

compensation.”

Texas: Sec. 17. TAKING, DAMAGING, OR DESTROYING PROPERTY FOR PUBLIC USE;

SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF

PRIVILEGES AND FRANCHISES.

(a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:(A) the State, a political subdivision of the State, or the public at large; or(B) an entity granted the power of eminent domain under law; or(2) the elimination of urban blight on a particular parcel of property.(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.(d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.

Note the clarity in the latter.

This makes interpretation less an issue in Texas than nationally.

Example:

The fate of the Texas Open Beaches Act, info from the GLO.

Chron: Federal Court Strikes it Down.AAS: Supreme Court affirms ruling

But the looseness of US Constitutional language can impact the state when

its laws are challenged for having violating US laws or part of the US

Constitution.

Given Texas’ racial history, this happened often prior to Brown v Board of Education in disputes over the meaning of the equal protection clause of the 14th Amendment.

This raises a very important point.

Texas laws can also be subject to challenge in the federal courts if

they are argued to violate federal laws or the US Constitution.

This means that someone who wishes to challenge the constitutionality of a Texas statute has a choice. You can challenge

whether it violates the Texas Constitution, which means it goes through the Texas courts. Or you can challenge whether it

violates the US Constitution, which means it goes through the federal courts. The latter might be more inclined to agree.

In the American System, US Constitutional Law is supreme –

that’s the point made by the Supremacy Clause. Disputes are

resolved in favor of the Constitution since it is argued to

more reflect the will of the people. The Constitution was ratification by the states, statutory law was

not.

The fact that Texas judges are elected means that they are less likely to interpret statutory and

constitutional law in a manner that varies far from what the electorate

would accept.

They are also less likely to be able to engage in judicial review.

Remember that judicial review is the key check that the judiciary has

on the legislative and executive branches. It can negate their

actions.

Also remember that the Constitution (of the US or Texas) would be effectively meaningless

without this power residing somewhere.

In Federalist #78 Alexander Hamilton argues that the judiciary must have the power of judicial review.

This was the basis of the decision in Marbury v. Madison where the courts claimed the

power for themselves.

Judicial review rests on the idea that Constitutional law is superior to statutory law, and if there are

conflicts between the two statutory law yields to

constitutional law.

As with the US Constitution, there is no explicit mention of judicial

review in the Texas Constitution, but there is a clearer statement of the functions of each branch, and a requirement that each stay within

their limits.

ARTICLE 2. THE POWERS OF GOVERNMENT

Sec.1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS;EXERCISE OF POWER PROPERLY

ATTACHED TO OTHER DEPARTMENTS.

The powers of the Government of the State of Texas shall be divided into three distinct

departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are

Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances

herein expressly permitted.

Stare Decisis – the fact that the US Supreme Court had ruled that the

courts can have the power of judicial review led to the

assumption that the Texas Courts could apply it to Texas statutes and

administrative activities.

But as with its use on the national level, its existence creates a

problem because it allows the court to become involved in public

policy issues.

Is this an appropriate use of the judicial power?

Two terms are relevant here:

Judicial ActivismJudicial Restraint

But it is assumed that an elected judiciary is less likely to

aggressively strike down legislation as being unconstitutional because they might be removed from the office by an unhappy electorate.

Conversely, since judges are elected, wealthy interests can more easily negate policies they do not care for by running

judges for office that will make decisions they will benefit by.

This complicates the idea that Texas has a truly independent judiciary.

Judicial Activism holds that judges or justices should not hesitate to

strike down statutes and rules that violate their understanding of the proper role of the legislative and

executive branches.

Judicial Restraint holds that the judiciary is not a political branch

and should defer to the legislature and executive when it passes laws

and rules since they are more closely connected to the

population. This doesn’t mean that they do not use judicial review, but that its use should be very limited.

The theory of judicial restraint argues that judges need to stick to settled precedence when making

decisions.

Here are two hugely related concepts:

Stare Decisis

“the legal principle by which judges are obliged to obey the set-up precedents

established by prior decisions. The words originate from the Latin phrase Stare

decisis et non quieta movere, “’Maintain what has been decided and do not alter

that which has been established’". – Wikipedia.

Precedence

In common law legal systems, a precedent or authority is a legal

case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts. –

Wikipedia.

Here is one example of the Texas Supreme Court striking down a law

as being unconstitutional:

Robinson v. Crown Cork

From the Texas Law Review:

Separation of Powers Under the Texas Constitution

And if you want to spend a little money: SYMPOSIUM ON THE

TEXAS CONSTITUTION: The New Federalism: Judicial Legislation by

the Texas Court of Criminal Appeals?

Here’s an interesting document. What if you are a city and you

want to draft an ordinance that will withstand c constitutional

challenge? Here’s how you do it.