In 2019, the 86th Texas Legislature passed House Bill 3040, creating the Texas Commission on Judicial Selection to study the “fairness, effectiveness, and desirability” of partisan elections for judicial selection in Texas and the merits of other judicial selection methods adopted by other states. On December 30, 2020, the Commission submitted its report to the governor and legislature recommending, by majority vote, against the current partisan elections method. However, Commission members did not agree on an alternative method for judicial selection. Commission members overwhelmingly support increasing judicial qualifications and placing monetary limits on elections. Representative Todd Hunter, the author of H. 3040, proposed that, due to the pandemic and related issues, the work of the Commission should continue beyond its current life. A majority of the Commissioners agreed to continue studying potential reforms, if asked to do so.
The Commission voted:
- Eight to seven against continuing partisan elections judicial selection system;
- Eight to six against the adoption of a nonpartisan judicial selection system;
- Unanimous rejection of both initial judicial appointment for all judges and term limits for all judges;
- Seven to seven (with one abstention) regarding an appointive judicial selection system followed by a retention election; and
- Unanimous agreement that judicial minimum qualifications should be increased and that rules should be promulgated to limit the role of money in elections.
Other key recommendations include unanimous agreement to apply any changes retroactively; unanimous rejection of term limits (with two abstentions); overwhelming agreement for the adoption of rules to further regulate the role of money in judicial elections, and increasing minimum qualifications of judges.
The report makes recommendations to the 87th Legislature that are “low-hanging fruit”—to increase judicial minimum qualifications and promulgate rules to limit the role of money in elections.
Background on the Commission’s Framework for Study and Review
Currently, Texas selects its judges via partisan elections, although the Texas Constitution allows for appointment by the governor or county officials and confirmation by the Senate for interim court vacancies. Any change to the current method of judicial selection must be made through a constitutional amendment, approved by two-thirds of the members of each house of the Texas legislature, and then approved by a majority of voters in the next general election.
The Commission was tasked with studying alternative methods to judicial selection, including:
- Nonpartisan elections;
- Lifetime appointment;
- Appointment for a term;
- Appointment for a term, followed by a partisan election;
- Appointment for a term, followed by a nonpartisan election;
- Appointment for a term, followed by a nonpartisan retention election;
- A partisan election for an open seat, followed by a nonpartisan retention election for incumbents; and,
- Any other method or combination of methods for selecting a judicial officer.
In January 2020, the Commission created three working groups to study different judicial selection methods, including:
- Elections, with the charge: “critique the current system of partisan elections, provide the pros and cons of non-partisan elections, and discuss the usefulness of retention elections in a new system.”
- Appointments and Confirmations, with the charge: “study the pros and cons of the various methods for appointing judges, terms of office, and the desirability and nature of legislative confirmation of gubernatorial appointments.”
- Citizen Panels and Judicial Qualifications, with the charge: “consider the role, if any, of citizen panels in a system with an appointed judiciary and consider changes to the current qualifications of Texas judges.”
In 2020, the 15-member Commission— comprised of legislative, executive, and judicial branch members, attorneys, non-attorneys, as well as diversity across political, geographic, racial, and ethnic backgrounds—remarkably held 15 public meetings that were live-streamed on YouTube.
The Commission also conducted a judicial selection landscape, consisting of judicial selection methods in other states, a history of judicial selection reform in Texas going back to 1946, an assessment of current judicial qualifications in Texas, and an assessment of the current partisan election outcomes in Texas. The landscape compared different reasons for district court and appellate court judges’ turnover. For example, in 2018, almost half of judicial turnover rates at the district and appellate courts level were due to the defeat of an incumbent judge via partisan election.
The Commission invited testimony from many organizations, foundations, and experts. including the League of Women Voters of Texas, the Texas Fair Courts Network, and Gary Bledsoe, president of the Texas NAACP. Chief Justice Ruth McGregor, former Chief Justice of the Arizona Supreme Court and chair of IAALS’ O’Connor Advisory Committee, testified on behalf of IAALS, discussing the O’Connor Judicial Selection Plan and the steps IAALS took—including research and convenings—to reach those recommendations.
Bar associations and others were surveyed as well. The San Antonio Bar Association survey indicates an “overwhelming majority of respondents believe that the method of selecting judges in Texas needs to change.” The Austin Bar Association judicial selection survey received 682 responses, with a majority of respondents stating that judges should be selected by nonpartisan elections and appointment by a bipartisan committee being a close second. The Office of Court Administration polled approximately 100 directors of state court administration offices and state supreme court justices. The Commission also reviewed information from its Citizens Panel and Judicial Qualifications memorandum and a 2014 Texas Tech University survey for the public’s input into judicial selection methods.