Dual Texas supreme courts?

Today three new judges of the Court of Criminal Appeals will celebrate their investiture in Austin. Texas is unusual among the states for having two parallel state courts of last resort: the Supreme Court for civil matters and the Court of Criminal Appeals for . . . well, criminal appeals.

By the time of the 1875 constitutional convention, the Supreme Court had become overburdened, even though the 1869 Constitution had already excluded criminal appeals from its jurisdiction unless one of its judges believed an error had been committed (art. V, sec. III). During the debates on November 4, 1875, “dual” supreme courts were proposed by Charles DeMorse, who explained the justification as being “so that when appeals in criminal charges come before them from criminal courts there should be a speedy response, so that the party might be either punished or released.” DeMorse also urged that a dual system would permit judges to be selected with “special reference to their capacity and fitness in civil and criminal cases.” That proposal was eventually withdrawn and instead, article V, section 5 of the 1876 Constitution created a new court of appeals to relieve the Supreme Court. Section 6 established that court’s jurisdiction over all criminal appeals, and some civil appeals as well.

But Charles DeMorse’s innovation ultimately became part of the design of the Texas judiciary. The Court of Criminal Appeals was created as part of a judicial reform enacted in 1891. The number of judges has fluctuated with various amendments since then, with today’s Court boasting eight judges and one presiding judge. (Art. V, sec. 4.) In addition to having final appellate jurisdiction over “in all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law.” (Art. V, sec. 5.) The Court hears direct appeals of all cases in which the death penalty has been assessed, and all other criminal cases have their direct appeal to the intermediate courts of appeals.

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