On June 15, 1868, the president of the constitutional convention, Edmund J, Davis, introduced a proposed declaration concerning Texas courts, including the election of judges. Under the then-current 1866 Texas constitution, Article IV provided for the election of Supreme Court justices (sec. 2), District Court judges (sec. 6), and County Court judges (sec. 16). Vacancies on the Supreme Court and in the District Courts were filled by gubernatorial appointment pending the next general election to fill the post (sec. 10).
Davis’s proposed declaration would have provided for an initial appointment of judges to be promptly followed by general referendum about whether to continue with an appointment-based system of judicial selection:
Sections to be incorporated into the Judicial Department of the Constitution.
Section –. The Judges of the Supreme and District Courts, the Attorney-General and the District Attorneys and Sheriffs of counties, shall be appointed by the Governor of the State, by and with the advice and consent of the Senate thereof. Provided, that this manner of choosing said officers shall continue in force until the first general election held after the year 1877, at which general election the question shall be submitted to the people whether they continue in force this manner of appointing said officers.
Sec. –. The District Court shall be held in each county of the State four times in every year, and Judicial Districts shall be laid off, having this purpose in view; and all counties which do not maintain their organization complete, or may have less than one hundred and twenty qualified jurors, shall be considered disorganized, and shall be attached, for judicial purposes, to the adjoining organized county, the county seat of which is nearest the county seat of the disorganized county.
Sec. –. The Grand Jury system shall be hereafter dispensed with, and all prosecutions for offences on behalf of the State shall be commenced by information filed in the court having jurisdiction of the offence, by the proper law officer of the State. Such information to be founded on affidavit of some responsible person charging the offence.
On motion, the declaration was referred to the Judiciary Committee.
The proposal was not ultimately incorporated into the constitution of 1869. Instead, the convention ultimately chose to provide for a Supreme Court of 3 appointed justices serving 9-year terms (art. V, sec. II), and the appointment of District Court judges for 8-year terms (art. V, sec. VI). The current system of electing Supreme Court justices to 6-year terms was introduced in the 1876 constitution.