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Court Reform, Texas Style SMU Law Review Volume 21 Issue 2 Article 3 1967 Court Reform, Texas Style Clarence A. Guittard Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Clarence A. Guittard, Court Reform, Texas Style, 21 SW L.J. 451 (1967) https://scholar.smu.edu/smulr/vol21/iss2/3 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. COURT REFORM, TEXAS STYLE by Clarence A. Guittard* R EFORM of the judiciary has been a perennial theme among Texas lawyers. In July, 1918, the Texas Bar Association, meeting at Wich- ita Falls, heard an address by Roscoe Pound on "Judicial Organization"' and adopted the report of a special committee proposing to replace article V of the Constitution of 1876 with a judicial article that would be con- sidered advanced, even by the standards of 1967. The proposal embodied the principles of unification, flexibility of jurisdiction and assignment of judicial personnel, and responsible supervision of the entire system by the supreme court, all as recommended by Pound.! In support of this proposal, the association published a pamphlet point- ing out the need for judicial reform in emphatic terms: The public is in open rebellion. The best of our judges, working in the present machine, cannot always administer justice. The rightful compen- sation of lawyers is enormously decreased, their labors increased, by the intolerable expense, complication, delays and uncertainties inherent in the system. To a great extent the courts are being abandoned, because men would rather submit to wrong than litigate. Therefore the general public, and the professional, demand is for reform, and if the legal profession does not with careful deliberation bring forth a plan, it is inevitable that crude and injurious plans will be advanced, and probable that some of them will be adopted.' Almost fifty years have passed since these words were published, and article V remains substantially intact. Yet no similar outcries are being heard today from any responsible group in the Texas bar. Our judicial structure has not broken down, antiquated though it may be. It has proved more adaptable to change than anyone would have had reason to suspect. The worst evils predicted have-never quite materialized. Docket conges- tion, for instance, has never been and is not now as serious in Texas courts as it is in many metropolitan areas in the country." Important progress has been made toward efficiency in the operation of the Texas courts but broad and sweeping changes have not been our style of re- form in the past, and probably will not be in the foreseeable future. The discussion which follows will indicate something of the Texas pattern of progress-a gradual process of specific constitutional amendment and statutory enactment. Although this process may not satisfy the advocates •B.A., LL.B., Baylor University. Judge, Fourteenth District Court, Dallas, Texas. 37 TEx. BAR Ass'N PROCEEDINGS 69 (1918). 21d. at 150; resolution adopted, id. at 228. Justices of the peace were to be replaced by courts of record presided over by lawyers, district judges were to be authorized to sit together or sepa- rately, terms of court were to be abolished, and times and places of holding court were to be de- termined by a committee of judges. 3 2 J. AM. JUD. Soc'Y 133 (1919). ' See INST. JUD. ADMINISTRATION, CALENDAR STATUS STUDY-1966, STATE TRIAL COURTS OF GENERAL JURISDICTION, PERSONAL INJURY CASES (1966). SOUTHWESTERN LAW JOURNAL [ Vol. 21 of thoroughgoing reforms, perhaps the reformers would do well to con- sider more modest alternatives to make sure that our judicial structure is capable of dealing with the new problems which an expanding popula- tion and the litigation explosion will inevitably bring. I. GOALS OF COURT REORGANIZATIONS Before reviewing the reforms of the past or anticipating those of the future, it may be helpful to define some of the goals upon which pro- ponents of judicial reform are generally agreed. The great American au- thority in this field was, of course, Roscoe Pound, whose celebrated ad- dress to the American Bar Association in 1906 on "The Causes of Popular Dissatisfaction with the Administration of Justice,"' is generally credited with initiating the movement for judicial reform in this country.' In that address Pound pointed out that the American judicial structure was ar- chaic in its multiplicity of courts with rigid districts and limited jurisdic- tions. He called attention to the unified court system under the British Judicature Acts of 1873 and 1875' as the model for modern judicial or- ganization. In 1909 Pound was a member of a committee of the American Bar Association which proposed a thorough reorganization of American courts on the British model.' According to the recommendations of this committee, there should be one great court with three branches: a county court branch to try petty offenses and hear small causes, a superior court with general original civil and criminal jurisdiction, and a court of appeal with general appellate jurisdiction. All judges should be judges of the whole court and should be assigned administratively to some particular branch or division, but should be eligible to serve wherever their services were most needed. The administration of the court should be supervised by a judicial officer, preferably the chief justice of the ultimate court of appeal, who would have responsibility to see that the manpower of the court was used effectively. He would have the power of assignment of judges and of causes, and for each branch or locality a local judicial of- ficer would have the same power, subject to his supervision. The three principles of unity, flexibility, and administrative supervision within the judiciary embodied within the above recommendations, have been features of practically every court reorganization plan seriously ad- vanced since that time, including, as we have seen, the proposals of the Texas Bar Association in 1918."° They were included in the recommenda- tions for improvements in court organization, administration and proce- dure adopted by the House of Delegates of the American Bar Associa- tion in 1938"1 and in the Model State Judicial Article approved by the 5 3 5 F.R.D. 273 (1964); 29 A.B.A. REp. 395 (1906). 'Calvert, Problems of Judicial Administration, 25 TEXAS B.J. 639 (1962); Wigmore, The Spark That Kindled the White Flame of Progress, 46 J. AM. JUD. Soc'Y 50 (1962); Proceedings Honoring Roscoe Pound, 35 F.R.D. 241 (1964). 7Judicature Acts, 36 & 37 Vict. c. 66 (1873), 39 & 40 Vict. c. 77 (1875). sABA, Special Committee To Suggest Remedies and Formulate Proposed Laws To Prevent Delay and Unnecessary Cost in Litigation. 934 A.B.A. REp. 578 (1909). 10Note 2 susra. " 24 A.B.A.J. 726 (1938). 1967] COURT REFORM House of Delegates in 1962.1" They have been advocated by the Ameri- can Judicature Society since its very beginning."3 More recently they have been included in the recommendations of the President's Commission on Law Enforcement and Administration of Justice. " All major court reorganization measures which have been enacted in the last half century have adopted the same basic approach. Congress has led the way by reorganizing the federal judiciary." Among the states the pioneer effort was the New Jersey reform of 1947."5 New judicial articles establishing unified court systems have also been adopted in Arizona,' New York,8 North Carolina," Illinois,"M and Colorado," as well as in the new states of Alaska' and Hawaii." II. TEXAS PROPOSALS FOR GENERAL COURT REORGANIZATION In Texas, proposals for general court reorganization, following the same pattern, from the Bar Association's proposal of 1918 down to the present, have not lacked for distinguished supporters, but have met only hostility or indifference on the part of the legislature. Among leading pro- ponents of Pound-style reforms may be mentioned C. S. Potts, 2" Samuel B. Dabney," James P. Alexander," Robert W. Stayton,' Charles T. McCor- mick, ' Robert G. Storey," Charles I. Francis," and Robert W. Calvert." Judiciary reform has been a longstanding project of the Texas Civil Judi- cial Council." In 1941 Chief Justice Alexander put the issue to the coun- cil succinctly: [W]e need a reorganization of our judicial system. Our present system is composed of too many independent units, without any responsible head. We should have a single judicial system which all the members thereof have 1287 A.B.A. REP. 130, 392 (1962); 47 J. Am. JuD. Soc'Y 8 (1963). 146 J. AM. JUD. Soc'Y 110 (1962); 3 J. Am. JUD. Soc'Y 131 (1919); 1 J. Am. JUD. SOC'Y 5 (1917). '" PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 157 (1967). "Chandler, Some Major Advances in the Federal System, 31 F.R.D. 307 (1963); Parker, The Integration of the Federal Judiciary, 56 HARV. L. REV. 563 (1943); Unification of the Judiciary, Federal and State, 1 TEXAS L. REV. 214 (1923). 'ON.J. CONST. art. VI; English, New Jersey Reorganizes Its Judicial System, 34 A.B.A.J. 11 (1958); Medina, Improving the Administration of Justice-Evolution or Revolution, 47 J. Am. JuD. Soc'Y 51, 53 (1963); Milmed, The New Jersey Constitution of 1947, N.J. CONST. art. XIII, N.J. STAT. ANN. xxvii (1954). '" ARIZ. CONST. art. 6. "8 N.Y. CONST. art. 6. 29 N.C. CONST. art. IV. 20 ILL. CONST. art. 6; Freels, Illinois Court Reform, A Two-Year Success Story, 49 J.
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