Expanded Texas Courts of Appeals

TEXAS TECH LAW REVIEW

VOLUME XIV 1983 NUMBER 3

by Clarence Guittard*

September 1, 1981, the effective date of Senate Joint Resolu- tion 36,1 is a milestone in Texas judicial history. This resolution, adopted as an amendment to article V of the Texas Constitution, conferred criminal jurisdiction on the former courts of civil appeals and provided for discretionary review of their decisions in criminal cases by the court of criminal appeals.2 The implementing legislation, Senate Bill 265, 8 increased the number of intermediate judges from fifty-one to seventy-five and, within two years, to seventy- nine." Whether these changes in appellate structure have brought the Texas judicial system nearer to its proper goals is a question which deserves consideration both by lawyers and laymen. Of course, the ultimate goal of an appellate system, as of any judicial structure, is justice in each case. Justice is difficult to define and even more difficult to measure, whether the assessment is made by resorting to the standard of community acceptance or some other, more philosophical standard. Traditionally, this ultimate goal is sought by pursuing components of justice more susceptible of objective determination, such as simplicity and efficiency of court processes and clarity, consistency, and promptness of decisions.

* Chief Justice, Fifth District Court of Appeals; A.B., J.D., Baylor University, 1940. 1. Tex. S.J. Res. 36, §§ 5-6, 66th Leg., 1979 Tax. GEN. LAWS 3223, 3224-25 (adopted as TEx. CONST. art. V, § 6). 2. TEx. CONST. art. V, § 6. 3. Act of June 8, 1981, ch. 291, § 31, 1981 Tex. Sess. Law Serv. 761, 776 (Vernon) (codified at TEx. REv. CIv. STAT. ANN. art. 1812 (Vernon Supp. 1982-1983)). 4. TEx. REV. CIV. STAT. ANN. art. 1812 (Vernon Supp. 1982-1983). 550 TEXAS TECH LAW REVIEW [Vol. 14:549

With seventy-nine intermediate appellate judges writing opinions, however, the structure becomes more complex, and consistency and clarity of decisions become more difficult to achieve.

I. BACKGROUND OF THE 1981 AMENDMENTS

From the point of view of simplicity and judicial economy, Texas once had an ideal appellate system. The constitution of 1845 provided for one appellate court-a supreme court of three justices.5 Each justice was required to review the writings of only two colleagues. When a decision was issued, the law was authoritatively declared. No further review was needed or desired. The system required minimal duplication of judicial effort, thus achieving maxi- mal judicial efficiency. This efficiency did not compromise the quality of the opinions of the antebellum court. The ideal system became obsolete, however, when an increase in cases on the court's docket resulted in unreasonable delay in the appellate process. The first response to this obsolescence came in 1866 when a new constitution added two justices to the supreme court.6 The constitution of 1876 reduced the number of justices to three, but added a court of appeals with jurisdiction of all appeals of criminal and civil cases appealed from county courts. 7 Before long, a commission of appeals was created to assist the supreme court and court of appeals.8 The commission of appeals was superseded in 1891 when a constitutional amendment provided for intermediate appellate courts in civil cases and converted the old court of appeals into the court of criminal appeals, a court of equal dignity with the supreme court and with jurisdiction limited to criminal cases.9 From this point the story diverges along the now familiar civil-criminal dichotomy. Notwithstanding the provision for intermediate appeals, the commission of appeals was revived in 1918 to relieve congestion in

5. TIX. CONST. art. IV, § 2 (1845). 6. See Tax. CONST. art. IV, § 2 (1866). 7. Tax. CONST. art. V, §§ 2, 6 (1876, amended 1891). 8. Law of July 9, 1879, ch. 34, §§ 1, 7, 8, 1879 Tex. Gen. Laws 30, 9 H. GAMMEL, LAWS OF TEXAS 62 (1898). The supreme court and court of appeals were authorized to refer civil cases to the commission by agreement of the parties. 9. See TEx. CONST. art. V, §§ 1, 4, 5, 6 (1891, amended 1977) (for vote adopting the amendment, see Votes on Proposed Amendments to the Texas Constitution, 1825-1947, 1947 Tex. Gen. Laws 1197). 1983] EXPANDED TEXAS COURTS OF APPEALS 551 the supreme court. 10 In 1945 the six commissioners were made voting members of a nine-member supreme court.11 Over the years the number of courts of civil appeals was increased from the original three to fourteen.1 2 In 1978 another constitutional amendment authorized the addition of judges to existing courts.13 Pursuant to this amendment, the membership of the courts of civil appeals for the first and fourteenth districts in Houston and the fifth district 1 4 in Dallas was increased to six each. In 1925 two commissioners were provided for the court of criminal appeals.15 They were made voting members in 1966 when the court was increased to five judges." Soon four more commissioners were appointed1 7 and they, in turn, were made full mem-

10. See Act of Apr. 3, 1918, ch. 81, 1918 Tex. Gen. & Spec. Laws 171. 11. TEx. CONST. art. V, § 2 (1945, amended 1980). 12. The Constitution of 1876 created an intermediate court of appeals with appellate jurisdiction in all criminal and civil cases of which the county courts had original jurisdiction. See TEX. CONST. art. V, §§ 1, 6 (1876, amended 1891). Due to growing congestion in the appellate system, an amendment was passed in 1891 establishing intermediate courts of civil appeals and giving the legislature authority to determine their number and situs. See Tax. CONST. art. V, §§ 1, 6 (1891, amended 1978, 1980) (for vote adopting this amendment, see Votes on Proposed Amendments to the Texas Constitution, 1875-1947, 1947 Tex. Gen. Laws 1197). The legislature created the first three courts of civil appeals in 1892 by organizing the First, Second, and Third Supreme Judicial Districts at Galveston, Fort Worth, and Austin, respectively. See Act of Apr. 13, 1892, ch. 18, §§ 2-7, 1892 Tex. Gen. Laws 45, 46. The Fourth and Fifth Supreme Judicial Districts at San Antonio and Dallas were added in 1893. See Act of May 13, 1893, ch. 116, §§ 5-6, 1893 Tex. Gen. Laws 171, 172. Six more Supreme Judicial Districts were added between 1907 and 1925: the Sixth Supreme Judicial District at Texarkana, see Act of Apr. 29, 1907, ch. 181, § 3, 1907 Tex. Gen. Laws 325, 326; the Seventh and Eighth Supreme Judicial Districts at Amarillo and El Paso, see Act of Apr. 3, 1911, ch. 120, §§ 3-4, 1911 Tex. Gen. Laws 269, 269-71; the Ninth Supreme Judicial District at Beau- mont, see Act of Mar. 22, 1915, ch. 70, § 3, 1915 Tex. Gen. Laws 121, 121-23; the Tenth Supreme Judicial District at Waco, see Act of Mar. 13, 1923, ch. 74, § 3, 1923 Tex. Gen. Laws 152, 152-54; and the Eleventh Supreme Judicial District at Eastland, see Act of Mar. 17, 1925, ch. 87, § 3, 1925 Tex. Gen. Laws 258, 258-61. In 1957 the legislature authorized the Court of Civil Appeals for the First Supreme Judicial District to sit at Houston or Galves- ton. See Act of June 6, 1957, ch. 421, § 2, 1957 Tex. Gen. Laws 1263, 1263. The final three courts of civil appeals were created in 1963 and 1967: the Twelfth and Thirteenth Supreme Judicial Districts at Tyler and Corpus Christi, see Act of May 21, 1963, ch. 198, § 2, 1963 Tex. Gen. Laws 539, 542, and the Fourteenth Supreme Judicial District to sit at either Gal- veston or Houston, see Act of June 18, 1967, ch. 728, §§ 2-3, 1967 Tex. Gen. Laws 1953, 1954. 13. TEx. CONST. art. V, § 6 (1978, amended 1980). 14. See generally Act of Feb. 1, 1979, ch. 1, § 1, 1979 Tex. Gen. Laws 1, 1-2 (authoriz- ing salaries for the additional judges). 15. Act of Mar. 19, 1925, ch. 95, §§1-5, 1925 Tex. Gen. Laws 269. 16.. See TEx. CONST. art. V, § 4 (1966, amended 1978). 17. See generally Act of May 27, 1971, ch. 462, § 1, 1971 Tex. Gen. Laws 1646 (four 552 TEXAS TECH LAW REVIEW [Vol. 14:549 bers in 1977 when the court was increased to nine.18 None of the changes mentioned can properly be regarded as an improvement in appellate justice except in the single respect of providing more judges to dispose of the increasing volume of appeals. This traditional remedy for docket congestion (adding more judges or more courts) introduces complexity into the judicial process. Complexity in turn increases uncertainty, confusion, and duplication of judicial effort. This remedy, therefore, is necessarily a compromise with the ideal. In view of this history, the changes of September 1, 1981, may be viewed as the latest in a long series of compromises adopted in an effort to relieve docket pressures and to achieve promptness of decision. Promptness of decision is one component of justice that can be determined objectively with comparative ease. The importance of promptness is attested to by the maxim "justice delayed is justice denied." Particularly in the field of criminal law, promptness of decision is a matter of primary importance. In recent years, the greatest delays in the administration of criminal justice have been in the period after judgment rather than before trial. Convicted criminals, free on bond pending appeal and finding employment difficult, are tempted to engage in other criminal activity. Those in jail or prison may serve a substantial portion of their sentences before the appellate court is able to determine whether they have been properly incarcerated. Notwithstanding the increase in judicial manpower on the court of criminal appeals and the record of that court for extraordinary productivity, dispositions of criminal appeals contin- ued to lag so far behind filings that in 1980 the period of pendency from notice of appeal to final disposition was often more than three years.1 9 Texas fell so short of the goal of reasonable promptness, especially in criminal cases, that a demand arose for reform. Consequently, in 1979 the legislature adopted Senate Joint Resolu- tion 36, proposing a constitutional amendment to provide an intermediate appeal in criminal cases.10 This proposal was widely dis- more commissioners appointed). 18. See TEx. CONST. art. V, § 4 (commissioners made full members of the Court of Criminal Appeals). 19. See TEXAS JUDICIAL COUNCIL, TExAs JUDICIAL SYSTEM ANNUAL REPORT 53, at 102 (1982). 20. Tex. S.J. Res. 36, §§ 5-6, 66th Leg., 1979 Tex. Gen. Laws 3223, 3224-25 (adopted as 1983] EXPANDED TEXAS COURTS OF APPEALS 553 cussed and subsequently adopted in the general election of 1980 by a substantial majority."' It was implemented in 1981 by Senate Bill 265, which added twenty-nine appellate judges. 22

II. EFFECT OF THE 1981 AMENDMENTS An intermediate appeal is never an ideal solution to the problem of appellate delay. Potentially, delay is increased because another step is added to the process. Moreover, a system of several intermediate courts, some of which operate with several panels, tends to impair consistency in the administration of justice. Neces- sarily, the intermediate courts will have primary responsibility to decide whether the law has been correctly applied in each case, and the role of the court of last resort will be limited to resolving conflicts of decisions and supervising the development of case law." The additional step adds little quality, if any, to the ultimate decision and can be justified only if the total time required for disposition of appeals is reduced without substantial impair- ment of the other goals of justice. By this standard it is too soon to assess the long-range results of the 1981 amendments. Some trends, however, are already clear. Primarily, the immediate object of the change has been accom- plished, at least in part. The normal period of pendency from notice of appeal to denial of discretionary review by the court of criminal appeals has been reduced to less than eighteen months.24 This is still substantially longer than the standard of approxi- mately six months recommended by the American Bar Associa- tion,2 6 but it is a marked improvement over the three years or more previously reported. This partial improvement, however, will be only temporary if present trends of filings and dispositions continue. On December 31, 1981, the fourteen courts of appeals had a

TEx. CONST. art. V, § 6). 21. See Adopted Constitutional Amendments, 1981 Tex. Gen. Laws 4229. 22. See Act of June 8, 1981, ch. 291, § 31, 1981 Tex. Gen. Laws 761, 776 (codified at TEx. REv. Civ. STAT. ANN. art. 1812 (Vernon Supp. 1982-1983)). 23. AMERICAN BAR ASSOCIATION COMMISSION ON STANDARDS OF JUDICIAL ADMINISTRA- TION, STANDARDS RELATING TO APPELLATE COURTS §§ 3.00-.14 (1977) [hereinafter referred to as STANDARDS RELATING TO APPELLATE COURTS]; P. CARRINGTON, D. MEADOR & M. ROSEN- BERG, JUSTICE ON APPEAL 138-84 (1976). 24. Estimate based on a review of the records of the Fifth Supreme Judicial District. 25. STANDARDS RELATING TO APPELLATE COURTS, supra note 23, § 3.52. TEXAS TECH LAW REVIEW [Vol. 14:549

total of 6118 cases pending, of which 4164 were criminal and 1954 were civil.2 6 On December 31, 1982, the number of cases pending had risen to 6895, of which 4463 were criminal and 2432 were civil,27 an increase of more than eleven percent. As the number of cases rises, the period of pendency lengthens. The inevitable result will be ultimate defeat of the primary objective of Senate Joint Resolution 36, which is to reduce delay in the process of criminal justice. This problem is common to all Texas intermediate courts because the supreme court continues to exercise its statutory authority to equalize the dockets of the fourteen courts.2 8 Ominous though this trend appears, the situation would obviously be much worse if Senate Joint Resolution 36 had not been adopted and the court of criminal appeals was left to bear the constantly increasing load without assistance.

III. MEASURES FOR REDUCING DELAY A. Increasing Judicial Manpower The prospect of ever-lengthening delays in the appellate process raises the question of what measures will be required to re- verse the trend. As already pointed out, the traditional Texas remedy for docket congestion has been to add judges. With eighteen judges on the two high courts and seventy-nine on the fourteen intermediate courts, the total of ninety-seven is by far the largest number of appellate judges of any state.29 Besides the expense to

26. Office of Court Administration, Courts of Appeals Official Docket Report for the Fourteen Supreme Judicial Districts of Texas (December 31, 1981) [hereinafter referred to as 1981 Official Docket Report]. The figure of 4164 pending criminal cases reported by the Office of Court Administration includes 228 pre-1982 cases transferred by the Court of Criminal Appeals to the Austin Court of Appeals in September 1982 pursuant to § 149 of Senate Bill 265, TEx. CODE CraM. PRoc. ANN. art 44.45 note (Vernon Supp. 1982-1983), and 75 such cases similarly transferred to the Dallas Court of Appeals in December 1982. The figures in the text do not include these cases. 27. Courts of Appeals Official Docket Report for the Fourteen Supreme Judicial Dis- tricts of Texas (December 31, 1982) [hereinafter referred to as 1982 Official Docket Report]. 28. See Tax. REV. CIv. STAT. ANN. art. 1738 (Vernon Supp. 1982-1983). 29. The following tabulation of active intermediate judges was compiled from the most recent volumes of West Publishing Company's National Reporter System for the more populous states: District Courts of Appeals of California 56 Appellate Division of Supreme Court of New York 39* Superior Court & Commonwealth Court of Pennsylvania 22 Appellate Courts of Illinois 42 1983] EXPANDED TEXAS COURTS OF APPEALS 555 the state and the complexity of structure, increasing the number of judges at the appellate level results in several disadvantages. On a single court, adding more judges creates tension between the principles of efficiency and collegiality. Although courts of appeals cases are assigned to panels of three judges regardless of the size of the court, each multipanel court must confront the problem of dis- agreement between or among panels. One approach is to disregard collegiality in favor of efficiency, relieving judges of all responsibility for cases not assigned to them and leaving resolution of all conflicts to the court of criminal appeals and the supreme court.30 The difficulty with this approach is the burden it casts on the two high courts to maintain reasonable consistency of decisions and uni- formity in the administration of justice. Particularly in the area of appellate practice, consistency in the treatment of recurring problems may be difficult to achieve. The high courts should be able to devote their major energies to consideration of important principles of law and the correct enunciation of legal doctrine without constant vigilance to resolve conflicts on minor but recurring procedural problems. On the other hand, maximum regard for the principle of collegiality would require that all justices of each court hear argu- ments, read briefs, and participate in deciding all appeals. Under such a system the loss of efficiency would be extreme. As the number of judges increases, the time required of each judge for study- ing cases not assigned to him increases proportionately, until each judge finds himself spending only a relatively small portion of his time considering his own cases and writing his own opinions. For this reason it is a waste of judicial resources for an intermediate court to sit in panels of more than three.

B. Panel Decisions: The Problem of Collegiality

Various methods have been employed to resolve the problem of conflicts between panels. Before September 1, 1981, the court of

Michigan Courts of Appeals 18 Ohio Courts of Appeals 53 Florida District Courts of Appeals 45 * Not including nine serving as retired justices 30. This is the approach adopted by the Fourteenth Court of Appeals at Houston, according to Chief Justice J. Curtiss Brown. TEXAS TECH LAW REVIEW [Vol. 14:549 criminal appeals was authorized to sit in panels of three,"1 and did so to hear appeals filed before that date until late 1982.2 Accord- ing to the rules of that court, all opinions of the three panels and motions for rehearing were distributed to all members of the court after issuance so that conflicts and potential conflicts could be rec- ognized and resolved by en banc consideration." A vote of four members of the court was required for consideration by the full court.34 Oral argument was heard by the full court only if re- 3 quested by a majority. 5 A disadvantage of this approach is that during the interval between issuance of the panel opinion and the final decision en banc, lower courts must frequently rely on panel opinions that may later be overruled by the full court. A different approach has been adopted by the Dallas Court of Appeals, which is the largest of the intermediate courts, having thirteen justices.3s To achieve collegiality with a minimal sacrifice of efficiency, the Dallas court has devised an elaborate process of review by members of the court other than those assigned to a par- ticular case." Copies of each draft opinion are distributed to the other justices for their review and comments after approval by the sitting panel. The members of the court take this responsibility se- riously, particularly when an opinion is designated for publication. The reviewing judges do not ordinarily read the briefs or study the record because their main function is to determine whether the opinion on its face appears to be correct, free from ambiguity, and deserving of consideration as a precedent in future cases. This review has proved valuable because a judge unfamiliar with the briefs or the record may recognize ambiguity in language that may be perfectly clear to a judge familiar with the factual context of the

31. Article V, § 4, of the Texas Constitution authorizes the court of criminal appeals to sit in panels of three judges under rules established by that court. See TEx. CONST. art. V, § 4. Since September 1, 1981, however, the court sits en banc in cases involving the death penalty and cases of discretionary review. See TEx. R. CriM. APP. P. 312, reprinted in 617- 618 S.W.2d (Texas Cases) LV. 32. See, e.g., Garcia v. State, 640 S.W.2d 939 (Tex. Crim. App. 1982); Bowen v. State, 640 S.W.2d 929 (Tex. Crim. App. 1982). 33. See TEx. R. CaM. APP. P. 9, 12 (1978), reprintedin 557-558 S.W.2d (Texas Cases) XLIII, XLVIII-XLIX. 34. Id. R. 12(a). 35. Id. R. 12(c). 36. See TEx. REv. CIv. STAT. ANN. art. 1812 (Vernon Supp. 1982-1983). 37. COURT OF APPEALS FOR THE FnrH SuPRzME JUDIcIAL DISTRicT OF TExAS, TENTATVE ADMINISTRATIVE RULES, §§ 3.09, 3.12a, 3.13 (Feb. 15, 1982). 1983] EXPANDED TEXAS COURTS OF APPEALS 557 opinion. A reviewing judge may also call to mind some statute or precedent not considered by the author. Experience has shown that although the sitting judges sometimes hold fast to their original views, they often recognize errors of form or substance that should be corrected before the opinion is issued. After a draft opinion has been distributed to the remaining members of the court, a majority may call for a conference of the full court.8 8 Such conferences are not favored. When an en banc conference is called, no further oral argument is heard, but all members of the court are encouraged to read the briefs and make any necessary examination of the record. Discussion by the thirteen justices is necessarily limited. Although a tentative vote is taken at the conference, all members of the court indicate their final votes in writing before the opinion is issued. The court's oper- ating rules provide that no previous decision of the court, whether by a panel or en banc, will be disregarded or overruled without consideration by the full court and the vote of a majority.3 9 This review procedure enhances the quality of opinions because whenever criticism is offered and accepted, the opinion is likely to be improved. The procedure enables all members of the court to keep abreast of the court's opinions and to recognize potential conflicts before opinions are issued. It also fosters collegiality by tending to create an attitude of responsibility of each judge for all the opinions of the court. These advantages are achieved at a sacrifice of some efficiency because the time spent by each judge in reviewing opinions of other panels and responding to the comments of members of other panels could otherwise be employed in working on cases of his own. This sacrifice appears to be acceptable in view of the statistics showing that the number of dispositions per judge in the Dallas court consistently has been more than the average number of dispositions per judge for the other thirteen courts of appeals.4 Whether the quality of the opinions has been enhanced to a significant degree is a more difficult matter to assess and must be left to more objective observers than this writer. The experience of the Dallas court indicates that thirteen members should be taken as the practical limit of the size of an

38. Id. § 3.14. 39. Id. § 3.15. 40. See 1982 Official Docket Report, supra note 27. 558 TEXAS TECH LAW REVIEW [Vol. 14:549 intermediate court which can maintain collegiality. Beyond that number, the burden of keeping abreast of decisions of other panels and participation in en banc decisions become greater than most judges are willing to assume. The number of judges on the court may be increased if collegiality is abandoned, but little advantage is gained over organizing the judges into several smaller courts or permanent divisions. Moreover, the administrative problems of a larger court are formidable because the court must make ultimate decisions on administrative policy by majority vote, even when most administrative matters are delegated to an administrative staff.41 Abandonment of collegiality in a large intermediate court would also raise a question concerning the jurisdictional authority of the supreme court to resolve conflicts between panels in civil cases. In most appeals the supreme court has jurisdiction pursuant to subdivision 6 of article 1728, which gives the court jurisdiction when the court of appeals has made an "error of substantive law.' 2 In such cases the supreme court may grant a writ of error if it disagrees with a later conflicting decision.'3 If the court agrees with the later decision, it may refuse the writ with the notation "no reversible error" and write a short opinion resolving the con- flict.44 In some cases such as divorce cases and interlocutory appeals, however, the judgment of the court of appeals is made final by articles 1728 and 1821'1 unless the court of appeals decision in- cluded a dissenting opinion or held contrary to a prior decision of another court of appeals. 4e The supreme court has not construed this statute to encompass conflicts between panels of the same court. Consequently, the possibility exists that repeated conflicts in the decisions of different panels of the same court cannot be resolved without en banc consideration. This review problem does not exist with respect to criminal cases because the discretion of the court of criminal appeals to

41. See COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS, TEN- TATIVE ADMINISTRATION RULES, § 5.09 (Feb. 15, 1982). Much time is consumed by the Dallas court in administrative conferences held monthly in accordance with this rule of the court. 42. TEx. REV. CIV. STAT. ANN. art. 1728, § 6 (Vernon Supp. 1982-1983). 43. Id. art. 1729. 44. TEx. R. Civ. P. 483. See, e.g., Arthur Bros. v. U.M.C., Inc., 26 Tex. Sup. Ct. J. 143 (Dec. 15, 1982). 45. TEx. REV. CIV. STAT. ANN. arts. 1728, 1821 (Vernon Supp. 1982-1983). 46. Id. art. 1728, §§ 1, 2. 1983] EXPANDED TEXAS COURTS OF APPEALS 559 grant petitions for review extends to all criminal decisions of the courts of appeals.47 A statute granting similar jurisdiction in civil cases to the supreme court would resolve this technical difficulty. The problem would remain, however, whether abandonment of collegiality by the intermediate courts would impose such a burden on the two high courts that conflicts could not be resolved promptly and efficiently without diverting those courts from more important judicial business. One alternative to adding justices to congested courts of appeals is to create additional intermediate courts in the metropolitan areas. This was employed in Texas before the 1978 amendment to article V, section 6, of the Texas Constitution removed the limitation on the size of the courts of appeals to a "Chief Justice and two Associate Justices." s The creation of additional intermediate courts, however, limits the principle of collegiality and adds to the potential conflicts between courts that can be resolved only by the two high courts. The experience of the First and Fourteenth Courts of Appeals in Houston may be considered in determining whether conflicts between separate courts in the same district have become a significant problem. Another alternative is adding justices to small intermediate courts to hear and decide cases transferred from congested courts in metropolitan areas. This solution is not favored by the bar because most lawyers prefer to present cases before justices elected from the lawyer's own district. Moreover, this alternative would impose disproportionate burdens on counties required by statute to provide facilities for these smaller courts. 9 Complete state financing of the intermediate courts would be appropriate to resolve the disparity, but might be difficult to obtain.

47. See TEx. CONST. art. V, § 5; TEx. CODE CRIM. PRO. ANN. art. 44.45 (Vernon Supp. 1982-1983). 48. See TEx. CONST. art. V, § 6 (1876, amended 1978). As amended, article V of the Texas Constitution removed the limitation on size. The Court of Appeals for the Fourteenth Judicial District was created in 1967 in a district coterminous with that of the First Su- preme Judicial District to relieve congestion in the populous first district prior to the constitutional amendment allowing for the option to increase the number of judges on a court of appeals with a particularly congested docket. See Act of June 18, 1967, ch. 728, § 2, 1967 Tex. Gen. Laws 1952, 1953-54 (codified at TEx. REv. CIv. STAT. ANN. art. 1817 (Vernon Supp. 1982-1983)). 49. See generally TEx. REv. CIv. STAT. ANN. art. 1817 (Vernon Supp. 1982-1983) (cit- ies where a court of appeals is seated shall furnish and equip suitable rooms for the court). 560 TEXAS TECH LAW REVIEW [Vol. 14:549

C. Professional Legal Assistance From the foregoing discussion it should be evident that any method of adding intermediate judges to the seventy-nine now provided by article 1817 would create serious administrative and jurisprudential problems. An alternative approach, which has been employed in high-volume courts of other states and the Texas Court of Criminal Appeals, is to provide more staff assistance for judges. At present each judge has one law clerk, whose relatively low salary creates difficulty in attracting upper-range law gradu- ates, and each court has one "legal counselor" at a salary somewhat higher, but still not enough to attract experienced lawyers from private practice. The three largest courts have an additional legal counselor authorized by legislative appropriations and one financed by a grant from the criminal justice division of the gover- nor's office. Recent figures supplied by the Office of Court Admin- istration indicate that this staff should enable each court to dispose of more than one hundred cases per judge per year,50 a figure somewhat above the present rate, but still insufficient to keep abreast of new cases now being filed, with no allowances for inevitable increases. Experience has shown that the productivity of appellate judges can be increased substantially by additional and more experienced legal staff. For a number of years the court of criminal appeals has had available an experienced research assistant for each judge, in addition to a less experienced law clerk, and a central staff of five experienced lawyers. This staff has enabled that court to reach a level of 303 dispositions per judge per year." This figure may be misleading in comparison to the figures for intermediate courts because the average time for disposition of civil cases is more than twice that of criminal cases, and the figures for the court of criminal appeals also include postconviction writs of habeas corpus, most of which are handled by the central staff and require even less judge time than ordinary appeals. Nevertheless, the great disparity between the productivity

50. See 1982 Official Docket Report, supra note 27, at 1. 51. See TEXAS JUDICIAL COUNCIL, TEXAS JUDICIAL SYsTEm ANNUAL REPORT 53, at 98 (1982). In 1981 the court of criminal appeals averaged 249 dispositions per judge; however, only 253 cases were filed per judge in 1981 in contrast to 341 cases filed per judge in 1980. The decrease in filings reflects the filing of new criminal appeals in the courts of appeals after September 1, 1981. 19831 EXPANDED TEXAS COURTS OF APPEALS 561

figures for the court of criminal appeals and the courts of appeals is a strong indication that additional professional staff would substantially increase the productivity of the intermediate courts. Ex- perience in the high-volume appellate courts of other states such as California, Florida, Illinois, Michigan, and New York also demonstrates that productivity of an appellate judge can be greatly increased by the employment of additional legal staff.5 2 This increase in productivity can be effected in several ways. A recently graduated law clerk begins to function efficiently only at the end of his first year of clerking, when economic pressures in- duce him to leave for the more lucrative compensation of private practice. A more experienced research assistant becomes familiar with the court's operations and understands better his judge's methods of working and approaches to legal problems. Moreover, the judge knows better what assistance to expect and how best to direct the assistant's efforts and coordinate them with his own in reaching a decision and producing an opinion. Other advantages can be realized by an experienced, permanent central staff. Most important is the screening of simple cases for summary disposition. Many criminal appeals present no substantial question. Because counsel for indigent defendants must be provided at public expense, there is little deterrent to appeal, no matter how little merit the case may present. Also, a nonindigent defendant may be free on bail and find appeal advantageous so as to delay execution of his sentence. A competent central staff can screen all cases and prepare memoranda and draft opinions in those that present no substantial question, thus relieving the judges and their law clerks of routine tasks. Another important function of the central legal staff is to prepare preargument memoranda on cases to be heard in regular course. If a case is well briefed, a staff memorandum may add little and tempt the judges to limit their reading before argument to the staff memorandum. More often than not, however, the judge who authors the opinion will need to brief questions not addressed by counsel or to do additional research on the questions raised. Con- sequently, staff memoranda which analyze the issues, discuss addi-

52. See Office of Court Administration, Intermediate Appellate Courts Survey (No- vember 1982). See also Council of Chief Judges of Courts of Appeal, Intermediate Appellate Court Survey Questionnaire 36-43, 73-75 (July 1981) (information on availability of law clerks and staff attorneys and dispositions). 562 TEXAS TECH LAW REVIEW [Vol. 14:549 tional authorities, and recommend solutions will save a substantial portion of the judge's time and increase the number of opinions produced and improve their quality.

D. Memorandum Decisions Another method of increasing productivity without adding judges is disposition of cases by memorandum decisions rather than formal opinions. If a published opinion would be of little precedential value because all questions of law are settled by controlling authorities, an unpublished memorandum citing the authorities may suffice. Rule 452 of the Texas Rules of Civil Proce- dure" encourages such disposition, and the court of criminal appeals has recommended applying the same rule in criminal cases."4 Similarly, when the principal ground of the appeal is the insufficiency of the evidence to support the fact findings, the court need not summarize the evidence, but may state that it has reviewed the evidence and finds it sufficient. This method of disposition is employed widely in other states. For instance, although the Appellate Division of the Supreme Court of New York, First De- partment, in New York City, has sixteen active judges, a recent survey conducted by the Council of Chief Judges of Courts of Ap- peal reveals that that court disposes annually of 3072 appeals, 4969 motions and other matters, but writes only 228 formal signed opinions. 5 The others are disposed of by memoranda or simple orders reading "affirmed" or "reversed. "' 5" Admittedly, this method has drawbacks. The prevailing Texas tradition is to write an opinion reciting the facts and the proceed- ings below, recognizing the contentions of each party, stating the court's reasoning in disposing of each of the grounds raised, and citing the supporting authorities. The Texas bar is justifiably sus- picious of any memorandum decision that fails to conform to this pattern. The writing process is an important part of the decision process. Although it is easy to state a conclusion and cite authorities, it may be difficult to write an opinion that meets squarely the losing party's contention and demonstrates that the facts bring the

53. Tax. R. Civ. P. 452. 54. See Davis v. State, 636 S.W.2d 197, 198 (Tex. Crim. App. 1982). 55. Council of Chief Judges of Courts of Appeal, Intermediate Appellate Court Survey Questionnaire 74 (July 1981). 56. Id. 19831 EXPANDED TEXAS COURTS OF APPEALS 563 case within the rules established by the authorities cited. In a sur- prising number of cases, a conclusion agreed upon in conference after reading briefs and hearing argument will not be sustained when an attempt is made to justify it in a draft opinion. Further- more, a disturbing number of cases which seem simple on first examination are found to contain substantial questions when the pertinent facts are carefully stated from the record and the parties' contentions are closely analyzed. Consequently, there can be no assurance that the same quality of appellate justice can be main- tained by writing memoranda rather than full opinions. Even when the opinion itself has no precedential value and, therefore, need not be published, the process of preparing it has value for the judge and his colleagues in ensuring that the decision is correct and for counsel and the parties in providing assurance that the case has been fully considered. Nevertheless, the question must be faced whether full opinions in every case are too high a price to pay. A balance must be struck between the competing values of thoroughness and promptness. A system that disposes of most appeals in less than six months, using brief memoranda in simple cases, may be more satisfactory to the public and litigants than one which produces a full opinion in each case, but requires three years or more to complete the judicial process. Moreover, if a full opinion must be written in every case, docket pressures may leave the judges less time to expend on the more important cases so that in an effort to avoid an intolerable backlog, a tendency may develop to reduce all opinions to a common level of mediocrity. The alternative of screening out most cases for memorandum decision and leaving the judges more time to work on the more difficult cases and those that will establish significant precedents merits due consideration. These are the kinds of choices that the courts of appeals will be facing in the foreseeable future. The first line of relief, as already pointed out, is the use of experienced research attorneys and permanent staff attorneys to perform routine legal tasks to free more of the judge's time for whatever personal investigation is necessary and opinion writing in cases in which full opinions are appropriate.

IV. ADMINISTRATIVE PROBLEMS OF MULTIPANEL COURTS Another problem in the operation of a large court is that of TEXAS TECH LAW REVIEW [Vol. 14:549

administration. A three-judge court can operate informally with procedures well understood but not formulated in writing. In a court of thirteen, the only way to avoid chaos is by detailed operat- ing rules adopted by formalized procedures. How shall panels be formed? How shall cases be assigned to them? Within the panels, how should cases be assigned to individual judges? When will the panels sit? How many cases should they hear at a sitting? How often should the panels rotate? How should opinions be circulated within the panel? When the panel has agreed on a draft, should the opinion be circulated among the remaining judges before it is issued? What opportunity should a nonsitting judge have to con- tribute to an opinion? When a judge gets behind in his work, what kind of help should be provided and who should provide it? All these questions must be settled and reviewed as problems develop."7 In short, a court of thirteen members with more than thirty employees is a bureaucratic organization and must operate according to bureaucratic procedures and limitations. Unfortunately, judges, and even chief justices, may not be trained or experienced in management techniques and are rarely selected for their executive talents. Moreover, because the chief justice of a Texas court of appeals has no statutory delineation of his powers, he has no executive authority beyond that which his colleagues voluntarily delegate to him. Consequently, when a court becomes so large that it can no longer operate on an informal, ad hoc basis, it must adopt formalized bureaucratic procedures, yet operate without any executive having authority to ensure compliance with formalized procedures. Even when the other members of the court have sufficient confidence in the chief justice to delegate to him the authority to supervise the routine operations of the court, this exercise of authority inevitably diverts a major portion of his time from his judicial duties so that he becomes more of an administrator than a judge. This problem may be remedied in part by dividing the administrative responsibilities among the members of the court, or au-

57. Other problems include supervision of the professional and nonprofessional staff, including hiring and firing, procurement and maintenance of adequate library and other physical facilities, budgeting, legislative contacts in support of budget requests, relations with county authorities and other agencies providing facilities and equipment, record keeping, payroll, supervision, docket management and review, and the like. 1983] EXPANDED TEXAS COURTS OF APPEALS 565 thorizing the chief justice to delegate such responsibilities to them. Delegation may relieve the chief justice from the administrative burden, but it compounds the problem of diverting judicial time to administrative tasks. Fully collegial administration requires com- mittee consideration of a myriad of administrative problems and reports to the chief justice or the full court in administrative conference, or both. All these activities take time that could best be utilized for reading briefs or writing opinions. The answer to this dilemma is not to deny the bureaucratic nature of a court of nine or more members, but to recognize it and provide the tools for efficient bureaucratic management. An indis- pensable requisite of efficient management is competent management personnel with clear delineation of authority and responsibility. The court may then delegate the supervision of court operations within guidelines, permitting the judges to devote their time to the cases to which they are assigned. This responsibility requires a person of considerable management capacity and experience. Both the supreme court and the court of criminal appeals have administrators who, by legislative authority, are paid salaries commensurate with their responsibilities. 8 An intermediate court of nine or more members has equal need of an administrator and, because most appeals end at this level, it is where competent administration has the greatest impact on the efficiency of the appellate process.

V. DIFFERENCES BETWEEN CIVIL AND CRIMINAL LAW

Another problem of the courts of appeals results from the his- torical division between the civil and criminal practice in Texas. Although the basic appellate process of reading briefs, hearing ar- guments, and deciding cases is the same, an appellate judge in Texas encounters differences at every step. The problem is not merely that criminal law is a separate legal field like family law, commercial law, and tort law. In Texas the procedural rules and the attitudes of lawyers, trial judges, and high courts are different. For instance, a trial judge in a civil case may grant a new trial,

58. See General Appropriations Act of 1981, ch. 875, 1981 Tex. Sess. Law Serv. 3749, 3749-50 (Vernon) (The supreme court has an executive assistant at an annual salary of $40,500 while the court of criminal appeals has an executive administrator at an annual salary of $51,500.). 566 TEXAS TECH LAW REVIEW [Vol. 14:549

thus obviating appeal, even though the moving party previously perfected his appeal by filing his bond. 9 On the other hand, the criminal defendant who gave his notice of appeal after judgment and sentence must withdraw his notice if he wishes to file a motion for a new trial." The distinction may be easy to make and apply, but it is confusing to a judge who comes upon it for the first time because there is no apparent reason for having different rules for civil and criminal cases. More significant is the difference in the attitudes of the two high courts on the question of "fundamental error." The supreme court, in a series of recent cases, 1 has laid to rest the contention that some errors are so serious as to provide ground for reversal even though they have not been called to the attention of the trial 6 judge. In Pirtle v. Gregory, 2 the supreme court wrote: Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas. The reason for the requirement that a litigant preserve a trial predicate for complaint on appeal is that one should not be per- mitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.6 On the other hand, the court of criminal appeals has adopted the view that certain errors in the charge need not be called to the trial judge's attention by objection in the trial court; rather, they may be raised on appeal for the first time by a party or the appellate court on its own motion. 4 Under this rule the attorney does his client a disservice by making an objection to such an error in the trial court because the judge may correct the error and thus de-

59. TEX. R. Civ. P. 329b(d). 60. See TEX. CODE CraM. PRO. ANN. arts. 40.05, 44.08 (Vernon Supp. 1982-1983). See, e.g., Hanner v. State, 572 S.W.2d 702, 706 (Tex. Crim. App. 1978) (en banc); Locke v. State, 502 S.W.2d 1, 2 (Tex. Crim. App. 1973). 61. American Gen. Fire & Casualty Co. v. Weinberg, 639 S.W.2d 688 (Tex. 1982); Cox v. Johnson, 638 S.W.2d 867 (Tex. 1982) (per curiam); Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam). 62. 629 S.W.2d 919 (Tex. 1982). 63. Id. at 920 (citation omitted). 64. Curnbie v. State, 578 S.W.2d 732 (Tex. Crim. App. 1979); Cleland v. State, 575 S.W.2d 296 (Tex. Crim. App. 1978). 1983] EXPANDED TEXAS COURTS OF APPEALS 567 prive the defendant of a promising ground of appeal. Another basic difference raised in the Texas civil-criminal dichotomy is the authority to adopt rules of procedure. The supreme court has statutory authority to adopt or repeal rules of civil procedure.65 In criminal cases, on the other hand, all procedures are pre- scribed by the Code of Criminal Procedure, and the rule-making authority of the court of criminal appeals is limited to rules of post-trial and appellate procedure consistent with the provisions of the Code.6 The supreme court has recently interpreted its rule-making power as extending to rules of evidence and has adopted rules to be effective in civil cases beginning September 1, 1983.7 Since no similar rules have been adopted for criminal cases, these civil rules of evidence will further accentuate the division between civil and criminal practice, although the criminal courts may look to the civil rules for guidance when no criminal precedent is controlling. Another difference concerns proof of jury misconduct. The supreme court has held that a juror's testimony of how the misconduct affected the verdict is "utterly without force or effect one way or the other in passing on the question of jury misconduct."' 8 By contrast, the court of criminal appeals seems to give such testimony controlling weight.6 9 Examples of distinctions which have arisen might be multi- plied, not because of any actual difference between the principles properly applicable, but merely because legislation and appellate decisions in the area of criminal law have been viewed without consideration of similar problems arising in civil practice and vice versa. Whether these differences will persist, only time will tell; however, it is reasonable to suppose that when all cases are first heard on appeal by judges familiar with both fields of practice, there will be a tendency toward conformity of civil and criminal practice that will minimize existing differences and tend to prevent new instances of this sort in the future.

65. TEx. REv. CIv. STAT. ANN. art. 1731a, §§ 1-3 (Vernon 1962). 66. TEx. CODE CRIM. PRO. ANN. art. 44.33 (Vernon Supp. 1982-1983). 67. See TEx. R. EvID., reprinted in 641 S.W.2d (Tex. cases) 1 (adopted by order of the Supreme Court of Texas, November 23, 1982, to take effect September 1, 1983). 68. Putnam v.Lazarus, 293 S.W.2d 493, 495 (Tex. 1956). See Pope, The Mental Oper- ations of Jurors, 40 TEx. L. REv. 849 (1962). 69. See Munroe v. State, 637 S.W.2d 475, 484 (Tex. Crim. App. 1982). TEXAS TECH LAW REVIEW [Vol. 14:549

VI. CONCLUSION The problems faced by the Texas courts of appeals may be attributed principally to the sudden and extraordinary increase in case load resulting from the new criminal jurisdiction. The former low-volume courts of civil appeals have been converted into high- volume courts of general appellate jurisdiction with administrative problems similar to those experienced by similar courts in other populous states. To meet these problems, judicial manpower is adequate for the present, but highly qualified support personnel, both professional and administrative, is needed. With such assistance, the intermediate appellate courts can progress toward the goal of prompt and efficient disposition of appeals, both criminal and civil, without sacrificing careful consideration of each case. Properly staffed, these courts can produce opinions that will provide guidance to the bar and trial bench and assistance to the supreme court and court of criminal appeals in maintaining and de- veloping a sound and consistent body of case law. The combined criminal and civil jurisdiction of the intermediate courts may also lead to greater consistency between civil and criminal law on problems common to both, particularly in the areas of evidence and procedure. Whether these goals will be reached depends in large measure on whether the courts of appeals are given tools adequate to their task.