Judicial Appointments: The Webinar. Ryan Kellus Turner General Counsel & Director of Education Texas Municipal Courts Education Center May 19, 2010

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1 Judicial Appointments: The Webinar Ryan Kellus Turner General Counsel & Director of Education Texas Municipal Courts Education Center May 19, 2010

2 Where to Begin Texas Constitution Art. V. Section 1 "The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof..."

3 And then

4 Creation A municipal court is created in each municipality. A reference in state law to a "corporation court" means a "municipal court."

5 Creation of Municipal Courts of Record (a) The governing body may by ordinance create a municipal court of record if the governing body determines that the creation of the court is necessary to provide a more efficient disposition of the cases arising in the municipality. (b) The ordinance may establish as many municipal courts of record as needed as determined by the governing body. (c) Except as provided by Subsection (d), the ordinance shall give each court a numerical designation, beginning with "Municipal Court of Record No. 1." (d) If a municipality has a unified court of record, that court shall be the "Municipal Court of Record in the City of (name of municipality)" and the municipality may establish by ordinance divisions, beginning with "Division No. 1." (e) A municipal court of record may not exist concurrently with a municipal court that is not a municipal court of record in the municipality.

6 In Texas We Elect Judges

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8 Direct Election Voters Judge

9 Indirect Election Voters Council Judge

10 Residents Elect Municipal Governing Body Municipal Governing Body Represent Residents Municipal Governing Body Appoint Municipal Judge Governing Body Represent Residents in Making Appointment Municipal Judges Indirectly Represents Residents for Term of Appointment

11 Contemplates In Municipal Judge Alternate Judge Home Rule Cities Municipal Judge Election or Appointment per Charter General Law Cities Election or Appointment per Ordinance

12 A Word on the Ex Officio Judge (b) In a general-law city, the mayor is ex officio judge of the municipal court unless the municipality by ordinance authorizes the election of the judge or provides for the appointment and qualifications of the judge. If the municipality authorizes an election, the judge shall be elected in the manner and for the same term as the mayor. If the municipality authorizes the appointment, the mayor ceases to be judge on the enactment of the ordinance. The first elected or appointed judge serves until the expiration of the mayor's term. Unconstitutional? Tumey v. Ohio (1927) Ward v. Village of Monroeville (1972)

13 Term of Office The judge of a municipal court serves for a term of office of two years unless the municipality provides for a longer term pursuant to Article XI, Section 11, of the Texas Constitution. A municipal court judge who is not reappointed by the 91st day following the expiration of a term of office shall, absent action by the appointing authority, continue to serve for another term of office beginning on the date the previous term of office expired.

14 The Good, the Bad, and the Ugly About Reappointment by Operation of Law

15 Section does not require the actual appointment of a successor, but only some 'action' inconsistent with the retention of that office by the incumbent. City of Robstown v. Verastegui, 995 S.W.2d 315, 316 (Tex. App.--Corpus Christi 1999, no writ). A vote not to reappoint is "action by the appointing authority," as required by the statute. Op. Tex. Att'y. Gen. No. LO (1997). De Alejandro v. City of Robstown, 2000 Tex. App. LEXIS 3817 (Tex. App. Corpus Christi June 8, 2000)

16 General Law - Municipal Court of Judge Record (d) The governing body shall provide by ordinance for the term of office of its municipal judges. The term must be for a definite term of two or four years.

17 Observations on & A term of two years means a term of two years Municipal Judges are not at-will employees. Barnett v. City of Plainview, 848 SW2d 334 (Amarillo 1993); Thompson v. City of Austin, 979 SW2d 676 (Austin 1998); City of Roman Forest v. Stockman, 141 SW3d 805 (Beaumont 2003)

18 Judges are not Hired and, thus, cannot be Fired. They are NOT Employees They are Political Appointees The Office of Municipal Judge has NO origin in Municipal Law but rather State Law.

19 It s the Only Way Due Process Can be Guaranteed? Who is Your Boss? The People who Appointed you? OR The People who Elected the People who Appointed You?

20 Temporary Replacement in General-Law Municipalities If a municipal judge of a municipality incorporated under the general laws of this state is temporarily unable to act, the governing body may appoint one or more persons meeting the qualifications for the position to sit for the regular municipal judge. The appointee has all powers and duties of the office and is entitled to compensation as set by the governing body.

21 General Law - Municipal Court of Record Vacancies: Temporary Replacement (a) If a vacancy occurs in the office of municipal judge of a court of record, the governing body shall by ordinance or charter provide for the appointment of a qualified person to fill the office for the remainder of the unexpired term. (b) The governing body may appoint one or more qualified persons to be available to serve for a municipal judge who is temporarily absent due to illness, family death, continuing legal or judicial education programs, or any other reason. The presiding judge, or the municipal judge if there is no presiding judge, shall select one of the qualified persons appointed by the governing body to serve during the absence of a municipal judge. The substitute judge, while serving as a municipal judge, has all the powers and shall discharge all the duties of a municipal judge. A substitute judge must meet the qualifications prescribed for the municipal judge.

22 General Law Home Rule- Non Record Municipal Court Municipal Court Panels or Divisions; Temporary Judges (a) A home-rule city by charter or by ordinance may divide the municipal court into two or more panels or divisions, one of which shall be presided over by a presiding judge. Each additional panel or division shall be presided over by an associate judge, who is a magistrate with the same powers as the presiding judge. (g) The municipality may provide by charter or by ordinance for the appointment of one or more temporary judges to serve if the regular judge, the presiding judge, or an associate judge is temporarily unable to act. A temporary judge must have the same qualifications as the judge he replaces and has the same powers and duties as that judge.

23 General Law Municipal Court of Record Removal of Judge A municipal judge of a general law municipality may be removed from office at any time for the reasons stated and by the procedure provided for the removal of members of a municipal governing body in Subchapter B, Chapter 21, Local Government Code. A municipal judge of a home-rule municipality may be removed from office by the governing body for the reasons stated and by the procedures provided for the removal of judges in the charter of the municipality or, if the charter does not provide for the removal of judges, as provided by Section 1-a, Article V, Texas Constitution, or by the procedure provided for the removal of members of a municipal governing body in Subchapter B, Chapter 21, Local Government Code.

24 Local Govt. Code General Grounds for Removal Incompetency Official Misconduct Intoxication Caused by Alcohol (unless under direction and prescription of licensed physician practicing in Texas).

25 Section 1-a, Article V, Texas Constitution.willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of the office, willful violation of the Code of Judicial Conduct, or willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice.

26 Removal Per Charter More than One Appellate Court has held that in Home Rule Municipalities Judges May be Removed Pursuant to the Terms of the City Charter. Willmann v. City of San Antonio, 123 SW3d 469 (San Antonio 2003); Barnett v. City of Plainview, 848 SW2d 334 (Amarillo 1993); Ratliff v. City of Wichita Falls, 115 S.W.2d

27 But Not by Repealing Budget During Term City of Brownsville v. Neece, 2000 Tex. App. LEXIS 2924 (Tex. App. Corpus Christi May 4, 2000)

28 What About Removal of Judges in Non- Record General Law Municipalities? Section 1-a, Article V, Texas Constitution. There are no general law provisions regarding the removal of city judges. David B. Brooks,23 Municipal Law and Practice (1999).

29 General Law Municipal Court Vacancy The governing body of the municipality shall by appointment fill a vacancy in the office of municipal judge or clerk for the remainder of the unexpired term of office only.

30 What s Missing in this Statute? References to Other Judges of the Same Court!!! Sitting for Disqualified or Recused Judge (a) If the judge of a municipal court is disqualified or recused in a pending case, the judge of another municipal court located in an adjacent municipality may sit in the case. (b) A municipal court judge may not sit in a case for another municipal court judge under this section if either party objects to the judge. An objection under this subsection must be filed before the first hearing or trial, including pretrial hearings, over which the judge is to preside.

31 In Closing Strange Related Questions How Many Judges can a Court Have? How May Courts can a City Have? Are Cities Following these Laws?

32 CHAPTER 29. MUNICIPAL COURTS SUBCHAPTER B. MUNICIPAL COURTS IN CERTAIN CITIES Municipality of More Than 250,000 (a) May by Ordinance Establish. TWO Municipal Courts Confirmation of Governing Body, Mayor may: Appoint TWO or more Judges for the Courts AND Designate the Seniority of the Judges (f) This section supersedes any municipal charter provision that conflicts with this section.

33 CHAPTER 29. MUNICIPAL COURTS SUBCHAPTER B. MUNICIPAL COURTS IN CERTAIN CITIES (a). Municipality of 130,001 to 285,000 May establish up to four additional municipal courts. The judge of each additional court must meet the same qualifications and be selected in the same manner as provided in the city charter for the judges of the existing municipal courts. If the charter provides for the election of municipal judges, the governing body of the municipality may appoint a person to serve as judge in each newly created court until the next regular city election.

34 Had enough? Talk to you later!