USA > Texas > The bench and bar of Texas > Part 3
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Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
In the formation of the constitutions of the Provisional Government and Republic, there were two parties in Con- gress - one composed of emigrants from the common-law States of the Union, which favored that system, and the other composed of native Texans and emigrants from Louisiana, who contended for the civil law. The system adopted was a compromise between the two, and this finally rested upon equity as a basis.
So averse was Congress to any fetters of formality in the pursuit and administration of justice, and so impressed was it with the civil-law maxim -res adjudicata pro veritate accipitur - that soon after the passage of the common-law act of 1840, it enacted that the fictitious proceedings in the action of ejectment should be abolished, although it had never been a remedy in the republic, and that the method
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of trying title should be by action of trespass, in which the real names of the parties should be used ; and in order to apprise the defendant of the nature of the suit, the plaintiff was required to indorse on his petition that the action was brought as well to try the title as for damages.
Proceeding with the organization of the courts in com- pliance with the provisions of the Constitution, Congress, at its first session in 1836, established in each county a county court with original and concurrent jurisdiction with the Dis- trict Courts over all suits and actions in which the amount in controversy exceeded one hundred dollars, but forbade that it should try any suit relative to the title of land ; and from this court an appeal lay to the District Court, when the amount in controversy exceeded two hundred dollars. In the organization of this court Congress created the office of chief justice of the county, an officer not provided for by the Constitution, and enacted that one of the justices of each county should be commissioned as such by the Presi- dent. The constitutionality of the office was held to be valid, but the Supreme Court deprived the President of the power of appointment, as being unconstitutional, and the office was made elective by the justices of the county.
The chief justices of the County Courts were clothed with the powers of probate in their respective counties, and there was an unlimited appeal from them in this capacity to the District Courts.
The County Courts had appellate jurisdiction over all cases arising in the justices' courts, and these were tried de novo without the intervention of a jury. Indeed, the County Courts had the same relation to the counties as the Supreme Courts had to the Republic.
By the act of January, 1839, that portion of the act of December, 1836, conferring jurisdiction upon the County Courts, was repealed, and their original functions limited to the exercise of the powers of probate, the conservation of the peace, the supervision of roads and revenues, and to notarial matters, and, save which, all their former jurisdic- tion was transferred to the District Courts. But all appeals
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from the justices' courts were still made returnable to the County Courts, in which they were to be tried de novo with- out a jury.
The act of December, 1840, empowered the chief justices of the County Courts to grant the same remedial processes in all matters originating in the justices' courts, as those issued by the district judges. But the act of February, 1844, prohibited the chief justices of the county, and the associate justices from holding the County Courts, severed the connection of the associate justices with the probate courts, and substituted a board of county commissioners, consisting of four members, who, with the chief justice, composed the County Court. These commissioners were by the act of February, 1845, made elective biennially by the people, and their courts confined to semi-annual sessions.
These provisions conclude the history of the judiciary system of the Republic. It had laid the foundation for a wise fabric of laws, had built the pillars of a great State, . and out of the best material that could be procured, and was fully prepared to enter the rival lists for national greatness, and for a proud place among the nations of the world. But lured by these attractions a tide of emigration poured in from the States of the great neighboring Republic, and every emigrant formed a strand in the cable which was eventually to bind the destinies of the two countries. Closer and firmer was the tie drawn. Greater and more intensified became the attraction; until, wooed by its smiling glow, its kindred light, and its superior glare, the Lone Star ceased its solitary twinkle and fell into the great orb of the American Union. 3
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CHAPTER IV.
ORGANIZATION OF THE TEXAS STATE GOVERNMENT - ITS JUDICIARY SYS- TEM -THE BLENDED CHARACTER OF ITS JURISPRUDENCE -COMMON LAW, CIVIL LAW, AND EQUITY -ITS CRIMINAL CODE - PECULIARITY OF ITS LAND LAWS - MARITAL RIGHTS - RULES OF INHERITANCE - HOMESTEAD AND EXEMPTION LAWS - LIBERAL EDUCATIONAL SYSTEM - BENEFI- CENCE OF TEXAS JURISPRUDENCE. - 1845 -1885 ..
On the 1st day of March, 1845, a resolution was adopted by the Congress of the United States expressing its willing- ness to receive the territory comprising the Republic of Texas as a new State in the American Union upon certain conditions, and authorized the President to negotiate with the Republic upon the question of annexation. In reply to this overture, the Texan Congress, by a joint resolution, on the 23d day of June, 1845, declared its consent that the people and territory of the Texas Republic might be erected into a new State, to be called the State of Texas, and an- nexed to the Union upon the terms offered by the United States Congress, and authorized the President of the Re- public to proclaim an election of delegates to a convention to be convened at Austin on the 4th day of July. This convention ordained and declared, in the name of the people of the Texas Republic, and by their authority, that it accepted the proposals, conditions and guaranties offered by the United States Congress, and proceeded to form a constitution for the new State, which was adopted on the 27th of August.
This Constitution vested the judicial power of the State in one Supreme Court, in District Courts, and in such in- ferior courts as the Legislature of the State might from time to time ordain and establish, and authorized such juris- diction to be vested in corporation courts as might be deemed necessary, and be directed by law.
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The Supreme Court, was made to consist of a chief jus- tice and two associates, any two of whom formed a quorum. It was to have appellate jurisdiction only, which was to be coextensive with the limits of the State. The court, or any one of the judges, was empowered to grant writs of habeas corpus, and, under regulations prescribed by law, to issue writs of mandamus and all other writs necessary to. enforce its jurisdiction and compel a judge of the District Court to proceed to trial and judgment in any cause pend- ing in his court ; and the court was required to hold its ses- sions once every year, at not more than three places in the State, to be designated by law.
In criminal cases and interlocutory judgments the extent of jurisdiction and the mode of exercising it were remitted to the regulation of the Legislature ; and, as that body failed to make any provision in the matter, it was held that no appeal lay in these cases, and that they could be revised only by writ of error. But it was decided at a later day that the right of appeal flowed from a higher source than statutory enactments, and that the exceptions, notwithstand- ing the inaction of the Legislature, could not be construed to depend wholly upon legislation, and thus contravene the . spirit of the Constitution. The act of 1846 removed the grounds of conflict, and provided for general appeals in criminal cases, except on the part of the State; but the code of criminal procedure subsequently gave an appeal to the State.
The judges of the Supreme and District Courts were nominated by the Governor, and were appointed by him with the advice and consent of two-thirds of the Senate, until an amendment to the Constitution, adopted on the 16th of January, 1850, provided for their election by the people.
The Constitution required that the State should be divided into convenient judicial districts, with a judge for cach, who should reside in the same, and should hold his courts at one place in each county at least twice in every year, in such manner as might be prescribed by law. These courts were vested with original jurisdiction of all criminal cases, of
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all suits in behalf of the State, to recover penalties, for- feitures and escheats ; of all cases of divorce, and of all suits, complaints and pleas whatever, without regard to any distinction between law and equity when the matter in con- troversy amounted to one hundred dollars, exclusive of interest ; and the district judges were empowered to issue all writs necessary to enforce their own jurisdiction, and to exercise general superintendence and control over all in- ferior jurisdiction. And in the trial of all criminal cases in the District Courts the jury was required to fix the amount of punishment to be inflicted, and to assess the fine to be imposed, except in capital cases, and those in which the punishment or fine was especially designated by law. In the trial of cases in equity it was provided that either party should have the right of trial by jury, upon making application for the same in open court, and the proceedings were in such cases to be governed by the rules and regulations prescribed in trials at law.
The Constitution required that a convenient number of justices of the peace should be elected by the qualified voters of each county, who should be commissioned by the Governor, and have such civil and criminal jurisdiction as might be conferred by law, and in these courts the right of trial by jury was vouchsafed in all cases in which the penalty was fine or imprisonment (except in cases of con- tempt ) ; and in all cases an appeal lay to the court of the district.
It also provided for the establishment of inferior tribu- nals in counties, whose functions should be, the appointment of guardians, granting letters testamentary and of admin- istration, the settlement of accounts of executors, admin- istrators and guardians, and the transaction of all business appertaining to estates; and over all these matters the District Courts had both original and appellate jurisdiction.
In the formation of these provisions by law, the Legisla- ture, by joint resolution on the 25th of April, 1846, authorized the attorneys of the plaintiffs or defendants, to file in the Supreme Court a written brief or argument which the judges were required to notice and treat as an
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appearance ; and by the act of the 12th of May the Supreme Court was prohibited from reversing on an appeal or dismissing any case for want of form, provided that there was sufficient matter or substance contained in the record to enable the court to decide the cause upon its merits; but if it was apparent that the appeal was taken for delay it should be dismissed ; and if the appellant was the defendant in the court below, ten per cent on the amount claimed should be added as damages, in addition to the other costs.
This act also afforded relief to any person who by acci- dent or mistake had failed to file in proper time a transcript of the proceedings in the court below, by providing that it might be filed upon certain conditions, and the cause tried upon its merits at any time during the term to which the appeal was returnable, even after the judgment of the lower court had been affirmed. The appellee was not required to file any answer to the assignment of errors or defects - insisted upon by the appellant. It was sufficient if he filed a brief of his argument and the authorities on which he relied. All appeals were required to be tried upon a statement of facts agreed upon by the parties or their attorneys, and accompanied by a certificate of verity from the lower court, or, if the parties could not agree upon the facts as certified by the judge, or on a bill of exceptions ; or on a special verdict, or on an error of law either assigned or apparent on the face of the record. In the absence of all these grounds, the case was to be dismissed upon terms within the discretion of the court. By the act of the 30th of November, 1850, the Supreme Court was required to hold one session in every year in the City of Austin, one in the City of Galveston, and one in the town of Tyler; and the court while sitting at either of these places had power of revision over those appeals only which came up from the districts assigned to its jurisdiction; but if any cases argued or submitted were left undecided at the close of the term, it was competent for the court to decide it at the ensuing term, held at either of the above places, and the
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judgment was transmitted for record to the place where the case was submitted.
The Legislature, by the judiciary act of 1846, authorized the district judges to issue all remedial writs either in vaca- tion or during the sessions of the courts without limit or qualification, except writs of mandamus, which could not be granted ex parte, nor, if peremptory, without due no- tice ; and they could be issued to an officer only in regard to duties purely ministerial, and which did not require the exercise of judgment and discretion. In addition to an un- limited original jurisdiction in all civil cases in which the amount in controversy amounted to one hundred dollars, they were clothed with all the powers incident to courts of oyer and terminer and general jail delivery.
All suits in the District Courts were by this act to be begun by petition, which should be without distinction as to law or equity, and which should set forth all the allegations necessary to sustain the suit, together with a full statement of the nature and measure of relief desired. The defendant in his answer could plead as many matters either of law or fact as he might deem necessary to his defense.
The act of 1848, organizing justices' courts pursuant to the requirements of the Constitution, conferred upon them jurisdiction and power in civil cases co-extensive in every particular with the District Courts when the amount claimed or the damages sought to be recovered did not exceed one hundred dollars ; but they could not determine finally any offense if a deadly weapon was used or attempted to be used. They could grant new trials upon certain conditions, and were required to have all cases tried by a jury in which more than ten dollars were involved.
The act of 1856 legalized the use of the Spanish lan- guage in justices' courts in all counties west of the Gauda- Jupe River, except Neuces, San Patricio, and Refugio, when neither the justice or the parties understood the English language ; and when in any case either of the parties spoke the English language alone, of which the justice was ignor- ant, the suit could be removed to the court of the nearest justice who was conversant with that language.
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The act of March, 1848, organized in every county of the State a county court, composed of one chief justice, to be elected by the people, and gave to it general jurisdiction over the police affairs of the county. These courts were empowered to take probate of wills, to appoint guardians, and to take jurisdiction over all matters testamentary and of administration, to supervise the accounts of executors, administrators and guardians, and to make settlement, par- tition and distribution of the estates of deceased persons, idiots, lunatics, and of persons non compos mentis, which they were required to exercise in the manner prescribed by law. This jurisdiction superseded the powers granted to the judge of probate in each county by the act of 1846. It absorbed and consolidated the former probate system, and all acts conferring conflicting cognizance were re- pealed.
These courts were also authorized to levy and collect a tax for county purposes and to exercise the functions of land commissioners.
In August, 1856, the Legislature created a court of claims, to be held in the City of Austin by a commissioner elected by joint vote of the two houses, whose duties were to ascertain the legality of all claims for money or land against the State. He was also to act as adjutant general, commissioner of the general land office, and also perform the duties of an auditor. In 1858 the duties and functions of his office were transferred to the controller, but the court was revived by the act of 1860.
The Constitution of 1866 made but few changes of im- portance in the judiciary system of the State. Its amended features pertained chiefly to the re-establishment of the allegiance of the State to the Federal Union, upon the terms and conditions prescribed by the United States Congress. It vested the judicial power in one supreme court, in dis- trict courts and in county courts, and such inferior tribunals as the Legislature might see proper to establish. It au- thorized the organization of criminal courts in the chief cities of the State, with county jurisdiction, under such regulations as might be prescribed by law ; and any judge
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of one of these courts might preside over the criminal courts of other cities as the Legislature might direct.
The number of supreme judges was increased to five. They were required to be more than thirty-five years old at the time of their election. Their tenure of office was fixed at ten years, and their annual salary was not to be less than four thousand five hundred dollars. The Supreme Court was authorized to ascertain, by affidavit or otherwise, as it thought proper, such matters of fact as might be necessary to the exercise of its jurisdiction.
The district judges were to be elected for the term of eight years, and should receive an annual salary of not less than three thousand five hundred dollars. They were to have original jurisdiction over all criminal cases, of all suits in behalf of the State, and of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy should be valued at, or amount to, one hundred dollars exclusive of interest ; and in all cases, either of law or equity, involving matter to the amount of twenty dollars, the right of trial by jury was to be preserved.
In addition to the probate and police powers of the ex- isting County Courts they were vested with jurisdiction over all misdemeanors and petty offenses, as defined by law, and over all civil cases, without distinction of law and equity, in which the amount claimed should not exceed five hun- dred dollars exclusive of interest, which was to be exercised under such regulations, limitations and restrictions as might be prescribed by law.
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The Constitution of 1875 greatly enlarged and expanded the judicature of the State and prescribed the establishment of that efficient, harmonious and beautiful system which now characterizes the jurisprudence of Texas. The judicial power of the State is vested in one supreme court, in a court of appeals, in district courts, county courts, commissioners' courts, in courts of justices of the peace, and in such others . as may be established by law.
The Legislature is authorized to establish criminal district courts, with such jurisdiction as it may prescribe, provided
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that the district contains a city of thirty thousand inhabit- ants, which shall support the court.
The number of Supreme Court judges is reduced to three -one chief justice and two associates - who are elected for six years by the people, and their qualifications are that they shall have attained the age of thirty years, shall have been practicing lawyers at the bar'of the State, or shall have been judges of some court in the State, or, both together, at least seven years, and their annual salary is limited to thirty-five hundred and fifty dollars each.
The Supreme Court has appellate jurisdiction only, which is co-extensive with the limits of the State; but it extends only to civil cases of which the District Courts have orig- inal or appellate jurisdiction; and it has power to make rules and regulations for the government of all the other courts of the State, and to regulate their proceedings.
The Court of Appeals consists of three judges, any two of whom constitute a quorum, and the concurrence of two of the judges is necessary to form a decision. Their tenure of office, mode of election, qualifications, and compensation are the same as those of the judges of the Supreme Court.
This court has appellate jurisdiction co-extensive with the limits of State in all criminal cases, of whatever grade, and in all civil cases unless otherwise provided by law, of which the County Courts have original or appellate juris- diction. This court, or its judges individually, may issue writs of habeas corpus, and all other writs, under regula- tions prescribed by law, that may be necessary to enforce its own jurisdiction ; and the court is required to hold its ses- sions during the same time and at the same places desig- nated for the terms of the Supreme Court, and like that court it may exercise discretional power as to the manner of ascertaining facts necessary to establish its jurisdiction.
The State is divided into twenty-six judicial districts, in each of which there is a district judge elected by the peo- ple for a term of four years, who shall have attained the age of twenty-five years, who shall have been a practicing attorney or a judge of some court in the State for the period of four years, and who shall have been a resident
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of the district for two years antecedent to his election. The district judges are required to hold regular terms of their courts at one place in each county of their respective districts twice in every year, and to each of them is assigned an annual salary of twenty-five hundred dollars.
The District Courts have original jurisdiction in all crim- inal cases of the grade of felony, and of all suits, com- plaints and pleas whatever, without distinction between law and equity, when the matter claimed or involved in the controversy exceeds in value or amount the sum of five hundred dollars, exclusive of interest ; and the courts or the judges may issue writs of habeas corpus in felony cases, also the writs of mandamus, injunction, certiorari, and all writs necessary to enforce their jurisdiction. These courts have appellate jurisdiction and general control in all pro- bate matters over the County Courts, and original jurisdic- tion and general control over executors, administrators, guardians and minors, under such regulations as are, or may be, prescribed by law ; and in the trial of all causes in the District Courts, whether founded upon law or equity, either party to the suit may, upon conditions, have his cause sub- mitted to a jury.
The County Courts are presided over by county judges elected by the people for the term of two years. They are required to be well informed in the law of the State, and receive for their services such fees and perquisites as may be prescribed by law.
These courts have original jurisdiction of all misdemean- ors, of which exclusive jurisdiction is not assigned to the justices' courts, and when the fine to be imposed exceeds two hundred dollars; and they have exclusive original juris- diction of all civil cases involving more than two hundred dollars and not exceeding five hundred, exclusive of inter- est. "They have concurrent jurisdiction with the Dis- trict Courts in all cases in which the matter involved is more than five hundred, and not more than one thousand dollars : but they have no jurisdiction of suits for the recovery of land. They have appellate jurisdiction in all cases, civil or criminal, arising in the justices' courts, provided that in
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civil cases the amount of the judgment appealed shall ex- ceed twenty dollars, exclusive of costs. All appeals are tried de novo, and if the judgment be for a sum not ex- ceeding one hundred dollars. it is final; but if it be for more than one hundred dollars an appeal lies to the Court of Appeals.
These courts have also general powers of probate, and the county judges have power, either in term time or vaca- tion, to issue writs of habeas corpus and all other remedial writs when their subject-matter or operation is within the jurisdiction of the court. They are required to hold a term for civil business at least once in every two months, and a term for the disposition of criminal cases once in every month; but they can dispose of probate matter either in term time or vacation. All indictments for misdemeanor found by the grand juries in the District Courts are to be certified to the County Courts if the jurisdiction of the case resides in them ; and all cases in the County Courts may be tried by a jury of six men upon conditions to be complied with by the party demanding it.
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