The Governor’s Duty to Appoint a Justice in the Event of a Vacancy

FOURTH COURT UPDATE

By Chief Justice Rebeca C. Martinez and Nadeen Abou-Hossa

At the top of the Texas court system are the Texas Supreme Court and the Texas Court of Criminal Appeals. Tex. Const. art. V, § 1. Each of these courts has nine justices who are chosen in partisan elections for staggered six-year terms. Id. § 2(a), (c); id. § 4. Immediately below these highest courts are the state’s fourteen courts of appeals, comprised of three to thirteen justices each. Id. § 6(a). These justices also are elected for six-year terms. Id. § 6(b).

In the event of a vacancy, the Governor may appoint a justice to serve the remainder of an unexpired term until the next general election. See id. § 28(a). The section of the Texas Constitution entitled “Vacancy in Judicial Office” states: “A vacancy in the office of Chief Justice, Justice, or Judge of the Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or the District Courts shall be filled by the Governor until the next succeeding General Election for state officers, and at that election the voters shall fill the vacancy for the unexpired term.” Tex. Const. art. V, § 28. However, if a vacancy occurs within seventy-four (74) days of a general election, the appointed justice serves until the next succeeding general election. Tex. Elec. Code § 202.002(b). In 2020, August 21st was the date by which a vacancy had to exist for voters to fill the unexpired term at the November 2020 general election. See id.; Election Advisory No. 2019-17.

To be considered for appointment to the Texas Judiciary, an individual must complete an appointment application on the State of Texas Governor’s website.1 Applicants must also submit a resume, photograph, the State Bar and Judicial Conduct Release Form, and a Judicial Questionnaire to the Governor’s Appointment Office.2 Applicants for the Texas Supreme Court, Court of Criminal Appeals, and any Court of Appeals also must submit a writing sample. Id. Supporters of the applicant may send letters of endorsement to the Governor’s Appointment Office. Id.

While this is the current system in Texas, the State is examining alternative methods for selecting judicial officers. See H.B. 3040, 86th Leg., Reg. Sess. (Tex. 2019). In 2019, the 86th Texas Legislature created the Texas Commission on Judicial Selection in order to study and review the way that judges, including appellate justices, are selected for office in Texas. Id. The Commission must submit its findings and recommendations to the Governor and Legislature by December 31, 2020. Id. The legislative session begins on January 12, 2021. See Tex. Const. art. III, § 5(a); Tex. Gov’t Code § 301.001.

Chief Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January 2013. She was elected Chief Justice in the November 2020 election. Previously, she served for United States Magistrate Judge Eduardo E. de Ases for the Western District of Texas, for Justice Federico G. Hinojosa on the Thirteenth Court of Appeals, and practiced trial law for over twenty years.

Nadeen Abou-Hossa is a 2020 graduate of St. Mary’s Law School and is a briefing attorney for Chief Justice Martinez.

ENDNOTES

1 See Applications and Forms, Office of the Texas Governor, http://www.gov. texas.gov/organization/appointments/application (last visited Nov. 9, 2020).

2 See Application Process, Office of the Texas Governor, http://www.gov. texas.gov/organization/appointments/process (last visited Nov. 9, 2020).