Texas Judiciary Meets Dynamic State Challenges

Thursday, September 1, 2011 - 01:00

The Editor interviews Hon. Wallace B. Jefferson , Chief Justice, The Supreme Court of Texas.

Editor: Please describe your background.

Jefferson: I graduated from high school in San Antonio, received my bachelor's degree from James Madison College at Michigan State University in 1985, and my law degree from the University of Texas School of Law in 1988. I was working for my own appellate law firm, Crofts, Callaway & Jefferson, when Governor Perry appointed me to the Supreme Court in 2001. The governor appointed me chief justice in 2004.

Editor: We understand that Texas was the first state to develop a sophisticated approach to eDiscovery. Have there been court rules or cases that limit unbridled eDiscovery?

Jefferson: The court issued In re Weekley Homes, L.P. in 2009. It was among the first opinions from a state supreme court confronting this extremely challenging area of law. There have been no significant changes to Texas rules concerning eDiscovery, but the Supreme Court of Texas Rules Advisory Committee is constantly reviewing the rules to recommend changes.

Editor: What is the status of your request for emergency relief to provide funding for legal aid?

Jefferson: The Legislature appropriated almost $18 million for basic civil legal services in the last legislative session. Both houses issued a resolution commending the Supreme Court of Texas for advocating on behalf of indigent Texans. (Editor's note: the resolution is printed in its entirety at the end of this article.)

Editor: Immigration is a lively issue. Have the courts decided issues of interest to our readers?

Jefferson: Immigration cases generally originate in federal court as a jurisdictional matter. Nevertheless, our court may touch upon issues of immigration in deciding state law issues. For example, the court issued an opinion in TXI Transportation Company v Hughes, in which we held that references to a person's immigration status, where not relevant to the controversy, may necessitate a new trial.

Editor: How has the Texas Supreme Court sought to improve access to the justice system for poor Texans? Please talk about the Texas Access to Justice Commission and Foundation.

Jefferson: An order creating the access to justice commission was signed in April 2001, shortly after I began my service on the court. That commission has been the driving force for coordinating legal services for indigent Texans. Working closely with the Supreme Court of Texas and legal aid organizations throughout the state, the commission ensures that the interests of indigent Texans are represented in court and with policymakers. We have collaborated with lawyers and banks on appropriate interest rates for funds dedicated to basic civil legal services, revised our rules of procedure to accommodate indigent litigants, made it possible for lawyers and aid organizations devastated by natural disasters to continue representing poor Texans, and asked the legislature to appropriate funds to serve the poor.

Editor: Many law schools have programs for students and recent graduates to clerk for judges. Do you see this as a valuable educational experience?

Jefferson: A post-graduate clerkship combines extraordinary training for the clerk and brilliant young minds for the court. I strongly embrace clerkships at both state and federal trial and appellate courts.

Editor: Do judicial salaries in Texas attract the best candidates? Is funding for the courts adequate?

Jefferson: Men and women become judges despite the relatively low level of compensation. The desire to serve, however, must often yield to financial reality. Lawyers who are successful in private practice may decide that a dramatic reduction in salary - combined with the lack of regular cost of living adjustments - counsels against a career on the bench. With respect to court funding generally, the Texas Legislature has been fair to the courts considering the budget issues the state has faced.

Editor: What is the overall quality of the Texas judiciary? Is there a business court, or do you feel one is needed?

Jefferson: The judiciary is well qualified, which is extraordinary given the manner in which judges are selected in partisan races. Business courts, or courts in which complex cases are sent, have been successful in some jurisdictions in Texas and in many states in the country. I believe it is time to create courts in Texas in which appropriate resources can be assigned to judges who have extensive experience in the subject matter being litigated.

Editor: What are the consequences of having elected judges? Does this system assure that the most qualified people hold positions in the Texas judiciary?

Jefferson: We are fortunate when people of exceptional experience run for and are elected to the bench in Texas. There is little about running for a judgeship, however, that makes experience or qualifications a valuable asset in a campaign. Far more important are party affiliation, the pronunciation of the candidate's name, and the amount of money expended on the candidate's behalf. This is why I and many others have advocated for a system in which judges are appointed based on merit and are retained, or not, by the People during a retention election.

Editor: Have the quality of Texas courts and their decisions played a significant role in attracting new businesses? What are your thoughts about certain counties in Texas that are reputed to be favorable to cases against business?

Jefferson: The judiciary must be blind both to the consequence of perceived unfairness to a business or business climate and to the financial or physical injury a business is alleged to inflict. Courts must review an attack on any judgment not sufficiently rooted in law or fact. Legislatures and governors, by the statutes enacted and laws signed, have enormous discretion to determine policy. The beauty of our system is that when all three branches do their job well, the People chart their own course.

Editor: Is there a system whereby Texas courts interface with corporate counsel to learn of their concerns?

Jefferson: The National Center for State Courts has established a corporate counsel committee in which many relevant and timely questions are debated. The board of NCSC is composed of representatives from the Conference of Chief Justices, and there is regular interaction at that national level. In prior years, a Texas general counsel group met regularly with the judiciary, but that level of interaction has been lacking in recent years.

Editor: Please discuss House Bill 274 - the "loser pays" legislation. What is the impact of this legislation on the Texas business community?

Jefferson: This question is more properly addressed to the author(s) of House Bill 274 rather than me. What I can say is that the State Legislature gave the Supreme Court of Texas the responsibility to draft rules implementing this law. We are in the process of working with our advisory committee on the rules to do just that.

Editor: Since the passage of the Medical Liability and Insurance Improvement Act of Texas, are any significant cases pending?

Jefferson: There seem always to be cases on the court's docket involving some aspect of that act. I cannot characterize any submitted petition as unusually "significant," because all cases the court decides to hear fit that description. We are often asked to decide what constitutes adequate opinion testimony that meets the elements of a healthcare liability claim. There is also considerable debate about when an injury is inflicted in a healthcare context rather than derived from an ordinary premise or negligence claim. I expect such questions to recur until we or the legislature finally and definitively answer them.

Editor: Does the Texas judiciary reflect the state's diversity profile? Are there needed improvements?

Jefferson: In our judiciary, 22 percent of the members of the Supreme Court of Texas are African American, 22 percent are Hispanic and 22 percent are women. The composition of the court is not reflected throughout Texas, but it does demonstrate that opportunities for service are not exclusive with respect to race or gender. Diversity is important to the legitimacy of any governmental enterprise, so we must continue to encourage men and women of all backgrounds to serve the public in the judiciary.