In Austin, tucked behind the Texas Capitol, a modern building made from the same sunset red granite as the Capitol’s signature dome houses the state’s highest appellate courts.
Two courts are in the building — called the “Supreme Court Building” — on West 14th Street: the Texas Supreme Court, which oversees civil cases, and the Court of Criminal Appeals, which handles criminal cases.
Texas’ two high courts sit atop what legal experts describe as one of the nation’s most intricate state judicial systems. The state-issued flowchart outlining the labyrinth of courts and jurisdictions can be a daunting sight, said civil attorney Mike Golden, who uses similar charts to teach his law students.
“The font is like four-point font,” said Golden, a lecturer at the University of Texas at Austin School of Law, referring to the flowcharts. “Because that’s what you have to do to make it all fit onto one page.”
Although the dual-court system is a rarity — only Oklahoma has a similar court structure while most states have just one court of last resort — the motivation behind Texas leaders’ push for a constitutional amendment to establish it, which required voter approval, was straightforward.
Many elements the framers considered when drafting the 1876 Texas Constitution were intended to limit state power, but its provision creating a new high court called the Court of Appeals was meant to lighten the state Supreme Court’s caseload, said attorney Randy Erben, an adjunct professor at the University of Texas at Austin School of Law who authored a book detailing the state’s governmental structures.
“It was actually pretty simple,” Erben said of the framers’ decision to create a new court.
The Court of Appeals handled criminal cases and some civil appeals. In 1891, a constitutional amendment removed the court’s civil jurisdiction and renamed it the Court of Criminal Appeals, making it the state’s highest criminal court.
Experts say the state’s system has strengths, including the natural specialization developed by Supreme Court justices and Court of Criminal Appeals judges due to their narrow focus on their respective areas of law. However, experts also say there are weaknesses, including the occasional clashes between courts.
How are the high courts similar and different?
Both courts have similarities: they have statewide jurisdiction, are composed of nine elected members and have the authority to issue writs to address procedural or justice-related issues in lower courts.
The state Supreme Court has eight elected justices and one chief justice, while the Court of Criminal Appeals has eight elected judges and one presiding judge. The justices and judges serve staggered six-year terms once elected. The courts’ elected positions, like all statewide elected positions in Texas since 1994, are held by Republicans.
The state Supreme Court holds the authority to issue far-reaching decisions interpreting the Texas Constitution. High-profile rulings from the court were frequent during the COVID-19 pandemic when the court, among other things, extended and later lifted a moratorium on evictions and overturned local mask mandates.
The Court of Criminal Appeals, while not as broadly impactful on everyday Texans as the Supreme Court, is often in the spotlight for its role in death penalty cases. Any appeal involving a death sentence is automatically sent to the court directly from the trial courts.
Since the death penalty was reinstated in 1976, Texas has carried out more executions than any other state in the nation. As of 2023, the state had put 586 people to death, according to the Death Penalty Information Center, a nonprofit tracking executions nationwide. Oklahoma ranks second at 123 people executed, according to the center’s count.
Recent separation of power dispute
The courts usually operate independently without issue, experts said, but the most recent clash was in October.
After a flurry of appeals after a novel legal maneuver by House lawmakers, the state Supreme Court halted the execution of Robert Roberson, a death row inmate convicted in 2003 of killing his 2-year-old daughter.
Lawmakers temporarily halted the execution by issuing a legislative subpoena for Roberson’s testimony, asking him to appear in Austin four days after his scheduled execution.
This decision, which countered repeated rulings affirming the execution by the Court of Criminal Appeals, sparked a separation-of-powers dispute involving the two courts, lawmakers and the governor’s office — the only entity whose authority to delay executions is inscribed in the Texas Constitution.
In November, in a 31-page decision, the state Supreme Court found the subpoena had created a “conflict involving all three branches of government,” Justice Evan Young wrote in a decision for the court.
“We conclude that under these circumstances the committee’s authority to compel testimony does not include the power to override the scheduled legal process leading to an execution,” Young wrote in the opinion, which allows lawmakers to obtain Roberson’s testimony but explicitly prohibited such a request from disrupting a “long-scheduled” execution on the verge of being carried out.
“We do not repudiate legislative investigatory power, but any testimony relevant to a legislative task here could have been obtained long before the death warrant was issued — or even afterwards, but before the execution,” Young continued.
