The Court of Criminal Appeals Turns 125

By Lindsay Stafford Mader


The Supreme Court Building, which is also home to the state’s other high court, the Court of Criminal Appeals. Photograph by Lindsay Stafford Mader.

On the northwestern side of the Capitol grounds, behind the Tyler Rose Garden that is either in bloom or wilting depending on the season, sits a modern building made from the same sunset red granite as the nearby dome that towers above it. Though this structure is named the Supreme Court Building, it is also home to Texas’s other high court: the Court of Criminal Appeals, which celebrates its 125th anniversary this year.

Some in the Lone Star State, though likely few in the legal community, might be unaware1 that while the Supreme Court has final civil jurisdiction, the Court of Criminal Appeals is the court of last resort for criminal cases. In fact, Texas and Oklahoma are the only U.S. states with such a dual high-court system.2 (Both Oklahoma and England, when forming their own criminal appeals courts in the early 1900s, looked to Texas as an example.3) The CCA, which was created in 1891, will commemorate its century-plus milestone when the court is called to order at 11 a.m. September 22.

“We need reminders about the important public institutions of our state,” said Ryan Kellus Turner, a member of the celebration’s steering committee and a former CCA briefing attorney. “This is a good time to appreciate the value and rich history of the Court of Criminal Appeals.”

Despite being lesser-known among laypeople than its civil counterpart, the Court of Criminal Appeals has issued some of the most well-known—and oftentimes most controversial—decisions in recent memory, such as the 1966 unanimous reversal of Jack Ruby’s conviction for the murder of JFK assassin Lee Harvey Oswald.

“One unique aspect of the big picture here at the Court of Criminal Appeals is that we do many different kinds of work,” said Judge Kevin P. Yeary, who was elected in 2014. “We preside over and review the criminal law decisions of the 14 courts of appeals. In death penalty appeals, however, we review the decisions of the trial courts. And then, in exercising our post-conviction habeas jurisdiction, we take on the role of fact-finders and act almost like trial judges—in that, while we typically defer to fact determinations by trial judges, our habeas authority gives us the power to decide for ourselves what facts we believe to be true.”


Former CCA Clerk Glenn Haynes in 1973, standing with pending appeals and post-conviction writs of habeas corpus. Photograph courtesy of the State Bar of Texas Archives Department.

The Court of Criminal Appeals grew out of a similar body called the Court of Appeals that was established after the Constitutional Convention of 1875.4 It was a period in Texas history when the U.S. Army was fighting the remaining Comanches and Kiowas and forcing them onto reservations, when settlers were establishing bustling cities between Fort Worth and San Antonio and frontiersmen were shooting each other in saloons. The Texas Supreme Court—which had convened for the first time just 35 years earlier—was dealing with an increasingly heavy caseload. As James L. Haley explained in his book The Texas Supreme Court: A Narrative History, “Over time the Court had fallen some two years behind its docket, which was bad enough for those awaiting an outcome in civil cases, but for those languishing in prison while awaiting an appeal that might free them, it was a travesty.”5

Debate at the convention led to a decision to have the three-justice Supreme Court hear civil appeals from state district courts and a newly created three-judge Court of Appeals hear all criminal cases as well as some county court civil cases involving matters of less than $1,000.6 The Supreme Court would never hear a criminal case again. In 1888, when the newly constructed Capitol building was dedicated, the two high courts had separate quarters on the third floor.

Texas’s population, cattle industry, and businesses were booming so fast in the late 1800s that both courts seemed to have a constant backlog. So, in 1891, with the intent of more efficiently dealing with the amount of litigation, voters ratified a constitutional amendment to remove the Court of Appeals’ partial civil jurisdiction, to rename it the Court of Criminal Appeals, and to create intermediate courts of civil appeals. CCA judges were elected, and James Mann Hurt of Dallas was chosen by the other two judges to serve as the first presiding judge.

Throughout its history, the court’s docket has never been light. In 1925, the Legislature voted to create a Commission of Appeals with two commissioners who would take on cases that the CCA didn’t have time for (but whose decisions had to be approved by the CCA judges).7 Four decades later, in 1966, a constitutional amendment made the commissioners full judges so that the CCA became a five-judge court. It also increased the court’s session from nine months to a full year and enabled Texans to choose who would be the presiding judge, the first of whom was John F. Onion Jr., elected by voters in 1970.

In 1978, a constitutional amendment, approved the previous year, increased the number of CCA judges to its current makeup of nine. A year later, the CCA was still behind on its cases.8 In his 1979 State of the Judiciary speech, then-Supreme Court Chief Justice Joe R. Greenhill told the Legislature that the courts were not fully achieving justice without delay to free the innocent as well as deter crime, partly because “the appeal in virtually all criminal convictions of whatever nature must go to one court, the Court of Criminal Appeals.”

Though Onion favored creating intermediate criminal appeals courts, saying that the civil appeals courts already had heavy workloads,9 Greenhill advocated that the existing appeals courts also have criminal jurisdiction. Such an amendment was ratified by the Texas electorate in 1980, though appeals on capital cases would continue to go directly to the CCA. This marked the last monumental change for the court. Though some have proposed restructuring the system to have just one high court, the last major effort to do so, in 1975, failed to receive voter support.10


The Court of Criminal Appeals. Bottom, back row from left: Judge Kevin Yeary, Judge Elsa Alcala, Judge Bert Richardson, Judge David Newell; front row from left:
Judge Michael Keasler, Judge Lawrence E. Meyers, Presiding Judge Sharon Keller, Judge Cheryl Johnson, and Judge Barbara Hervey. Photograph courtesy of Texas House of Representatives Photography.

In the years since, the court has remained busy. In fiscal year 2015, the CCA received 4,520 criminal appeals, seven of which were for death penalty cases, and 4,698 habeas corpus petitions, 50 of which were for death penalty cases. According to the court’s website, “The Court of Criminal Appeals typically disposes of more matters each year than any other appellate court in the country.”

“It is nothing short of remarkable that this court has been able to adapt to and keep up with its growing and evolving caseload,” Yeary said. “I don’t think anyone who hasn’t worked here can even imagine what it’s like to have to study up on and decide so many cases. We could not do it without our top-notch staff. We also just work all the time.”

Most days at the Court of Criminal Appeals are demanding yet routine. The judges begin their week by preparing for and attending conference, which starts at 9 a.m. on Monday and can last from three hours to all day. On the first and third Wednesdays of the month, the judges put on their robes and sit on the bench to listen to oral arguments in typically three to four cases. After lunch, the judges attend conference, where they discuss the arguments and choose who will draft the opinions that decide the cases’ outcomes. They spend their remaining time reading briefs and trial records, researching the law, discussing cases and potential resolutions with staff attorneys, and writing opinions. “The best part of sitting on the Court of Criminal Appeals bench and being a part of the Texas criminal justice system,” said Judge Barbara Hervey, “has been the opportunity to work with so many fine lawyers, clerks, legislators, and other stakeholders dedicated to the process of justice.”

The judges of the Court of Criminal Appeals have always been elected by the voters of Texas, and only a select few have served on both the Supreme Court and the CCA. Notable members of the bench have included judges like Morris Overstreet, who became the first black person elected to statewide office when he was elected to the CCA in 1990, and current Presiding Judge Sharon Keller, who was the first woman elected to the court in 1994. In addition to the judges, the CCA staff consists of court-wide lawyers as well as each judge’s non-lawyer assistant, permanent staff attorney, and briefing attorney.

Looking forward as the court celebrates its long past, one of the most influential changes for the future of criminal law is expected to be the implementation of mandated e-filing for criminal cases, which begins July 1, 2017, in counties of 500,000 or more.

“I think everyone expects it to be a challenge at first,” Yeary said. “It is hard to learn new things. But we also acknowledge the world is changing and courts everywhere are moving away from paper and toward a digital existence. So we think people will get used to it, eventually.”TBJ

The CCA invites members of the bar and the public to attend the 125th anniversary celebration, which will take place at 11 a.m. September 22 at its courtroom inside the Supreme Court Building, 201 W. 14th St., Austin 78701. The event will feature speeches from former Presiding Judges Onion and Michael McCormick as well as Presiding Judge Keller. A reception will follow.

Notes

1. Jordan Rudner, Court of Criminal Appeals Candidates Emphasize Experience, Texas Tribune (Feb. 5, 2016), https://www.texastribune.org/2016/02/05/cca-candidates-emphasize-experience-and-bench/; Edward M. Sills, A Silent War on Crime, San Antonio Light (Sept. 23, 1990).

2. Paul M. Lucko, Texas Court of Criminal Appeals, Handbook of Texas Online, http://www.tshaonline.org/handbook/online/articles/jpt01 (last visited July 29, 2016).

3. Phil Burleson, Practice in the Court of Criminal Appeals, Texas Bar Journal (March 1960); Proceedings of the Court of Criminal Appeals in its New Court Room, Court of Criminal Appeals of Texas, Dec. 2, 1959.

4. James L. Haley, The Texas Supreme Court: A Narrative History, 1836-1986 (2013).

5. Id.

6. Rachel Palmer Hooper, Law and Order in Texas, Journal of the Texas Supreme Court Historical Society (Spring 2015).

7. Lucko, supra.

8. Haley, supra.

9. Robert T. Garrett, Judiciary Proposals Criticized, Dallas Times Herald (Feb. 2, 1979).

10. Lucko, supra.

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