Texas is one of just a handful of states in the country with partisan elections for its judges at all levels of the court, from the state’s district trial courts, to its intermediate appeals courts, to its highest appellate courts.
In most states, the state’s Supreme Court is the highest court with final judicial authority. However, Texas is just one of two states in the nation in which there is not just one, but two highest courts with final ruling authority not subject to further review — the Texas Supreme Court, which oversees civil appeals, and the Texas Court of Criminal Appeals, which oversees criminal appeals. This means that there are two separate courts — the Texas Supreme Court and Court of Criminal Appeals — with the highest levels of judicial power, with a separate bench of judges on each court.
Both courts respectively have nine judges — predominantly white males, and all of whom are currently Republican — who serve staggered six-year terms, meaning not all judges are on the ballot each election cycle.
Four seats for the Texas Supreme Court are on the ballot this November, as well as three seats for the Texas Court of Criminal Appeals, posing a critical opportunity for Texas Democrats to realign significant portions of the state’s highest courts. Upcoming judicial elections will, if past elections serve as a guide, likely be overlooked, and voted almost strictly by party lines.
However, despite absence of attention, elections for Texas’ two most powerful judicial bodies have profound and radical implications about political power, treatment, and justice for communities of color across the state. Through recent rulings on evictions, debt collection, bail, and voting by mail, as well as the death penalty, that are actively detrimental to the lives of Black and Brown Texans, the deep consequences of these judicial elections are revealed.
Compounding crises exacerbated by Texas’ highest courts
A Texan now dies every six minutes from COVID-19 because of Gov. Greg Abbott’s premature opening of the state.
In parallel to surging COVID-19 cases, which have claimed nearly 7,000 lives and infected more than 430,000 Texans with near-daily spikes, thousands of Texans are also confronting the threat of looming evictions. As the virus ravages the state’s Black and Latinx residents, who are dying at three to six times the rate of their white counterparts, these same residents are at the highest risk of both being evicted and having unemployment benefits expire.
According to recent analysis, 48 percent of renters in Texas are at risk of eviction.
After initially pausing eviction proceedings, the Texas Supreme Court ruled that eviction proceedings and debt collections could resume at the end of May, and the federal eviction moratorium expired in July, all in the backdrop of Texas’ rising COVID-19 cases and unemployment. Almost immediately, eviction courts across the state reopened and began approving a backlog of evictions.
Several counties, like Travis and Dallas, have stepped up in place of state inaction by extending local moratoriums on evictions; however, thousands of Black and Brown renters across the state still face the prospect of trying to find new housing with limited or no money during a pandemic, or entering an expensive and complicated legal process to fight an eviction proceeding which could still end up on record and damage their credit score. Latinx families are also more likely to live in multigenerational households, putting multiple families at risk of losing their home.
The compounding struggles of rent, debt, unemployment, and COVID-19 infections — disproportionately borne by Black and Latinx Texans — have created a crisis that is cracking the foundation of peoples’ capacity to survive. The struggle is expected to deepen as enhanced unemployment benefits are cut.
The crisis of evictions squeezing hundreds of thousands of Black and Brown Texans was preventable. Instead, the Texas Supreme Court made an intentional decision to not only end eviction moratoriums before the nation did, but to upend thousands of peoples’ lives and push vulnerable Texans into homelessness.
Texas prisons and jails, which are disproportionately comprised of Black bodies, are epicenters for COVID-19 spread because of poor sanitary conditions and confined quarters. More than 12,000 Texas prisoners and 2,100 employees have been infected, with more Texans dying in prison from COVID-19 infections than any other state in the country.
Because of this alarming reality, local officials in Harris County sought to reduce jail populations by releasing hundreds of incarcerated people on no-cost personal bonds, which would still require regular check-ins and drug testing. Abbott, however, issued a sweeping order to prevent those who are accused or previously convicted of violent crimes from being released from jails without paying cash bail — effectively stripping the poor from being able to leave centers of COVID-19 outbreaks, while allowing those with money to walk free.
Abbott’s order was challenged in court; however, the Texas Supreme Court ruled in his favor to restrict jail releases on the premise of those who can afford to pay bail, condemning thousands of Black and Brown Texans, who comprise nearly 70 percent of those incarcerated, to stay in conditions that could very well lead to death.
The ability for Black and Latinx Texans to change these conditions by electing judges who might rule in favor of their lives is being diluted by those in positions at the state’s highest civil court.
After a protracted battle, the Texas Supreme Court sided with Republicans by declining to expand the option to safely vote by mail to all voters, not just those who are 65 or older as it stands now. Democrats and voting rights advocacy groups argued that “Texans should not be asked to choose between their physical well-being and their fundamental right to vote.”
Because Black and Latinx Texans, of whom more than 60 percent are under the age of 35, face significantly higher risks of contracting COVID-19 and dying, it is these residents who face the hardest choice between selecting safety or resisting disenfranchisement.
The other highest court: Texas Court of Criminal Appeals
Rulings on civil appeals by the Texas Supreme Court have led to the erosion of power and justice for Black and Brown Texans, and threatened their livelihoods; however, it is often the Texas Court of Criminal Appeals that ends their lives entirely.
Texas leads all other states in the country with the most death penalty executions by an overwhelming margin. Nearly 40 percent of all executions in the past half-century have occurred in Texas, with the state executing more people than 45 other states combined.
The imposition of a death sentence bypasses intermediate appeals courts, and results in an automatic direct appeal to the Texas Court of Criminal Appeals, the judicial body that handles criminal appeals.
In the last five years, more than 70 percent of death sentences were imposed on Texans of color. While Black people comprise less than 13 percent of the Texas population, they comprise more than 44 percent of those on death row and nearly 40 percent of those ultimately executed in the state — an alarming and staggering statistic that highlights fundamental racial inequities perpetuated, in part, by decisions made by the Texas Court of Criminal Appeals, whose judges have often been rewarded in elections for appearing tough on crime.
Racial justice is on the ballot
In November, Texas voters will face the option of uprooting judges who consistently fail to deliver justice for Texans of color. All seven seats on the ballot — four on the Texas Supreme Court and three on the Texas Court of Criminal Appeals — have Democratic challengers, mostly women of color, vying to unseat Republican incumbents.
Gisela Triana, Staci Williams, Amy Clark Meachum, and Kathy Cheng are the Democratic nominees for the Texas Supreme Court. Meachum, who is running for Chief Justice, would be the first woman elected to the position. Triana, Williams, and Meachum all currently serve as judges for lower courts, and Cheng is an attorney in private practice.
Elizabeth Davis Frizell, Brandon Birmingham, and Tina Yoo Clinton are the Democratic nominees for the Texas Court of Criminal Appeals. All three are currently judges for lower courts.
Groups like the Texas Coalition of Black Democrats have taken notice of the critical importance of these elections. They recently released a video ad supporting Williams for the Texas Supreme Court and Davis Frizell for the Texas Criminal Court of Appeals, both Black women.
Because the state’s two highest courts are elected in statewide contests, rather than district level elections like trial and appeals courts, Republicans have long dominated in both judicial bodies. Democrats have not held a single seat in the Texas Supreme Court in over two decades, since 1998. This is roughly in line with the last statewide election that Democrats won in 1994.
However, polls show an increasingly tight race in the nation’s largest battleground state, with a recent poll putting Democratic presidential nominee Joe Biden up by two points in Texas, and another putting Biden up five points.
If Democrats do sweep statewide races and the presidential contest in Texas, there is a strong possibility they will win all seven of the Supreme Court and Court of Criminal Appeals seats on the ballot as well. Racial justice is on the ballot, and a Democratic victory statewide has the potential of being a momentous win for Black and Brown Texans in the state’s highest courts.
Photo: Joe Gratz/Wikimedia Commons
Chris covers Texas politics and government. He is a Policy Advisor for Harris County Judge Lina Hidalgo and a graduate student at Harvard University. Previously, Chris served as Texas State Director and National Barnstorm Director for Bernie Sanders’ presidential campaign, and as a Political Advisor for Beto O’Rourke. Born in Houston, Texas to immigrants from Hong Kong and Mexico, he is committed to building political power for working people and communities of color. Chris is a Fulbright Scholar and a graduate of Rice University.