Elections have consequences. Look no further than Fort Worth ISD’s mask mandate for an example.
Fort Worth ISD Superintendent Kent Scribner announced the requirement on Aug. 10. Three days later, Judge John Chupp of the 141st District Court issued a temporary restraining order, pausing the mandate. The order will be reviewed again Friday.
“Fort Worth ISD is unique to other large urban districts in other counties. We have a temporary restraining order here in Tarrant County,” Scribner said during the Aug. 26 school board meeting. “As soon as we are able to implement a mask requirement, at that time we will do so.”
Chupp is a Republican. Judges who have allowed other mask orders elsewhere in Texas to stand have been Democrats. People’s opinions about mask mandates have fallen largely along party lines, and court rulings to date have largely followed that.
How are judges picked?
Texas is one of six states that use a partisan process to elect judges. Voters decide who sits on the Texas Supreme Court, appeals courts, district courts, county courts at law, and justices of the peace.
In Tarrant County, only three Democrats are elected judges. They are all justices of the peace, who hear cases that include dealing misdemeanors, small civil disputes and landlord and tenant disagreements.
The remaining 54 judges in the county are all Republicans.
Occasionally, judges are not elected. They can be appointed to their seat if there is a vacancy. Depending on the seat, Gov. Greg Abbott or a county’s commissioners court would tap someone to serve for the remainder of the unexpired term. However, the appointed judge would have to stand for election the next time the seat is up.
Partisan judicial elections can be traced back to 1850 when the Texas Constitution was amended. Judicial elections were carried over to the 1876 version of the state constitution, the current document guiding the Texas government.
Judges do not have traditional term limits. Some seats, such as those on the Supreme Court, have an age limit of 75.
To be a judge, people must meet certain qualifications, including being a certain age, meeting certain county residency requirements and even being a practicing lawyer or a judge.
| Type of judge | Qualifications |
| Supreme Court justices, Court of Criminal Appeals justices, and Court of Appeals justices | • Citizen of U.S. and of Texas • Age 35 to 74 • A practicing lawyer, or lawyer and judge of court of record together, for at least 10 years |
| District judges | • Citizen of U.S. and of Texas • Age 25 to 74 • Resident of the district for 2 years; and a practicing lawyer or judge, or both combined, for 4 years. |
| Constitutional County Court judges | • “Shall be well informed in the law of the State.” (Law license not required.) |
| Statutory County Court judges | • Citizen of U.S. • Age 25 or older • Resident of county for at least 2 years • Licensed attorney who has practiced law or served as a judge for 4 years. |
| Statutory Probate Court Judges | • Citizen of U.S. • Age 25 or older • Resident of county for at least 2 years • Licensed attorney who has practiced law or served as a judge for 5 years. |
| Justices of the peace | • No specific statutory or constitutional provisions apply. |
Even the state’s top judge, Supreme Court Chief Justice Nathan Hecht, has criticized the current process of picking judges. He has noted that no judicial selection process is perfect.
“Still partisan election is among the very worst methods of judicial selection,” Hecht told lawmakers in 2019. “Voters understandably want accountability, and they should have it, but knowing almost nothing about judicial candidates, they end up throwing out very good judges who happen to be on the wrong side of races higher on the ballot.”
Why hasn’t Texas changed how it picks judges?
Since the late 1800s, state officials have attempted numerous times to reform the judicial selection process.
The last time the state examined whether it would change its partisan elections for judges was in 2020. A 15-member group of lawmakers, former judges and lawyers narrowly recommended replacing the current system.
Reworking the judicial selection process would require a constitutional amendment. To be approved, proposed amendments to the Texas Constitution required two-thirds of the House and Senate, as well as a majority of voters.
Lawmakers on the commission argued they would rather their constituents decide who their judges are rather than take that right away. Former judges, though, said Texans often don’t know who they are picking for these important judges. Another concern of the partisan election process is the influence of donors on judges.
In 2019, lawmakers proposed a bill that would have maintained partisan elections in rural counties and, in urban, more Democratic areas, the governor would have been able to pick judges.
What are other ways of picking judges?
States have various other ways of picking judges, including nonpartisan elections, gubernatorial appointment, commission selection and a mixture of processes. Even Texas uses a sort of hybrid system.
Hecht, the state’s chief justice, supports a merit judicial selection process that would be followed by a nonpartisan retention election.
Merit selection would require a nonpartisan commission of lawyers and non-lawyers who vet applicants and then submit at least three names of the most qualified candidates to the governor, who would appoint a person as judge.
A retention election acts as a check on an appointed judge. Voters would vote yes or no on the judge in a nonpartisan election. A yes vote would give the judge another term in office. The judge would not compete with another in the election.
Some states use nonpartisan elections to pick judges. Some allow candidates to reveal their political affiliation while campaigning, but their party does not appear on the ballot.
Other states allow the governor to appoint judges. For example, in New Mexico, all judges are picked through an appointment process and then run in partisan elections for additional terms.
For now, it appears that Texas will continue with partisan judicial elections. That fact will continue to affect cases, such as masks mandates, going forward.
The local decisions eventually will head to the all-Republican Texas Supreme Court.
Jacob Sanchez is an enterprise journalist for the Fort Worth Report. Contact him at jacob.sanchez@fortworthreport.org or via Twitter. At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.
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