by David A. Furlow
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It’s autumn now, the season of politics. The Dog Days of Summer are upon us, but the first cooling breezes will begin to rustle the still-green leaves of red oaks, tallows, and cypress. Judicial candidate yard signs proliferate like mushrooms after a spring shower, while billboards promote incumbents’ virtues and negative ads destroy their opponents’ competence on cable TV. The League of Women Voters distributes lists of candidates and their credentials. Activists of the right and the left circulate sample ballots that canonize cherished candidates while castigating and condemning their competitors.
How did we arrive at this competitive state of affairs where ordinary voters, rather than legislators, select who will be our justices of the peace, judges, and appellate justices?
|Judicial candidate signs proliferate in front yards throughout Texas
Photo by David A. Furlow
Texas’s long tradition of electing judges did not begin in November 1850 when a majority of Texas voters approved an amendment to the Texas State Constitution of 1845 that required popular election of the Justices of the Texas Supreme Court, effective in 1851. Instead, judicial election of judges began in Stephen F. Austin’s colony in the Mexican state of Coahuila y Texas more than a decade before the Battle of San Jacinto gave birth to the Lone Star Republic.
In 1822, Stephen F. Austin, the empresario (entrepreneurial governor) of the colony founded by his father Moses Austin, came to San Antonio. While there, the Mexican governor of Mexico’s Texas territory insisted that Stephen F. Austin secure the recently created Mexican national government’s approval of the land grant his father had received from the Spanish.
|Stephen F. Austin, painted by an unknown artist, 1840
Texas State Library and Archives Commission
In April 1822, Austin reached Mexico City, where he remained until, on February 18, 1823, the recently crowned Mexican Emperor, Agustin Iturbide, decreed that Austin’s governorship of his colony enjoyed Mexico’s formal national support, so that “he [Austin] is charged with the administration of Justice, settling all differences which may arise among the inhabitants, and preserving good order and tranquility, rendering an account to the government of any remarkable event that may occur.” After Emperor Iturbide’s overthrow, and an arduous, year-long journey, Austin returned to Texas with the Mexican Congress’s official seal of approval for his colony.
When Austin returned to his colony, he created his colony’s semi-autonomous system of justice. Unwilling to waste his time resolving “little neighborhood disputes about cows and calves,” Austin soon instituted elections to choose the alcalde, a combination of judge and mayor with judicial and administrative authority, to preside over trials in each of the colony’s two settlements. In 1823, one settlement’s voters chose Josiah Hughes Bell, a former Justice of the Peace in Missouri who governed Austin’s colony during the empresario’s absence, while other colonists elected John Tumlinson as their alcalde.
In a recently published article, Jason Boatright, former Director of the Texas Railroad Commission’s General Counsel Division and Chairman of Texas Attorney General Greg Abbott’s Opinion Committee, described how Stephen F. Austin oversaw the December 20, 1823 election to choose San Felipe de Austin’s alcalde judge for the year 1824. Mr. Boatright established that Sylvanus Castleman, a landowner in St. Genevieve, Missouri who lived near Moses Austin while the area remained Francophone and retained vestiges of Franco-Spanish, won the first alcalde election. Under Article 20 of his Civil Regulations and Criminal Regulations (1824), Stephen F. Austin permitted appeals only if the sum in dispute exceeded $25.00. Uninterested in appellate law, Austin created an appellate panel of alcaldes to hear those appeals.
Stephen F. Austin administered justice in his colony under Mexican law from 1823 until the Congress of Coahuila and Texas permitted the colonists’ Ayuntamiento to evolve into the Municipality of Brazoria on April 28, 1832. Under Article 1 of the March 11, 1827 Constitution of the State of Coahuila and Texas, all Texans became Coahuiltexanos. Under Articles 155-159, male Coahuiltexanos not disqualified from voting under Articles 18 to 22 elected their Ayuntamiento a/k/a Ayuntamie (Town Council), including Alcaldes (mayors), Sindicos (trustees), and Regidores (judges). Hispanics and Anglo-American settlers met annually on the first Sunday in December to elect Ayuntamie councils, whose investitures occurred the following Sunday.
Austin’s home-grown courts protected the interests of Texas citizens until Mexican authorities imposed military garrisons in the 1830s. Lawmakers in the State of Coahuila and Texas organized the municipality of Brazoria, with Brazoria as its capital and Port Brazoria as its maritime entrepot. The Precinct of Victoria Guadalupe governed the lower half of Stephen F. Austin’s colony after 1829. Alexander Hodge served as Commissioner in 1829, while other precinct commissioners included Asa Bringham and Henry Smith. Courts administered justice until state officials imposed a more formal Alcalde court on Brazoria’s settlers in 1834.
Austin’s elected alcaldes acted not only as fact-finders and law-givers but as conciliators to encourage arbitration. Alcalde magistrates kept orderly dockets and registers, reviewed written petitions before suits could be filed, rendered judgments, and ordered executions on property. The law of Mexico and the State of Coahuila y Texas required alcalde judges, who were to wear “black or dark blue, and a white sash with gold tassels . . . on all solemn occasions.” Dress and demeanor were considerably less formal and more homespun on the rough-hewn frontier at San Felipe de Austin. Anglo-American lawyers like William B. Travis, James Fannin, and Sam Houston soon found work representing settlers in their native English in Austin’s alcalde courts. Those lawyers litigated before juries of Anglo-American settlers in Mexican trials in the Precinct of Victoria, in the Municipality of Brazoria. A simple system of claims and answers dispensed justice simply, cheaply, and efficiently, while avoiding the intricacies of Anglo-American courts and its distinctions between common law and equity.
The experience lawyers, laymen, juries, and judges gained in the elections to the alcalde courts of the Mexican state of Coahuila y Texas paved the path that led to the Lone Star State’s popular election of justices of the peace, district judges, and appellate justices in 1851 – and in every subsequent election year down to the present day.