Author: John Cayce. Article published in the State Bar of Texas Litigation Section News for the Bar, Winter 2012.

1. “ ” HE
P E C
HEN I LEFT THE APPELLATE COURT BENCH three or the power to tax to support themselves, they are always at the
W years ago, one of my goals was to use the knowledge I had
gained working on state court funding issues during eight legislative
mercy of the political priorities of the executive and legislative
branches. At its most extreme, this tension can lead to litigation
sessions to better inform the Texas bar about the nature and extent between the branches of government, as it did two years ago in
of the on-going court funding crisis. My concern was that it had the state of New York where judges were forced to sue the other
become so commonplace to refer to court budgets as being in crisis branches of state government in an attempt to obtain a basic level of
that lawyers would become immune to the reality – like a frog in a support. See Matter of Maron v. Silver, 925 N.E.2d 899 (NY 2010).
warming pot of water, every year’s crisis becomes the new normal. No one wants to see this happen in Texas, but the situation
But there really is a crisis, and it is unlike anything we have is getting dangerously close to a point where our courts may view
seen in our nation’s history. Deep budget cuts in the courts of 33 litigation as the only option. The legislature simply cannot be
states, including Texas, have forced state courts to freeze hiring, permitted to cripple the judicial branch by chipping away at its
cut pay, lay off staff, and close courthouses. Last August, the entire budget every session without doing great damage to our society and
judicial branch of the state of Kentucky shut down for three days as our constitutional form of government. The cuts must stop, and
a result of budget reductions mandated by the Kentucky legislature. the legislature must make adequate court funding a regular priority.
To make matters worse, the reductions in court operations The good news is that it costs relatively little to fund the
are coming at a time when caseloads are growing at a historic courts compared to what is spent on the other two branches of
pace. For example, in the 2011 fiscal year Texas’ fourteen courts government. In 2011, the amount of funding dedicated to support
of appeals experienced an 8% percent increase in their combined the judicial branch – one third of our state government – was
dockets – the highest annual increase in 10 years. During the 0.37% of the state’s $90 billion budget. We clearly have it within
same year, the courts of appeals had their budgets cut by nearly our means to solve the court budget crisis relatively inexpensively
the same percentage,1 requiring some courts to reduce their without raising taxes or cutting essential government programs.
workforce when they were needed the most. The problem is not a lack of available funds, it is the lack of will
The outlook in Texas for the next budget cycle is uncertain. In on the part of the legislature to do anything about it.
June of this year, state leaders announced that they would consider The other problem the judiciary faces is state leaders who
reducing state government spending “across the board” by 10% demagogue the issue of court participation in “across the board”
in the next biennium, with the exception of a few exempt state budget cuts when the economy is bad. The most recent example of
agencies.2 While more recent projections indicate that there will be this occurred at the beginning of the last legislative session when
a budget surplus in 2013, there is no guarantee that the legislature the Governor and other state leaders announced that there would
will restore the funding that was cut from the judiciary’s budget in be no “sacred cows” exempt from budget cuts. The legislature made
the last legislative session, or that the legislature will choose to invest good on that promise and ultimately cut $4 million from the third
any of the surplus in strengthening a judiciary weakened by years of branch’s razor thin budget. No one suggested that this reduction
chronic underfunding. For example, Texas judges have not received was necessary to keep the state from operating at a deficit, or that
a pay raise in seven years. If a substantial salary increase is not the savings could not be found elsewhere in the budget. The only
passed in the next legislative session, our trial and appellate judges reason given for the cut was that “everyone” should be required to
will remain near the bottom of the pay scale compared to judges in make a sacrifice, which the courts did without complaint.
the other 49 states.3 Proper compensation of judges is essential to What state leaders do not realize is that, unlike agencies, court
attract qualified candidates and retain experienced judges. budgets contain no excess. Due to decades of neglect, the courts
The judiciary has always been easy prey for budget cuts in a are seriously underfunded, and 95% or more of their budgets are
down economy. Because the courts have no natural constituency, personnel costs. Consequently, when court budgets are reduced,
the reductions immediately curtail meaningful access to the justice
1 State appropriations to the entire Texas judiciary were reduced by system by reducing the workforce responsible for administering
4.4% during the 2012-2013 biennium. justice in an effective and timely manner. This is why, as lawyers, we
2 The proposed cuts would include the Texas Supreme Court, the should all take the issue of judicial budget cuts extremely seriously.
Texas Court of Criminal Appeals, and all fourteen courts of appeals, The legislature has a difficult job allocating limited resources
in addition to numerous Article IV judicial branch agencies.
3
among competing priorities when money is tight, but it is wrong
The salary of Texas’ judges is now below compensation levels from 1991
when factoring in the consumer price index increase. To address this,
– and, I would argue, unconstitutional – to force the courts to
on November 30, 2012, the Texas Judicial Compensation Commission compete dollar-for-dollar with non-essential legislative priorities
published a report recommending that state trial and appellate judges’ and state agency initiatives that have nothing to do with the judicial
salaries be increased by approximately 21% in the next biennium. mission of the third branch. In that kind of environment, the courts
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2. will lose every time. And when the courts lose, so do we. Texas courts, the vast majority of state judges with whom I have
Rather than treat the judiciary like a state agency that spoken over the years believe it should only be used, if at all, as a
is required to justify its continued existence in the budgeting last resort. They agree with Justice Spears that “a spirit of mutual
process, the legislature should begin the process with the cooperation [between the branches] is unquestionably the people’s
assumption that the courts must be funded adequately and best guarantee of a constitutional government.”4 But the level of
conduct an independent assessment of judicial funding apart cooperation necessary to address critical court funding needs will
from other political priorities and agendas. Funding the judiciary occur only in an atmosphere of mutual respect, and the legislature
adequately should be a legislative priority, not an afterthought. has yet to demonstrate that it respects, much less understands, the
This approach would, of course, require that state leaders judiciary and its role in our constitutional form of government.
acknowledge the fact that the judiciary is not a state agency, but One strategy Texas’ judicial leadership adopted many years ago
a co-equal, independent branch of government that cannot be to promote cooperation between the legislative and judicial branches
made subordinate to the other branches through the power of was to be more proactive in their efforts to build relationships with
the purse. As one state supreme court noted in the context of a and better inform legislators about the work of the courts. However,
court funding controversy more than 50 years ago: with the exception of 2005 (when the legislature awarded judges a
long overdue salary increase), these efforts have produced only a
Our courts are the bulwark, the final authority which modicum of success, even in robust Texas economies.
guarantees to every individual his right to breathe As the economy has spiraled downward, the courts’
free, to prosper, and be secure within a framework of relationship-building efforts have done little to protect the courts
constitutional government. The arm which holds the from the budget axe. Instead, the legislature’s tendency has been
scales of justice cannot be shackled or made impotent to politicize and slash court funding unnecessarily, as it did in
by either restraint, circumvention, or denial by another the last legislative session. Each time the legislature reduces or
branch of that government. freezes court funding, the courts bite the bullet and make the
sacrifices necessary to operate with less resources. At some point,
Noble County Council v. State ex rel. Fifer, 125 N.E.2d 709 (Ind. 1955). this paradigm must change because access to justice is in peril.
So, what must the Texas judiciary do to protect itself from a The 83rd Legislature convenes January 8, 2013, and the
legislature that choses to spend more on repairing highways than process of weighing the needs of competing priorities will begin.
ensuring all Texans have access to a fair and efficient justice system? Many state agencies are already calling upon lawmakers to
In an ideal world, it would be enough for judicial leaders to simply restore billions of dollars slashed from their budgets in the last
assert that they are a co-equal branch of government and trust the session. Yet, even the most optimistic budget surplus predictions
legislature to do the right thing as a true constitutional partner by indicate that there will not be enough money to fund all the
reliably making a sufficient appropriation. However, when the requests, and the mantra of our state leadership continues to be
legislature is in session, Austin is not an ideal world; it is a world in that government spending be reduced.
which political power and leverage are the tools you must have to To remain strong and independent, the Texas judiciary must be
get things done, and, unfortunately, the judiciary possesses neither. adequately funded and its judges must be adequately paid. Should
The only power the courts possess to protect themselves the Texas Legislature continue its pattern of underfunding and/or
against legislative abuse is “inherent power” – the power to compel reducing court budgets, judicial leaders should consider standing
the expenditure of public funds when necessary for the courts their ground and insist on the courts’ inherent powers. While this
to fulfill their constitutional functions. An apt description of this “stand your ground” strategy may carry a high political price for
seldom-used power is found in a concurring opinion authored by elected judges – and would certainly prove unpopular with members
the late Texas Supreme Court Justice Franklin Spears: of the legislature accustomed to thumbing their noses at the judiciary’s
budget requests5 – it would be a risk worth taking to preserve the
Like the power to punish for contempt, a court’s judiciary’s treasured constitutional role. It could also lead to improved
inherent power to control funding flows from the law relations in the future between the judiciary and the other two
of self-preservation. No legislative authority, state or branches of state government by restoring respect within those
local, can so tighten the purse strings of the judiciary’s branches for their constitutional partner. As Justice Spears observed
budget that it fails to provide the funds reasonably more than twenty years ago: “Only by recognizing each other as
necessary for the court’s efficient and effective equals can [the branches of government] effectively communicate.”6
operation. To adhere to any contrary view would
effectively concede to the legislature the power to Hon. John H. Cayce, Jr. is a retired Chief Justice of the Second Court of Appeals
render inoperative the judicial branch of government. and a partner in the firm of Kelly Hart & Hallman LLP in Fort Worth.
4 Id. at 83.
Mays vs. Fifth Court of Appeals, 755 S.W.2d 78, 80 (Tex. 1988) 5 Speaking of thumbs, many years ago the late Chief Justice Joe Greenhill
(Spears, J., concurring). shared with me a story about the time he appeared before the Senate Finance
Courts throughout the nation have used their inherent Committee during the 67th Texas Legislature seeking a $1000 appropriation
powers when necessary to compel funding for adequate facilities, to offset expenses incurred by the Court when traveling on official business.
the hiring of court personnel, and the setting of staff salaries, In response, an unnamed Texas State Senator motioned with his thumb like
a hitchhiker and asked, “Judge, do you know what this is…?”
among other essential needs. While this power is available to 6 Mays, 755 S.W.2d at 83.
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