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November 01, 2014

Bifurcated Appellate Review: The Texas Story of Two High Courts

By Ben L. Mesches

The Texas judicial system has been described as “complex,” without “order or symmetry,” “byzantine,” “Rube Goldberg–designed,” and an “anachronism.” One particular aspect of the Texas system has been at the center of this criticism for over a century—the bifurcated system of appellate review at the highest levels. In Texas, the Supreme Court of Texas has final appellate jurisdiction over civil disputes. The Court of Criminal Appeals, by contrast, has final jurisdiction over criminal matters, including the state’s capital docket. This article will explore the historical basis for this bifurcated appellate system, the challenges and benefits of this system, and attempts at structural reform and will conclude with a few thoughts about the future of this system.


To fully understand the current bifurcated appellate review system, we must begin with Article V of the Texas Constitution of 1876.1 At the time, the Texas Supreme Court faced a crushing backlog of cases.2 Article V sought to remedy this backlog by eliminating the Supreme Court’s criminal jurisdiction and established a Texas Court of Appeals (now called the Court of Criminal Appeals) to decide criminal cases.3 Not all commentators agree that a staggering caseload was the reason for this change; others have posited that Reconstruction-era politics played a role as well.4 Regardless, the bifurcated system has deep historical roots.

The 1876 version of the criminal appellate court was a three-judge court with exclusive criminal appellate jurisdiction.5 Fifteen years later, Texas voters approved the creation of the intermediate Court of Civil Appeals and retained the state Supreme Court and three-member Court of Criminal Appeals.6 The advent of intermediate courts—without criminal jurisdiction—played a crucial role in later debates about the state’s bifurcated appellate review system. Over the years, the Court of Criminal Appeals grew from three judges to five judges in 1967 and nine judges (as it presently stands) in 1978.7

Under this system, the Court of Criminal Appeals was responsible for all criminal appeals in the state of Texas—an enormous docket. A 1980 constitutional amendment changed that. The Court of Criminal Appeals was described at the time as the “busiest appeals court in the nation”; however, the 1980 amendment broadened the intermediate civil courts of appeals’ jurisdiction to include noncapital criminal cases and renamed those courts the Courts of Appeals.8

Before this amendment, “all appeal from decisions in criminal cases went directly to the court, and the build-up of appeals grew to the point that its backlog had become both unimaginably and unmanageably immense.”9 The Court of Criminal Appeals retained exclusive appellate jurisdiction over capital cases and was granted discretionary review over criminal decisions of the courts of appeals.10 The 1981 reforms delivered on the goal of reducing the Court of Criminal Appeals’ backlog. In 1980, the court’s docket was 4,000 cases deep. By 1983, its docket had shrunk to 550 cases.11

The system of bifurcated appellate review is entrenched in Texas. And while it is not unique, only one other state in the country has a similarly bifurcated appellate system—Oklahoma.12

The System Today

The Supreme Court of Texas is a nine-member court and has final jurisdiction over civil and juvenile matters. The court’s justices serve staggered, six-year terms in a partisan statewide election.13 Under Article V of the Texas Constitution, the court has authority to “exercise the judicial power of the state.”14 In describing the court’s jurisdiction, Article V provides that its “appellate jurisdiction shall be final except in criminal law matters and as otherwise provided in the Constitution or by law.”15 The court also has “power to issue writs of habeas corpus, as may be prescribed by law, and under such regulations as may be prescribed by law.”16 And the court “may issue such writs of mandamus, procedendo, certiorari and such other writs” necessary to enforce its jurisdiction.17 The court has limited original jurisdiction.18

The Court of Criminal Appeals has final jurisdiction over criminal cases. Like the Supreme Court, the Court of Criminal Appeals has nine justices who stand for statewide election every six years.19 This court has discretionary review over noncapital criminal cases, but capital cases are automatically reviewed by the court.20 Capital cases go directly to the Court of Criminal Appeals from the trial court.21 The court’s authority is broad:

Subject to such restrictions as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the judges thereof shall have the power to issue such other writs as may be necessary to protect its jurisdiction or enforce its judgments. The court shall have the power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.22


As much as any other aspect of the state’s complex judicial system, this bifurcated appellate structure has been the subject of a vigorous debate. The criticisms fall into a few general categories. Some have critiqued the current system as inefficient because it requires two large court staffs and infrastructures when most states function with only one high court. Others have complained that a dual system fosters conflicts between the two courts on issues that arise in both civil and criminal cases.

The standards for expert testimony are one prominent example: “[T]here would be a benefit from having the same court interpreting the law [in the expert-witness context] consistently in both civil and criminal realm.”23 Another area that could benefit from a unified court is juvenile criminal law. Under the current system, the Court of Criminal Appeals handles adult criminal cases, while the Supreme Court of Texas decides juvenile criminal matters. Finally, arguments have been made that civil and criminal specialists lack the broader perspective on the law that a “generalist” judge brings to the law.

But the current system has its defenders as well. The strongest argument in favor of a separate criminal body is that it allows for expedited and more efficient processing of the state’s vast criminal docket. Defenders of the current system have also pushed back on the efficiency argument, observing that in a merged system because “the number of cases would not shrink, a single unified court would simply need to employ roughly the same size of staff as the currently divided courts.”24 Advocates of bifurcated review have also observed that criminal and civil expertise benefits the parties, lawyers, and legal system.

Structural Reform Efforts

Since the 1970s, attempts to reform (i.e., merge) the state’s highest courts have been proposed, but they have seldom gained very much traction. The creation of a single supreme court with final appellate jurisdiction over civil and criminal matters was proposed as part of a comprehensive constitutional overhaul by the Constitutional Convention of 1974,25 but the voters rejected this ambitious reform effort.

Since the Constitutional Convention of 1974, numerous bills have been filed in the Texas legislature (which only meets every other year). But each time, these efforts have failed. Calls for reform have traditionally come from the political branches. But that changed in 2011 when Supreme Court Justice Don R. Willett issued a clarion call in a dissenting opinion in a habeas/mandamus case, In re Reece.26 Justice Willett described the complex system in this way:

Today’s case is a byproduct of that recondite web, sparking a game of jurisdictional hot potato between us and our constitutional twin, the Court of Criminal Appeals. Truth be told—and this particular truth has been told repeatedly—the State’s entire Rube Goldberg-designed judicial “system” is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom.27

A Look Ahead

Despite the bold judicial voice lent by Justice Willett’s dissent, the legislature did not take up his suggestion in the 2013 session. And, if history is a guide, 2015 will likely be no different. While reform proposals will no doubt continue, questions remain whether a merger of the courts is appropriate. A comprehensive report commissioned by the chief justice of the Supreme Court of Texas questioned whether a merger was practical without resolving other systemic questions:

[O]ne major question needs to be answered before any serious consideration of a reconstituted appellate court of last resort can be addressed. Historically, neither court has a good track record in keeping up with its caseload. What is to make one believe that one of them can now do the work of two? In short, politics aside, all issues of scope of jurisdiction and use of discretionary review will have to be resolved before any real thought of combining the courts can be contemplated.28

The Texas Civil Justice League—while taking no position on the various reform proposals—has recently expressed similar concerns: “The Court of Criminal Appeals’ docket is so big . . . that if we put them together, the sheer magnitude of the cases would swallow them.”29

Similarly, there is little prospect that bifurcated review will be a model for other jurisdictions, largely because of concern about the potential for unresolved conflicts between the two high courts. But it has been noted that conflicts between the Texas high courts “have been very few and unimportant.”30 Advocates for systemic reform in Texas point to other states as the model. Texas State Representative Richard Pena Raymond has argued that “change should be a no-brainer, because 48 other states and the federal court system have a single highest court.”31 According to Representative Raymond, “the model is there for most of the country.”32

Without a major reform effort finding broad support in the legislature and with the voters, Texas’s system of bifurcated high courts will likely continue. While there are strong arguments for reform coming from both the legislative and judicial branches based on efficiency and concern about jurisdictional and substantive conflicts, change at this time would be difficult. Both courts have a large volume of cases. And with demands from the public and lawyers for the courts to continue resolving this state’s appellate caseload in both civil and criminal contexts, delivering on efficiency gains would likely prove difficult.


1. Paul M. Lucko, Texas Court of Criminal Appeals, Handbook of Tex. Online, (accessed May 16, 2014).

2. Id.

3. Id.

4. Scott Henson, Caveats to Debate on Merging Texas Supreme Court, Court of Criminal Appeals, Grits for Breakfast (Dec. 13, 2012),

5. Lucko, supra note 1.

6. Id.

7. Id.

8. Id.

9. Tex. Research League, Rep. 1, The Texas Judiciary: A Structural–Functional Overview, A Report to Thomas R. Phillips, Chief Justice, Supreme Court of Texas (Aug. 1990), available at

10. Id.

11. Id.

12. Lucko, supra note 1.

13. Tex. Research League, supra note 9, at 5.

14. Tex. Const. art. V, § 3.

15. Id.

16. Id.

17. Id.

18. Id.

19. Tex. Research League, supra note 9, at 11.

20. Id.

21. Id.

22. Tex. Const. art V, § 5.

23. Henson, supra note 4.

24. Maurice Chammah, Bill Renews Debate on Merging Highest Two Courts, Texas Tribute, Dec. 13, 2012.

25. Id.

26. 341 S.W.3d 360 (Tex. 2011) (Willett, J., dissenting).

27. Id. at 378.

28. Tex. Research League, supra note 9, at 68–69.

29. Chammah, supra note 24.

30. Id.

31. Id.

32. Id.