A judge in full: Wallace Jefferson of Texas.

• Author: Ariens, Michael
• Position: Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

During his eight years as Chief Justice of the Texas Supreme Court, Wallace Jefferson has written a number of deeply engaging opinions that illustrate his command of the work required of an appellate judge. (1) These opinions are both thorough and thoughtful, and neither obtuse, nor shallow. They mark a judge well-versed in jurisprudence and in the ongoing debates about how judges construct and interpret statutes, the common law, and the constitution. His opinions indicate both his confidence in his conclusions and a humility cognizant of his fallibility. His opinions have also occasionally generated objections, as Texas law has changed during the past decade. Chief Justice Jefferson's opinions reflect a judge in full; one who possesses a deep knowledge of law and the peculiarities and particularities of the state and the people he serves.

This essay discusses the work of Chief Justice Jefferson. His work should be understood in light of the unusual division of appellate power in Texas, as well as the shifting but exclusively Republican composition of the membership of the Supreme Court of Texas since during his service there. (2)

1. INTRODUCTION

   1. Background

      Wallace Jefferson was born on July 22, 1963, in Tacoma, Washington, the second youngest of six children. (3) When he was four his parents moved to San Antonio, where Jefferson was raised. (4) After graduating from high school, Jefferson attended and graduated from Michigan State University with a degree in philosophy. (5) His older brother Lamont recommended he consider attending the University of Texas School of Law. (6) Jefferson took his brother's advice, graduating from the University of Texas Law School in 1988. (7) He practiced law in the San Antonio firm of Groce, Locke & Hebdon, and with two other appellate lawyers, created the firm of Crofts, Callaway & Jefferson, also in San Antonio. (8) Among his appellate cases were two appearances before the Supreme Court of the United States. (9) In March 2001, at just thirty-seven-years-old, he was appointed associate justice of the Texas Supreme Court by fellow Republican Governor Rick Perry. (10) In late 2004, Perry appointed him chief justice. (11) As required by the Texas Constitution, he ran in the next election to serve the remainder of his predecessor's term. (12) He was re-elected to a full six-year term as chief justice in the November 2008 elections. (13) As is almost always stated in articles about Jefferson, he is the first African-American justice (as well as chief justice) in the history of the Texas Supreme Court. (14) He is currently the Texas Supreme Court's second-longest serving member, to Justice Nathan Hecht's twenty-three-plus years. (15)

   2. Texas Appellate Court System

      Since Texas adopted its 1876 Constitution, the Texas Supreme Court's jurisdiction has been limited to civil matters. (16) From that year through 1891 all criminal matters were appealed to the Texas Court of Appeals, (17) a court that became a national laughingstock for its astounding rate of reversals of convictions (18) and its decision to chastise the Supreme Court of the United States. (19) The members of the convention drafting the Texas Constitution separated appellate jurisdiction to remedy a persistent problem in Texas legal history: too few appellate judges (and courts) to hear and decide appeals in a timely manner. (20) This initial division of authority failed to solve the problem. (21) An 1891 amendment created the Court of Criminal Appeals, which possessed jurisdiction in all criminal cases, "with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law." (22) The Texas Court of Appeals was re-named the Texas Court of Civil Appeals and was given jurisdiction to hear and decide initial appeals in civil matters, thus partly sheltering the Texas Supreme Court from an avalanche of appellate writs. (23)

   3. Today's Texas Supreme Court

      The Texas Supreme Court consists of nine Republicans. (24) Two of its members are African-American, two are Hispanic, including one of the court's two female members, and five are Anglo. (25) Once a one-party state in which membership in the Republican Party served as a disqualifying factor for those interested in serving in the judiciary, (26) Texas is presently a one-party state dominated by Republicans in state offices. (27) Since 1850, with a notable exception during Reconstruction, (28) all Texas judges are elected, and elected through party affiliation. (29)

      The last Democratic Party member on the Texas Supreme Court was defeated in the November 1998 elections. (30) Thus, for over thirteen years the Texas Supreme Court has consisted solely of Republican Party members. (31) This uniformity of party affiliation may mean something less than it appears. When Texas political and judicial offices were controlled by members of the Democratic Party, factions within the party made for highly contested primary elections (most notable, of course, was the 1948 primary race for the Democratic Party nomination for Senator between Lyndon Baines Johnson and Coke Stevenson). (32) Factions within the current Republican Party increase the number of contested primary races. (33) Although no current member of the Texas Supreme Court views his or her commission in broad, sweeping terms, the limitations of party affiliation are found in the number of dissents registered annually in the court. (34)

      The Texas Supreme Court has disposed of between 109 and 164 causes each year since Jefferson has served as Chief Justice. (35) Similar to many earlier iterations of the court, it has had difficulty clearing its docket. (36) It was newsworthy that in fiscal year 2009, the number of continuing causes was at a nearly-decade low of sixty-two. (37)

2. CHIEF JUSTICE JEFFERSON'S OPINIONS

   Chief Justice Jefferson rarely speaks explicitly of his jurisprudential views, requiring the inquisitive to construct his interpretive manner and style through an evaluation of his implicit assumptions. I will argue that the best evidence of those views is found not in his opinions for the court, but in his dissenting and concurring opinions. His opinions for the court, particularly when the court is divided, reflect an overriding consideration of the body for which he writes. In majority opinions, the Chief Justice effects changes in Texas law incrementally and modestly. In contrast, his concurring and dissenting opinions are free from the constraints of representing others. Those relatively "free" opinions offer some insight into Chief Justice Jefferson's structural understanding of the role of the judiciary in a democratic society.

   My assessment of his work is based on a review of sixty-seven of his signed majority opinions, (38) twelve concurring opinions, (39) and nineteen dissenting opinions (40) written as Chief Justice through 2011. In this essay, I concentrate on his opinions for the court when it is substantially divided (in other words, with at least two dissents or two concurrences that disagree substantially with the court's reasoning). (41)

   1. Introduction

      The majority opinions written by Chief Justice Jefferson are concentrated in the following subject areas: civil procedure, governmental immunity, insurance law, real property (including zoning and takings cases), and will/probate cases. (42) He has also written two majority opinions on the appropriate standards of attorney conduct. (43) Approximately three-quarters of his majority opinions are unanimous or joined by one concurring opinion. (44)

      The following three subsections address Chief Justice Jefferson's opinions for the court, in concurrence, and in dissent. (45) I reach the following conclusions about his work: (1) his opinions reflect a wide knowledge of the law. Most are studded with well-considered references to secondary sources, including law review articles, treatises, and various restatements of the law, as well as to relevant case law from other jurisdictions; (2) he is particular about the procedural framework through which the case has reached the Texas Supreme Court. This fastidiousness is not indicative of a legal formalism interested solely in the niceties of the law, but of a reluctance to overreach. Any substantive legal conclusions are reached only when the case is properly before the court. His reluctance to overreach can lead to a categorical conclusion, a type of neo-formalism, largely borne of a respect for the other branches of state government. However, Chief Justice Jefferson's jurisprudence may best be characterized as consonant with the legal process school that flourished in the mid-twentieth century; (46) (3) his opinions for a divided court indicate both a pragmatism and a willingness to view the common law more broadly than his dissenting colleagues; and (4) his concurring and dissenting opinions are fully realized jurisprudential efforts, which prepare a path on which a future court may travel.

   2. Majority Opinions

      The number of contested majority opinions written by Chief Justice Jefferson were few in number in his first several years on the court. From late 2004-2007, Chief Justice Jefferson wrote the majority opinion in cases in which at least two justices dissented just four times. (47) Of these four cases, the court's decision in Hoover Slovacek LLP v. Walton generated the most intense and challenging dissent. (48)

      A six-person majority (49) held a law firm's contingency fee contract contrary to public policy because it included a provision that upon discharge before termination of the matter, the law firm was immediately due "a fee equal to the present value of the attorney's interest in the client's claim." (50) Because the payment-upon-discharge provision was contrary to public policy, it was unenforceable. (51) The law firm was hired by John B. Walton, Jr. to recover unpaid royalties from companies extracting oil and gas from Walton's 32,500-acre ranch. (52)...