Should New Texas Judges Be Required to Obtain Board Certification?

From Texas Civil Justice League

As part of the larger debate over the manner in which Texas selects its judiciary, one aspect of the issue has attracted a higher degree of consensus than the process of selection itself: judicial qualifications. All parties to the debate agree that it is a good thing to have well-qualified candidates for judicial offices from the trial courts on up. In 2021 the Texas Legislature adopted and the voters approved a constitutional amendment raising the practice requirements for appellate and district court judges. But beyond that, Texas law does not require that lawyers who meet the basic requirements have any relevant education, experience, skills, or background in holding judicial office, administering justice in the courtroom, or discharging the responsibilities of the office.

Newly elected or appointed judges with little or no appreciable prior experience in the courtroom will, it is to be hoped, eventually learn how to be a judge by virtue of on-the-job training. But is it good for the system—and by the “system” we mean the prompt, efficient, and scrupulously impartial administration of justice to the parties in any type of case—to hand over matters with enormous consequences to the people involved to somebody just because he or she has completed a minimum number of years of practice? Put another way, would you like your case to be a new and inexperienced judge’s first case? Wouldn’t you want a judge with at least some prior exposure to the relevant subject matter or, at the very least, the rules of procedure and evidence? Obviously, this is always going to be a problem no matter what we require of judicial candidates, but are there ways to ramp up the training of new judges to make that transition both shorter in time and less problematic for parties with the “first” cases?

While not a perfect solution by any means (we think thorough vetting of judicial candidates by lawyers and judges with extensive trial or appellate experience would be the best approach), we think that much could be achieved by requiring new judges to meet heightened education and training requirements for the judicial office to which they have been elected. We would not go as far as to require the candidates to meet these higher standards as a prerequisite to standing for the office in the first instance (that might narrow the pool of judicial candidates too much), but once a candidate has been elected or appointed, it does not seem unreasonable to mandate that the judge complete a rigorous program to bring him or her up to speed as quickly as possible.

We realize, of course, that current law requires first-year judges to complete 30 hours of instruction and 16 additional hours in the second and third years of their terms. (To provide some perspective, licensed attorneys in Texas are required to complete 15 hours in continuing legal education each year.) These requirements can be met by taking courses, whether in person or remotely, sponsored by organizations specified by Rule 2 of the Rules of Judicial Education. Such organizations include the Judicial Section of the State Bar of Texas, Texas Center for the Judiciary, Texas Association of Counties, National Judicial College in Reno, Nevada (that one sounds fun), and several other national and state-based organizations. It is interesting to note that Rule 3 requires new justices of the peace to complete an 80-hour course of instruction from the Texas Justice Court Training Center, 40 hours of which must be live training, within the first year in office, and 20 hours of continuing education each year thereafter. Of course, justices of the peace do not have to be lawyers (a vestige of the days when the population was widely scattered and there weren’t many lawyers around), so one can understand the disparity (though the required number of hours is arbitrary). In either case, however, it seems to us that these minimum requirements are woefully inadequate in a general one-size-fits-all sense.

So what might an enhanced judicial training program look like? We suggest something along the following lines. The Texas Supreme Court (or Court of Criminal Appeals, either one) would direct the Texas Board of Legal Specialization to develop a board certification in judicial administration. This program would set standards comparable to existing board certification programs. For example, to become board certified in civil trial law, a lawyer must:

• practice law fulltime for at least five years as an active member of the State Bar of Texas;
• have at least three years of civil trial law experience with a yearly minimum of 30% substantial involvement in civil trial law matters;
• try at least 15 civil trials that meet certain substantive requirements;
• have qualified vetted references from lawyers and judges in the area;
• complete 60 hours of board-approved continuing legal education in civil trial law;
• meet all board standards for attorney certification; and
• pass a comprehensive six-hour examination in civil trial law.

Compare that to the judge school that is currently required, and you can see how dramatic the difference really is. In fact, our proposal would exempt new judges who are already board-certified in relevant specializations, including Civil Appellate Law, Criminal Appellate Law, Criminal Law, Civil Trial Law, Estate Planning and Probate Law, Family Law, or Personal Injury Trial Law. As you can see in the example above, lawyers who undertake board certification must have three things: significant relevant practice experience, a good reputation in the legal community, and a lot of additional education. If a lawyer can run that gauntlet, it’s a pretty good bet that that lawyer will be more well-prepared to take the bench.

But for a number of reasons, not all lawyers have board certification in a relevant specialty. And many of these would make excellent judges and should not be precluded from holding judicial office for that reason. Consequently, we propose that once they are elected or appointed to district or appellate court bench, they must complete a board specialization in judicial administration within a year or so of their election (they don’t have to wait until they actually take the bench). The contents of the board certification program would be determined by the Supreme Court, but we would suggest that it include information about:

• the Texas Rules of Civil Procedure;
• the Texas Rules of Evidence;
• the Texas Code of Criminal Procedure;
• the Texas Rules of Appellate Procedure;
• the Texas Code of Judicial Conduct;
• trial management;
• jury matters, including the conduct of jury trials and the preparation of jury instructions;
• the preparation of orders, findings of fact and conclusions of law, opinions, orders, jury charges, or any other document or ruling produced by a person in the person’s capacity as a judge or justice;
• court administration;
• court personnel; and
• any other information the Court deems necessary and appropriate to prepare a judge or justice to conduct the business of the court.

If a judge or justice does not complete the training within the prescribed time period, the office would become vacant, and a new judge or justice elected at the next general election. Even so, a judge or justice would become eligible to run again if he or she completed the board certification process. Once a judge or justice obtains certification, he or she must maintain that certification for the term of office (this goes for the exempt certifications as well). If a judge lets his or her certification expire, a vacancy is created in the office.

Policymakers have time and time again shied away from making any major changes in the judicial selection process that would depart from the partisan election of judges. But that doesn’t mean that the candidates who win those elections (or who are appointed to fill vacancies) should not be the very best and most qualified lawyers available for the job. This proposal would place no limitations on who could run for judicial office (beyond the constitutional minimum practice and residency requirements), but it would raise the qualifications bar for those who get elected. In our view, no one should be happier to see such a program than judges themselves. Board certification is widely accepted as the gold standard in education and training for lawyers. It will quickly become the same for judges.