State Bar of Texas Administrative and Public Law Section
Featured Article - March 1997
A NEW SPECIALTY COURT FOR TEXAS?
John Powers(1)
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State Bar of Texas Administrative and Public Law SectionFeatured Article - March 1997 |
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A NEW SPECIALTY COURT FOR TEXAS?John Powers(1) Originally prepared for theTexas Administrative Law Journal
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Table of Contents
In its 1995 regular session, the Texas legislature had before it a bill to establish a specialty court
to review the contested-case decisions of most state administrative agencies.(2) The bill appeared
to originate from a general interest in improving the agencies' adjudication function.(3) Because
the bill was not introduced until late in the legislative session, it did not progress very far. A
similar bill might, however, be introduced in the next legislative session. The purpose of this
article is to suggest several important factors that should be taken into account in any future
legislation aimed at establishing such a court.
THE PRESENT SYSTEM OF JUDICIAL REVIEW Unlike the limited number of particular powers delegated to Congress in the federal constitution, the Texas Constitution delegates to the legislature a plenary power of legislation.(4) Using this power, the legislature has established over 200 administrative agencies exercising statutory powers of various kinds--powers that enable the agencies to do what the legislature might itself do by legislation if only that body had the time and expertise.(5) While the powers exercised by the agencies originate in legislation, the agencies exercise those powers as part of the executive department of government. This may involve separation-of-powers problems as discussed hereafter. In all events, the legislature typically provides in an agency's constitutive statute that the agency's actions are subject to judicial review. Absent such a provision, the separation-of-powers principle of the Texas Constitution forbids judicial-department review and revision of executive-department action. An exception applies, of course, in the case of executive action that causes a deprivation of liberty or property without due process of law.(6) In 1976, the legislature elevated and standardized the procedures followed by most state
administrative agencies in their legislation (rules) and adjudications (contested-case decisions).
This was accomplished by the legislature's adoption of the main features and text of the then-current Model State Administrative Procedure Act of 1961.(7) The 1976 legislation also
prescribed the scope and manner of judicial review in those causes of action the legislature
authorizes in the various agencies' constitutive statues.(8) The 1976 legislation has been codified in
the present Administrative Procedure Act.(9) For convenience, litigation governed by the
Administrative Procedure Act (APA) will be referred to hereafter as "APA litigation."
When the legislature has authorized suits for judicial review of an agency's contested-case
decisions, and such decisions are not excluded from the provisions of the APA, the suit must be
brought in one of the ordinary district courts of Travis County. It may not be brought
elsewhere.(10) The APA prescribes the standing required to maintain such a suit, the manner and
course of proceeding in the suit, and the specific grounds upon which the district court may
reverse the agency decision and remand the controversy to the agency.(11) Appellate review of the
district-court decision is authorized "in the manner provided for civil actions generally."(12) This
means that a party dissatisfied with the district-court decision may appeal that court's judgment to
the Court of Appeals at Austin; and a party dissatisfied with the Court of Appeals decision may
obtain still another review in the Supreme Court of Texas if that court grants an application for
writ of error. Because the scope of judicial review is statutorily limited to whether the agency
committed one of the six errors of law specified in APA section 2001.174(2)(A)-(F), each court's
review is identical. The statutory provisions for as many as three judicial reviews of the same
agency decision, each inquiring whether the decision rests upon an error of law committed by the
agency, might reasonably be viewed as overkill. After all, the analogous provision for judicial
review in the federal system allows for only two judicial reviews as a general rule.(13) And
practically speaking, judicial review in the federal system is confined to only one court--a federal
court of appeals--because the chances of obtaining a writ of certiorari from the Supreme Court of
the United States are generally very slim.
The district courts of Travis County have, as stated, exclusive original jurisdiction over the great bulk of APA litigation. The Travis County district courts are, however, courts of general original jurisdiction. Consequently, they also hear and determine cases involving a great variety of common-law actions and various statutory causes of action ranging from divorce cases to criminal cases to deceptive-trade practice cases. They are busy courts indeed and promise to become even busier because they serve a growing metropolitan area and because APA litigation necessarily increases with the state's population and economy and the increasing role of government in society.(14) Because the Travis County district courts lie within the geographical jurisdiction of the Court of Appeals at Austin, the latter has become, in effect, the court of appeals with appellate jurisdiction over the bulk of APA litigation. And like the Travis County district courts, that appellate court also carries a case load of ordinary civil and criminal litigation. The author estimates that APA litigation consumes, on average, about one-fourth of the time and labor of the Court of Appeals at Austin.(15) The Travis County district courts and the Court of Appeals at Austin have judges that are, of
necessity, generalists. This is the natural consequence of the variety of cases those courts must
decide in exercising the whole of their constitutional and statutory jurisdiction. For many years
now those courts have also decided APA litigation in an exercise of the special jurisdiction
assigned them by the various statutes that authorize suits for judicial review of the agencies'
actions. The judges of these courts have acquired a basic familiarity with the subject-matter of
APA litigation--the various statutory regimes administered by the agencies, their rules, the
applicable administrative-law rules and principles, and to some extent the technical, scientific, or
economic aspects of such litigation. Why then should anyone wish to alter the present system
wherein judicial review is conducted by generalist judges? Why is it necessary, after these many
years, to place such review in a court that specializes exclusively in APA litigation?(16)
Whether the public interest requires a court specializing in APA litigation will be the paramount
question to be answered by any future legislature that has before it a bill to create such a court.
From anecdotal evidence and from reading hundreds of appellate briefs pertaining to APA
litigation, the author believes there exists a serious degree of public dissatisfaction with the
judicial-review component of APA litigation, just as there was dissatisfaction that led to the
establishment of the State Office of Administrative Hearings in relation to the agency-adjudication
component of such litigation.(17) The dissatisfaction bears examination; some of it is unavoidable
but some, quite justifiable.
The first cause of dissatisfaction seems to rest on the fact that the APA does not allow a
reviewing court to reach and remedy all serious instances of agency unfairness. Although the
formal procedural requirements of the APA are designed to assure fair adjudications in the
agencies, the actual practice under those forms is thought to be somewhat different. A particular
agency's decisions may, for example, be quite capricious--there may be an absence of consistency
in the results of like cases decided by the agency. Demonstrating this fact to a reviewing court,
however, may be quite difficult. Or an agency may shape its fact findings and conclusions of law
to reach a final decision that was actually reached beforehand on unstated grounds or even extra-legal considerations.(18) This, too, is extraordinarily difficult, if not impossible, to prove in a
reviewing court. Or the agency may infer from the evidence fact findings that are clearly not
supported by a preponderance of the evidence but are not entirely unreasonable nevertheless. Or,
the agency heads in making their final decision in a contested case may infer from the evidence
fact findings that are contrary to those found by the hearing officer who personally heard the
evidence, and the final order gives no basis for doing so, even in cases of undisputed evidence.(19)
Suspicions are inevitable in such cases. The explanations may be valid or innocuous but there is
no practical way to determine the extent of the reality behind the suspicions in any particular case.
In many instances, no doubt, the suspicions may be discounted as a loser's rationalization. But
suspicion itself is a bad thing because it undermines confidence in agency adjudications and in
administrative government generally. And suspicion invariably arises when an agency fails to state
fully and frankly, in writing, the grounds upon which it actually based its decision in a contested
case.
The foregoing are not necessarily faults attributable to having judicial review conducted by
generalist judges rather than by specialist judges. The scope of review specified in the APA is a
necessary consequence of the separation-of-powers principle of the Texas Constitution.(20)
Allowing any deeper judicial examination into an agency's decision can only mean that the
reviewing court would weigh the evidence and judge the correctness of any agency policies
applied in reaching a decision in the contested case. In doing these things, the court would cross
the line into the executive branch of government in violation of the separation-of-powers
principle. Any legislation that purported to give the courts such power would be
unconstitutional.(21) It must therefore be borne in mind that any court is necessarily limited in the
scope of review it may apply to agency decisions in contested cases.
Nevertheless, the decisions of the supreme court have been such that reviewing courts are
effectively denied even the scope of review that is permissible under the constitution and that is
explicitly given the courts in APA section 2001.174. Section 2001.174 assumes the bona fide
operation of APA section 2001.141. Section 2001.141 requires that the agencies state in their
final orders the findings of fact and conclusions of law upon which the decision rests; and
Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit
statement of the underlying facts supporting the findings.(22)
This requirement is basically a dead letter in the judicial review of agency actions. For reasons
that remain unexplained, the supreme court is strangely reluctant to allow reviewing courts to
enforce APA section 2001.141, with the result that judicial review is excessively deferential to
agency decisions; such review is, in truth, a pretense, a mere charade.(23) For present purposes,
however, it is sufficient to note only that the supreme court's reluctance probably fuels the
dissatisfaction that has given rise to an interest in a specialty court that will be able to enforce
APA section 2001.141 as it was intended to be enforced.(24)
A second cause contributing to the interest in a specialty court is a feeling that generalist judges
fail to understand sufficiently the technical matters involved in some kinds of APA litigation.
How is it possible for a generalist judge to apply the relevant rules of law to an agency decision
when the judge does not accurately or fully understand the scientific or other technical material
that permeates the factual foundations of the agency decision? That material may range from
accounting through chemistry, economics, and engineering to zooglea. Even as to something so
prosaic as the federal tax code, one brilliant and experienced generalist judge declared that "the
words . . . merely dance before my eyes in a meaningless procession."(25) It is easy enough for a
court to say that the advocate's duty is to make such material understandable to a generalist judge,
but that may strain the ability of even the most able lawyer in some instances--especially when the
advocate is restricted by time limitations in oral argument and page limitations in briefing. And it
must be understood that generalist judges are pressed for time. Another civil or criminal case is
always waiting in the wings.(26) No one person can be familiar with the special knowledge,
science, or technology applicable in all fields involved in APA litigation. Nevertheless, there
remains some justification in the complaint that generalist judges sometimes miss the mark
because they do not understand sufficiently the subject matter of the litigation. And when
important economic interests depend upon the result, as they frequently do in APA litigation, it is
easy to understand the resulting dissatisfaction and belief that specialist judges would do a better
job.
A third and final cause of dissatisfaction with the present system of judicial review by a trial and
two appellate courts is that the resulting course of litigation is too long and expensive. In truth,
there appears to be no rational justification for three courts performing in the same case an
identical review of an agency decision directed at precisely the same claims of legal error. Three
times is a lot.
ADVANTAGES AND DISADVANTAGES There are both disadvantages and advantages in the present system; the same is true of a specialty
court. These may be summarized as follows:
Advantages. Specialized judges tend naturally to become more or less expert in those substantive
and procedural issues (including some that may be highly technical) that arise frequently in the
judicial review of agency action.(27) This makes for better decisionmaking. The expertness is of
two types. The first is simply that of becoming more intimately familiar with the various statutory
schemes involved. Take, for example, the Texas Water Code. As the same judges, both trial and
appellate, decide cases involving the Code provisions they become more familiar with it--the text
of the code, to be sure, but also how its various provisions fit together and how they relate to
recurring factual situations, administrative rules, administrative-agency policy, and any legislative
policy reflected in the text. At the present time, both the press of a court's total case load and the
fact that suits for judicial review of agency actions are heard infrequently by a number of different
judges at the trial and the appellate level, deny judges, to some extent, any real opportunity to
acquire such familiarity except, perhaps, as they near retirement and have participated in many
similar cases. The second kind of expertness is that specialized judges will probably acquire, over
time, an extra-legal education in the scientific and technical fields involved in APA litigation. A
judge's expertness will never approach that of a professional in those fields, but it will be greater
than it is now. Concerning both kinds of expertness, judges must at the present time attempt in
each case essentially to educate themselves anew in the subject matter of the litigation. This is a
significant waste of judicial time and effort.
Economy and efficiency are other advantages claimed for specialized courts. A specialized case
load combined with judicial expertness can produce expeditious decisions and hasten the course
of judicial review. The efficiency of the regular courts will increase simply because an entire
category of lawsuits (APA litigation) will disappear from their dockets.
Greater coherence and consistency are possible with a specialized court. The idea of coherence
refers to each of the several fields of regulation found in APA litigation. A specialty court would
be more likely to develop an intelligible whole out of any particular regulatory regime--the Public
Utility Regulatory Act, for example. The resulting consistency would lead to a predictability that
might well reduce controversies and in consequence the related case loads in the agencies and in
the courts. Coherence and consistency allow affected persons and businesses to arrange their
affairs in a more orderly and perhaps more beneficial manner. Coherence and consistency are
more likely under a specialty court; they suffer in the present system in which judges are elected
and change every few years. A specialty court would no doubt eliminate much of the resulting
confusion in APA litigation.
Disadvantages. Specialty courts are not all sail and no anchor. The establishment of such a court
would be attended by a loss of the generalist's wide perspective unless care is taken in the
selection of specialty-court judges. The generalist's perspective is a distinct aid to good
decisionmaking. An administrative agency's focus on an issue will almost always be narrow in
outlook and perspective--an agency's interpretation of its regulatory statute, for example. If
judicial review is undertaken by specialist judges, there is a risk of continuing or even augmenting
this narrowness, even to the point of a certain kind of exaggeration or even a certain kind of
quirkiness.(28) This is the primary disadvantage of a specialty court.
A lesser disadvantage is that of diminished prestige. In a large degree, a court's effectiveness
depends upon its prestige and the resulting respect attracted by its decisions. Such respect is
routinely given the ordinary courts of the state. It is questionable whether a specialty court would
attract the same degree of deference regarding its decisions. Compare for example, the
perception one has of the relative ascendancy of a court of appeals in the federal system and a
bankruptcy court. The problem is not insurmountable. The distinction is that the prestige of the
ordinary courts is automatic or presumed and exists until it is lost for some reason; a specialty
court must earn prestige and a resulting respect for its opinions by the high quality of its work.
Finally, there is the possible disadvantage of bias in a specialty court. A specialty court is
susceptible of bias in two ways. The first is a risk that the judges will, because of their expertness
or otherwise, tend to be selected from among practitioners in some regulatory field. Expertness is
desirable but it carries a risk that the expert will bring with him the undesirable narrowness of
view mentioned earlier. A second form of bias is that a specialty court's expertness may result in
the court's unconscious tendency to supplant the agencies themselves in their administration of
various regulatory regimes. Believing themselves wise as well as expert, and possessing the
power of awarding a remedy, specialized judges may become in practical effect the dominant
regulatory authority instead of simple protectors against agency decisions based upon prejudicial
legal errors.
ESTABLISHING A SPECIALTY COURT UNDER THE TEXAS CONSTITUTION If the Texas Legislature should decide that a specialty court for APA litigation is a good idea, that
body must next inquire whether the new court may be established by simple legislation or whether
a constitutional amendment is required. It appears that no constitutional amendment is necessary
for the reasons described below.
Article V, section 1 of the Texas Constitution expressly authorizes the legislature to "establish
such other courts as it may deem necessary and prescribe the jurisdiction and organization
thereof, and may conform the jurisdiction of the district and other inferior courts thereto." May
the legislature, without a constitutional amendment, make the jurisdiction of a new specialty court
exclusive? Stated another way, may the legislature take APA litigation from the jurisdiction of
the Travis County district courts, the Court of Appeals at Austin, and even the Supreme Court of
Texas, and vest in the new specialty court an exclusive power to hear and determine such
litigation? The Texas Constitution appears to authorize such action by the legislature.
APA litigation usually embodies the various statutory causes of action that the legislature creates
and authorizes for the judicial review of contested-case decisions taken by the agencies. The
legislature is not obligated to create such causes of action; it need not provide for judicial review
at all.(29) It necessarily follows that if the legislature is so inclined, it may assign to whatever
tribunal it chooses the determination of these statutory causes of action, making the jurisdiction of
that tribunal exclusive. But APA litigation sometimes includes, in addition to these statutory
causes of action, a party's claim that an agency action has deprived him or threatens to deprive
him of property or liberty in violation of some provision of the state or federal constitution. Of
such claims, the regular courts of the state have constitutional jurisdiction. It would not be
practical or efficient to divide APA litigation into the two parts, one being decided by a new
specialty court and the constitutional claims being decided by a regular court. May the legislature,
without constitutional amendment, also deprive the regular courts of jurisdiction to decide the
constitutional claims and assign such claims to the new specialty court to be decided jointly with
the statutory causes of action for judicial review? The discussion that follows examines this
question in terms of the constitutional jurisdiction of the district courts, the courts of appeal, and
the supreme court.
The basic delegation of jurisdiction to the regular district courts is found in article V, section 8 of
the Texas Constitution. Before 1985, this provision detailed the kinds of litigation within the
district courts' jurisdiction, gave those courts appellate jurisdiction over the actions of lower
tribunals and supervisory control over probate proceedings and the commissioners' courts, and
assigned the district courts "general original jurisdiction over all causes of action whatever for
which a remedy or jurisdiction is not provided by law or this Constitution, and such other
jurisdiction, original and appellate, as may be provided by law."(30) In substance, the district
courts were trial courts of general original jurisdiction. It was held that this earlier version of
article V, section 8 precluded the legislature's taking away any part of the regular district courts'
jurisdiction and placing such part in a specialty court, notwithstanding the legislature's
constitutional authority to create specialty courts and "conform the jurisdiction of the district and
other inferior courts thereto," as stated in article V, section 1.(31)
In 1985, however, article V, section 8 was amended. Textually, the new section was simplified;
substantively, the power of the legislature to divide and apportion jurisdiction between the regular
district courts and other, statutory tribunals such as specialty courts was declared expressly.
Article V, section 8 now provides as follows:
District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions,
proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may
be conferred by this Constitution or other law on some other court, tribunal, or administrative
body. District Court judges shall have the power to issue writs necessary to enforce their
jurisdiction.
The District Court shall have appellate jurisdiction and general supervisory control over the
County Commissioners Court, with such exceptions and under such regulations as may be
prescribed by law.(32)
The emphasized words indicate rather plainly that the legislature may now invest a statutory
specialty court with exclusive jurisdiction to decide constitutional claims based on agency actions
and thus deprive the regular district courts of that part of their original general jurisdiction.
Article V, section 6 of the constitution prescribes the jurisdiction of the courts of appeal, formerly
the courts of civil appeals. Article V, section 6 presently declares that the courts of appeal "shall
have appellate jurisdiction co-extensive with the limits of their respective districts, which shall
extend to all cases of which the District Courts or County Courts have original or appellate
jurisdiction, under such restrictions and regulations as may be prescribed by law."(33) And
because the 1985 amendment of article V, section 8 authorized the legislature to prescribe, in
effect, the "cases of which the District Courts" have no original jurisdiction, the legislature
thereby acquired from this source an indirect power to reduce accordingly (if the legislature
wishes) the jurisdiction of the courts of appeals in those cases taken from the district courts and
placed for decision in a statutory specialty court exercising original jurisdiction over such cases.
Article V, section 3 of the constitution defines as follows the basic appellate jurisdiction of the
Supreme Court of Texas: "Its appellate jurisdiction shall . . . extend to all cases except in criminal
law matters and as otherwise provided in this Constitution or by law."(34) The emphasized words
indicate, of course, the legislature's long-standing power to regulate the supreme court's appellate
jurisdiction.
Accordingly, it appears that the legislature possesses the constitutional power to establish in its discretion a specialty court, assign it exclusive jurisdiction over APA litigation, and conform thereto the jurisdiction of the district courts, the courts of appeal, and the supreme court. Whether, how, and to what extent the legislature should do so is another matter entirely. If the legislature decides to establish a specialty court for APA litigation, that body must define
the jurisdiction of the new court. For convenience, the general term "APA litigation" has been
used heretofore in that regard. A more precise definition is required. In deciding what kinds of
cases to commit to the new court's jurisdiction, the legislature may take either of two approaches.
First, the legislature may decide to assign the new court exclusive jurisdiction over all litigation
governed by the APA. This approach gives no particular consideration to the factors of expertise,
experience, and consistency that supposedly justify establishing the new court. On the other hand,
this approach has the advantage of simplicity. There is also an advantage in the legislature's
having at the start a fairly good idea of which cases will actually come before the new court under
the APA. While numerous statutes give affected persons the right to sue for judicial review, the
kinds of controversies actually brought to the reviewing courts under the present system are fairly
predictable: (1) professional-licensing disputes (health professionals, real-estate and securities
brokers, lawyers); (2) business-licensing disputes (motor carriers, waste-disposal facilities, dealers
in new automobiles, insurance companies, banks and savings and loan associations, users of
natural resources); and (3) a general category of regulatory disputes (ratemaking, investigations,
and compliance orders).
Alternatively, however, the legislature may decide to examine the various kinds of controversies
that involve the actions of state administrative agencies and match certain of them with the new
court's jurisdiction on the ground that they most require the expertise, experience, and consistency
that a specialty court provides. For example, review by a regular, local district court seems
clearly preferable to review by an Austin specialty court in disputes arising under the Catastrophe
Property Insurance Pool Act, when the subject matter is essentially the determination of common
law contract disputes. Nevertheless, it has been held that these disputes must be determined
under the APA in a Travis County district court even though the claims ordinarily originate on the
Texas coast.(35) Or the legislature may wish to restrict the specialty court's jurisdiction to disputes
not likely to include a common-law cause of action. This alternative approach will require of the
legislature and its staff much research, study, and deliberation in categorizing the controversies to
be assigned the new court.
There appears no need, however, for the legislature to define once and for all the jurisdiction of
the new specialty court. It would be enough for the legislature to proceed merely on an
experimental basis, assigning the new court a few types of cases and perhaps adding to them as
the new court gained experience. This course was chosen by the legislature in assigning
contested-case litigation to the administrative law judges of the State Office of Administrative
Hearings. Depending on the results, some types of cases might even be removed from the new
court's jurisdiction and others added.
The legislature's next task, after defining the jurisdiction of the new court, would be to decide
whether and to what extent the decisions of the specialty court should be final. It is possible that
the legislature might place the new court on a level with the regular district courts, subjecting the
specialty court's decisions to appellate review by a court of appeals and the Supreme Court of
Texas. Or the legislature might place the new court on a level with a court of appeals and provide
that the specialty court's decisions shall be subject to review by the Supreme Court of Texas
alone. If one recalls that a primary advantage attributed to a specialty court is a savings of time
and expense, it makes little sense to continue the present system of three tribunals performing an
identical review in the same manner in arriving at a decision whether the agency made a mistake
of law that prejudiced the plaintiff. And if one also recalls that other advantages attributed to a
specialty court are those of expertness, experience, and consistency, making the specialty court's
decision reviewable by any generalist court makes little sense, especially when the generalist court
includes judges chosen at frequent intervals through the process of partisan politics. Given these
factors, the legislature may wish to place the new court on a level with the Supreme Court of
Texas and the Court of Criminal Appeals. This means, of course, that the decisions of the
specialty court would not be subject to review by any other state court. A party dissatisfied with
the decision of an administrative agency would have one and only one opportunity for judicial
review--a fair trade, perhaps, for the time and expense saved and for the other advantages
expected from a specialty court.
The legislature will have to decide how the new court will be staffed. The legislature might
decide to initially provide that the staff and facilities of an existing court--perhaps the Court of
Appeals at Austin--should serve the new court until its caseload justifies an independent
establishment. More elaborate provision could be made when needed.
Leaving to the last what is perhaps the most difficult problem, the legislature will have to decided
how the judges of the new court will be selected.
The selection of judges through the ordinary course of partisan political elections is a proposition
fundamentally opposed to the basic considerations of expertness, experience, and consistency
upon which one decides that a specialty court is a good thing to have. For example, twenty-three
individuals have served on the Supreme Court of Texas in the past twelve years only. In contrast,
Justices J. Harvey Baugh, Mallory B. Blair, and James W. McClendon, who as judges of the
former three-judge Court of Civil Appeals at Austin, laid down the foundations of Texas
administrative law, served together for twenty-five years. Not only are elected judges serving for
much shorter periods now, but we have also seen recently that a judicial candidate must have only
a law license and a merely colorable claim to have "practiced" law for a specified number of years
in order to qualify for election. The factors of expertness, experience, and consistency have
become basically irrelevant to the selection of judges for the ordinary courts. The electorate is,
nevertheless, obviously in favor of the present system of judicial selection, and in some respects
the system has some merit. The legislature probably would wish, nevertheless, to limit as much as
possible the effect of partisan politics on the selection of judges for any new specialty court for
APA litigation. There is a means by which this may be done.
Under the Texas Constitution, the legislature probably has discretion to establish a specialty court
and to provide that the judges of the court shall be appointed by the governor with the advice and
consent of the senate.(36) If the legislature chose that method of selection, it would probably
reduce the direct political considerations that would otherwise attend the selection of judges for
the new court and would permit a better consideration of more relevant factors. Article XVI,
section 30 of the constitution would limit the terms of the appointed judges to two years,
however, and such short terms would plainly be detrimental to the goals of expertness, coherence,
and consistency and would invite indirect political considerations in the governor's recurring
appointments.(37) The short terms would also make it difficult to attract energetic, ethical,
experienced, and knowledgeable individuals.(38)
There is, however, one possible way around the problems created by the constitutional limitation
of two-year terms for appointed judges of specialty courts. If the legislature has the constitutional
power and discretion to provide that the judges of specialty courts shall be appointed, then it is
difficult to imagine any constitutional barrier against the legislature's prescribing in detail the
personal qualifications it wishes those judges to have. To the extent that the legislature precisely
prescribes the qualifications required of judges appointed to the specialty court, it may confine the
governor's discretion in making the appointments. The legislature might, for example, provide
that appointments to the court shall be made from among the list of retired judges who have
elected to be judicial officers and who have a specified number of years of actual experience and
have demonstrated ability in the field of administrative law.(39) This would give the new court
both expertness and experience in administrative law as well as the viewpoint of generalist judges.
The statutory language might be varied, of course, to accommodate the appointment of other
qualified judges, practitioners, and other lawyers.
Establishing a new specialty court along the lines discussed above involves other considerations, such as fixing the court's power to issue writs, making the several statutory amendments necessary to conform the jurisdiction of the regular courts to that of the new court, providing for APA litigation that may involve common-law causes of action or other statutory causes of action, and setting the salaries of court officials and staff and providing for their retirement.(40) Given the importance of the relevant considerations and issues, the legislature will no doubt wish to proceed cautiously and with much study in deciding whether the public interest requires a new specialty court for APA litigation and how, exactly, such a court should be fitted into the judicial architecture presently established in the Texas constitution and statutes. |
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Footnotes:1. Justice, Texas Court of Appeals at Austin; BBA, University of Texas 1961; LLB, University of Texas School of Law, 1968. The opinions and conclusions expressed in this article are those of the author. They do not necessarily reflect the views of any other person. 2. Tex. H.B. 3069, 74th Leg., R.S. (1995). The term "specialty court" refers to a court having limited subject-matter jurisdiction. Examples are the Texas Court of Criminal Appeals, at the appellate level, and at the trial level the numerous domestic-relations and special juvenile courts as they existed before 1977. See Annual Report, Texas Judicial Council and the Office of Court Administration (1994). 3. This interest is not new. It led in 1991 to the creation of the State Office of Administrative Hearings and a new departure from old practices in contested-case adjudications by several state agencies. See John Powers, The Independence of Hearing Officers, 1 Tex. Admin. Law J. 3 (1991). The statutory provisions pertaining to the State Office of Administrative Hearings are found in Tex. Gov't Code Ann. &167;&167; 2003.001 - .048 (Vernon Supp. Pamp. 1996). 4. Tex. Const. art. III, &167; 1; De Shazo v. Webb, 113 S.W.2d 519, 523 (Tex. 1938). 5. See generally, John E. Powers, Agency Adjudications, 1-6 (1990). 6. Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex. 1967); Brazosport Sav. & Loan Ass'n v. American Sav. & Loan Ass'n, 342 S.W.2d 747, 750-52 (Tex. 1961); Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622 (Tex. Civ. App.--Austin 1941, writ ref'd). 7. Revised Model State Administrative Procedure Act (1961), 15 U.L.A. 147-554 (West 1990). The provisions of the 1961 Model Act were designed to give "reasonable uniformity of practice and fair procedural methods for the benefit of all person affected by state administrative action." Id., prefatory note at 138. Among the principles embodied in the 1961 Model Act, insofar as these pertain to agency adjudication, are: (1) assuring "fundamental fairness in administrative adjudicative hearings;" (2) assuring that "the responsible deciding officers and agency heads" have a personal familiarity with the evidence in deciding cases; and (3) providing "proper proceedings for and scope of judicial review of administrative orders, thus assuring correction of administrative errors." Id., at 142. Presumably, these principles also underlie the Texas legislation that incorporates the features and text of the 1961 Model Act. 8. The 1976 legislation adopting the 1961 Model Act was named the Administrative Procedure and Texas Register Act, formerly found at Tex. Rev. Civ. Stat. Ann. art. 6252-13a. For a full discussion of the contested-case and judicial-review provisions of that legislation, see Robert W. Hamilton & J. J. Hewett, III, The Administrative Procedure and Texas Register Act: Contested Cases and Judicial Review, 54 Tex. L. Rev. 285 (1976). The 1976 legislation did not itself give a statutory right of judicial review of any agency's contested-case decisions. Id., at 289; see Southwest Airlines Co. v. Texas High-Speed Rail Auth., 867 S.W.2d 154, 158 (Tex. App.--Austin 1993, writ denied). That right must be found in some other statute--ordinarily a provision in some constitutive statute--that authorizes a suit for judicial review of an agency's decision. See e.g., Tex. Rev. Civ. Stat. Ann. art. 4525(b), (c) (Vernon Supp. 1996) (Board of Nurse Examiners); Public Utility Regulatory Act of 1995, Tex. Rev. Civ. Stat. Ann. art. 1446c-0, &167; 1.301 (Vernon Supp. 1996) (Public Utility Commission). Of course, a statutory scheme may provide for agency adjudications and not provide for judicial-department review. See e.g., Employees Retirement System v. Foy, 896 S.W.2d 314 (Tex. App.-Austin 1995, writ denied). The 1976 legislation did authorize affected persons to bring a cause of action for declaratory judgment to determine the validity or application of an agency rule. See Tex. Gov't Code Ann. &167; 2001.038 (Vernon Pamp. 1996). 9. Administrative Procedure Act (APA), Tex. Gov't Code Ann. &167;&167; 2001.001-.902 (Vernon Pamp. 1996). No substantive change attended codification of the 1976 legislation. See Act of May 4, 1993, 73rd Leg., R.S., ch. 268, &167; 47, 1993 Tex. Gen. Laws 583, 986. 10. The contested-case provisions of the APA do not apply to the following: the regulation of driver's and commercial-driver's licenses; certain benefits administered by the Texas Department of Human Services and the Texas Employment Commission; certain actions taken by the Finance Commission of Texas and the Banking Commissioner; matters pertaining to the parole or other prisoner releases; the regulation of certain certifications issued by the Texas Department of Public Safety; and matters related solely to the internal practices of state agencies. See APA &167;&167; 2001.221-.224. Suits for judicial review authorized by section 32.18 of the Alcoholic Beverage Code are not subject to the exclusive venue provisions of APA &167; 2001.176(b)(1). See APA &167; 2001.225. 11. See APA &167;&167; 2001.171-.178. 12. APA &167; 2001.901. 13. See 28 U.S.C. &167;&167; 2341-51; 51 Am. Jur. 2d. Administrative Law &167;&167; 432-34 (1994). 14. On August 31, 1994, 52,640 cases were pending in the thirteen Travis County district courts.
During the preceding fiscal year, these courts had disposed of 25,009 cases. The cases fell into
the following categories:
Source: Annual Report, n.1., supra.
The cases disposed of in the fiscal year amount to almost 2,000 for each of the thirteen district courts, an astonishing number by any measure. 15. In the period between September 1, 1994 and August 31, 1995, the Court of Appeals at Austin disposed of 392 criminal appeals and 477 civil appeals. Of the 477 civil appeals, some 42 appeals, or roughly 10 percent of the civil cases, involved APA litigation. These figures can be misleading unless one understands that the cases of APA litigation require a disproportionate amount of court time and labor. The agency record brought to the court of appeals typically requires at least one and usually as many as five or more large cardboard boxes. These contain several volumes of documents filed in the agency together with similar volumes recording the testimony given in the contested case. The documents and testimony are not easily found. Indexes are usually poor and often are not supplied at all. And unlike ordinary civil appeals, APA litigation frequently involves a complex statutory scheme augmented by equally complex agency rules found in the Texas Administrative Code. Moreover, the applicable rules of law may be explained or laid down in judicial decisions found in any number of digest topics. For example, a principle of law announced in a particular case may be found only under the digest topic "Electricity" even though it is fully applicable and controlling in a decision listed under the digest topic "Physicians and Surgeons." The digest topic "Administrative Law" lists only the judicial decisions that the West Publishing Company chose to list under that topic. For example, an important principle that a licensee is entitled to notice and an opportunity to be heard with respect to a changed rule of the agency was listed under the digest topic "Physicians and Surgeons," even though it is a principle applicable to any number of licensees in other fields. See Madden v. Tex. Bd. of Chiropractic Examiners, 663 S.W.2d 622 (Tex. App.--Austin, 1983, writ ref'd n.r.e.). 16. A well-respected jurist has expressed the following opinion:
It is a mark of a primitive judicial system to create a specialized court to handle each new
problem. The distinguishing feature of advanced court organization is a flexible judiciary capable
of adapting to new conditions with assignment of judges to specialized divisions when
specialization is advantageous, but available for reassignment to other divisions when needed.
Clarence A. Guittard, Court Reform, Texas Style, 21 Southwestern L. J. 451, 470-71 (1967) (summarizing the view of Dean Roscoe Pound, expressed in 1940). One might reply to Judge Guittard that "specialized divisions" are in principle no different from specialized courts and that Dean Pound's opinion in 1940 might well be different in 1995 when the administrative state has grown so large as to easily justify a specialized court that is expert in the law that confines administrative action within legal bounds. The persistence of specialized courts in the federal system testifies to their usefulness--the Tax Court, the Court of Veterans Appeals, the Bankruptcy Courts, the Special Court created in the Regional Rail Organization Act of 1973, and the trial and appellate courts in the military-justice system, for examples. The real issue is whether a specialty court is justified because, in a particular context and at a particular time, the advantages of specialization outweigh the disadvantages. 17. See Tex. Gov't Code Ann. &167;&167; 2003.001-.046 (Pamp. 1996). 18. A good example is found in a Texas Health Facilities Commission decision, in which that agency found that the medical-service area had "sufficient current and future population to require" the psychiatric services of proposed hospitals A and B but not C when all three proposed to build a hospital in the same Dallas location to supply the same psychiatric services. Indeed, the Commission simply found against C on all statutory and rule-based criteria and in favor of A and B on such criteria, even though many, like the criterion of population, were quite independent of which hospital would provide the services. See Charter Medical-Dallas, Inc. v. Texas Health Facilities Comm'n, 656 S.W.2d 928 (Tex. App.--Austin 1983), rev'd, 665 S.W.2d 446 (Tex. 1984). In Charter Medical, the supreme court held a court was powerless to require the agency to supply fact findings in such instances. Charter Medical, 665 S.W.2d at 451; see John Powers, Judicial Review of the Findings of Fact Made By Texas Administrative Agencies in Contested Cases, 16 Tex. Tech. L. Rev. 475, 498-512 (1985); cf. Public Util. Comm'n v. Gulf States Utilities Co., 809 S.W.2d 201, 212 (Tex. 1991); see generally, Alfred C. Aman, Jr. & William T. Mayton, Administrative Law &167; 13.10.5 (West 1993). 19. See generally, Aman & Mayton, n.15, supra, &167; 13.4.2 at 450-52. 20. The scope of review allowed by the APA is that specified "by the law under which review is
sought," that is to say, the scope of review specified in the statute that gives affected persons the
right of judicial review--usually the agency's constitutive statute. APA &167; 2001.172. If such
a statute specifies "de novo review," the controversy is tried as an ordinary civil case. This
assumes, of course, that the controversy is one over which the trial court has subject-matter
jurisdiction. Such instances are rare. More commonly, the trial court does not have jurisdiction
to review a contested case in that manner and with that scope of review. Ordinarily the agency's
constitutive statute expresses no scope of review or requires review under "the substantial
evidence rule." In such cases, the scope of review is defined as follows:
A. The reviewing "court may not substitute its judgment for the judgment of the state agency on
the weight of the evidence on questions committed to agency discretion . . . ." APA &167;
2001.174.
B. The court "shall reverse or remand the case for further proceedings if substantial rights of the
appellant have been prejudiced because the administrative findings, inferences, conclusions, or
decisions are:
(1) in violation of a constitutional or statutory provision; (2) in excess of the agency's statutory authority; (3) made through unlawful procedure; (4) affected by other error of law; (5) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise
of discretion."
APA &167; 2001.174(2)(A)-(F). Each of the six specified grounds for reversal of an agency decision raises a question of law, including whether an agency fact finding is supported by "substantial evidence." Many judicial opinions speak of an agency's final decision as being supported by "substantial evidence." This is extremely poor usage. The substantial-evidence inquiry refers properly to agency fact findings, not to the agency decision which is a culmination of the agency's finding the facts and applying the law and administrative policy to them. How much evidence is "substantial," and therefore sufficient to "support" a fact finding? It is not a question of whether the agency fact finding is right but whether it is reasonable in light of all the evidence--"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Nat'l Labor Relations Board, 305 U.S. 197, 217 (1938); see generally, Bernard Schwartz, Administrative Law &167; 10.07-.09 (1984). 21. See e.g. Davis v. City of Lubbock, 326 S.W.2d 699 (Tex. 1959); Fire Dep't v. City of Fort Worth, 217 S.W.2d 664 (Tex. 1949). 22. APA &167; 2001.141(d). 23. See e.g., Goeke v. Houston Lighting & Power Co., 797 S.W.2d 12, 15 (Tex. 1990). ("There
is no precise form for an agency's articulation of underlying facts, and courts will not subject an
agency's order to some 'hypertechnical standard of review.'") In the contested case, no two
commissioners agreed upon any findings of underlying fact recommended in the hearing officer's
proposal for decision. As the dissenting supreme court justice noted, "This is another example of
the judiciary having to wrestle with an equivocal decision of the Public Utility Commission." Id.
(Gonzalez, J., dissenting). The interested reader should refer to the opinion of the court of
appeals to understand the factual underpinnings of the agency decision; the description in the
opinion of the supreme court is inadequate. See Goeke v. Houston Lighting & Power Co., 761
S.W.2d 835 (Tex. App.--Austin 1988), rev'd, 797 S.W.2d 12 (Tex. 1990). The epithet "hyper-technical" is entirely fatuous. Findings of underlying fact are indispensable to meaningful judicial
review in most instances. The Supreme court's reluctance to enforce APA section 2001.141 is
also reflected in State Banking Board v. Allied Bank Marble Falls, 748 S.W.2d 447, 449 (Tex.
1988) and Charter Medical, 665 S.W.2d 446. An excellent criticism on this point is found in
Kerry McGrath, Substantial Evidence Review in Texas--Still Insubstantial After All These Years,
44 Baylor L. Rev. 223, 237-43 (1992).
It is a peculiar conception that a reviewing court must "wrestle with" an agency decision that fails
to supply adequate findings of fact or that is rendered "equivocal" for some other reason. The
correct idea was expressed as long ago as 1947:
It will not do for a court to be compelled to guess at the theory underlying the agency's action;
nor can a court be expected to chisel that which must be precise from what the agency has left
vague and indecisive. In other words, "We must know what a decision means before the duty
becomes ours to say whether it is right or wrong."
S.E.C. v. Chenery Corp., 332 U.S. 194, 196-97 (1947). 24. APA section 2001.141 is taken almost verbatim from section 12 of the 1961 Model Act. The intent underlying section 12 of the Model Act is discussed in Powers, supra, 16 Tex. Tech. L. Rev. at 508-09. 25. Judge Learned Hand, quoted in Harold H. Bruff, Specialized Courts in Administrative Law, 43 Administrative L. Rev. 329, 337 (1991). Professor Bruff's article and that of Professor Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 Penn. L. Rev. 1111 (1990) furnish many of the themes discussed in the present article. 26. See Revesz, supra., 138 Penn. L. Rev. at 1119-20. Professor Revesz points out that one important benefit of a specialty court is that it relieves the regular courts of time-consuming specialized litigation such as that under the APA. 27. "Even without technical expertise, a specialized tribunal quickly builds up expertise in its own field. Where there is a continuous flow of claims of a particular class, there is every advantage in a specialized jurisdiction." Sir William Wade, Administrative Law at 898 (1989). 28. See Paul Burka, Trial by Technicality, Texas Monthly, vol. 4 at 126 (1982) (criticizing the evolution and dominance of technicalities in the decisions of the Texas Court of Criminal Appeals). 29. See City of Amarillo v. Hancock, 239 S.W.2d 788, 790 (Tex. 1951), stating as follows:
When the legislature creates an administrative agency, the legislature may prescribe rules and regulations governing the administrative body and the method by which the rights determined by such body stall be enforced. Judicial review of administrative action may be specifically provided, . . . or specifically denied by the legislature, but even where judicial review is specifically provided it will be denied if the legislature requires the court to substitute itself for the administrative body and perform purely administrative acts . . . Or the legislature may simply be silent upon the subject. Although the legislature specifically denies judicial review, decisions of any administrative body may be attacked in court if they violate some provision of the State or Federal Constitution. 30. Tex. Const. art V., &167; 8 (emphasis added). 31. Reasonover v. Reasonover, 58 S.W.2d 817 (Tex. 1933). 32. Tex. Const. art. V, &167; 8 (emphasis added). 33. Tex. Const. art. V, &167; 6 (emphasis added). 34. Tex. Const. art. V, &167; 3 (emphasis added). The power of the legislature to regulate the appellate jurisdiction of the supreme court was acknowledged as long ago as 1895. See State ex. rel. Dunn v. Thompson, 30 S.W. 1046 (Tex. 1895). 35. See Tex. Catastrophe Property Ins. Ass'n v. Council of Co-Owners, 706 S.W.2d 644 (Tex. 1986); see also the discussion of this and related issues in Judge Hume Cofer, Judicial Review of Agency Law Decisions of Scope of Agency Authority, 42 Baylor L. Rev. 255 (1990). 36. See Jordan v. Crudgington, 231 S.W.2d 641 (Tex. 1950). The court reasoned as follows:
[T]here is an express provision for the mode of selecting judges of every other court mentioned in
the Constitution except "such other courts as [the legislature] may deem necessary." There is no
provision as to the mode of selecting judges for courts of that nature. The absence of any such
provision evidences an intent to leave the power of appointment within the discretion of the
Legislature. [Objections to the statute providing for appointed judges] would be valid if the court
created by the Act were a district court, but since it is not a district court, the objections are
without merit. No provision of the Constitution may be pointed to in support of them.
Jordan, 231 S.W.2d at 646 (emphasis added). The court reasoned from the discussion in M. L. Cook, Texas Courts of Exceptional Jurisdiction and Organization--Constitutionally--Small Claim Courts, 9 Tex. L. Rev. 388, 406-09 (1931). 37. Article XVI, section 30 provides that "[t]he duration of all offices not fixed by this Constitution shall never exceed two years." See Jordan v. Crudington, 231 S.W.2d at 646. 38. The experience of the governor's appointments to the former Commission of Appeals is instructive. Between 1918 and 1931, the governor appointed twenty-five individuals to the Commission for what were essentially two-year terms as the Commission's existence was continued each legislative session after 1918. There were six commissioners each term. Each of the twenty-five appointees served on average something over two years. In 1931, the legislature extended the commissioners' terms to six years, reportedly to "remove the Commission from what is known as the 'spoils system' in politics." Ben H. Powell, A Comparative Review of the Recent Statute Changing Method of Appointment of Members of the Commission of Appeals of the Supreme Court and Enlarging Their Duties, 9 Tex.L. Rev. 190, 192 (1931). The commissioners' decisions were not binding as precedent until adopted by the Supreme Court. Apparently no constitutional authorization was required for the commissioners' six-year terms on the theory that the position was not an "office" within the meaning of article XVI, section 30 of the constitution because no judicial power had been delegated to the commissioners. See, e.g., Donges v. Beall, 41 S.W.2d 531 (Tex. Civ. App--Fort Worth 1931, writ ref'd). 39. See Tex. Gov't Code Ann. &167; 75.001 (Vernon Supp. 1996). Using retired judges who have elected to be judicial officers under the statute may be a distinct financial advantage. These judges are paid only for the days they work. It may be that in the first years of the new court's existence, the caseload will not require, for example, three full-time judges. 40. As noted previously, each year the Court of Appeals at Austin presently decides about 40 appeals involving contested-case decisions by the agencies. If a specialty court was established to perform the task of judicial review in such cases, it is reasonable to expect that the number of contested-case decisions taken to the new court for review would increase as judicial review became less expensive, more expeditious, and more predictable. Even so, it is difficult to imagine that the new specialty court would require more than three judges and a proportionate number of other personnel. Thus, the new court need not be a large institution. |
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