The Texas Supreme Court: A Narrative History, 1836–1986

Prologue

prologue WhenTexas voters line up at the polls every other November, they do so to choose not just their statewide executive officials and the next legislature, but also that portion of their judiciary standing for election. Included on the ballot are candidates for the Texas Supreme Court, the Court of Criminal Appeals, and the fourteen regional Courts of Appeals. The judges elected to serve on those appellate benches join a vast judicial system that also includes more than 450 state district court judges, 500 county court judges, 800 justices of the peace, and 1,500 municipal court judges.1 Very few of the voters who cast their ballots have any awareness that many of the rights that they take most for granted, including preservation of their homesteads from seizure for debt, or the right to adopt children, or, most especially, the right of married women to community property, do not stem from Texas’s association with the United States or from America’s adoption of the English common law. This lack of understanding is not surprising, for it dates almost from the time of Texas’s admission as the twenty-eighth state in 1845. In the realm of women’s rights, the misinformation began with the publication of the monumental History of Woman Suffrage, edited by suffragist pioneers Elizabeth Cady Stanton, Matilda Joslyn Gage, and Susan B. Anthony. “NewYork,” they declared, “was the first state to emancipate wives from the slavery of the old common law of England, and to secure to them equal property rights. This occurred in 1848.”2 In point of fact, Texas had joined the Union three years earlier than that with a community-property provision enshrined in its state constitution (thanks to strong support from the Republic-era judiciary), but that fact was not widely publicized in the North because it was thought unseemly to acknowledge such a progressive stance coming from a southern, slaveholding state. In fact, so far from being as progressive as Texas, New York THe Texas supreme CourT 2 debated a community-property provision at its own constitutional convention in 1846, and turned it down.3 The state of Texas is now more than one and a half centuries old, but the roots of many of its most basic legal features predate its association with the United States by some three and a half centuries—and are part of a legal heritage vastly different from that adopted by England and America: that of Spain. And indeed, its recognition of the legal equality of women reaches back to the fifteenth-century monarch who was the first to insist upon that station for herself: Queen Isabella of Castile. When Christopher Columbus arrived in the New World in October 1492, he was just past forty years old and had already experienced a life of high adventure and cruel disappointment.4 He was Genoese, an Italian, sailing in service of the joint monarchs of a newly unified Spain, Ferdinand of Aragon and Isabella of Castile. Both Italy and Spain, as countries of the western Mediterranean, had inherited the intellectual legacy of ancient Rome. Their languages, cultures, and customs were similar; they adhered to the Roman Catholic religion; and their legal systems were based on the Roman civil law. There were aspects of Ferdinand and Isabella’s regime, such as the persecution and expulsion of the Jews, for which history has held them—but particularly Isabella—to more or less strict account. But other aspects of their government were remarkable for their forward thinking. In the law of debtor and creditor, their joint decree was that debts should be enforced, but that collection should not impair the ability of the debtor to make a living. This was in stark contrast to the theory of debt under the English common law, which embraced even the imprisonment of debtors until they could think of some way to pay what they owed. Other aspects of Spanish law reflected equally sound common sense. Most of Iberia was semiarid, and the purchase of land did not include the right to adjoining or even through-flowing water unless that right was specifically included in the purchase. This was the polar opposite of the corresponding practice under the Anglo-Saxon common law, where in rainy England the right to use the abundant water was assumed without question. The Spanish civil law also recognized the concept of adoption, by which children other than legitimate “heirs of the body” could be legally included in families...