A longtime statutory probate judge in Harris County, Texas, is raising an issue which begs the question of where the legislature’s power over the judiciary begins and ends. It is his opinion, that Senate Bill 1876, relating to appointing attorneys, mediators, or guardians, via a rotating list, is unconstitutional as violative of the separation of powers.
The separation of powers doctrine prohibits one branch of government from exercising a power belonging inherently to another.
Texas courts have consistently held that the separation of powers doctrine is violated “when the functioning of the judicial process in a field constitutionally committed to the control of the courts is interfered with by the executive or legislative branches.”
The senate bill is set on the general state calendar in the Texas State House for Monday, May 25th. The House will convene on Memorial Day, and has worked the holiday weekend, in order to get their work done at the end of the 84th Legislative session.
The seventeen-year jurist, probate court judge Rory Olsen, has told Texas lawmakers that the bill, which was passed in the Senate on May 4th, and heard in the House Judiciary and Civil Jurisprudence committee on May 19th, is an unconstitutional overreach by the legislature upon the judiciary.
Judge Olsen testified before the House Judiciary and Civil Jurisprudence committee when the committee held a hearing and took testimony.
S.B. 1876 is authored by Democrat Senator Judith Zaffirini (D-Laredo). She represents the 21st Senatorial District which stretches from the Rio Grande to the Colorado River and to the Port of Corpus Christi and the Valley. Sen. Zaffirini is the second longest serving legislator in the Texas Senate.
Judge Olsen told Breitbart Texas, “The Texas constitution is unique because it contains a very explicit separation of powers provision which dates back to the Republic of Texas. I am of the opinion that SB 1876 violates the doctrine of the separation of powers because it attempts to micromanage the court system in a way far beyond the lawful powers of the legislature.”
The judge continued, “This issue needs to be addressed now before things get any further out of hand.”
The 65-year-old judge earned his Juris Doctor from Duke University, his master of laws in taxation (L.L.M.) from Southern Methodist University, and his master of judicial studies (M.J.S.) from the National Judicial College.
The bill provides that every court in the state of Texas shall establish and maintain a list of all attorneys who are qualified to serve as an attorney ad litem, guardian ad litem, mediator, or guardian. Each court must then use a rotation system and appoint the attorney whose name appears next on the list. If the lawyer is appointed, the court then must place that attorney’s name at the end of the list.
Article II, section 1 of the Texas Constitution provides:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative to one; those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
Judge Olsen states that S.B. 1876 is attempting to micromanage how courts make appointments. The power to appoint people to assist a court in the performance of its duties is a power properly attached to the judiciary and no other branch of government.
Soon after the Speedy Trial Act became effective, Judge Sam Houston Clinton, Jr. of the Texas Court of Criminal Appeals prophesied in an opinion that the Speedy Trial Act was “‘subject to an attack that its effects violate the separation of powers provision of Article II of the Constitution of the State of Texas.’”
In his earlier opinion in a case (Ordunez v. Bean), Judge Clinton opined that the Texas Speedy Trial Act deprives prosecuting attorneys of their right to exercise judgment and discretion in performing their exclusive prosecutorial functions.
He was also of the opinion that it entrenched upon the power and authority of state trial courts to manage their affairs, including controlling their own dockets.
And true to Judge Clinton’s prediction, the highest criminal court in Texas later found the Texas Speedy Trial Act unconstitutional because it violated the separation of powers doctrine.
Judge Olsen has served as an adjunct professor at the University of Houston Law School and the National Judicial College.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2.