To Preserve and Protect Harris County’s Historic Court Records

by David Furlow1

This is the story of Francisco Heredia, a man who makes a difference every day. Francisco has taken charge of helping preserve Harris County’s – and Houston’s – historic legal heritage. As Team Leader of Harris County District Clerk Chris Daniel’s Historical Documents Records Center, Francisco Heredia ensures that the record of Harris County’s rich legal heritage is preserved, protected and easily accessible to lawyers, judges, justices, historians and members of the public. Anyone interested in seeing an important part of Texas legal history can examine these records in Room 200 of the Harris County Civil Courthouse.

Rust never sleeps. As graying rock and roller Neil Young sings, “Rust never sleeps.” In the absence of effective conservation, the decay and destruction of archival records is inevitable. Things fall apart, and often the center of a document fraying with time does not hold.

A little more than a decade ago, courthouse records with dramatic tales of Harris County’s history lay moldering like John Brown in his grave. An unmarked grave of docket sheets, judgments, orders, evidence and appeals, many dating back to the decade-long Republic of Texas, occupied a red brick building on a grubby corner of downtown Houston at the intersection of Texas and Austin. Climate control consisted of a single window-unit familiar to anyone who suffered through their buzzing, rattling and periodic breakdowns during the Fifties and Sixties. The acidity of paper, high humidity, the ravages of hurricanes and floods, the jaws of rats and roaches, and decades of neglect were reducing Harris County’s judicial history to fading stacks of confetti.

Enter Francisco Heredia. Born in Michoacán, Mexico, Francisco came to Houston in 1976. He has lived here ever since. Francisco and his wife Yozi have raised three children—Daniela, Victoria and Francisco—who attend KIPP Academy. Francisco developed an interest in history while studying computer information systems at the University of Houston. Francisco is grateful to the city that welcomed him. He gives back to his community by preserving and protecting its history.

Francisco went to work in the Customer Service Center of the Harris County District Clerk’s Office in 1996. He began his efforts to preserve Harris County’s historic courthouse records in 1998. At the time, records of trials, litigation and appeals, many of them historically unique, were decaying and disorganized. Many had been destroyed. And too many of those that remained were assigned for disposition in Dempsey dumpsters.

Under the tutelage of a concerned county employee, Michael Sturm, Francisco familiarized himself with how to find and preserve century-old records. By 2004, he knew that the county had to take action to preserve its legal history for future generations.

The creation of the Harris County Historical Documents Center. At the same time, other county leaders recognized that the County’s and Houston’s historical heritage was at severe risk. Before his retirement in 2009, Harris County District Court Judge Mark Davidson had served as Judge of the Eleventh Judicial District for twenty years. While serving on the bench, he began researching and publishing the history of Harris County’s judiciary.

Before he resigned his position as District Clerk to run for County Judge, Charles Bacarisse earned well-deserved praise for taking effective steps to preserve the County’s courthouse records, modernize dockets, and make current records accessible online. When Bacarisse examined the decaying records of the county’s courts, he saw the severe damage that had already been done.

Together with Heredia, Judge Davidson and District Clerk Bacarisse began working together in 2004 to organize the old courthouse records, raise public awareness, and solicit the funds necessary to preserve the courthouse records before they were forever lost. They removed the decaying records from the brick warehouse at Texas and Austin in 2001 and brought them to Harris County’s Civil Courthouse. On October 24, 2006, County officials opened the Historical Document Room to provide the public with access for viewing historical documents from 1837—1925.


Francisco Heredia, in front of the old brick repository of Harris County’s judicial records (top photo, David A. Furlow, 2014) and in the current Historical Documents Record Center (Harris County District Clerk’s photo)

Working in close association with Judge Mark Davidson and other members of Harris County’s justice system, Francisco acted effectively to preserve a treasure trove of Harris County judicial records, including some 35,000 pages of court records dating back to the Republic of Texas.

Historical records are now available through the District Clerk’s website. Current District Clerk Chris Daniel shares Francisco Heredia’s love of Harris County’s legal history. Born in Houston and raised in Jersey Village and northwest Harris County, he learned about world history and Dutch from his mother, Jolie, who grew up on Curacao, a Dutch island colony off northern Venezuela. Chris honors former District Clerk Bacarisse’s vision by making the County’s judicial records available at the Historic Documents Record Center in Room 200, on the Second Floor of the Civil Courthouse at 201 Caroline in downtown Houston. The Center is open from 9 AM to 1 PM on Wednesdays and from noon to 4 PM on Tuesdays and Thursdays.

Chris and Francisco make historic documents available to historians, lawyers, judges, and the general public free of charge on a page of Chris Daniel’s website at http://www.hcdistrictclerk.com/common/historicaldocument/HistoricalDocumentsMain.aspx. Judge Davidson provided the public with a Historical Case of the Month on a webpage that provides easy access to previous histories of the judiciary, including The Case of the First Woman Juror, The First Report of the Grand Jury on the Harrisburg County Jail, and Houston’s First Thanksgiving at http://www.hcdistrictclerk.com/common/About/HCDCNews.aspx?CoM=1. In addition, a former employee of the District Clerk’s Office, Claire Kennedy, has organized a public display of records and exhibits on the first floor of the Civil Courthouse.

The District Clerk’s Office has teamed with the Houston Bar Foundation to raise the funds needed to continue restoring and preserving Harris County’s past. The Houston Bar Foundation is accepting tax-deductible donations to preserve records. Those who want to assist in preserving these valuable records can write a check to the Houston Bar Foundation Records Preservation Project at P.O. Box 4651, Houston, Texas 77253.

The Historical Document Center’s record of a breach of warranty case involving the 1853 sale of a slave and a Texas Supreme Court appeal. One interesting case file available at the Center is a slavery case, Tilley v. Scranton, appealed to the Texas Supreme Court as Scranton v. Tilley, 16 Tex. 183 (1856). The case arose in 1854 as a purchaser’s breach of warranty lawsuit against the auctioneer/seller of a slave. George W. Tilley, the purchaser of a slave, sued F. Scranton & Company.

Tilley sued to recover the value of a slave named Friday who was misrepresented as healthy during a July 6, 1853 sale in Houston. The slave actually had epilepsy and died in the autumn of 1853 after suffering convulsions. The court’s record reflects that, “if [Friday] had been sound as warranted, his value would have been $ 1,500; that plaintiff procured the best medical attention for him; that his services were of no value, and that plaintiff, in addition to the loss of the value of said slave, suffered other damage as aforesaid to the amount of $ 500. [Tilley prayed] for the value of the slave and the other damages, and general relief.” Id. at 184.

Because of the passage of time and universal modern agreement that slavery was one of the world’s great evils, the Texas Supreme Court’s discussion of the case is likely to shock most readers. But the decision reflects the way social mores have changed over the past two centuries.

The Defendants pled a general demurrer and denial. Trial took place on the December 29, 1855. “Friday was apparently about sixteen years old; color, between mulatto and black; [and] delicately formed.” Id. at 185. Witnesses described Friday’s fevers, fits, and convulsions. Contending experts differed as to whether Friday was sick when sold or whether he died of heat stroke. The jury found for the plaintiff $1,100, the value of the slave as misrepresented, along with prejudgment interest dating pack to the sale on July 6th, 1853, and thirty dollars damages. The trial court overruled a motion for new trial. Id.

Chief Justice Royal Tyler Wheeler, who presided over the appeal, was born in Vermont in 1810 and grew up in Ohio, where he also received his education, studied law, and was admitted to the bar. He moved to Fayetteville, Arkansas in 1837, where he began a law practice with later Texas Supreme Court Justice William Oldham. Wheeler married and moved to San Augustine, Texas in 1839. See University of Texas School of Law, Tarlton Law Library, JUSTICES OF TEXAS 1836-1986, Royall Tyler Wheeler (1810-1864), http://tarlton.law.utexas.edu/justices/profile/view/114 (last accessed Sept. 4, 2014); James L. Haley, The Texas Supreme Court: A Narrative History, 1836-1986 (Univ. of Tex. Press, 2013), 29, 54-60, 66.

The Texas Supreme Court affirmed the judgment as to both liability and damages. Chief Justice Wheeler, who later became an ardent secessionist, treated the case as one no different from any other property dispute, setting forth an affirmation-friendly sufficiency of evidence standard of review:
Under the charge of the Court as applied to the evidence, the jury, in finding a verdict for the plaintiff, must have acted under the conviction, that the negro was diseased at the time of the sale and warranty, and that that disease caused his death. That was what the evidence conduced to prove; and it was only upon that supposition, or belief, that the jury could have found a verdict for the plaintiff. If the evidence was sufficient to warrant that conclusion, the verdict was right, and in accordance with the previous decisions of this Court. (Murphy v. Crain, 12 Tex. 297; McKinney v. Fort, 10 Id. 220.)
Scranton, 16 Tex. at 192.

Although Chief Justice Wheeler found that the case was a close one, the Texas Supreme Court nevertheless had to affirm the judgment to preserve its precedent:
The evidence, it must be admitted, is not very satisfactory, as to the fact of disease or unsoundness at the time of the sale. And it is to be regretted that the rights of parties must be finally determined upon evidence, which is not more convincing and satisfactory. But we cannot say, that the jury were not warranted by the evidence, in coming to the conclusion at which they arrived; or that the Court erred in refusing a new trial on that ground. The evidence before the jury certainly conduced to support the verdict; and it is a circumstance not to be disregarded, that the defendants offered no evidence to the contrary, except the testimony of a witness, as to the apparent soundness of the negro for a few days before the sale; and that was but little more than appeared from the plaintiff's evidence.
Id.

The Texas Supreme Court expressed concern about the measure of damages awarded after comparing decisions of other slave state jurisdictions:
Where however the plaintiff has enjoyed the benefit of the services of the negro, for any considerable length of time, and they have been valuable to him, such services ought to be an offset to the damages to the extent of their value. The value of the services, in this case, was not proved; but it would seem, from the evidence, that the negro performed the services of an ordinary hand, for a period of several months. The evidence, we think, was sufficient to extinguish the claim for interest; and to that extent, the verdict is apparently excessive.
Id. at 194-95.

Chief Justice Wheeler rejected any appellate complaint about the measure of damages, however, after concluding that petitioner Scranton’s counsel had waived any charge error by failing to timely and specifically complain in the trial court:
The charge of the court, as to the measure of damages, we deem to maintain the correct general rule; and had the attention of the court been called to this point, by instructions asked upon it, the charge would doubtless have been so far modified as to have given the defendants the benefit of the value of the services of the negro while in the plaintiff's service.

But the point does not appear to have been suggested by counsel in the court below, either by asking a proper instruction, or in their motion for a new trial: and on this account, there might, perhaps, be some difficulty in reforming the judgment in this respect, in this court.
Id. at 195.

In light of respondent Tilley’s willingness to accept a remittitur to correct the troubling questions involving the calculation of prejudgment interest, Chief Justice Wheeler concluded that any error in the charge or denial of petitioner Scranton’s motion for new trial was harmless: “But as the plaintiff has intimated a willingness to remit the interest, which will remove the difficulty, his remittitur will be received, and the judgment be otherwise affirmed, at the cost of the appellants.” Id.

The warranty deed at the heart of the case, now available in the Historic Documents Center, appears at the right below:


District Court records dating from 1837 (top photo, David A. Furlow, 2014) and F. Scranton’s 1853 Warranty of Sale for the Slave Sandy (District Clerk’s photo)

A decade later, on April 9, 1864, as the imminent collapse of the post-Vicksburg, post-Gettysburg Confederacy became apparent to all, secessionist Chief Justice Wheeler saw no future but a dismal one. “[I]nclined to the forebodings of melancholy . . . and contemplating the clouds which hung over the future of his country and the prospects of his family,” Chief Justice Royall Tyler Wheeler took his own life at his home in Washington County. See James Daniel Lynch, The Bench and Bar of Texas 91-96 (St. Louis, Mo.: Nixon-Jones Printing Co., 1885).

The courthouse records of Tilley v. Scranton have not yet been conserved. Francisco Heredia and the Historic Documents Record Center are looking for an individual or a law firm ready to fund the preservation of the case file, the judgment, and an appellate record that includes a warranty of the good health of Friday, the young slave who died of epilepsy in Wharton County. The cost would probably amount to a few thousand dollars.

In Texas, the wheels of justice grind slowly, but they grind fine. Slavery took its toll on all, as shown by the nineteenth century Harris County courthouse records Francisco Heredia has preserved and protected. Former Harris County District Court Judge Levi Benton helped make Houstonians aware of Tilley v. Scranton’s “breach of warranty” decision when he spoke about the case in a Black History Month symposium at the District Clerk’s Office on February 26, 2008.

Randolph Campbell, a respected historian and the editor of The Laws of Slavery in Texas, a book written in collaboration with Bill Pugsley and Marilyn Duncan, the former Executive Director and the current Consulting Editor of the Texas Supreme Court Historical Society, paid Francisco the highest compliment. “Francisco Heredia, head of the Historical Documents Records Center in the Harris County District Clerk’s Office, was continually asked to track down obscure records. He never failed to find any document, and probably never will.”2

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1^ David Furlow, a native Houstonian, lawyer, husband, father, and historian, has served as Executive Editor of THE TEXAS SUPREME COURT HISTORICAL SOCIETY JOURNAL since 2011. See generally http://www.texascourthistory.org/ (Texas Supreme Court Historical Society website); see specifically http://www.texascourthistory.org/documents/TSCHS_JournalFall2011.pdf (Fall 2011) through http://www.texascourthistory.org/documents/TSCHS_Journal_Summer_2014.pdf (Summer 2014).

2^ See Randolph B. Campbell, The Laws of Slavery in Texas, 93 (Austin: Univ. of Tex. Press, 2010).