On September 12, 2017, the First Court of Appeals celebrated its 125th anniversary, and the Fourteenth Court of Appeals celebrated its 50th anniversary. At a celebration to mark the occasion, Justice Terry Jennings delivered a speech, which tracked the remarkable history of the First Court of Appeals. We are publishing the speech here, with his permission.
By:
Terry Jennings, Senior Justice, First Court of Appeals
Sept. 12, 2017
The life of the First Court of Appeals has spanned the tenure of 28 governors and 23 presidents, and the reign of six British Monarchs.
To put this in perspective, consider the life-span of our beloved sister court—only one British Monarch, Elizabeth, the Second, who began her reign in 1952—15 years before the creation of the Fourteenth Court of Appeals.
But please don’t hold our sister’s relative youth and inexperience against her. Indeed, we, on the First Court, sometimes consider her opinions persuasive, though not authoritative.
For 125 years, the First Court has endured and thrived during times of peace and war, political and social progress and strife, economic booms and recessions, and fair weather and foul—from the Great Galveston Hurricane of 1900 to Hurricane Harvey of 2017.
Through it all, the staff, attorneys, and justices of the Court have worked to administer justice without fear or favor.
As Stanley E. Babb of the Galveston Daily News wrote in 1929, “Thousands and thousands of cases have been argued, discussed, deliberated, and mediated over within [the Court’s] walls, representing all phases of human behavior and experience.”
And the bar has made significant contributions to the Court’s history. As Babb wrote, “Many of the ablest lawyers in Texas have displayed their foremost abilities and their capacities for unraveling the Gordian knots of complicated and difficult legal problems in [its] historic old building[s].”
Over the years, the Court, with its user friendly philosophy, became known as the “Friendly First,” with justices forming strong personal bonds with each other and staff, and strong professional bonds with members of the bar, in their mutual endeavor, even in disagreement, to “get it right.”
After Texans approved a constitutional amendment in 1891, the legislature, in a special session in 1892, established the Courts of Appeals for the First (Galveston), Second (Fort Worth), and Third (Austin) Supreme Judicial Districts of Texas to help alleviate a serious backlog in the Texas Supreme Court.
Each district had jurisdiction in civil appeals over approximately one third of the state, with the First Court covering 57 counties.
The legislature’s decision to locate the Court in Galveston was based, of course, on pure political whim.
“It has always been my understanding,” recalled Henry Garrett, the Court’s clerk in 1929, “that the selection of Houston for the [1892] state [Democratic] convention had a strong influence in the selection by the legislature for Galveston for the location of the [First Court], many of the legislators saying, ‘Well, Houston got the convention, let’s give Galveston the court.’”
In 1892, the state of Texas was only 47 years old. Jim Hogg was governor, Benjamin Harrison was president of the United States, and Victoria was the Queen of England.
And the First Court, consisting of Chief Justice Christopher Columbus Garrett, Justices H. Clay Pleasants and Frank Williams, and Clerk S. D. Reeves, opened its first term in Galveston on Monday, October 3.
It issued its first published opinions just nine days later on October 11, 1892, concerning
- an appeal from a district court’s grant of a petition for a writ of mandamus,
- the parole evidence rule,
- and a passenger’s wrongful ejection from a train.
The opinions vary in length from two to six pages.
From 1892 to 1957, the Court’s first home was the renovated 1878 Galveston County Jail, located at 20th and Winnie Streets.
And from the beginning, the Houston Bar looked upon the Court with envious eyes, and it made several unsuccessful attempts to have the Court moved to Houston.
Finally, in 1957, Hurricane Audrey damaged the beautiful old red brick, with white limestone trim, building. And Chief Justice Gaius Gannon petitioned the legislature to move the Court to Houston to the Harris County Courthouse.
The legislature expanded the First Court to six justices in 1978, and, due to overcrowding, the new justices and their staffs moved to the Citizens Bank Building at 402 Main Street. Their stay there was short lived, due to malfunctioning elevators, no central air conditioning, falling plaster, and an infestation of grasshoppers.
Chief Justice Frank Evans then began to work to find a new home for the Court and our younger sister, the Fourteenth Court, which the legislature created in 1967.
The South Texas College of Law and Harris County Commissioners Court came to the rescue. The Commissioners agreed to pay for the construction of three additional floors on top of a building that the law school had previously planned, and the law school agreed to lease the space back to the courts for 99 years.
The deal was timely struck as the legislature, in 1981, added three new justices to each court, who were first elected in 1982.
In 1983, the courts moved into the new space on the eighth, ninth, and tenth floors at 1301 San Jacinto, where we enjoyed a great relationship with the law school that continues through today.
As the Houston area grew in population, so did litigation and the demands on the First and Fourteenth Courts. Over time, the legislature reduced the number of counties in their jurisdiction to ten.
And although the justices and staff enjoyed the camaraderie that came with working in close quarters at the law school, the courts, with a growing staff, simply ran out of room.
Again, Harris County Commissioner’s Court came to the rescue. Following the construction of the new Criminal Justice Center and Civil Courthouse, space became available in this beautiful, old Courthouse.
And under the leadership of Chief Justices Sherry Radack and Adele Hedges, the courts moved into our newly renovated home in 2011. Here, Chris Prine, the Clerk of both courts, has worked to bring the courts into the 21st Century, instituting the electronic filing of all documents.
There was little change on the First Court when it was in Galveston. The Court consisted of three judges, all white men, who served long, secure tenures. For example:
- Justice George Graves served on the Court from 1917 to 1955, 38 years, the longest tenure of any justice on the Court, spanning the two world wars and then some.
- Chief Justice Robert Pleasants served for 31 years, from 1907 to 1938.
- And Henry Garrett served as the Court’s Clerk from 1908 to 1947, 38 years.
In contrast, life on the Court in Houston has been dynamic, with many significant changes occurring in the 1980s and 1990s.
As noted by former Justice Murry Cohen,
My generation on the First Court, 1983 2002, saw big changes. 1982 was the first election after the First and Fourteenth Courts were enlarged from three to nine justices and went from being the Courts of Civil Appeals to the Courts of Appeals, with criminal law jurisdiction.
Moreover, as America progressed politically and socially, so did the First Court.
- In 1978, Governor Dolph Briscoe appointed to the Court, Henry Doyle, the first black man to serve as an appellate court justice in Texas.
- In 1982, two Jewish justices were elected, Ben Levy and Murry Cohen.
- Justice Camille Hutson Dunn, in 1985, was sworn in as the first woman elected to a Texas appellate court.
- In 1991, Governor Ann Richards named Alice Oliver Parrott the first woman chief justice in Texas.
- Richards appointed Gaynelle Griffin Jones, Texas’s first black woman appellate justice, in 1992.
- And in 1993, the First Court appointed Margie Thompson as the first black woman clerk of an appellate court in Texas.
Thompson, known for her broad smile and can do attitude, continued the user-friendly policy of her predecessor, Kathryn Cox, who earned for the Court the nickname of the “Friendly First,” coined by Justice Lee Duggan.
Thus, the First Court has in many ways been “first” in making progress in Texas. Today, sadly, both the First and Fourteenth Courts are lacking in racial diversity.
Women, however, have, in recent years, constituted a majority of both of the courts. Texas’s first all woman appellate court panel, with Chief Justice Oliver Parrott and Justices Hutson Dunn and Margaret Mirabal, met and heard oral arguments in 1991. Today, all woman panels now meet regularly in both courts.
Since the 1980s, one of the few constants on the Court has been change. The Court is technologically up to date, and several justices read almost everything on computer monitors. It has moved from deciding cases less on the common law and more on statutory interpretation. Court opinions average between 20 to 25 pages in length, and it is not uncommon in complex cases for an opinion to be 60 to 100 pages long. And although its justices each author between 60 to 80 opinions per year, most appeals in civil cases are not from judgments after a jury trial.
Happily, another constant on the Court is the strong relationships that form between the justices and each other and their staffs, many of which, because of their shared commitment to their life’s work, last for life.
As noted by Justice Mirabal,
My first job out of law school was as a law clerk at the First Court for Justice Frank G. Evans, who served with Chief Justice Tom F. Coleman and Justice Phil Peden. I learned more in that one year at the Court than I learned in three years of law school.
She was elected to the Court thirteen years later.
After I was elected to the Court in 2000, Justice Cohen, describing our job as “the best in the world,” was kind enough to act as my judicial mentor. And I had the opportunity to work with retired First Court justices like Frank Evans, Lee Duggan, and Jack Smith—all part of America’s greatest generation—who had come back to the Court on a special task force to help eliminate a backlog of cases.
I immediately noticed something special about these justices. As explained by Justice Cohen:
Many early colleagues had served in World War II or the Korean War. None discussed combat experiences with me, but they often talked about fascinating things they had seen and done in military service. To several, including Jack Smith, who was like a second father to me, it was the most important experience of their lives.
These justices bought their life experience with them to the Court, and they had a profoundly positive effect on everyone that they worked with that is still felt today.
It is not uncommon for current and former First Court justices to regularly meet with former law clerks and staff attorneys to bond and share fond memories of justices like Jackson B. Smith.
To illustrate the point, in December 2015, Justice Cohen invited me and several friends over to his home, which his parents had built in 1964, to celebrate his 70th birthday with his wife Meryl. They had just finished repairing their home after the Memorial Day Flood in 2015.
It was a beautiful evening at which Justice Cohen toasted the Constitution and Justice Smith, as is our custom. And, of course, he handed out awards to every guest. My award was for “Oldest Friend in Terms of Joint Judicial Service.” For a present, I gave him a biography of Justice Brandeis.
When the party was over, we spoke outside his house in the crisp air under a star lit sky about the flood and how difficult it had been to repair the house and get everything back in order. He was so proud that he and Meryl had saved his parent’s home.
On August 27, 2017, I received a text from Justice Cohen, stating that Hurricane Harvey had destroyed “the Old Cohen Place”; “[e]verything is lost. And we will not return.” He later added that one of the things that he took with him, as he left the home his parents had built, was the book that I had given him.
Such are the human bonds upon which the history of the First Court of Appeals is built.
As long as there are men and women in Texas who, even in disagreement, share a commitment to justice and the rule of law, may there ever be the First Court of Appeals, Texas’s “Friendly First.”
