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WHEN I LEFT THE APPELLATE COURT BENCH three years ago, one of my goals was to use the knowledge I had

gained working on state court funding issues during eight legislative sessions to better inform the Texas bar about the nature and extent of the on-going court funding crisis. My concern was that it had become so commonplace to refer to court budgets as being in crisis that lawyers would become immune to the reality – like a frog in a warming pot of water, every year’s crisis becomes the new normal.

But there really is a crisis, and it is unlike anything we have seen in our nation’s history. Deep budget cuts in the courts of 33 states, including Texas, have forced state courts to freeze hiring, cut pay, lay off staff, and close courthouses. Last August, the entire judicial branch of the state of Kentucky shut down for three days as a result of budget reductions mandated by the Kentucky legislature.

To make matters worse, the reductions in court operations are coming at a time when caseloads are growing at a historic pace. For example, in the 2011 fiscal year Texas’ fourteen courts of appeals experienced an 8% percent increase in their combined dockets – the highest annual increase in 10 years. During the same year, the courts of appeals had their budgets cut by nearly the same percentage,1 requiring some courts to reduce their workforce when they were needed the most.

The outlook in Texas for the next budget cycle is uncertain. In June of this year, state leaders announced that they would consider reducing state government spending “across the board” by 10% in the next biennium, with the exception of a few exempt state agencies.2 While more recent projections indicate that there will be a budget surplus in 2013, there is no guarantee that the legislature will restore the funding that was cut from the judiciary’s budget in the last legislative session, or that the legislature will choose to invest any of the surplus in strengthening a judiciary weakened by years of chronic underfunding. For example, Texas judges have not received a pay raise in seven years. If a substantial salary increase is not passed in the next legislative session, our trial and appellate judges will remain near the bottom of the pay scale compared to judges in the other 49 states.3 Proper compensation of judges is essential to attract qualified candidates and retain experienced judges.

The judiciary has always been easy prey for budget cuts in a down economy. Because the courts have no natural constituency,

1 State appropriations to the entire Texas judiciary were reduced by 4.4% during the 2012-2013 biennium.

2 The proposed cuts would include the Texas Supreme Court, the Texas Court of Criminal Appeals, and all fourteen courts of appeals, in addition to numerous Article IV judicial branch agencies.

3 The salary of Texas’ judges is now below compensation levels from 1991 when factoring in the consumer price index increase. To address this, on November 30, 2012, the Texas Judicial Compensation Commission published a report recommending that state trial and appellate judges’ salaries be increased by approximately 21% in the next biennium.

or the power to tax to support themselves, they are always at the mercy of the political priorities of the executive and legislative branches. At its most extreme, this tension can lead to litigation between the branches of government, as it did two years ago in the state of New York where judges were forced to sue the other branches of state government in an attempt to obtain a basic level of support. See Matter of Maron v. Silver, 925 N.E.2d 899 (NY 2010).

No one wants to see this happen in Texas, but the situation is getting dangerously close to a point where our courts may view litigation as the only option. The legislature simply cannot be permitted to cripple the judicial branch by chipping away at its budget every session without doing great damage to our society and our constitutional form of government. The cuts must stop, and the legislature must make adequate court funding a regular priority.

The good news is that it costs relatively little to fund the courts compared to what is spent on the other two branches of government. In 2011, the amount of funding dedicated to support the judicial branch – one third of our state government – was 0.37% of the state’s $90 billion budget. We clearly have it within our means to solve the court budget crisis relatively inexpensively without raising taxes or cutting essential government programs. The problem is not a lack of available funds, it is the lack of will on the part of the legislature to do anything about it.

The other problem the judiciary faces is state leaders who demagogue the issue of court participation in “across the board” budget cuts when the economy is bad. The most recent example of this occurred at the beginning of the last legislative session when the Governor and other state leaders announced that there would be no “sacred cows” exempt from budget cuts. The legislature made good on that promise and ultimately cut $4 million from the third branch’s razor thin budget. No one suggested that this reduction was necessary to keep the state from operating at a deficit, or that the savings could not be found elsewhere in the budget. The only reason given for the cut was that “everyone” should be required to make a sacrifice, which the courts did without complaint.

What state leaders do not realize is that, unlike agencies, court budgets contain no excess. Due to decades of neglect, the courts are seriously underfunded, and 95% or more of their budgets are personnel costs. Consequently, when court budgets are reduced, the reductions immediately curtail meaningful access to the justice system by reducing the workforce responsible for administering justice in an effective and timely manner. This is why, as lawyers, we should all take the issue of judicial budget cuts extremely seriously.

The legislature has a difficult job allocating limited resources among competing priorities when money is tight, but it is wrong – and, I would argue, unconstitutional – to force the courts to compete dollar-for-dollar with non-essential legislative priorities and state agency initiatives that have nothing to do with the judicial mission of the third branch. In that kind of environment, the courts

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will lose every time. And when the courts lose, so do we.Rather than treat the judiciary like a state agency that

is required to justify its continued existence in the budgeting process, the legislature should begin the process with the assumption that the courts must be funded adequately and conduct an independent assessment of judicial funding apart from other political priorities and agendas. Funding the judiciary adequately should be a legislative priority, not an afterthought.

This approach would, of course, require that state leaders acknowledge the fact that the judiciary is not a state agency, but a co-equal, independent branch of government that cannot be made subordinate to the other branches through the power of the purse. As one state supreme court noted in the context of a court funding controversy more than 50 years ago:

Our courts are the bulwark, the final authority which guarantees to every individual his right to breathe free, to prosper, and be secure within a framework of constitutional government. The arm which holds the scales of justice cannot be shackled or made impotent by either restraint, circumvention, or denial by another branch of that government.

Noble County Council v. State ex rel. Fifer, 125 N.E.2d 709 (Ind. 1955).So, what must the Texas judiciary do to protect itself from a

legislature that choses to spend more on repairing highways than ensuring all Texans have access to a fair and efficient justice system? In an ideal world, it would be enough for judicial leaders to simply assert that they are a co-equal branch of government and trust the legislature to do the right thing as a true constitutional partner by reliably making a sufficient appropriation. However, when the legislature is in session, Austin is not an ideal world; it is a world in which political power and leverage are the tools you must have to get things done, and, unfortunately, the judiciary possesses neither.

The only power the courts possess to protect themselves against legislative abuse is “inherent power” – the power to compel the expenditure of public funds when necessary for the courts to fulfill their constitutional functions. An apt description of this seldom-used power is found in a concurring opinion authored by the late Texas Supreme Court Justice Franklin Spears:

Like the power to punish for contempt, a court’s inherent power to control funding flows from the law of self-preservation. No legislative authority, state or local, can so tighten the purse strings of the judiciary’s budget that it fails to provide the funds reasonably necessary for the court’s efficient and effective operation. To adhere to any contrary view would effectively concede to the legislature the power to render inoperative the judicial branch of government.

Mays vs. Fifth Court of Appeals, 755 S.W.2d 78, 80 (Tex. 1988) (Spears, J., concurring).

Courts throughout the nation have used their inherent powers when necessary to compel funding for adequate facilities, the hiring of court personnel, and the setting of staff salaries, among other essential needs. While this power is available to

Texas courts, the vast majority of state judges with whom I have spoken over the years believe it should only be used, if at all, as a last resort. They agree with Justice Spears that “a spirit of mutual cooperation [between the branches] is unquestionably the people’s best guarantee of a constitutional government.”4 But the level of cooperation necessary to address critical court funding needs will occur only in an atmosphere of mutual respect, and the legislature has yet to demonstrate that it respects, much less understands, the judiciary and its role in our constitutional form of government.

One strategy Texas’ judicial leadership adopted many years ago to promote cooperation between the legislative and judicial branches was to be more proactive in their efforts to build relationships with and better inform legislators about the work of the courts. However, with the exception of 2005 (when the legislature awarded judges a long overdue salary increase), these efforts have produced only a modicum of success, even in robust Texas economies.

As the economy has spiraled downward, the courts’ relationship-building efforts have done little to protect the courts from the budget axe. Instead, the legislature’s tendency has been to politicize and slash court funding unnecessarily, as it did in the last legislative session. Each time the legislature reduces or freezes court funding, the courts bite the bullet and make the sacrifices necessary to operate with less resources. At some point, this paradigm must change because access to justice is in peril.

The 83rd Legislature convenes January 8, 2013, and the process of weighing the needs of competing priorities will begin. Many state agencies are already calling upon lawmakers to restore billions of dollars slashed from their budgets in the last session. Yet, even the most optimistic budget surplus predictions indicate that there will not be enough money to fund all the requests, and the mantra of our state leadership continues to be that government spending be reduced.

To remain strong and independent, the Texas judiciary must be adequately funded and its judges must be adequately paid. Should the Texas Legislature continue its pattern of underfunding and/or reducing court budgets, judicial leaders should consider standing their ground and insist on the courts’ inherent powers. While this “stand your ground” strategy may carry a high political price for elected judges – and would certainly prove unpopular with members of the legislature accustomed to thumbing their noses at the judiciary’s budget requests5 – it would be a risk worth taking to preserve the judiciary’s treasured constitutional role. It could also lead to improved relations in the future between the judiciary and the other two branches of state government by restoring respect within those branches for their constitutional partner. As Justice Spears observed more than twenty years ago: “Only by recognizing each other as equals can [the branches of government] effectively communicate.”6

Hon. John H. Cayce, Jr. is a retired Chief Justice of the Second Court of Appeals and a partner in the firm of Kelly Hart & Hallman LLP in Fort Worth.

4 Id. at 83.5 Speaking of thumbs, many years ago the late Chief Justice Joe Greenhill

shared with me a story about the time he appeared before the Senate Finance Committee during the 67th Texas Legislature seeking a $1000 appropriation to offset expenses incurred by the Court when traveling on official business. In response, an unnamed Texas State Senator motioned with his thumb like a hitchhiker and asked, “Judge, do you know what this is…?”

6 Mays, 755 S.W.2d at 83.