"Governor Dan Moody, the Texas Bar, and the Cause of Judicial Reform during the Late 1920s . . . and to McDonald v. Longley Today

My new article "Governor Dan Moody, the Texas Bar, and the Cause of Judicial Reform during the Late 1920s . . . and to McDonald v. Longley Today is online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3929505.

Here is the article:

Governor Dan Moody, the Texas Bar, and the Cause of Judicial Reform in Texas During the Late 1920s . . . and to McDonald v. Longley Today

?Josiah M. Daniel, III*

?Introduction………………………..………………………………………1

I.??????Dan Moody and judicial-improvement legislation in Texas from 1927 to 1930…...….............................…………...………………………….3

II.????Moody’s achievements assessed……………………………………..12

III.???Reflections on Moody, the Texas Bar, and the historical?problem of judicial reform in Texas . . . to McDonald v. Longley today……….14

Introduction

For those seriously interested in the history of Texas law, lawyers, and courts,[1] the publication ten years ago of Lone Star Law: A Legal History of Texas[2] by Michael Ariens was a watershed event. At last, the broad sweep of the legal history of the State—previously available only in bits and pieces via scattered journal articles and occasional papers given at scholarly and professional gatherings—was presented in a single descriptive, insightful, and readable chronicle. One impact of this book has been to stimulate scholars and historically-minded lawyers to build on Ariens’s work by filling in, with additional details and nuanced interpretations, the interstices of the monumental story that Ariens has well limned, including the history of Texas judiciary and legal process in those courts. Indeed, reading Chapters 6 and 8 of Lone Star Law and their endnotes prompted me to write the original of, and now to revise and update, this article.

In those chapters, Ariens points up the “unusual aspect” of the Texas judicial system, which he describes as a “byzantine structure” comprising a “plethora of courts with varied, overlapping, and confusing jurisdictional boundaries” plus two supreme courts, the Supreme Court of Texas and the Texas Court of Criminal Appeals. This predicament has resulted, he argues, from legislative “penury” and has caused “a persistent backlog of cases, a difficulty keeping judges on the bench, and occasional claims of corruption in the Texas courts.”[3]

That structure has been and remains a product of Texas history and reifies the imperatives of the postbellum Texas Constitution of 1876, such as the elective requirement for all judicial offices. Texas lawyers’ concern about the status and functioning of the State’s courts has been expressed recurrently. From its founding in 1882, the stated objectives of the Texas Bar Association (the “TBA”) included “to advance the science of jurisprudence [and] promote the uniformity of legislation in the administration of justice throughout the state”[4] When new, the TBA immediately sought, but failed to achieve, judicial legislation; and progress has always been sporadic and incremental.

This article presents the determined efforts of a significant, albeit today-little-known Texas governor, who was an experienced lawyer and worked closely with the statewide bar association, to persuade the Legislature to structurally change and materially improve the administration of justice in the state during his two two-year terms in the late 1920s; then it proposes a reassessment of his success in that goal; and, last, it ruminates about the broader significance of this governor’s efforts and the assistance of the bar organization in that cause.

I.??????Dan Moody and judicial-improvement legislation

????????in Texas from 1927 to 1930

The Governor was Dan Moody.[5] Youngest ever when elected at age 33 in 1926, Moody served as Governor of Texas from January 17, 1927 to January 20, 1931. Born and raised in Taylor, Texas, Moody graduated from the Law Department of The University of Texas in 1914 and gained admission to the practice of law. After military service in World War I, voters of Williamson County elected him County Attorney from 1920 to 1922. Then as District Attorney from 1922 to 1925, he won a statewide reputation for prosecuting the brutalities of the Ku Klux Klan. From that springboard, he won election as Attorney General of Texas for the following two years, during which Miriam A. (“Ma”) Ferguson served as Governor—really as surrogate for her husband James E. (“Pa” or “Farmer Jim”) Ferguson, who in 1917 had been impeached, removed from the governorship, and barred from public office.[6]

As the State’s chief legal officer from 1925 to 1927, Moody enlarged his reputation by exposing the corruption of the Fergusons in the selling of pardons and in the letting of state highway and textbook contracts. In 1926, Moody defeated Ma Ferguson in the Democratic Party’s gubernatorial primary runoff election by a landslide vote of 495,723 to 270,595, and then easily won the governorship.[7] Moody had campaigned on a platform of what George B. Tindall, an historian of the New South, has portrayed as “business progressivism.”[8]

This postwar, New South-style progressivism largely ignored three themes of the earlier national Progressive movement, which Tindall labeled “democracy,” “corporate regulation,”[9] and “social justice,” but emphasized two other Progressive themes: (i) improving efficiency of government on the state level and (ii) expanding the services it provided to citizens. Business progressivism in Texas of the 1920s is illustrated in the administrations of two governors, Pat M. Neff, who served from 1921-1925, and Moody. Under both governors, state expenditures increased dramatically for public education, eleemosynary institutions, and highways, as well as conservation and parks, promotion of industry, child welfare, the licensing of professions, and penal and judicial reforms.[10] Moody’s good-government program drew inspiration from that of Neff,[11] and its progressiveness contrasted sharply with the retrograde record of the Fergusons.

When the newly inaugurated Governor Moody laid out his business-progressive agenda at the opening of the 40th Legislature on January 20, 1927, the second item on his list of eleven recommendations was judicial reform,[12] a subject with which he was quite familiar through his legal experience and his prior public services. It was a topic deserving attention, and as events developed, the Governor persevered to press for constitutional amendments and judicial legislation in a total of eight legislative sessions over his two terms:?the regular and sole called sessions of the 40th Legislature in 1927 and, after reelection, in the regular and a record five called sessions of the 41st Legislature in 1929 and 1930.

At the time Moody took the oath of office in 1927, the structure and the rules of the Texas court system stood in serious need of modernization and reorganization. The principal characteristic of the courts was delay and inefficiency, in both civil litigation and criminal prosecution. As mandated by the constitutional amendment of 1891, the judiciary’s structure comprised overlapping layers of trial courts and appellate courts of limited and sometimes unclear jurisdiction.

The trial courts consisted of justice of the peace courts with civil jurisdiction of small claims and misdemeanor criminal jurisdiction, county courts presided over by mostly non-lawyer county judges with circumscribed civil jurisdiction, and district courts of general civil and criminal jurisdiction.?Intermediate courts of civil appeals handled most civil appellate matters; and the Supreme Court of three justices, assisted by an appointive six-member Commission of Appeals, possessed the final civil authority, subject to some restrictive jurisdictional rules.[13] The Court of Criminal Appeals heard all criminal appellate matters.

Court procedure for both civil and criminal cases was fixed by an awkward amalgam of numerous statutes and relatively few court rules.[14] Delays were endemic, and previous legislative responses to the ever-increasing case load had been to add more and more district courts. Texans then, as probably always, were a fairly litigious lot, and the hodgepodge judicial system was not efficiently and fairly processing and resolving the civil and criminal cases filed and defended by Texas lawyers.

The Commission of Appeals furnished a clear example of a need for restructuring. The Legislature had created a first Commission in 1879 but terminated it in 1891. The Commission of Appeals in existence at the time of Moody’s governorship had been created nine years earlier, in 1918, and it was intended to supply additional manpower to handle the increasing case load of the Supreme Court. Because it was not “the Supreme Court,” however, the Commission’s decisions had variable precedential value, depending on whether the Supreme Court justices (i) took no action on a Commission’s decision (in which event, its value was uncertain or low and it was published in the unofficial South Western Reporter as a decision of the Commission); (ii) adopted the judgment or approved the holding of a Commission decision (which meant that the case was published only in the South Western Reporter but with the imprimatur of such adoption or approval to indicate a higher level of precedence); or (iii) adopted the entire opinion of the Commission (in which event the case was published as if it were a decision of the Supreme Court in the official Reporter, Texas Reports, with full precedential authority).[15]

The voluntary TBA had been pointing out the deficiencies of the State’s legal system and proposing reforms for most of its then-45-year existence with only occasional, piecemeal improvements to show.[16] Academic lawyers and commentators added their voices in criticism of the system throughout the decade of the 1920s. In every volume from its inception in 1922 throughout Moody’s administration, the Texas Law Review carried articles by law professors and practitioners under the prescriptive heading “Suggestions for Improving Court Procedure in Texas.”[17]

For example, in a 1925 article, one attorney wrote in the Review:

The movement for reform in the rules of practice and procedure in the courts of Texas to secure a simpler, speedier, more economical and, therefore, better, administration of justice brings up the question whether the principal fault may not lie deeper, whether it is not in the structure of the existing system itself.[18]

In another article in that journal, Leon Green, a professor of the University of Texas Law School, put it more bluntly:

Our court organization is organically diseased, and, therefore, radical treatment will be required. On the other hand, our rules of procedure are basic[al]ly sound, but so involved and confused as to defeat their purpose. Court organization, therefore, must be seriously remodeled; court procedure must be merely simplified and modernized.[19]

In Governor Moody, the TBA had a member who shared the professional organization's and the law school professoriate’s zeal to reform the system, and Moody's specific proposals were numerous.?

To the assembled legislators in January 1927, Moody presented seven specific judicial-reform recommendations, most of which had been generated by the Special Legislative Committee of the TBA. By December 1926, the Committee had drafted bills including amendment of the judiciary article of the Texas Constitution to revest rule-making power in the Supreme Court. That power had been removed from the Court and placed with the Legislature by the constitutional amendment of 1891. The Committee’s constitutional amendment would have been quite wide-ranging and progressive, even giving the Supreme Court control over admission and disbarment of lawyers[20] and authorizing declaratory judgment suits. That Committee even proposed moving toward nonpartisan judicial selection by excepting judges from the state’s primary election law. Moody embraced and recommended to the Legislature all of the TBA's proposals except the exclusion of judges from the primary election law.[21]

In the related realm of legal process, the TBA’s committee also urged the elimination of the manslaughter degree in homicide cases, a proposal in which Moody concurred based on his experience as a criminal prosecutor. In his speech to the Association's convention in the summer of 1927, the Governor remarked that from his early days of practice he had found the technicalities involved in submitting the manslaughter charge to a jury to be irrational and often permitted the guilty to go free for purely procedural mistakes. Legislator Alfred P.C. Petsch of Fredericksburg, a lawyer who served as Moody’s manager in the House of Representatives, carried the bill that would have simply deleted the manslaughter charge and left murder and negligent homicide as the only crimes of homicide.

Many lawyers in both houses resisted this part of the TBA's legislative package.[22] The Senate weakened the bill by limiting slightly the circumstances in which the judge could charge the jury on manslaughter; and then the House committee reported the amended bill adversely 8-4, forcing Petsch to bring it out to the floor on a minority report. "Over strenuous and oratorical objections" of lawyer-legislators such as Cecil Storey of Vernon, who castigated "these modern reformists" and charged that the rights of homicide defendants would be imperiled, the Legislature nonetheless adopted the amended bill, giving Moody a small victory.[23] ?

The 40th Legislature also voted out, at Moody’s behest, a total of seven proposed constitutional amendments, four of which were fixed for submission to the voters on the first Monday in August 1927.?Among those was the judicial amendment to increase the number of Supreme Court justices to nine and to make other changes.?The TBA’s Special Legislative Committee had wished to have a constitutional amendment along the lines of the federal Constitution's judiciary article, that is, with the Supreme Court as the only constitutionally created court and with the Legislature authorized to enact legislation to establish lower courts as needed.?The question provoked much interest in the bar, and lawyers in the Legislature were divided over the issue of abolishing the constitutional foundation of the intermediate appellate courts.

A compromise measure was crafted by three blue-ribbon Dallas attorneys, A.H. McKnight, a persistent critic of the judicial system; M.M. Crane, a former Lieutenant Governor and former Attorney General; and Nelson Phillips, a former Chief Justice of the Texas Supreme Court.[24] The essential features of the revised measure were a Supreme Court of nine members, a Court of Criminal Appeals of five members, continuous terms of court, and power for the Supreme Court or its Chief Justice to transfer district judges to other districts in order to dispose of congested dockets.?The amendment sailed through its final votes in the Legislature,[25] and at the TBA's annual convention in the summer of 1927, Moody urged the membership to work hard for its approval.[26]

But at the ratification election on August 1, 1927, a very small turnout rejected the judicial amendment, along with the other three, by a margin of six to one.[27] The reason may have been that amendments were submitted at an inopportune time. After the election, Moody's friend and supporter, and future State Senator and Lieutenant Governor, Walter F. Woodul of Houston wrote that "the fault was with the people of Texas. . . .?[I]f the . . . amendments had been submitted at a general election, they would have carried." In a 1975 interview, Woodul attributed the defeat to the fact that Texans did not stay around to vote on constitutional amendments in summertime during “fishing weather.”[28]

Despite the loss of the constitutional amendment, the 40th Legislature did fulfill a number of the Governor’s requests by enacting additional judicial adjustments and revisions of a reorganizing nature, short of what Moody and the TBA's Committee wanted, but improvements nonetheless. The most noteworthy acts organized the state into nine administrative judicial districts, authorized the Supreme Court to make semi-annual equalizations of the dockets of the eleven Courts of Civil Appeals, required continuous terms for those appellate courts, and clarified the jurisdiction of the Supreme Court and its various options for disposition of writ of error petitions. Omissions included the failure to require continuous terms for the district courts. That was a point Moody specifically identified as an example of the shortcomings of the trial system; he noted that in some counties a district judge appeared only twice a year, and because lawsuits then had only to be answered upon appearance before the court, six months could elapse before anything could begin to happen in the suit.[29] ?

While the enacted changes did help to reduce congestion in the courts, the changes were clearly less fundamental than Moody and his TBA allies had hoped. In the second year of his first term, when he summarized his legislative achievements in a press release on June 23, 1928, Moody cited the increased funding of public schools and higher education as his administration's major achievement but, among other accomplishments, he remarked the judicial enactments as only “initial steps toward [the] goal” of judicial reform.[30]

Moody won reelection in November 1928 by another landslide vote.[31] When he outlined his agenda for the 41st Legislature in an address on January 20, 1929, the Governor pled for “compromise of views” on his proposed subjects for legislation, many of which were the same as before. After reminding the legislators of his fiscal and administrative stewardship of the State during the preceding biennium, he once again called for judicial-reform legislation.

The Governor requested the Legislature to make another attempt to amend the Constitution to increase the Supreme Court's membership to nine, based on the same rationale as two years earlier. He advocated authority for the Supreme Court, instead of the Legislature, to promulgate rules of civil procedure, and he proposed the creation of an advisory judicial council composed of both judges and attorneys such as existed in several other states. Third, he asked that the right of appeal in criminal cases be replaced with a discretionary writ of error system. Finally, he urged, again, adoption of the TBA's recommendation for continuous terms of the district courts.[32]

In the regular session, the Legislature complied and submitted to the voters another constitutional amendment to increase the Supreme Court to nine members and to provide continuous terms of court[33]; but on July 16, 1929, in another mid-summer ratification election, the small number of voters who turned out again rejected it. The Legislature also approved a small constitutional amendment to allow the Supreme Court to sit at any time, but set that proposal for vote in the general election the following year, on November 4, 1930, at which time it was ratified.[34]

The 40th and 41st Legislatures continued the practice of enacting numerous bills to make revisions, some very tiny, to the civil rules that were embedded in the Revised Civil Statutes of 1925. While the 41st Legislature did nothing to restore rule-making authority to the Supreme Court, Moody had identified a large problem: the Legislature was expending significant effort each session to enact and to revise highly detailed procedural rules that the Supreme Court itself more appropriately could promulgate and from time to time refine.[35] However, it was not until 1939 that the Legislature remedied the problem by finally enacting the Rules of Civil Procedure Act.[36] And no change was made in the criminal right of appeal, as Moody requested, in 1929.

Yet the 41st Legislature did accept the Governor’s request to create the Advisory Civil Judicial Council, another measure promoted by the TBA.[37] Civil judicial councils had originated in Ohio and Oregon in 1923, and by 1930, thirteen states had created such agencies. Justice J.W. McClendon of the Austin Court of Civil Appeals advocated such a council for Texas in a speech to the Association of the Courts of Civil Appeals in 1928, and a special committee of the TBA endorsed the proposal late that year.[38] The bill to create the Texas Civil Judicial Advisory Council passed easily. Once the bill was enacted, Moody appointed nine prominent lawyers from around the state and seven appellate and trial judges as ex officio members. The Council immediately began work to collect statistics and study ways of improving the court system.[39] A decade later, Professor Charles McCormick, soon to become Dean of the University of Texas Law School, looked back and commented on the Civil Judicial Council: “Finally, a channel was provided for the zeal and research and inventiveness of all those whose minds turn to the betterment of the administration of the courts when the Legislature in 1929 created the Civil Judicial Council.”[40]

II.????Moody’s achievements assessed

After four years, Moody chose not to run again. There was an informal two-term precedent and he wished to establish a law practice in Austin and, with his wife Mildred Paxton Moody, to raise their two children who had been born while the family resided in the Governor’s Mansion. Texas historians have generally accounted the Governor’s legislative program a failure because he did not achieve his largest business-progressive goals such as fundamental prison and tax reforms and public utilities regulation. And pertinently in the area of judicial and legal-system reform, one Texas historian, Randolph B. Campbell, has written that Moody “sought in vain . . . to overhaul the antiquated court system,” and other accounts are to similar effect.[41]

A closer look at the record of Moody and his two Legislatures reveals, however, the several progressive legislative enactments that have been discussed in this article. A more accurate characterization of Moody and the 40th and 41st Legislatures is one of success because the Governor did obtain, in response to his persistent appeals to the Legislature and with the assistance of the TBA, notable improvements, and those measures generated momentum that advanced the cause of reform and efficiency of the judicial branch of Texas state government over the following decade.

For example, what might appear to be the major defeat in that effort, the failure—twice—to obtain by constitutional amendment a nine-member Supreme Court, was in fact overcome by practical innovation. The problem with the Supreme Court was not shortage of personnel. As noted, under the Constitution, the Court at that time consisted of only three justices; but the Legislature in 1918 had provided, and the 40th and 41st Legislatures in 1927 and 1929 continued, six extra judges in the form of the Commission of Appeals. Instead, the High Court’s problem was authority and organization. By statute, only justices could hear and decide applications for writ of error from the Courts of Civil Appeals, so that the three justices had to spend all their time on the technical process of granting and denying the writ applications, leaving little time for adjudication of the merits of appeals. The six Commission judges inherited the task of hearing the appeals for which writ applications were granted; but because they were not “the Court,” their decisions had the variable precedential value discussed above.

The result was a large backlog of appellate cases. When the nine-member Supreme Court amendment failed the second time, Moody and his bar allies found a simple expedient to overcome the problem: a relatively modest statutory change enacted in 1930 at a called session that authorized the Court to organize itself into three sections or committees, each committee containing one justice and two Commission members, to hear writ applications.[42] This act improved efficiency almost as much as if the electorate had ratified a constitutional amendment for a nine-justice Supreme Court, which was not accomplished until 1945.

Indeed, the entire judicial branch was similarly reorganized during Moody’s four-year administration, not constitutionally or fundamentally, but practically. Modernizations through legislation included continuous terms and semi-annual docket equalizations for the Courts of Civil Appeal, and the organization of the district courts into nine administrative districts with docket-equalizing procedures. These innovations worked, almost immediately reducing congestion and delay in those fora, both trial and appellate.[43] For example, according to an incomplete survey conducted by the Texas Civil Judicial Council, the total number of pending suits on the dockets of the district courts declined from 56,671 on January 1, 1928 to 36,722 one year later.

Furthermore, the Legislature raised judicial salaries and made numerous technical changes and additions made to the rules of practice. But perhaps most significant was the creation of the Civil Judicial Council. This “quasi-official body,” as Moody referred to it, effectively promoted and facilitated the cause of judicial reform, leading to the enactment of both the State Bar Act and the Rules of Civil Procedure Act in 1939.

In short, Moody was hardly a failure in the field of judicial reform; he did not “s[eek] in vain . . . to overhaul the antiquated court system.” I rate the Governor Moody a success in the area of judicial reform for actually obtaining, as a practical matter, most of the judicial and legal-process improvements he advocated, with help from the TBA.

III.???Reflections on Moody, the Texas Bar, and the historical problem ??????of judicial reform in Texas . . . to McDonald v. Longley today

Beyond revising the prevailing mischaracterizations of the legislative record of this Governor and his two Legislatures, what does this vignette of only four years within the long history of Texas courts and legal process teach? An easy answer is that this brief span demonstrates that the process of change in the Texas legal system is difficult and slow. Fundamental reforms and innovations such as Moody proposed happen neither easily nor quickly. But beyond that rather obvious observation, a fuller answer may be at least adumbrated—without stepping into the thicket of “public interest,” “interest group,” and other theories and speculations as to why any legislation ever happens—based simply on Texas history and Moody’s record.[44]

To begin, Texas in the late twenties was relatively prosperous.?Even after the Great Crash of October 1929, Texans, who generally were not as heavily invested in the stock market as Americans in some other states, avoided the harshest effects of the Great Depression that became more widespread through the State after Moody left office very early in 1931.[45] As T.R. Fehrenbach put it, “In [the] prosperous times [of the 1920s], there was almost no chance for any kind of political change.”[46] So judicial reform may have been, and may always be, more difficult of accomplishment in the good times.[47]

Furthermore, although the legal system touched and affected Texans of the twenties in myriad ways, issues of court organization and legal process were not the natural stuff of political discourse or even of any interest or concern either for individuals or for the owners and managers of Texas businesses. This is understandable considering that, when they have to resort to or become entangled in legal process, clients, then as now, generally rely on their lawyers[48] to navigate the intricacies of either prosecuting or defending lawsuits or defending criminal indictments; and while citizens may learn a little about trials from periodic trips to the courthouse under jury summonses, those experiences do not truly inform them about the system’s inefficiencies, quirks, and needs for reform and adjustment.

And how could they? Only lawyers and judges actually observe, experience, and know these things. To acquire a lawyer’s intimate knowledge about the court system requires, first, legal education (through apprenticeship in older days and law school in more modern times) and, then, actual experience in representing clients in litigation and criminal proceedings after admission to the bar. Moreover, Texas judges may be political actors in the sense that they stand for election on party tickets, but because of separation-of-power concerns, temperament, and prudence, they usually do not lobby legislators for changes to the courts they staff and the rules they administer.

So it was Texas lawyers who were the natural constituency for Moody on the issue of legal and judicial improvement during his two terms. In fact, lawyers were the only constituency, and allies, for his issues and efforts. This is reflected in the Governor’s reliance on the TBA, of which he was a member, and its Special Legislative Committee, which drafted the specific bills that were introduced into the Legislature pursuant to his broad agenda.

Although only four years, this episode indicates that any effort, at any time, to change or revise any material feature of the Texas judicial-and-legal system has required, and will almost certainly require in the future, lawyers, by and through their professional association, to raise the problem, to propose the solution, and to actuate levers of political persuasion and legislation to achieve. Such changes are difficult to obtain by constitutional amendment but somewhat easier by small legislative enactments. This is what had been happening in the decades after the constitutional amendment of 1891 and leading up to the late 1920s, as the Legislature regularly enacted small tweaks to the procedural rules and, from time to time, added more district courts.

Changes larger than such tweaks have required, and will almost certainly require in the future, a stronger expression, a governor’s voice. As Governor, Dan Moody—a lawyer and a politician elected to office by landslide votes—commanded the attention of the public and of the Texas Legislature. Provisioned with what he must have seen as an opportunity for progressive legislation in the wake of his exposure of the scandals of Ma Ferguson’s administration and his landslide electoral victories, Moody thought the time right to push judicial reform forward in very significant ways, even though he had not campaigned on that theme. That he was able to do so only in alliance with the statewide bar association and then only to incremental and practical extents—by legislation, and not by constitutional amendment—just indicates the magnitude of the obstacle to fundamental changes and improvements to the judicial system in Texas, certainly in the early decades of the twentieth century, but also continuing to the present time.

The last sentence is based on my own experiences and observations (beginning as a law student who first began to read the Texas Bar Journal at the University of Texas Law School in 1975 and continuing as practicing lawyer for 39 years in Texas) of the periodic debates within, and the efforts by, the organized bar to seek the improvement of the administration of justice. Throughout the history of Texas’s organized bar, both the TBA from 1882 to 1940 and its successor, the State Bar of Texas (the “SBOT”), from 1940 to today, have been highly involved with issues of and proposals to improve Texas courts and judicial administration.

The historic concern of the professional organization for those issues and the overall topic of the administration of justice remains appropriate work for the Bar today—and has in fact just survived a First Amendment attack in the federal courts mounted by disgruntled members of the SBOT who wished not to be members and not to have to pay dues. The plaintiffs contended that mandatory SBOT membership somehow violated their free-association right under the First Amendment to the U.S. Constitution.

Even though it engaged in no historical analysis of the bar organization’s long-term engagement in judicial-improvement efforts,[49] the Fifth Circuit Court of Appeals got it right, holding on July 2, 2021, in McDonald v. Longley,[50] based on the precedent of the 1990 U.S. Supreme Court decision Keller v. State Bar of California,[51] that while, in general, “political and ideological” activities of the SBOT can abridge the First Amendment rights of Bar members in several respects, the Bar’s “[l]obbying for legislation regarding the functioning of the state's courts or legal system writ large . . . is germane,” that is, entirely proper.

The Fifth Circuit thereby vindicated the historic concern and involvement of the organized bar in such activities—including its successful collaboration with Governor Dan Moody for judicial reform in Texas ninety years ago.

* The author is a Visiting Scholar of the Department of History of the University of Texas at Austin, and he is Retired Partner in Residence of Vinson & Elkins LLP in its Dallas office. The C.V. is here: blog-josiahmdaniel3.blogspot.com/2018/03/cv.html. His most recent legal-historical article published in a law journal is “What I Said Was ‘Here Is Where I Cash In’”: the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis, 54 UIC J. Marshall L. Rev. 379 (2021). The author is solely responsible for this article’s content, and any statements about the law do not necessarily reflect the views of the law firm from which he is retired or its clients. ? 2012-2021 by Josiah M. Daniel, III.

[1] “Legal history” is, of course, far more than this simple formulation implies. Today’s legal history is the robust, specialized area within the broad discipline of history that formerly centered on the evolution of legal doctrines and on the history of courts and tribunals but, over the past fifty years, has widened its focus to broad considerations of the role of law in society. Inspired by the seminal work of historian J. Willard Hurst, legal historians study and write about law’s historical effects upon a capacious range of people, times, and events. Ideally, this work requires “knowing the period, deeply situating law in the particularities of a specific time and place.” Steven Wilf, Law/Text/Past, 1 UC Irvine L. Rev. 543 (2011).

[2] Michael Ariens, Lone Star Law: A Legal History of Texas (2011) [hereinafter, “Ariens”].

[3] Id. at 200.

[4] 1 Tex. Bar Ass’n, Proceedings [organizational meeting] 8 (1882).?See also William B. Carssow, Organization and Activity of the Texas Bar Association, in Comm. on the Hist. & Trad. of the Bar, State Bar of Tex., Centennial History of the Texas Bar 1-9 (1982).

[5] Daniel James Moody, Jr. (1893-1966). My interest in Moody dates from a 1974 graduate-student seminar with my mentor in the History Department of The University of Texas at Austin, Norman D. Brown, and my archival research into Moody underlies the M.A. thesis I wrote for him. Josiah M. Daniel, III, Business Progressivism in Texas: The Administration of Governor Dan Moody and the Fortieth and Forty-first Legislatures, 1927-1931 (M.A. Thesis, Dept. of Hist., Univ. of Tex. at Austin, 1986) [hereinafter Daniel, The Administration of Governor Dan Moody”]. See also Lenora Nickels, Public Services of Dan Moody (M. A. thesis, Tex. Tech. College, 1948). Even now, “[n]o definitive scholarly biography of the political career of Dan Moody exists.” Norman D. Brown, ed. by Rachel Ozanne, Biscuits, the Dole, and Nodding Donkeys: Texas Politics, 1929-1932 62 n. 70 (2019). A short “bio” is available through the Texas State Historical Association. Richard T. Fleming,?Moody, Daniel James, Jr., Handbook of Texas Online, available at www.tshaonline.org/handbook/online/ articles/ fmo19. A short account written from newspaper articles and secondary sources is Ken Anderson, Dan Moody: Crusader for Justice (2009). Another book focuses on his KKK prosecution and mistakenly suggests that Moody was racially enlightened. Patricia Bernstein, Ten Dollars to Hate: The Texas Man Who Fought the Klan (2017). Yes, he fought the KKK but Moody’s racial thinking was consistent with his political and legal peers in Jim Crow Texas. For instance, when the U.S. Supreme Court declared the Texas white primary law unconstitutional in Nixon v. Herndon, 273 U.S. 536 (1927), see Charles L. Zelden, The Battle for the Black Ballot 56-57 (2004), Moody added the issue of replacing it to his call of a special session of the Legislature, and he then signed the revised white primary into law. Also he permitted an odious residential segregation bill to become law without his signature. Jim Crow continued to suffuse the machinery of State government throughout Moody’s governorship and afterward.

[6] See, generally, Jessica Brannon-Wranosky & Bruce A. Glasrud, Impeached: The Removal of Texas Governor James E. Ferguson (2017); Don H. Biggers, Our Sacred Monkeys or 20 Years of Jim and Other Jams (Mostly Jim), the Outstanding Goat Gland Specialist of Texas Politics (1933).

[7] Moody then defeated his Republican opponent, H.H. Haines, in the general election by 233,068 to 31,581. A.H. Belo Corp., Tex. Almanac & State Indus. Guide (1928) [hereinafter, “Tex. Almanac”] at 162.

[8] George Brown Tindall, The Emergence of the New South, 1913-1945 224-33 (1967). See, generally, Daniel, The Administration of Governor Dan Moody, supra note 5. For Moody's 1926 campaign, see chapter 8 of Norman D. Brown, Hood, Bonnet, and Little Brown Jug:?Texas Politics, 1921-1928 297-339 (1982).

[9] Moody may be an exception to ?Tindall’s positing of business regulation as a missing element of business progressivism in that Moody did seek seriously to regulate Texas business, at least the electric power industry, through a farsighted but unsuccessful proposal to create a Public Utilities Commission (not created until 1975). Furthermore, during his administration, his two Legislatures did bring the motorbus and intrastate common-carrier trucking and industries under the Texas Railroad Commission. William R. Childs, The Texas Railroad Commission: Understanding Regulation in America to the Mid-Twentieth Century 190-91, 194 (2005).

[10] Tindall, supra note 8 at 230.?

[11] Dorothy Blodgett, Terrell Blodgett & David L. Scott, The Land, the Law, and the Lord:?The Life of Pat Neff 95-101, 129-37 (2007) (discussing Neff’s legislative agenda).?However, Neff was a desultory promoter of judicial reform.?While he recalled in his memoir that “the entire judiciary of the State [needed to be] simplified and perfected,” he noted that “Of the ninety-three bills vetoed by me, none of them was passed over my veto except the twelve different bills each creating a new State court.?Instead of creating new courts, I thought that about half of those we had should be abolished.”??Pat M. Neff, The Battles of Peace 244 (1925).

[12] H.J. of Tex., 40th Leg., R.S. 102-04 (1927).

[13] A good contemporary summary of the development of the courts under the Constitution of 1876 and the amendment of 1891 is found in a student note published in 1931. M.L. Cook, Texas Courts of Exceptional Jurisdiction and Organization—Constitutionality—Small Claims Court, 9 Tex. L. Rev. 388, 389-400 (1931).?See also Leila Wynn, History of the Civil Courts of Texas, 60 Sw. Hist. Q. 5-12 (1956); F.A. Williams, History of the Texas Judicial Machine and Its Growth, 5 Tex. L. Rev. 174-82 (1927) [hereinafter, “Williams, Texas Judicial”]; Keith Carter, The Texas Court of Criminal Appeals, 11 Tex. L. Rev. 1-27, 185-203, 301-34, 455-76(1932-1933).

[14] For the history of civil procedural rules in Texas, see William V. Dorsaneo III, The History of Texas Civil Procedure, 65 Baylor L. Rev. 713 (2013) (hereinafter, “Dorsaneo, Civil Procedure”).

[15] Spurgeon E. Bell, A History of the Texas Courts, in State Bar of Texas, Centennial History of the Texas Bar 201-02, 205-06 (1982); Marian Boner, A Reference Guide to Texas Law & Legal History:?Sources and Documentation (1976) at 30-33, 37; Tex. L. Rev., The Greenbook: Texas Rules of Form §§ 5.2-5.2.4 (12th ed. 2010).

[16] Josiah M. Daniel, III, In the Beginning—Organization and Activities of the Texas Bar Association, 45 Tex. B.J. 36, 38 (1982) (“The organization also took a lively interest in the reform of Texas civil procedure.”). In that publication, this article bears another’s name, but I was plagiarized; I am its author.

[17] Innumerable articles identifying problems of and proposing solutions for Texas judicial process are found not only in each issue of the Texas Law Review but also the Proceedings of the Texas Bar Association, from 1922 through 1931, and thereafter.

[18] Williams, Texas Judicial, supra note 13, at 174.

[19] Leon Green, Simplification of Civil Procedure, 2 Tex. L. Rev. 464-66 (1922).?

[20] It was also in 1927 that the TBA seriously initiated its legislative effort to “incorporate” the bar (i.e., to transform the voluntary association into the membership-mandatory State Bar of Texas), with the first bill introduced in the 40th Legislature styled as the “Self-Governing Bar Bill.” That bill died, and ultimately another dozen years’ work was required to enact the 1939 State Bar Act. See Josiah M. Daniel, III, Creating the State Bar of Texas, 1927-1941, 45 Tex. B.J. 454 (1982).

[21] H.J. of Tex., 40th Leg., R.S. 102-04 (1927); A.H. McKnight, Progress of the Special Legislative Committee, 5 Tex. L. Rev. 49-50 (1926) [hereinafter, “McKnight, Special Legislative Committee”].

[22] The voluntary TBA was an organization of the more elite lawyers of the State. It never represented more than a minority of Texas lawyers.

[23] 46 Tex. Bar Ass’n, Proceedings 64-67 (1927); unidentified newspaper clippings in Dan Moody Scrapbooks, Dolph Briscoe Center for American History, Univ. of Tex. at Austin [hereinafter, “Moody Scrapbooks”] Act of Mar. 24, 1927, 40th Leg., R.S., ch. 274, Tex. Gen. Laws 412-13; Act of June 9, 1927, 40th Leg., 1st C.S., ch. 8, Tex. Gen. Laws 18-19.

[24] Phillips, Nelson, Handbook of Texas Online, available at https://www.tshaonline.org/handbook/online/articles/fph08.

[25] Tex. S.J. Res. 24, 40th Leg., RS, Tex. Gen. Laws 468-72 (1927) [hereinafter, “S.J. Res. 24”].

[26] 46 Tex. Bar Ass’n, Proceedings 46 (1927): 68-72; McKnight, Special Legislative Committee, supra note 21 at 49-50; id., The Fortieth Legislature and Judicial Reform, 5 Tex. L. Rev. 361-362 (1927); Moody to A. P. Willis, Aug. 13, 1927, Moody, Dan, Papers, Texas State Archives [hereinafter, “Moody Papers”]; S.J. Res. 24, supra note 25.

[27]?Tex. Almanac, supra note 7, at 245.

[28] Tex. S.J. Res. 33, 40th Leg., R.S., Tex. Gen. Laws 463-64 (1927); S.J. Res. 24, supra note 25; Tex. H.J. Res. 25, 40th Leg., R.S. , Tex. Gen. Laws 472-73 (1927); Tex. H.J. Res. 32, 40th Leg., R.S. , Tex. Gen. Laws 500-01 (1927); Walter F. Woodul to Moody, Aug. 19, 1927, Moody Papers; author's interview of Woodul, July 11, 1975.

[29] Act of Feb. 16, 1927, 40th Leg., R.S., ch. 36, Tex. Gen. Laws 50-53; Act of Mar. 10, 1927, 40th Leg., R.S., ch. 76, Tex. Gen. Laws 115-16; Act of Mar. 25, 1927, 40th Leg., R.S., ch. 144, Tex. Gen. Laws 214-16; Act of Mar. 25, 1927, 40th Leg., R.S., ch. 156, Tex. Gen. Laws 228-31; Act of Mar. 31, 1927, 40th Leg., R.S., ch. 255, Tex. Gen. Laws 378-79; Act of Apr. 4, 1927, 40th Leg., R.S., ch. 273, Tex. Gen. Laws 411-12; Act of June 6, 1927, 40th Leg., 1st C.S., ch. 51, Tex. Gen. Laws 148-49; 46 Tex. Bar Ass’n, Proceedings 46-47, 65-66 (1927); 47 Tex. Bar Ass’n, Proceedings 181-82 (1928); Moody, Gubernatorial Messages to the Legislature, S.J. of Tex., 40th Leg., R.S. 91-92, 378-80 (1927); Dallas News, Sept. 11, 1927; Moody to N.R. Morgan, Nov. 2, 1927, Moody Papers.?

[30] Unidentified newspaper clipping dated June 28, 1928 in Moody Scrapbooks; Amarillo News, July 6, 1928 & July 22, 1928.

[31] He won the Democratic Party primary by 442,080 to 245,508 votes and then trounced his Republican opponent, W.H. Holmes, in the general election by 582,972 to 120,504. Tex. Almanac, supra note 7, at 259-60.

[32] H.J. of Tex., 41st Leg., R.S. 20-35, 77 (1929).

[33] Tex. H.R.J. Res. 6, 41st Leg., R.S., Tex. Gen. Laws 711-13 (1929).

[34] Tex. S.J. Res. 2, 41st Leg., R.S., Tex. Gen. Laws 715 (1929).??

[35] See, e.g., Act of Feb. 11, 1927, 40th Leg., R.S., ch. 18 Tex. Gen. Laws 23 (changed “to be placed” to “or be placed” in statute providing that “every suit shall be tried when it is called . . . .”); Act of Feb. 22, 1929, 41st Leg., R.S., ch. 99, Tex. Gen. Laws 234-35 (revising the requirement for attachment of a copy of the petition to a citation when the petition has been attached to a writ of injunction).

[36] Act of May 15, 1939, 46th Leg., R.S., ch. 25, Tex. Gen. Laws 201-03. Out-of-state lawyers marvel at the vast number of rules of the Texas Rules of Civil Procedure, presently numbering 685. When the Legislature in 1939 finally enabled the Supreme Court to promulgate civil rules, the Court ended up adopting a few of the Federal Rules of Civil Procedure but incorporated wholesale into the Texas Rules the hundreds of rules that had been previously contained in separate articles of the Revised Civil Statutes of Texas. See Ariens, supra note 2, at 257-58; Dorsaneo, Civil Procedure, supra note 14.

[37] Act of Mar. 2, 1929, 41st Leg., R.S., ch. 309, Tex. Gen. Laws 689-91; Act of May 23, 1929, 41st Leg., 1st C.S., ch. 19, Tex. Gen. Laws 51-54; formerly codified as Tex. Rev. Civ. Stat. Ann. art. 1731a; now codified as Tex. Gov't Code § 22.004.?The agency is now known as the Texas Judicial Council.?

[38] Powerful Argument for Judicial Council (Speech of J.W. McClendon to Ass’n of Judges of the Courts of Civil Appeals), 12 J. Am. Jud. Soc. 45-53 (1928); A.H. McKnight, Judicial Reform in the Forty-first Legislature of Texas, 7 Tex. L. Rev. 103-07 (1928).

[39] A.H. McKnight, Texas Judicial?Council, 8 Tex. L. Rev. 101-03 (1929).

[40] Charles T. McCormick, The Revival of the Pioneer Spirit in Texas Procedure, 18 Tex. L. Rev. 427, 433 (1940).

[41] Randolph B. Campbell, Gone to Texas:?A History of the Lone Star State 375 (2003) [hereinafter, “Campbell”] (emphasis added).?See also T.R. Fehrenbach, Lone Star: A History of Texas and the Texans?647 (1968) [hereinafter “Fehrenbach”] (“the legislature and the people ignored his recommendations”); Norman D. Brown, Texas in the 1920s, Handbook of Texas Online, available at www.tshaonline.org/handbook/online/articles/npt01. (during Moody’s two terms, “no fundamental changes were made in the cumbersome judicial system”); Rupert N. Richardson, Texas:?The Lone Star State 432 (1943) (“The fortieth legislature (1927) made some progress toward reform of the court system”) (emphasis added); Joe B. Frantz, Texas: A Bicentennial History 175 (1976) (“Moody . . . tried to reform the judicial . . . branch[] of the government with mixed success) (emphasis added).

[42] Act of Mar. 14, 1930, 41st Leg., 5th C.S., ch. 2, Tex. Gen. Laws 112-14.

[43] Tex. Civ. Jud. Council, Second Annual Report of the Texas Civil Judicial Council to the Governor and Supreme Court [n.d., n.p.], 36.

[44] See, e.g., Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 Chi. L. Rev. 263 (1982).

[45] Campbell, supra note 41, at 377-78.?See also Robert C. Cotner, ed., Texas Cities in the Great Depression, Introduction at xii (1973)?(After 1929, “the booming oil industry in Texas did much to ease the strain on unemployment rolls.”).?Dealing with the Great Depression in Texas fell to subsequent governors beginning with Ross Sterling, who took office on January 20, 1931.?

[46] Fehrenbach, supra note 41, at 647.

[47] Both the Rules of Procedure Act and the State Bar Act were enacted in 1939, when some of the worst effects of the Depression were still being suffered.

[48] The historic problem of the general unavailability of lawyers for Texans of color and of low income deserves greater attention that it has so far received.

[49] In fairness to the court, to find this story would have required its briefing attorneys to engage in deep historical research—viz., the sources cited my footnotes—because the original of this article is buried in the Journal of the Texas Supreme Court Historical Society which is online, see www.texascourthistory.org/journal, but essentially unsearchable. Hopefully this essay will be more “findable” on SSRN. Moreover, my full legal history of the TBA is forthcoming under the title “Our Very Useful and Honorable Profession”: The Texas Bar Association’s Work To Professionalize Texas Lawyers, 1882-1940.

[50] McDonald v. Longley, 4 F.4th 229 (5th Cir. July 2, 2021). The timeline of this litigation and the pleadings and orders are here: www.texasbar.com/Content/NavigationMenu/McDonald_et_al_v_Longley_et_al1/ default.htm.

[51] Keller v. State Bar of Cal., 496 U.S. 1, 5 (1990).?