San Antonio Express-News: Texas should end judicial deference

In 2011, Hermenia Jenkins, the principal at a public school in a Houston suburb, was surprised to learn that despite her term contract, the superintendent had demoted her to assistant principal and was moving her to a different school.

She took umbrage, arguing that her contract shielded her from this reassignment because the new job was not in the “same professional capacity” as a principal under the Texas Education Code. But the school argued otherwise — interpreting “same” to mean generally the same, not exactly the same. The Texas Court of Appeals that took up her case did not decide what “same professional capacity” actually means. Instead, it simply deferred to the school’s interpretation.

That’s called “judicial deference.” Texas courts defer to state agencies rather than decide the meaning of the laws on their own. This lets government agencies do the interpreting, almost always in a way that favors the agency’s own interests.

Since the 1940s, federal and state courts have practiced judicial deference by allowing unelected regulators to decide the meaning of the laws they are charged with enforcing. More than two centuries ago, Chief Justice John Marshall declared that the courts have the duty to “say what the law is.” Judges should interpret the law independently and impartially.

This seemingly technical issue has a real-life impact on Texans’ rights. Bureaucrats wind up making important tax determinations, and occupational licensing boards are stocked with industry insiders restricting entry to their profession to maximize their own profits.

In Texas, courts “defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the language of the statute.”In Jenkin’s case, the court decided that the school’s interpretation of “same professional capacity” as including both principal and assistant principal was reasonable.

To end this systemic bias favoring the government and restore the independence of the Texas courts, a group of Texas legislators tried to pass Texas House Bill 1947 this session. The bill made it out of committee, but unfortunately, it failed to gain a vote on the House floor.

In committee, a witness questioned whether judges have the knowledge to interpret technical or scientific language in statutes. However, judges don’t need to be technical or scientific experts when interpreting the law. Judges, not agencies, are the experts on legal interpretation.

The bill would have required judges use neutral and independent judgment about the law’s meaning. When deciding cases, judges would use the normal methods of interpreting statutes, called tools of statutory construction, to determine the original public meaning of the legal text.

When the statute is truly unclear, the courts would follow the centuries-old practice of resolving ties in favor of individuals instead of the government. Indeed, the typical rule in contract disputes like Jenkins’ would be that courts interpret a contract against the interests of the contract’s drafter, who typically has more power.

The Texas Legislature should consider ending judicial deference in the next legislative session and add Texas to the growing number of states that have restored judicial independence. By ending deference to state agencies, the Legislature can remove the government’s thumb from the scales of justice and make sure every Texan gets a fair shake before an unbiased judge.

This op-ed was originally published in the San Antonio Express-News on June 6, 2023.