Article Contents
When Stephen F. Austin founded his colony in eastern Texas in 1821, he did so as a citizen of Mexico, which had only just declared its independence from Spain.
Through the first decade and a half of the colony’s existence, Austin’s colony—the first Anglo-American settlement in Texas—absorbed Spanish/Mexican legal influences, even as settlers brought with them from the east their own Anglo-American legal heritage.
Farther south in Texas, especially in San Antonio, the influence of Spanish (Castilian) law went back another century, dating to the founding of San Antonio as a Spanish mission in 1718.
The Texas Revolution of 1835 and Texas’s subsequent annexation by the United States meant a decisive turn toward Anglo-American law. But Texas retained vestiges of Spanish legal influence, which in turn have also influenced law throughout the United States.
This influence is found in these key areas of law: the role of county judges, certain procedural rules affecting trials, land titles and water rights, and laws governing family relationships.
County Judges
In Texas, the presiding officers of county governments wield both executive and judicial powers. These officials are referred to as “county judges.” Their dual executive-judicial role is derived from a comparable position in Spanish colonial government.
In New Spain, the alcalde mayor was a type of regional magistrate who oversaw a territory called an alcaldía mayor (“mayor” here is the Spanish word for “higher,” in contrast to “menor” meaning “lower.” It is not the English word “mayor,” though the two words have the same root). The phrase alcalde mayor could be translated “senior magistrate.”
The alcalde mayor was a local representative of the crown who exercised administrative, military, and judicial functions. His title came from an Arabic root word, al-qadi (القاضي), which means “judge,” reflecting the Arab influences in Spain.
Texas is unusual among U.S. states in referring to its county executives as “judges.” The only other state to do so is Arkansas. (Confusingly, there is another type of “county judge” in Texas too, which is purely a judicial official, who holds overlapping jurisdiction with the county executive/judge. However, this position was created later).
Family Law
Another influence of Spanish law on Texas law is in the area of family relationships, including in inheritance matters (probate), marriage, and adoption.
Adoption was an accepted part of the Spanish civil law tradition, whereas it was unknown in the Anglo-American legal tradition until the 19th century, and not widely embraced until the 20th century (England itself didn’t pass its first adoption law until 1926).
Texas was the first U.S. state to legally recognize adoption, passing an adoption law in 1850. Legal scholars generally attribute this decision to the Spanish colonial influence.
Spanish law also influenced Texas’ law of matrimonial property. Husband and wife generally share all property in Texas, a system called “community property.” Eight other U.S. states use this system, including California, Arizona, New Mexico, which were likewise part of New Spain.
Writing in the Handbook of Texas, a publication of the Texas State Historical Association, Joseph McKnight stated, “The Anglo-American frontiersman found the idea of common ownership of the gains of marriage between husband and wife much more agreeable to his society than common-law principles.”
Probate law in Texas also draws on the Spanish tradition, providing for a simpler system than the English one. It is common in Texas probate cases to appoint an independent executor, which is a position modeled on the Spanish albacea universal.
Civil procedure
Some legal scholars also argue that Spanish/Mexican law influenced civil procedure in Texas. Specifically, the Texas Republic adopted a simplified petition-and-answer system of pleading, soon after it won its independence from Mexico.
Texas also eliminated the English distinction between equity and common law jurisprudence—a change that eventually spread throughout the United States. Texas was the first jurisdiction in the English-speaking world to adopt the unitary system.
Attorney/historian James. W. Paulsen explains how this decision came about: “Spain and Mexico were civil law jurisdictions, so the English distinction between law and equity was unknown. Pleadings also were simple—petitions and answers. A fair number of Anglo settlers had acquired some experience with, and appreciation for, Mexican courtroom procedures before the [1836] Revolution,” he wrote in a 2011 article in the Houston Lawyer.
“So, just two weeks after the Republic adopted the common law, lawmakers provided that ‘the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer,’ and that legal and equitable claims could be raised and decided in a single lawsuit.”
Lastly, another element of Spanish procedural law that has survived in Texas today is the rule that a person must be sued where he or she lives, rather than where the dispute arose.
