7.2.3 Southwest Legal History (1870-1900): Jim Crow in Texas

The Revolt Against Social Equality:  Miscegenation laws

Frasher v. State – Texas, 1873 (3 Tex. App. 263)

  • Most white Southerners (including Texans) grudgingly accepted postwar civil rights laws that granted blacks basic rights such as the right to hold property, control their own labor and travel freely.  But whites of all stations fiercely resisted attempts to enact social equality:  for example, laws requiring schools, theaters, restaurants and other public places to be integrated or allowing blacks and whites to intermarry.  In Frasher, Texas’s appeals court affirmed that interracial marriage continued to be illegal; it justified the ban as a public safety measure, designed to defuse racial tension – a rationale that Southern courts would use for decades to come to justify Jim Crow laws.

Beginning of the struggle to desegregate juries

Cavitt v. State – Texas, 1883 (15 Tex. App. 190); Carter v. State – Texas, 1898 (46 S.W. 236, 48 S.W. 508), reversed, 177 U.S. 442 (1900); Whitney v. State – Texas, 1900-01 (59 S.W. 895, 63 S.W. 879)

  • At the end of Reconstruction, the U.S. Supreme Court held that the 14th and 15th Amendments to the U.S. Constitution prohibited states from discriminating against blacks in the selection and composition of grand juries and petit (trial) juries.  No Southern state enacted laws explicitly excluding blacks from juries, but many excluded them by means of restrictive voting laws (state laws often limited jury service to those eligible to vote) and by informal practice (see §§ ____).  
  • Between the late 19th century and the mid-20th century, Texas and the Supreme Court engaged in a tug-of-war over this practice.   Cavitt, an early case involving a jury challenge, illustrated attitudes that led to the tug of war.  There, the Texas appeals court viewed the world as one where antagonism between and clannishness within racial and ethnic groups was viewed as natural; it saw no reason to fight against nature in laying down jury selection procedures. 
  • In Carter, the first important case in the tug-of-war, a black criminal defendant pointed out that even though Galveston, the place of trial, was 25% black, no black had ever served on a jury there.  The trial court said this was not enough to show discrimination and it refused to let the defendant present additional evidence of discrimination. 
  • Texas’s appeals court did not view this as a problem:  because the case involved a black-on-black crime and did not involve whites, it simply could not see any possibility of prejudice against the defendant on account of his race.  The U.S. Supreme Court felt differently:  it reversed the Texas court, stating that evidence of actual discrimination was relevant and should have been heard. 
  • The following year, in Whitney, a Texas trial court rejected a jury discrimination claim even though one of the jury commissioners testified he would never impanel a black juror.  Texas’s criminal appeals court sent the case back for selection of a new jury and a new trial:  it warned Texas trial courts that they must obey the U.S. Supreme Court whether or not they agreed with it.  That was not the last time a warning would be needed. 
File:A former slave displaying a horn used to call slaves.jpg
Former slave with field horn, Marshall, Texas (1939) - courtesy Farm Security Administration and LIbrary of Congress

“It has always been the policy of this state to maintain separate marital relations between the whites and the blacks … The people of Texas are now, and have ever been, opposed to the intermixture of these races.  Under the police power possessed by the states they undoubtedly, in our judgment, have the power to pass such laws.” – Judge Mathew Ector, in Frasher

“If both [the accused and the victim] were colored persons … we fail to appreciate how race prejudice could have entered into the administration of the law [by all-white grand jury], unless it be assumed that race prejudice, on the part of th whites against the blacks, is so bitter and acute as that the law would not be fairly and impartially administered.” – Justice __, in Carter


“A number of cases involving this question are coming before this court, and we respectfully call the attention of the district judges to this matter, and refer them to the decisions of the Supreme Court of the United States … the constitution of the United States, as construed by the highest tribunal in the land, is the supreme law, and should be respected and obeyed …. It will serve no useful purpose to delay the case and send it to this court for review.” – Judge __ Henderson, in Whitney