The Paper Chase

Houston attorney Bill Kroger and state Supreme Court chief justice Wallace Jefferson are on a mission: to persuade hundreds of counties to prevent thousands of courthouse papers from being lost to neglect. Can they save Texas history, one ancient legal document at a time?
The Paper Chase
County Clerk Deed Record Book M (1868–1869), McLennan County.

John Wesley Hardin, one of the most vicious outlaws of the Old West, killed at least two dozen men, including a Comanche County deputy sheriff in 1874. Hardin fled the state, but three years later John B. Armstrong, a Texas Ranger, tracked him down in Pensacola, Florida. Instead of shooting Hardin, Armstrong brought him back to Texas, where he was put on trial. It took half a day to pick a jury in Comanche, then another day and a half to try the case. The jury debated for three hours, found Hardin guilty of second-degree murder, and gave him 25 years. He appealed and lost; in September 1878 Hardin was sent to Huntsville, where he served almost 16 years before being released.

Bill Kroger believes that the way Texas dealt with Hardin says a lot about the state’s history. “Texas has a reputation as being the Wild West,” says the Houston lawyer, “but Jesse James was gunned down in Missouri, and Billy the Kid was gunned down in New Mexico. Hardin was brought to justice.” Kroger is chair of the state Supreme Court’s Texas Court Records Preservation Task Force and has become something of an unofficial state historian. “Texas wasn’t settled by gunmen,” he says. “It was settled in large part by developing, county by county, a system of laws, with due process, an independent judiciary, and a functioning bar of lawyers. It’s why the center of every county seat is not a church but a courthouse.”

In 2009 Kroger was looking through the archives of the Comanche County district clerk’s office and stumbled upon a record of Hardin’s history that had sat in the dark for generations. In a small room that resembled a closet, he found stacks of minute books, a kind of court diary that listed hearings, rulings, and decisions. Kroger opened one and was astonished to see the elegant calligraphy of justice on the frontier:

It is considered adjudged and decreed by the Court that the said John Wesley Hardin Defendant is guilty of murder in the second degree as charged in said Bill of Indictment and that he be punished therefor by imprisonment in the State Penitentiary and within the walls of said Penitentiary at hard labor for the term of Twenty five years… .

Discoveries like this have fueled Kroger, who for the past few years has traveled around the state, inspecting case files and minute books, trying to persuade people to preserve the history sitting in closets, sheds, and forgotten boxes. On some of these trips he’s been joined by his old law school buddy Wallace Jefferson, the chief justice of the state Supreme Court.

Their mission began in 2008, when Kroger wrote an article on Reconstruction for Houston Lawyer magazine and then started researching another on the noted jurist Nicholas Battle, a mid-nineteenth-century Waco judge and slave owner—who, as it happened, owned Jefferson’s great-great-great-grandfather Shedrick Willis. Kroger was particularly interested in Westbrook v. the State, a pre–Civil War decision in which Battle ruled that a freedman could not sell himself into slavery. Kroger was intrigued that a slaveholder would make a ruling in defiance of the ironclad community standards of his time. But all he could find online was a short appellate opinion. Where was the case file, the motions and pleadings?

Kroger asked Jefferson, who is also a history buff, to take a trip with him to Waco to check the records for themselves. In December 2008 the two hit the road for the McLennan County archives, where they found nothing about Westbrook—no minute book, no case file. “What struck us,” says Kroger, “was how vast the district clerk’s records were, which had led to a certain amount of disarray. It was hard for us to tell which books they had and which ones were missing. All the case files were in their original envelopes. It was clear no one had ever looked through them—to even try would have risked destroying them. I remember touching some books and being worried that their binding would crumble in my hands.”

On the drive home from Waco, the two men talked about history and how so many invaluable records were vanishing or were simply impossible to find. Kroger suggested creating a task force of like-minded people to address the problem. Jefferson suggested doing so under the authority of the Supreme Court, which made sense, given that many of the cases he was hearing were connected by common law to those the courts had heard in the nineteenth century.

Three years later, what they have found in court archives in many of the state’s 254 counties has changed their whole sense of Texas history. “It’s a very different picture than the one we grew up hearing about, a richer, deeper view,” says Kroger. “I’ve always thought Texas history was centered on big events, like the Alamo, and important men, like Sam Houston and Stephen F. Austin, and that the state was all pistols, barbed wire, and oil derricks. But that’s not how it played out in the lives of ordinary Texans. The state was slowly settled over an eighty-year history, and the history of Texas is really the story of hundreds of small groups of settlers trying to scratch out communities while facing conflicts and problems of all sorts. It’s 254 experiments.”

And the evidence of those experiments is disappearing. Texas, Kroger and Jefferson fear, is losing its history, one ancient court record at a time.

When Wallace Jefferson was growing up, his East Texas grandmother told him stories about her relatives, many of whom, in the years after the Civil War, had become educated—one worked as a dentist, another a lawyer, another a postal worker. His great-great-great-grandfather Shedrick Willis was elected twice to the Waco city council, even serving as mayor pro tem. Jefferson was intrigued. How did these people, who had been illiterate slaves, become professionals? In 1987 Jefferson and his father, William Douglas Jefferson, found Willis’s obituary at the Texas State Library and Archives Commission. “Deceased was one of the best

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