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Court of Criminal Appeals

Don’t expect a Ken Paxton trial to happen this year

Delays, delays, nothing but delays.

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Texas Attorney General Ken Paxton was indicted for fraud nearly three years ago but is unlikely to go on trial before Election Day.

Paxton’s trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid. The court went on summer recess Wednesday, and won’t hear any cases or issue any major opinions before the fall.

This means they won’t announce a decision in the pay case until September, at the earliest, which experts said will delay Paxton’s trial dates until after the Nov. 6 election — and probably into next year.

“I just don’t see there’s any way it gets tried before the election,” said Rusty Hardin, a Houston attorney who has represented everyone from Enron employees to athletes and TV stars. “I would have doubted that the trial would have happened before the election even if the Court of Criminal Appeals would have decided today.”

There’s more, so read the rest. Just for a sense of the timeline here, the 5th Court of Appeals in Dallas halted the special prosecutors’ pay last February, then ruled they had to give a bunch of it back to Collin County in August. The CCA then stayed that ruling pending any action it would take in September, and after giving everyone 30 days to respond to the prosecutors’ appeal of the 5th Court’s ruling, they agreed in December to formally review that ruling. At that time, it delayed the actual Paxton trial, which was originally set to start on December 11, to this year. More than six months later, the CCA has not scheduled oral arguments for that appeal, and so here we are. There are other factors at play here – the damage done to the Harris County courthouse by Harvey greatly complicates things, for example – but either until this lawsuit gets resolved, nothing else will happen. And just any ruling won’t get us back on track, because if the CCA lets the 5th Court’s ruling stand, the special prosecutors will resign, and we’ll have to start more or less from scratch. Ken Paxton could well be collecting his state pension by the time this sucker gets to a courthouse.

You’ve heard the expression that “justice delayed is justice denied”. Usually, that applies to the defendant, who is entitled by the Constitution to a fair and prompt trial. In this case, as Democratic nominee for AG Justin Nelson says in a statement, Ken Paxton is benefiting from the unending delays, with the assistance of his legislative cronies. You’d think a guy who loudly proclaims his innocence would want to get this over with, but not Ken Paxton. It would seem he’s just fine with putting this off, at least until after the election. Feel free to speculate as to why that might be.

CCA refuses to hear Ron Reynolds’ appeal

It’s getting awfully close to midnight.

Rep. Ron Reynolds

The Texas Court of Criminal Appeals has refused to review state Rep. Ron Reynolds’ criminal conviction and one-year jail sentence, according to online court records.

The Missouri City Democrat had asked the court to overturn a 2015 misdemeanor conviction in Montgomery County for illegally soliciting clients for his personal injury practice. Reynolds still has 15 days to file a motion for a rehearing, according to a staffer at the court, but it is likely that Reynolds will soon serve his year-long jail sentence.

Joel Daniels, the main prosecutor in Reynolds’ trial and chief of the white collar division in the Montgomery County District Attorney’s Office, said the court’s next step would be to issue a mandate to the trial court to carry out the sentence.

“That will mean that Mr. Reynolds’ case will be put back on the docket, and he’ll be brought into court” and taken to jail, Daniels said.

Before then, Reynolds can request a rehearing, as the court staffer said, and, in theory, he could request time to appeal to the U.S. Supreme Court, Daniels said. But that would be “extremely unusual and very rare.”

See here and here for the background. I don’t know if Rep. Reynolds has any tricks remaining in his bad to stay out of jail at this point. If not, then this will come to exactly the point I’ve been saying it will, which is that he’ll be in jail while a legislative session is happening, leaving his constituents without representation during that time, all because he was too self-centered to recognize the need to put their needs first and step down. To be fair, he can still do that: If he resigns effective November 6, we can at least get a special election in January and a new rep in place by March. Not ideal, but better than a Rep in the pokey. Reynolds sent me a whiny message via Facebook back in 2015 when I first called on him to leave office and get his personal life in order so I have no illusion that he’ll listen to me this time, but there it is. You did some good things in the Legislature, Ron Reynolds. Now do one more good thing and let someone else take your place. There’s nothing more to say about this.

Lawsuit over how judges are elected statewide goes to trial

Hey, remember that lawsuit that argued that statewide elections of judges was discriminatory against Latinos? The case is being heard in court this week.

El Paso lawyer Carmen Rodriguez and Juanita Valdez-Cox, a community organizer in the Rio Grande Valley, live hundreds of miles from each other, but they share an electoral grievance that could upend the way Texans fill seats on the state’s highest courts.

For years, Rodriguez and Valdez-Cox have noticed that campaigning for the Texas Supreme Court and Court of Criminal Appeals hardly reaches their corners of the state. And it’s left them feeling so neglected and undermined as voters that they decided to the sue Texas over the statewide election system it uses to fill seats on those courts.

“I think every vote should count and should have equal weight as much as possible,” Rodriguez testified in federal court on Monday on the first day of a week-long trial in a case challenging the state’s current election method for the Texas Supreme Court and Court of Criminal Appeals. But those campaigning for those seats hardly make their case to El Paso voters, Rodriguez added, so “they don’t seem to need our vote.”

That sentiment is a key component to a lawsuit filed on behalf of Rodriguez, six other Hispanic voters and Valdez-Cox’s organization, La Union del Pueblo Entero, that alleges the statewide method of electing judges violates the federal Voting Rights Act because it dilutes the voting power of Texas Hispanics and keeps them from electing their preferred candidates.U.S. District Judge Nelva Gonzales Ramos has set aside the rest of the week for the trial during which the plaintiffs’ lawyers will work to convince Ramos that Texas should adopt a single-member approach — similar to those employed by some city councils and school boards — that would carve up districts geographically in a way that could allow for Latino-majority voting districts.

“The courts cannot be the great equalizer of our social fabric when one group — Latinos — are disadvantaged in the election process,” Jose Garza, an attorney representing the voters, said in his opening statement Monday.

Throughout the day, Garza and other attorneys representing the voters suing the state called up individual plaintiffs and election law and history experts to help make their case that the state’s current system for electing Supreme Court and Court of Criminal Appeals judges “submerges Latino voters” in a manner that violates Section 2 of the federal Voting Rights Act, which prohibits an electoral practice or procedure that discriminates against voters.

Lawyers for the Texas attorney general’s office, which is representing the state in court, will offer up their own experts later in the week in hopes of dispelling those claims. The state’s lead attorney, Patrick Sweeten, on Monday provided a preview of their arguments when he described their defense and the plaintiffs’ arguments as “two ships passing in the night” because the state’s evidence will show that the plaintiffs cannot meet their legal burden of proving a Section 2 violation.

The state is also expected to call up an expert witness who will argue that single-member districts would “disempower more Hispanic voters than they could potentially empower” because they would only be able to vote for one seat on each high court instead of casting a ballot for all 18 seats.

Plaintiffs’ lawyers spent a large portion of the day arguing that that point would only hold up if you assumed Latinos had the opportunity to elect their preferred candidates to begin with.

See here and here for some background. The plaintiffs survived a motion to dismiss a few months ago. This story was from Tuesday, but I haven’t seen anything more recent so I can’t say how the trial is going. Seems like a heavy lift to me, and there’s an argument to be made that districting the courts would put a ceiling on the number of Latinos that could be elected. You have to figure that sooner or later things will be different for statewide races. That said, I very much understand not wanting to wait, though of course taking a court case to completion will take some number of years. We’re at the start of that process, and we’ll see how it goes. Courthouse News and KUT have more.

No Paxton trial till prosecutor pay case resolved

It’s not on the court calendar at this time.

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Attorney General Ken Paxton’s fraud trials have been put on hold as the lawyers pursuing the criminal charges against him fight for years of back pay.

Judge Robert Johnson has taken Paxton’s three criminal cases off his docket for now, the court confirmed to The Dallas Morning News on Friday. While court staff did not have a reason for the removal, the three attorneys prosecuting Paxton have repeatedly asked for the cases to be halted while they fight to have their pay resumed.

The delay will almost certainly push Paxton’s trials into general election season, when he will be seeking another term as the state’s top lawyer. In July, Paxton’s indictments will turn three years old.

[…]

“The (Paxton) case is kind of waiting to go to trial based on [the CCA’s] decision,” said Larry Meyers, a Democrat who lost his seat on the criminal court last year. “About six weeks would probably be a fairly responsible time for them to get an opinion out.”

The Court of Criminal Appeals won’t take up the prosecutors’ case until January 10, so a decision could be issued just before voters go to the polls in the March 6 primary elections. If the court sides with the prosecutors, jury selection in Houston will likely proceed without much further delay. If it doesn’t, the prosecutors have threatened to step down, a move which will temporarily derail the case against Paxton as the county looks for replacement lawyers.

See here for the background. If the CCA rules for the prosecutors, figure on the trial beginning in late spring or early summer. If not, figure on something like the third of never. Let’s hope for the best.

CCA to review Paxton prosecutors pay case

Good.

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The state’s highest criminal court agreed Wednesday to take a closer look at prosecutors’ long-running fight to get paid for their handling of the securities fraud case against Texas Attorney General Ken Paxton.

The move by the state’s Court of Criminal Appeals could have a major impact on the separate case against Paxton. The prosecutors have suggested they will bail if they cannot get paid, likely imperiling the more than two-year case against the state’s top lawyer.

“We are gratified but not surprised by the Court of Criminal Appeals’ decision to formally hear this landmark proceeding, one that impacts trial judges, prosecutors, and defense attorneys across Texas,” the prosecutors said in a statement Wednesday.

Prosecutors asked the Court of Criminal Appeals in September to reverse a ruling from a lower court that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals — spurred by a legal challenge to the invoice by Collin County commissioners — was a “clear abuse of discretion.”

Days after the prosecutors appealed to the Court of Criminal Appeals in September, it put the lower-court ruling on hold. But the court waited until Wednesday — nearly two months later — to announce its decision to review the ruling.

See here and here for the background. All of this jousting over paying for the prosecutors has pushed the trial back into 2018, with the next court date awaiting the disposal of this case. You know how I feel about this, so let’s hope for once that the CCA’s infamous pro-prosecutor tendencies will be a force for good for once. The Chron has more.

Five out of six ain’t bad

Five Democratic candidates for six statewide judicial positions, all from Harris County.

Four state district and county-level judges from Harris County and a Houston civil-litigation lawyer filed for seats on the Texas Supreme Court and the state Court of Criminal Appeals at state Democratic headquarters.

“The only time they open the courts is when it suits their cronies,” said state District Judge Steven Kirkland of Houston, referring to the nine Republicans on the Texas Supreme Court.

[…]

Harris County Civil Court Judge Ravi K. Sandill, who seeks Republican Justice John Devine’s Place 4 seat on the state Supreme Court, said voters would reject the leadership styles of Trump and Gov. Greg Abbott.

“We’ve got a bully in the White House. We’ve got a governor who’s a bully,” he said. “Texans stand up to bullies.”

[…]

Kathy Cheng, a native of Taiwan, said she’s been “the voice for people who don’t have a voice” in nearly 20 years of private law practice. She filed for the Place 6 seat of Republican Justice Jeff Brown.

Signing paperwork to run for Court of Criminal Appeals were Maria T. Jackson, presiding judge of the 339th state District Court in Harris County, and Ramona Franklin, who’s judge there in the 338th.

Jackson filed for the presiding judge seat now held by Republican Sharon Keller of Dallas. Franklin is seeking the Place 7 seat of Republican Barbara Hervey of San Antonio.
“No matter where you live or what you look like or who you love, in my courtroom, you’re going to receive justice,” she said.

Kirkland and Sandill you knew about. Jackson was elected in 2008 and has been re-elected twice. Franklin was elected in 2016. Cheng ran for the 1st Court of Appeals in 2012. The Chron story says that a sixth candidate is not expected to come forward, which is too bad. It’s great that Harris County is representing like this, but surely there’s someone somewhere else in the state who can throw a hat in the ring. Be that as it may, best of luck to these five.

TCDLA pulls Paxton prosecutors brief

Get your act together, y’all.

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A leading organization of criminal defense lawyers on Tuesday withdrew its legal brief in support of prosecutors who are fighting to get paid for work on the criminal case against Texas Attorney General Ken Paxton.

The friend-of-the-court brief, which argued that the payment fight could endanger the system for ensuring that indigent defendants are properly represented at trial, was withdrawn because it did not follow proper procedures by the Texas Criminal Defense Lawyers Association, the organization said.

David Moore, president of the association, said the brief to the Court of Criminal Appeals was pulled because it had not been approved by the group’s executive committee, which unanimously voted Monday to withdraw the document.

That committee will now examine the issue to determine if the brief should be approved or if the matter should be decided by the full board of directors, said Moore, a lawyer in Longview.

“I fear,” said Brian Wice, one of the prosecutors, “there may be other issues in play driving its decision to withdraw its brief other than a purported ‘failure to follow proper procedures and policies.’”

“The larger question is why Mr. Paxton’s defense team does not want the Court of Criminal Appeals to consider” the brief, Wice said, adding that it raised compelling points about the payment fight’s impact on public policy and proper legal representation for indigent defendants.

Dan Cogdell, one of Paxton’s defense lawyers, said he expected further action to be taken against “the parties responsible for its filing.”

“I will not have any further comment on the matter now except to express my grave disappointment in the impropriety of the filing of such a pleading in a case of this magnitude and am gratified that the proper steps to correct the situation have begun,” Cogdell said.

Austin lawyer David Schulman, one of the brief’s authors, said he and others involved believed they had followed the organization’s bylaws, but he declined to discuss specifics.

“This wasn’t any kind of guerrilla action. We thought we were authorized, but we were wrong,” he said.

See here for the background. It’s clear that the arguments made in the TCDLA brief would be good for the defense bar as a whole, but not good for Team Paxton, as they would greatly benefit from having the courts screw the special prosecutors in their case. As Mr. Spock famously said, the needs of the few outweigh the needs of the many. I hope there are enough people with a larger view of things at the TCDLA who can override these objections.

In support of the Paxton prosecutors

Good to see.

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In an unusual step, six prosecutors and Texas’ criminal defense attorneys association have joined a continuing legal storm over how much the special prosecutors overseeing the criminal case against Attorney General Ken Paxton should get paid.

Preventing the three special prosecutors in Paxton’s case from getting paid would thwart justice, according to Bexar County District Attorney Nicholas “Nico” LaHood, Travis County District Attorney Margaret Moore, Fort Bend County District Attorney John Healey Jr., Travis County Attorney David Escamilla, former State Prosecuting Attorney Lisa McMinn and Enrico Valdez, a Bexar County assistant district attorney. The group intervened late Friday with the state Court of Criminal Appeals.

[…]

In a separate filing with the appeals court, the Texas Criminal Defense Lawyers Association argues much the same thing, saying that courts have previously ruled that proper compensation for appointed prosecutors is necessary and that the Collin County Commissioner’s Court should honor the payments to the three special prosecutors in the Paxton case.

“We’re gratified that prosecutors and defense attorneys with almost 200 years of collective experience agree how very important this case is, and that we’re entitled to the relief we seek in the Court of Criminal Appeals,” Houston attorney Brian Wice, one of the special prosecutors in the case, said in a statement Sunday.

See here and here for the background. A copy of the prosecutors’ brief is here, and the TCDLA brief is here. Friday was the deadline for all to submit documents in support of or opposition to the Fifth Court’s ruling. The Statesman adds details.

The Texas Criminal Defense Lawyers Association, in a brief filed recently with the Court of Criminal Appeals, argued that unless the ruling is reversed, it will place strict limits on legal fees, “effectively preventing the judiciary from being able to appoint qualified lawyers in difficult cases.”

“All of the gains made and all of the advances and improvements accomplished in indigent defense in Texas over the last 20 years will fall to the wayside,” the association argued. “Texas will return to the days of sleeping lawyers and otherwise unemployed insurance lawyers taking court appointments in criminal cases.”

A second brief by six current or former prosecutors — including Travis County District Attorney Margaret Moore and County Attorney David Escamilla — also urged the appeals court ruling to be overturned, arguing that it undermines the pursuit of justice in cases, like Paxton’s, where outside prosecutors are appointed after a local district attorney steps aside for a conflict of interest or similar reason.

Judges must have the discretion to set higher fees for unusual or difficult cases, they told the court.

“After all, it is often the unusual cases that require the most skilled and qualified attorneys, and these are the very attorneys who are most likely to decline the representation without adequate compensation,” said the prosecutors, who included former State Prosecuting Attorney Lisa McMinn and Fort Bend County District Attorney John Healey Jr., a Republican.

[…]

“Without the ability to pay a reasonable market rate in these rare circumstances, courts are effectively without power to fulfill their constitutional obligation,” the defense lawyers group told the Court of Criminal Appeals.

According to the brief from the Travis County prosecutors and others, the lower-court ruling also undermines the ability of court-appointed prosecutors to do a complicated and taxing job that often includes seeking warrants, handling grand juries, responding to defense motions, interviewing witnesses, reviewing evidence and preparing for trial.

In addition to discouraging qualified lawyers from serving as prosecutors, the prosecutors’ brief complained that the ruling allows politics to invade criminal justice decisions — such as in Collin County, where commissioners have voiced support for Paxton while seeking to limit payments to those prosecuting him.

“It creates a situation where the local county commissioners can effectively stop a criminal prosecution,” the brief said.

I’ve been saying a lot of these things myself, so I’m glad someone with actual legal credentials is making those arguments formally. Galveston Count and the County Judges and Commissioners Association of Texas filed briefs in support of Collin County, since all they really care about is the financial impact. I’ll say again, the state could solve this very easily by picking up the tab in these cases. It’s a small amount of money in that context, and it would avoid all these problems. Someone needs to file a bill to this effect in 2019.

Paxton trial delayed again

This will happen some day. I hope.

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Attorney General Ken Paxton’s trial has been put off for a third time.

The judge in the securities fraud case against Paxton sided Wednesday with prosecutors who had been pushing for another trial delay because of a long-running dispute over their fees. The decision by Harris County District Court Judge Robert Johnson scrapped Paxton’s current Dec. 11 trial date and left the new one to be determined, possibly at a Nov. 2 conference.

Paxton had been set to go to trial on Dec. 11 on the least serious of three charges he faces. The date for that trial had already been pushed back twice because of pretrial disputes, first over the venue and then the judge.

[…]

In a feisty hourlong hearing Wednesday, the prosecutors and Paxton’s lawyers sparred over a familiar subject: whether they should hold off on a trial until the prosecutors could collect a paycheck — an issue currently tied up in a separate legal battle. Earlier this year, when the case was before a different judge, he denied the prosecutors’ first request to delay the trial until they could get paid.

Johnson had a different take Wednesday, granting the prosecutors’ latest motion for continuance. He asked both sides to come up with a new trial date, preferably in late February or early March. After some back and forth — a Paxton lawyer proposed a new trial date on March 6 — they all agreed to continue the discussion at the Nov. 2 pretrial conference.

The prosecutors had been seeking to put off the trial until the state’s highest criminal court, the Texas Court of Criminal Appeals, could sort out the payment issue. Last week, the Court of Criminal Appeals stepped into the dispute over the prosecutors’ pay, issuing a stay of a lower-court ruling last month that invalidated a six-figure paycheck for them. In its decision, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ contention that the lower court, the Dallas-based 5th Court of Appeals, overstepped its authority when it voided the payment.

If the Court of Criminal Appeals ultimately rules against the prosecutors — effectively leaving them without pay for the foreseeable future — they will move to withdraw from the case, Wice said.

Paxton’s team had none of it. His lawyers contended the prosecutors were seeking to undermine Paxton’s right to a speedy trial and repeatedly pointed to the prosecutors’ previous failures to get the trial delayed due to the payment issue.

“It’s time,” Paxton lawyer Dan Cogdell said. “It’s time to try the case.”

See here for some background. The first I’d heard of this motion was Tuesday when the Trib and the Chron reported on it. You know where I stand on this, and while I agree with Team Paxton that I’d like to get on with this already, I would note that it is well within their power to ask Paxton’s buddies Jeff Blackard and the Collin County Commissioners Court to drop their vendetta against the prosecutors, since that is the main stumbling block at this time. I really don’t see how anyone can object to them wanting to get paid what they were told they would be paid, nor can I see how anyone would expect them to work for free. The solution is simple if they want it to happen. Until then, we await the November 2 hearing at which everyone argues over a new court date.

CCA stays Paxton prosecutor pay ruling

A bit of sanity at last, though we’re not out of the woods yet.

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Texas’ highest criminal court has stepped into the long-running dispute over the prosecutors’ pay in the securities fraud case against Attorney General Ken Paxton, putting on hold a lower-court ruling that voided a six-figure invoice.

In a decision Monday, the Court of Criminal Appeals issued a stay of an Aug. 21 ruling by the Dallas-based 5th Court of Appeals that had invalidated the $205,000 payment, which covered work going back to January 2016. Last week, the prosecutors asked the Court of Criminal Appeals to reverse that ruling, calling it a “clear abuse of discretion.”

In its order Monday, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ arguments.

[…]

“We’re extremely gratified that, after a thoughtful and careful review of our writ, at least five judges on the Court of Criminal Appeals recognized that we were entitled to a stay of the Fifth Court of Appeals’ order,” prosecutor Brian Wice said in a statement. “We’re cautiously optimistic that the Court will ultimately conclude that the Fifth Court’s unwarranted decision to scuttle the fee schedules of over two-thirds of all Texas counties was a clear abuse of discretion.”

See here, here, and here for the background. This isn’t a ruling in the case, just basically a stay on the 5th Court order pending oral arguments. The CCA could still uphold the lower court’s ruling, which would be bad. But at least there’s now a chance we could affirm the principle that private citizens should not be able to derail prosecutions. The Chron and the DMN have more.

Paxton prosecutors officially petition the CCA over their pay

Last chance.

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The special prosecutors in the securities fraud case against Attorney General Ken Paxton are asking the state’s highest criminal court to help them get paid.

On Tuesday, the prosecutors asked the Court of Criminal Appeals to reverse a ruling from a lower court last month that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals was a “clear abuse of discretion.”

The ruling “will have a chilling effect on the ability of trial judges to appoint qualified lawyers — defense attorneys and special prosecutors alike — willing to take on the most complicated and serious cases,” the prosecutors wrote.

The Court of Criminal Appeals must now decide whether it will hear the prosecutors’ case. Prosecutor Brian Wice asked for oral arguments.

It is a high-stakes moment for the trio of Paxton prosecutors, made up of Houston attorneys Nicole DeBorde, Kent Schaffer and Wice. If the Court of Criminal Appeals turns them down, they will likely have to make a decision about whether to continue working for free.

See here, here, and here for the background. You know where I stand on this. It’s a travesty this has even gotten this far. If the CCA doesn’t put an end to this nonsense, it’s a get out of jail free card for Paxton. Winning in court is one thing, winning by forfeit is another altogether. Don’t screw this up, CCA. The DMN has more.

Collin County wants its pay back

Of course they do.

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Collin County is about to start another fight over the prosecution of indicted Texas Attorney General Ken Paxton.

Since 2015, the county has been billed more than half a million dollars to prosecute Paxton, who faces securities fraud charges. But fresh off a court win that voided half of those costs, county commissioners now want the rest of their money back.

On Monday, the commissioners voted unanimously to sue for the more than $205,000 they paid the special prosecutors in January 2016. They argue that since a Dallas court struck down the prosecutors’ hourly fees — ruling they broke local and federal rules — the county should be reimbursed for all that it’s spent on the case.

See here and here for the background. What Collin County is doing is unprecedented, but that doesn’t mean they won’t get what they want. I have hope that the CCA will reverse this ridiculous ruling, but I can’t say I have faith. What I want to know is this: What happens if at some point the prosecutors say “screw this, I’m going to back to my real job”? In particular, what happens if they say this before the Paxton trial begins? I’m hard-pressed to imagine a scenario more ridiculous than Ken Paxton winning his trial by forfeit, but it could happen. What is the fallback position here, and has anyone other than me considered it?

By the way, let me also note that this is a rather extreme example of why local elections matter. Having a Democrat on Collin County Commissioners Court would not have changed the course of their actions, but it at least would have provided a voice of opposition. I don’t know what the electoral map looks like from this perspective – I may try to check it out if I can – but getting a foothold in red counties like this has got to be a priority.

Paxton prosecutors to petition CCA

Last chance to get paid.

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The state’s highest criminal court will get a chance to decide whether the special prosecutors appointed in the criminal cases against Texas Attorney General Ken Paxton can be paid the $300-an-hour rate they were promised.

Kent A. Schaffer, one of the three special prosecutors in Texas v. Paxton, said the trio will file for a writ of mandamus with the Court of Criminal Appeals to vacate the Fifth Court of Appeals decision Monday to void the judge’s order authorizing an approximately $205,000 payment.

“It’s not over yet,” said Schaffer, a partner in Bires Schaffer & DeBorde in Houston.

[…]

Collin County paid the first order issued by Judge George Gallagher of Tarrant County to pay the special prosecutors $254,908 for pretrial work, but county commissioners balked at making the second payment ordered by Gallagher in January. Instead, the commissioners filed for a writ of mandamus to compel the trial court to vacate its order requiring payment.

According to the Fifth Court’s opinion in In Re Collin County, Texas, Commissioners, Rule 4.01B adopted by Collin County’s judges authorizes payments of pro tem attorneys to deviate from the schedule adopted by the judges. The three-judge panel of the Fifth Court, which heard the commissioners’ petition for a writ, noted in its opinion that Rule 4.01B appears to thwart the objective of Texas Code of Criminal Procedure Article 26.05, which requires district judges to adopt a schedule of reasonable fees for appointed attorneys.

See here for the background. After all this time, I confess I’m a little unclear on what happens if the special prosecutors lose. Does this mean they will then have been paid all they’re ever going to be paid, or does it mean their pay will be recalculated and readministered based on a much lower hourly rate? In either case, this is ridiculous and will indeed make it impossible to find qualified special prosecutors in future situations. You know my answer to this – the state should pick up the tab when a state official is involved. That ain’t happening any time soon, so let’s hope the CCA makes it all go away, at least for now.

Precinct analysis: SBOE districts

There are 15 members on the State Board of Education, five Democrats and ten Republicans. Of those ten Republican-held seats, four of them were in districts that were interesting in 2016:


Dist   Incumbent  Clinton   Trump   Obama  Romney
=================================================
SBOE5     Mercer    47.0%   46.8%   42.9%   54.7%
SBOE6   Bahorich    46.3%   48.6%   38.8%   59.7%
SBOE10   Maynard    42.5%   51.6%   40.5%   57.0%
SBOE12    Miller    44.4%   50.1%   38.7%   59.7%
SBOE7   Bradley*    37.1%   59.2%   35.2%   63.6%

Dist   Incumbent    Burns Keasler Hampton  Keller
=================================================
SBOE5     Mercer    43.5%   51.3%   41.7%   53.7%
SBOE6   Bahorich    41.5%   54.8%   38.5%   58.7%
SBOE10   Maynard    39.8%   54.7%   40.1%   54.9%
SBOE12    Miller    39.1%   56.6%   37.7%   58.8%
SBOE7   Bradley*    35.9%   60.9%   36.6%   60.8%

I included David Bradley’s numbers here because his will be an open seat in 2018, but as you can see he really doesn’t belong. Add Ken Mercer’s SBOE5 to the list of districts that were carried by Hillary Clinton. I hadn’t realized it till I looked at the data. I had previously identified Mercer’s district as a viable target last year, and indeed it was a close race – he won by four points and failed to clear fifty percent. SBOE terms are four years so the next shot at Mercer isn’t until 2020, but he needs to be on the priority list then.

Districts 6 and 10 were also on the ballot last year and thus not up again till 2020. District 6, which is entirely within Harris County, shifted about seven points in a blue direction, and while I’d expect it to continue to shift as the county does, it’s still got a ways to go to get to parity. With SBOE districts being twice as big as Senate districts and generally being completely under the radar, getting crossovers is a challenge. District 10 didn’t really shift much, but it’s close enough to imagine something good happening in a strong year. District 12 is the only one on the ballot next year, and it’s the reddest of the four based on the downballot data. But if there’s a Trump effect next year, who knows what could happen. It certainly deserves a decent candidate. Keep it in mind as we go forward.

We have the Paxton case

By “we”, I mean Harris County.

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Attorney General Ken Paxton’s criminal case is officially moving to Harris County.

In an order signed Friday morning, Judge George Gallagher vacated several previous orders scheduling hearings in the case and directed the Collin County District Clerk’s Office to transfer the proceedings to the Harris County District Clerk.

Gallagher’s order effectively triggers the search for a new judge in the case, following up on a Texas Court of Criminal Appeals ruling this week that removed him as the judge who would presided over the embattled attorney general’s securities fraud and registration case. Special prosecutors asked the court to keep Gallagher.

The ruling marked a win for the first-term Republican attorney general who has been fighting to remove the judge from his case since Gallagher opted to move the trial out of Paxton’s home of Collin County in April.

See here, here, and here for the background. I always want to put the “win” here in quotes, since I believe it’s a victory in name only, with no practical effect. But I suppose it makes Paxton feel better, so we mustn’t discount that.

The DMN adds some technical details.

A new judge will be assigned by random. Harris County assigns judges for criminal cases using the “Automated Random Assignment System,” a kind of massive bingo cage containing 220 balls that spits out assignments.

On Thursday, Harris County District Courts Administrator Clay Bowman told The Dallas Morning News that Administrative Judge Robert Schaffer would be shepherding the assignment.

“Our local administrative judge is the person who will be handling, sort of shepherding, the assignment of the case,” said Bowman, who added Olen Underwood, the regional presiding judge for Harris and 34 other counties in southeast Texas, would likely also be involved.

There are nearly two dozen criminal district judges in Harris County who could be assigned the case. Nearly half are Democrats. These judges, who are locally elected, have received thousands of dollars in donations from all three prosecutors and two of Paxton’s top attorneys in the past.

This story also calls the ouster of Judge Gallagher as a “win” – specifically, a “major victory” – for Paxton. I wonder if that narrative will change if he draws a Democratic judge. Not that it should matter, of course – it shouldn’t matter in any event who the judge is, since they’re supposed to be all impartial and judicial and all. But whatever. The updated Chron story, which refers to Paxton being handed a “major win”, says that the judicial bingo process should occur “sometime very early [this] week”, so we’ll keep an eye on that. Mazel tov to whoever gets this one dropped in their lap.

CCA declines to get involved in Paxton judge dispute

That’s that, then.

Best mugshot ever

Texas’ highest criminal court has declined to intervene in the dispute over the judge in Attorney General Ken Paxton’s securities fraud case.

On Friday, prosecutors asked the state Court of Criminal Appeals to reverse a lower appeals court ruling that supported Paxton’s push to remove the judge, George Gallagher. On Wednesday, however, the Court of Criminal Appeals denied the prosecutors’ request without explanation.

The Dallas-based 5th Court of Appeals had ruled Gallagher lost jurisdiction over the case when he changed venue to Harris County in April. The ruling voided all subsequent orders by Gallagher, including one that slated a September trial date.

[…]

Before the appeals court ruling, Paxton was set to go to trial Sept. 12 in Houston on the lesser of three charges he faces.

See here for the background. As I said, I really don’t think it makes any difference who the judge is – certainly, it shouldn’t make any difference, given how this is supposed to work. Whatever the merits of how we got here, I say let’s get another judge in place and get this show on the road. The DMN has more.

Paxton prosecutors appeal decision to boot judge

And on we go.

Best mugshot ever

Prosecutors in the securities fraud case against Attorney General Ken Paxton are asking the state’s highest criminal court to overturn a ruling backing his push for a new judge.

Paxton’s lawyers scored a win Tuesday when a state appeals court ruled the judge, George Gallagher, had lost jurisdiction by changing venue to Harris County in April. The Dallas-based 5th Court of Appeals directed Gallagher to vacate all subsequent orders, including one that set a September trial date.

On Friday, prosecutors responded to that ruling by asking the Texas Court of Criminal Appeals to reverse it, suggesting the 5th Court of Appeals lacked jurisdiction to make the decision in the first place. They also questioned the court’s interpretation of a part of the Texas Code of Criminal Procedure that Paxton’s team has leaned on in its campaign for a new judge.

The prosecutors are asking for oral arguments before the Texas Court of Criminal Appeals.

See here for the background. I imagine for the prosecutors it’s not a matter of who the presiding judge is but of the trial schedule. Installing a new judge means pushing back the September 12 trial date, possibly by a lot. The special prosecutors, I am sure, would like to eventually wrap this business up and get back to their regular lives. Add in the jeopardy to them getting paid for their work, and they are strongly incentivized to bring this to a close. We’ll see what the CCA has to say.

Precinct analysis: Congressional districts

The Texas Legislative Council now has full data from the 2016 elections on its site, so this seemed like as good a time as any to take a look at the data from Congressional districts. I’m much more limited in what I can do when I have to rely on precinct data from counties because most of Texas’ Congressional districts span multiple counties. But now statewide data is available, so here we go. I’m just going to look at districts where the Presidential numbers were interesting.


Dist  Clinton  Trump  Obama  Romney
===================================
02      42.8%  52.0%  35.6%   62.9%
03      39.9%  53.8%  34.1%   64.2%
06      41.6%  53.8%  40.7%   57.9%
07      48.2%  46.8%  38.6%   59.9%
10      42.8%  51.9%  38.8%   59.1%
21      42.1%  51.9%  37.9%   59.8%
22      43.9%  51.7%  36.7%   62.1%
23      49.4%  45.9%  48.0%   50.7%
24      44.3%  50.5%  38.0%   60.4%
31      40.1%  52.6%  38.1%   59.4%
32      48.4%  46.6%  41.5%   57.0%

Some of this we’ve covered before – CDs 07, 23, and 32 are well-known and are on the national radar for next year. CD03 will be open following the retirement of Rep. Sam Johnson. CDs 24, which is mostly in Dallas County, and 22, which is of course Tom DeLay’s old district, deserve a bit more attention and would fall into the next tier below the top three, with CDs 02 and 10 right behind them. And as a matter of personal pleading, I’d really really love to see strong challenges to Lamar Smith in CD21 and Smokey Joe Barton in CD06, two of the worst anti-science and pro-pollution members of Congress.

Now as we know, the Presidential numbers only tell us so much. So as I have done before, here’s a look at the Court of Criminal Appeals races in these districts – just the one in each year that had three candidates, for apples-to-apples purposes – and for this chart I’m going to chow number of votes, to give a feel for how big the gap that needs to be closed is.


Dist    Burns   Keasler  Hampton   Keller  D Gain
=================================================
02    106,167   157,226   84,547  149,242  13,636
03    109,738   187,916   84,352  163,247     717
06    108,272   151,766   98,393  139,344  -2,043
07    107,250   136,246   88,992  134,699  16,711
10    122,499   172,155  100,660  149,355    -961
21    133,428   198,190  110,841  177,330   1,827
22    123,063   171,694   89,624  152,471  14,216
23    105,145   106,067   86,991   92,805   4,892
24    107,986   152,545   87,300  143,217  11,424
31    104,601   159,173   85,689  134,433  -5,828
32    113,659   146,526   99,453  136,691   4,371

A bit more daunting when looked at this way, isn’t it? The “D Gain” column is the net change in the difference between the Republican and Democratic candidates’ vote totals each year. In 2012 in CD02, Sharon Keller beat Keith Hampton by 64,695 votes, but in 2016 Mike Keasler beat Robert Burns by “only” 51,059 votes, for a net Democratic gain of 13,636. This is intended to give a rough guide to what the partisan shift in each district was, and as you can see it was much bigger in some than in others, with there being a net loss in CDs 06, 10, and 31. I have to pause for a moment here to tip my cap to Rep. Will Hurd in CD23, who held his seat in a much less Republican-friendly environment that elected Pete Gallego in 2012. No one in CD23 will ever have an easy election, and 2018 may well be more challenging for Hurd than 2016 was, my point here is simply to say that we should not underestimate this guy. He’s already shown he can win in adverse conditions.

Still, sufficient Democratic turnout could swamp Hurd’s boat, as has happened to other strong candidates of both parties in the past. (A less-Republican redrawn map could also do him in.) The Keasler/Burns numbers suggest that the other two on-the-radar districts (CDs 07 and 32) are also good targets for concentrated turnout efforts. In all cases, though, I believe a key component to any winning strategy will be to make a vote for Congress as much about “sending a message” to an unpopular and incompetent President as anything else. The more Rs you can flip, and the more who decide to stay home, the lower your turnout-boost goals need to be. I don’t know what the conditions will be like in a year and a half, but I do know that energy spent between now and then in these districts to register new voters (and re-register those who have fallen off the rolls) will be energy well utilized.

I will close by noting that there is in fact a candidate for CD21 at this time, Derrick Crowe, who has a pretty good looking background for a first-time candidate. We’ll see how he does in fundraising and other metrics, but for those of you in the district or who are looking for someone to support against the odious Lamar Smith, check him out. It’s never too early to get off to a good start.

Some Texas voting rights lawsuit updates

This has been a busy week for litigation related to voting rights issues in Texas. Here are updates to some cases, all of which happened this past week.

From Texas Redistricting:

The three-judge panel in the Texas redistricting case has set a status conference for April 27, at 9:30 a.m. in San Antonio to discuss a trial schedule for the remaining claims in the case as well as the redistricting plaintiffs’ request to block the state’s use of its current congressional plan (Plan C235) on the grounds that defects found by the court in the 2011 plan continue to exist in the current plan. The court directed lawyers for the state to be prepared to discuss at the status conference “whether the Legislature intends to take up redistricting during this legislative session to remedy any violations that persist in the 2013 plans.”

The court also asked the parties to be ready to discuss the timing for its consideration of requests that Texas be bailed back into preclearance coverage under section 3© of the Voting Rights Act.

A copy of the court’s order setting a status conference can be found here.

See here and here for the background. The plaintiffs want a new map in place by July 1.

A couple of days after that happened, the plaintiffs responded.

On Friday, plaintiffs in the Texas redistricting responded in a court filing to the State of Texas’ position that it was premature to consider the plaintiff’s request to block and require a redraw of the state’s congressional map (Plan C235).

In the filing, the plaintiffs told the court that while there was sufficient time to remedy constitutional defects in the map if the process began now, “delaying all relief until the Court schedules and holds another trial and issues another merits determination would raise a serious risk that Plaintiffs will be forced to vote in yet another election under unconstitutional districts.” The plaintiffs noting that filing for the 2018 Texas primary will open on November 11 and that a number of steps would have to occur to finalize any map changes, including redrawing precinct boundaries.

Circle April 27 on your calendar. We won’t have final answers to these questions then, but we should have some idea of what answers to expect.

From the Texas Civil Rights Project:

[On April 3], Chief Judge Orlando Garcia of the U.S. District Court for the Western District of Texas denied the state’s motion to dismiss Stringer v. Pablos, TCRP’s “motor voter” case.

This decision provides critical validation of the arguments advanced by the plaintiffs — disenfranchised Texas voters — who challenge voter registration processes at the Department of Public Safety under the National Voter Registration Act, or NVRA, and the U.S. Constitution.

One by one, Judge Garcia considered the state’s arguments for dismissal and rejected them. Judge Garcia found the state’s current procedures “inconsistent with the plain language of the NVRA,” refusing to adopt “circular and self-defeating” interpretations of the NVRA offered by the defendants. Instead, the Judge expressly found that the NVRA applies to the thousands of online transactions Texans initiated through DPS.gov every day. This ruling means that the Secretary of State should be registering and updating voter registrations for all of these individuals as a matter of course unless they opt out. Moreover, any alleged interest in avoiding the upfront expense in creating a modern system cannot justify “the burden imposed on voters” under the Equal Protection Clause.

From the beginning, TCRP has argued that “motor voter” failures have excluded countless eligible voters from the Texas electorate. The judge acknowledged the systemic nature of the state’s actions, noting that the plaintiffs had “produced evidence that thousands of Texans submitted complaints to the state that related in some way to DPS’s processing of voter registration information through its website.”

Judge Garcia’s decision comes on the heels of sanctions imposed against Texas on February 17th for causing undue delay and for repeatedly, and without justification, ignoring court orders to provide the necessary documents to move forward with the case. TCRP represents the plaintiffs with co-counsel at Waters Kraus LLP.

Mimi Marziani, Executive Director with the Texas Civil Rights Project, said:

“Today’s opinion is a resounding victory for the countless Texas voters who have been disenfranchised by the state’s failure to adhere with federal law. With this decision, we are hopeful that we can resolve the case before the 2018 election so that every eligible voter can cast a ballot that counts.”

See here, here, and here for some background. Link via Rick Hasen.

From the Express News:

A federal judge has denied the state of Texas’ attempt to quash a lawsuit that challenges the way the state elects judges to the Texas Supreme Court and Court of Criminal Appeals.

Seven Hispanic voters (six from Nueces County and one from El Paso) and a civic organization, La Unión Del Pueblo Entero Inc., allege in the suit that Latino candidates almost always lose statewide elections for judges to the two highest courts in Texas.

In an opinion issued Monday, U.S. District Judge Nelva Ramos ruled that all the plaintiffs have standing to bring the suit under the Voting Rights Act.

The judge rejected the state’s argument that the plaintiffs had failed to state a cause of action under Section 2 of the law, noting that the U.S. Supreme Court has already held that Section 2 applies to judicial elections.

The ruling clears the way for a trial, according to a news release from two law firms and an organization representing the plaintiffs.

See here and here for the background, and here for a copy of the judge’s order. It’s not clear to me what a remedy for this looks like if the plaintiffs ultimately prevail, but in the meantime it will be interesting to see how this plays out. Rick Hasen has one of the press releases mentioned in the story; I couldn’t find any others googling around.

And finally, also from the Express-News:

Proposed legislative changes to Texas’ voter ID law won’t affect a lawsuit’s claim that the law is discriminatory, a federal judge has ruled.

U.S. District Judge Nelva Gonzales Ramos, based in Corpus Christi, made the declaration in an opinion that also allowed the Justice Department to withdraw from the case.

The opinion follows a hearing in February in which — as directed by a federal appeals court, the U.S. Fifth Circuit — she heard more arguments about whether the law, SB 14, was passed with discriminatory intent.

The state argued that lawmakers planned fixes to be made in Austin with a measure called Senate Bill 5.

“The court holds that the Fifth Circuit did not direct this Court to withhold a decision on the discriminatory purpose claim and that the claim is not, and will not be, moot as a result of pending or future legislation,” Gonzales Ramos wrote.

The civil rights groups that brought the suit say the proposed changes, if passed in the newly introduced legislation, are irrelevant and that the GOP-controlled Legislature designed and passed the 2011 voter i.d. law with discriminatory purpose.

See here and here for some background. Judge Ramos did let the Justice Department officially withdraw from the case, so only the private plaintiffs will continue on. Her order can be seen here, in which she sets a status call on June 7 to discuss whether an evidentiary hearing on remedies is required, how long that might take, and what the deadlines for briefs and whatnot should be. This too came via Rick Hasen.

So the TL;dr summary of all this is:

1. The judges in the redistricting case will discuss wrapping up the other items and figuring out what to do with the Congressional map on April 27 with the litigants. This isn’t a hearing, just a discussion of what they all will be doing and when they will be doing it.

2. Similarly, the judge in the litigation to determine (again, under the standards set by the Fifth Circuit) whether the 2011 voter ID law was passed with discriminatory intent will discuss the schedule and logistics with the attorneys on June 7.

3. Two previously filed lawsuits, one that alleges the state of Texas does not comply with federal Motor Voter laws and one that argues that the statewide election of judges violates the Voting Rights Act, survived motions to dismiss.

Whew!

Precinct analysis: The targets for 2018

Ross Ramsey recently surveyed the 2018 electoral landscape.

Election numbers recently released by the Texas Legislative Council point to some soft spots in this red state’s political underbelly — places where Republicans hold office now but where Democrats at the top of the ticket have recently done well.

Specifically, they are the districts where Republicans won federal or state legislative races in 2016 while the same voters electing them were choosing Democrat Hillary Clinton over Republican Donald Trump.

Trump won Texas, but not by as much as Republicans normally do.

The non-prediction here is that every single one of these officeholders might win re-election next time they’re on the ballot.

On the other hand, a political fishing guide, in this instance, would tell you that these are districts Democrats should examine if they’re trying to win seats in the congressional delegation or in the Texas Senate or House.

We covered some of this before, when the Senate district data came out. In that spirit, I’ve put together a list of all reasonably competitive State House districts, which follows below. Many of these will be familiar to you, but there are a few new ones in there. First, all districts by Presidential numbers:


Dist  Clinton   Trump  Clint%  Trump%   Obama  Romney  Obama%  Romney%
======================================================================
134    50,043  35,983   54.7%   39.3%  34,731  46,926   41.7%    56.4%
102    30,291  24,768   52.3%   42.7%  24,958  29,198   45.3%    53.0%
114    35,259  29,221   52.1%   43.2%  28,182  35,795   43.5%    55.2%
105    25,087  20,979   52.1%   43.6%  20,710  23,228   46.5%    52.1%
115    30,897  26,158   51.5%   43.6%  23,353  29,861   43.2%    55.3%
108    39,584  34,622   50.3%   44.0%  27,031  40,564   39.3%    59.0%
113    27,532  26,468   49.1%   47.2%  23,893  27,098   46.3%    52.5%
112    26,735  26,081   48.3%   47.1%  22,308  28,221   43.5%    55.0%
138    24,706  24,670   47.6%   47.5%  18,256  27,489   39.3%    59.2%
136    37,324  35,348   46.7%   44.2%  26,423  35,296   41.2%    55.1%


135    28,233  29,486   46.6%   48.6%  21,732  32,078   39.8%    58.8%
047    48,658  48,838   46.5%   46.7%  34,440  50,843   39.3%    58.0%
065    28,774  30,078   46.1%   48.1%  22,334  31,456   40.8%    57.5%
066    33,412  35,728   45.5%   48.7%  24,895  40,639   37.4%    61.0%
026    31,636  35,022   45.5%   50.4%  22,554  39,595   35.9%    62.9%
132    31,489  34,495   45.4%   49.7%  21,214  31,432   39.8%    58.9%
052    32,184  33,185   45.3%   46.7%  23,849  30,763   42.4%    52.7%
045    34,468  38,038   44.2%   48.8%  26,757  35,298   41.8%    55.2%

067    33,461  37,741   43.9%   49.5%  24,866  40,763   37.2%    60.9%
054    23,624  27,379   43.6%   50.5%  21,909  25,343   45.7%    52.9%
043    22,716  27,549   43.6%   52.9%  22,554  25,017   46.9%    52.0%
121    33,956  40,371   42.7%   50.8%  27,422  44,391   37.5%    60.7%
126    26,483  32,607   42.7%   52.6%  21,191  35,828   36.7%    62.1%
097    29,525  36,339   42.1%   51.8%  25,869  39,603   38.9%    59.6%

They’re grouped into districts that Clinton carried, districts where Clinton was within five points, and districts where she was within ten. The Obama/Romney numbers are there to add a little context, and to show where the most movement was. Some of these are in places you may not expect. HD136 is in Williamson County, as is HD52. HD 65 is in Denton, with HDs 66 and 67 in Collin. HD97 is in Tarrant. Note that while there were some big swings towards Clinton, not all of these districts were more favorable to Dems in 2016, with HD43 (held by turnout Republican JM Lozano) being the clearest exception. And a few of these are little more than optical illusions caused by deep-seated Trump loathing among a subset of Republicans. HD121 is Joe Straus’ district. It’s not going to be in play for the Dems in 2018. I would suggest, however, that the weak showing for Trump in Straus’ district is a big part of the reason why Straus is less amenable to Dan Patrick’s arguments about things like the bathroom bill and vouchers than many other Republicans. There are a lot fewer Republicans from the Dan Patrick wing of the party in Joe Straus’ district.

And because I’ve repeatedly said that we can’t just look at Presidential numbers, here are the numbers from the two three-way Court of Criminal Appeals races, which I have used before as a shorthand of true partisan leanings:


Dist    Burns Keasler  Burns%  Keasl% Hampton  Keller  Hampt%  Keller%
======================================================================
105    23,012  21,842   49.0%   46.5%  19,580  21,745   45.8%    50.8%
113    25,411  26,940   46.4%   49.2%  22,651  25,693   45.6%    51.7%
115    26,876  28,999   45.8%   49.4%  21,431  28,402   41.5%    55.0%
134    39,985  44,560   45.4%   50.6%  33,000  42,538   42.3%    54.5%
102    26,096  28,210   45.3%   49.1%  23,232  27,295   44.3%    52.1%
043    21,812  25,213   44.3%   51.2%  21,565  22,434   47.5%    49.4%
112    23,798  27,901   43.9%   51.4%  20,942  26,810   42.4%    54.3%
135    25,998  31,365   43.7%   52.8%  20,745  30,922   39.2%    58.4%
138    22,119  26,669   43.6%   52.6%  17,470  26,224   38.9%    58.4%
114    28,774  35,129   43.3%   52.8%  26,441  33,128   43.1%    53.9%
136    32,436  37,883   42.7%   49.9%  23,925  32,484   39.3%    53.3%
132    29,179  36,667   42.7%   53.6%  20,237  30,515   38.9%    58.6%
065    26,010  32,772   42.4%   53.4%  20,732  30,377   39.1%    57.3%
052    28,698  34,976   42.2%   51.4%  21,947  28,562   40.8%    53.1%
054    22,114  27,979   42.0%   53.1%  20,110  24,571   43.5%    53.2%
045    31,530  39,309   41.7%   52.0%  24,897  32,734   40.6%    53.3%
026    28,138  38,544   41.0%   56.2%  21,232  38,332   34.8%    62.8%
047    41,032  54,388   40.5%   53.7%  32,028  47,181   38.1%    56.1%
126    24,261  34,679   39.8%   56.8%  20,309  34,351   36.3%    61.3%
108    30,706  42,923   39.6%   55.4%  24,685  37,529   38.1%    57.9%
066    27,709  39,675   39.5%   56.6%  22,409  37,693   36.0%    60.6%
067    28,298  40,926   38.9%   56.7%  22,539  37,932   35.8%    60.3%
097    26,454  39,254   38.5%   57.2%  23,967  37,732   37.6%    59.2%
121    28,995  43,743   38.0%   57.3%  25,683  42,350   36.5%    62.0%

Clearly, this is a much less optimistic view of the situation than the first table. I am certain that some anti-Trump Republicans will be willing to consider voting against a Trump surrogate next year, but it’s way too early to say how many of these people there are, and we need to know what the baseline is in any event. Note that even in some of the less-competitive districts, there was a big swing towards the Dems, most notably in HD26 but also in HDs 115, 135, 138, and 66. It may be that some of these districts won’t be competitive till 2020, and it may be that some will need a real dampening of Republican enthusiasm to be on the board. But whatever the case, these are the districts where I would prioritize recruitment efforts and promises of logistical support.

Our first look at Senate district data

The Trib looks at the data we now have.

Sen. Don Huffines

In the state Senate, one Republican — Don Huffines of Dallas — is now representing a district that Clinton easily won, while two more — Konni Burton of Colleyville and Joan Huffman of Houston — are now sitting in areas that Clinton almost carried. In the House, 10 Republicans are now representing districts that Clinton won, while several more are now sitting in areas she came close to winning.

The question in those districts, like so many surrounding Trump’s election across the country, is whether the dramatic swings in 2016 were meaningful shifts that could have implications in future elections. That question is particularly pressing for the 11 Texas Republicans now representing districts that voted for Clinton, all of whom are up for re-election in 2018.

[…]

In addition to [Rep. Pete] Sessions’ [Congressional] district, [Dallas County Democratic Party Chair Carol] Donovan said the party is already zeroing in on Huffines’ district, which Clinton won by 5 points after Romney carried it by 15 points four years prior. Aware of the swing, Huffines’ team does not blame Democrats for prioritizing the district — but also is not sweating 2018 quite yet.

“We take it seriously, but it’s not a hair-on-fire moment,” said Matt Langston, a Republican consultant who works for Huffines.

While Huffines’ district was the only GOP-held state Senate district that Clinton won, she almost carried two others. She came within a point of winning Burton’s and Huffman’s districts, which in 2012 went for Romney by 8 points and 20 points, respectively.

I should note that the comprehensive data for the 2016 elections are not yet available at the Texas Legislative Council’s FTP site, but as of two weeks ago the data for each individual district can be found via the following formulation:

http://www.fyi.legis.state.tx.us/fyiwebdocs/PDF/senate/dist16/r8.pdf
http://www.fyi.legis.state.tx.us/fyiwebdocs/PDF/house/dist66/r8.pdf

Just substitute the appropriate district number as needed and you’re good. Eventually, that data will be linked on each Member’s bio page on the official House and Senate sites, but for now this will do.

I’ve been talking about Huffines and the need to make him a top electoral target next year, and so I am delighted to see these numbers. As always, though, some context and perspective is needed, so with that in mind, here’s a larger view of the field of play.


Dist     Incumbent  Clinton%  Trump%    Obama%   Romney%
========================================================
SD08      V Taylor     42.6%   51.2%     36.6%     61.7%
SD09       Hancock     41.8%   53.1%     39.2%     59.3%
SD10        Burton     47.3%   47.9%     45.4%     53.3%
SD16      Huffines     49.9%   45.3%     41.6%     57.0%
SD17       Huffman     47.2%   48.1%     39.2%     59.4%

Dist     Incumbent   CCA16D% CCA16R%   CCA12D%   CCA12R%
========================================================
SD08      V Taylor     37.8%   57.9%     35.3%     61.1%
SD09       Hancock     39.2%   56.3%     37.9%     58.4%
SD10        Burton     44.5%   51.6%     44.4%     52.7%
SD16      Huffines     42.7%   52.9%     40.6%     56.0%
SD17       Huffman     42.2%   54.3%     39.1%     58.2%

All five of these Senators are on the ballot next year. “CCA16” refers to the Mike Keasler/Robert Burns race for Court of Criminal Appeals, Place 6, while “CCA12” is the Sharon Keller/Keith Hampton race. The latter was the only R-versus-D race for the CCA in 2012, and like the Keasler/Burns race this year it featured a Libertarian but not a Green candidate, so the comparison is as apt as I can make it. For these purposes, the CCA races will suffice as a proxy for the “true” partisan split in these districts.

And not too surprisingly, things look distinctly less rosy when you pull back to that level. While Huffines’ district is a couple points bluer than it was in 2012 by the CCA metric, it’s still a ten-point district in the GOP’s favor. A big part of that is due to the fact that SD16 encompasses nearly all of HDs 108, 112, and 114, which as we’ve discussed before are the three most Republican State House districts in Dallas County. The good news is that there are clearly a sizable number of people in SD16 who are willing to vote Democratic against a sufficiently bad Republican. The bad news is that so far the only example of a race where that has happened is Clinton versus Trump. The challenge for Dallas Democrats will be threefold: Find a strong candidate to challenge Huffines, work to ensure the Dem base turns out in the off year (a task for which the track record is not great), and try to tie Huffines to Trump as closely as possible in order to entice the Hillary-voting Republicans in SD16 to cross over again.

As for the others, Konni Burton’s SD10 remains the closest thing to a swing district the Senate has, though it didn’t change much since 2012. It does have the distinction of electing a Democrat in part on the strength of Republican crossover votes as recently as 2012, though, and it probably wouldn’t take much of an erosion in Republican turnout to put her in peril, if 2018 is a year where Republicans don’t get fired up to vote. SD17 covers parts of Fort Bend and Brazoria in addition to Harris County. It will take coordination across the three counties as well as a commitment to turn out Dems in Fort Bend and Brazoria to be on the radar in 2018. SD08, which includes most of Collin County plus a small piece of Dallas, and SD09, which includes Dallas and Tarrant, aren’t really competitive in any sense, but they did move a bit in a Dem direction and included a fair number of crossovers as well. If we ever want to get closer to parity in the Senate, Dems are going to have to make serious gains in these suburban counties.

Precinct analysis: Dallas County statewides

Last time we looked at the Presidential numbers in Dallas County legislative districts (plus CD32). Today we follow up with a look at the statewide races. I’m going to throw a lot of numbers at you, so please bear with me. First up is the Railroad Commissioner race.


Dist  Christian     Yarb  Miller  Salinas
=========================================
CD32    127,172  101,375  18,842    7,581
                        
HD100     8,888   29,754   2,224    1,870
HD102    26,577   24,667   4,356    1,754
HD103     9,440   24,092   2,323    2,243
HD104     6,795   21,811   1,415    2,490
HD105    21,041   21,678   2,461    2,002
HD107    24,459   24,691   3,268    2,185
HD108    40,389   28,190   7,223    2,151
HD109    10,701   50,748   1,679    1,563
HD110     3,889   28,975     880    1,441
HD111    11,869   42,162   1,717    1,816
HD112    26,793   22,698   3,217    1,838
HD113    26,209   24,396   2,578    1,841
HD114    32,625   27,279   5,409    1,757
HD115    27,967   25,420   3,680    2,024
                        
HD100    20.80%   69.62%   5.20%    4.38%
HD102    46.34%   43.01%   7.59%    3.06%
HD103    24.78%   63.24%   6.10%    5.89%
HD104    20.90%   67.09%   4.35%    7.66%
HD105    44.60%   45.95%   5.22%    4.24%
HD107    44.79%   45.22%   5.99%    4.00%
HD108    51.81%   36.16%   9.27%    2.76%
HD109    16.54%   78.45%   2.60%    2.42%
HD110    11.05%   82.35%   2.50%    4.10%
HD111    20.62%   73.24%   2.98%    3.15%
HD112    49.12%   41.61%   5.90%    3.37%
HD113    47.63%   44.34%   4.69%    3.35%
HD114    48.64%   40.67%   8.06%    2.62%
HD115    47.33%   43.02%   6.23%    3.43%

Three things to note here, all of which we’ll talk about some more as we go on. First, while Hillary Clinton carried all of the State Rep districts, Grady Yarbrough only led in eight of the fourteen. Yarbrough is a perennial candidate who doesn’t campaign and his numbers reflect that, but as you will see even many strong candidates didn’t carry any more districts than he did. Note also that while Wayne Christian led in the other six districts, he only achieved a majority in HD108. Other Republicans did do better than that, but this is another illustration of the dilemma I mentioned before for Republicans in Dallas County, which is that they have no votes to spare.

Second, note that while Democrat Victoria Neave knocked off Republican incumbent Kenneth Sheets in HD107 while Republican Rodney Anderson held on in HD105, Grady Yarbrough did slightly better in HD105 than he did in HD107. This too will generally be the case with other candidates, yet it was the (mildly) redder district that flipped. My conclusion is that Rodney Anderson was a better candidate than Kenneth Sheets, Victoria Neave was a better candidate than Terry Meza, or some combination of the two. It would be nice to have a fuller understanding of this going into 2018.

Finally, note the relatively large share of the third party vote in this race. As much as 12% of the total went to the Libertarian or Green candidate in some districts. Part of this is the extreme disaffection for the two major party candidates – Yarbrough is this generation’s Gene Kelly, while Wayne Christian is Sid Miller with better Facebook etiquette. Libertarian candidate Mark Miller received numerous newspaper endorsements, which no doubt helped boost him. The level of third party votes varies quite a bit from race to race, and we’ll talk a bit more about that as we go.

Here are the Supreme Court races:


Dist   Lehrmann  Westgrn   Glass    Munoz
=========================================
CD32    136,227  102,030  11,608    5,515
                        
HD100     9,622   29,867   1,738    1,555
HD102    28,692   24,769   2,722    1,256
HD103    10,115   24,388   1,739    1,933
HD104     7,139   21,763   1,137    2,476
HD105    21,837   21,577   2,057    1,736
HD107    25,827   24,628   2,362    1,830
HD108    43,691   29,108   3,997    1,455
HD109    11,323   50,358   1,645    1,335
HD110     4,116   28,791     839    1,435
HD111    12,539   41,839   1,530    1,622
HD112    28,047   22,614   2,491    1,392
HD113    27,111   24,122   2,219    1,596
HD114    35,843   27,324   2,817    1,196
HD115    29,448   25,472   2,719    1,503
                        
HD100    22.49%   69.81%   4.06%    3.63%
HD102    49.95%   43.12%   4.74%    2.19%
HD103    26.50%   63.88%   4.56%    5.06%
HD104    21.96%   66.93%   3.50%    7.61%
HD105    46.26%   45.71%   4.36%    3.68%
HD107    47.26%   45.07%   4.32%    3.35%
HD108    55.83%   37.20%   5.11%    1.86%
HD109    17.51%   77.88%   2.54%    2.06%
HD110    11.70%   81.84%   2.38%    4.08%
HD111    21.80%   72.73%   2.66%    2.82%
HD112    51.42%   41.46%   4.57%    2.55%
HD113    49.25%   43.82%   4.03%    2.90%
HD114    53.35%   40.67%   4.19%    1.78%
HD115    49.79%   43.07%   4.60%    2.54%

Dist      Green    Garza  Oxford   Watbry
=========================================
CD32    130,386  111,872   9,681    3,195
                        
HD100     9,098   31,667   1,346      603
HD102    27,292   26,989   2,276      779
HD103     9,617   26,609   1,344      562
HD104     6,939   24,174     910      475
HD105    21,416   23,553   1,617      578
HD107    25,163   26,846   1,875      719
HD108    41,235   32,649   3,355      917
HD109    10,993   51,813   1,206      602
HD110     3,976   30,197     622      377
HD111    12,188   43,599   1,118      562
HD112    27,383   24,343   2,060      735
HD113    26,743   25,820   1,772      658
HD114    33,687   30,279   2,377      773
HD115    28,258   27,857   2,217      709
                        
HD100    21.30%   74.14%   3.15%    1.41%
HD102    47.60%   47.07%   3.97%    1.36%
HD103    25.22%   69.78%   3.52%    1.47%
HD104    21.35%   74.39%   2.80%    1.46%
HD105    45.41%   49.94%   3.43%    1.23%
HD107    46.08%   49.17%   3.43%    1.32%
HD108    52.76%   41.77%   4.29%    1.17%
HD109    17.01%   80.19%   1.87%    0.93%
HD110    11.30%   85.86%   1.77%    1.07%
HD111    21.21%   75.87%   1.95%    0.98%
HD112    50.22%   44.65%   3.78%    1.35%
HD113    48.63%   46.95%   3.22%    1.20%
HD114    50.19%   45.11%   3.54%    1.15%
HD115    47.86%   47.18%   3.76%    1.20%

Dist     Guzman  Johnson  Fulton Chisholm
=========================================
CD32    137,660  104,318   9,866    3,111
                        
HD100    10,332   30,480   1,356      537
HD102    28,955   25,318   2,291      737
HD103    11,311   24,926   1,386      503
HD104     8,833   22,313     870      478
HD105    22,576   22,271   1,666      635
HD107    26,507   25,365   1,953      753
HD108    44,174   29,648   3,422      839
HD109    11,758   51,244   1,120      513
HD110     4,882   29,384     607      302
HD111    13,190   42,695   1,082      533
HD112    28,371   23,238   2,118      765
HD113    27,635   24,827   1,837      685
HD114    36,095   27,820   2,399      716
HD115    29,790   26,192   2,302      731
                        
HD100    24.19%   71.37%   3.18%    1.26%
HD102    50.53%   44.18%   4.00%    1.29%
HD103    29.67%   65.38%   3.64%    1.32%
HD104    27.18%   68.67%   2.68%    1.47%
HD105    47.88%   47.24%   3.53%    1.35%
HD107    48.57%   46.47%   3.58%    1.38%
HD108    56.57%   37.97%   4.38%    1.07%
HD109    18.19%   79.28%   1.73%    0.79%
HD110    13.88%   83.54%   1.73%    0.86%
HD111    22.94%   74.25%   1.88%    0.93%
HD112    52.06%   42.64%   3.89%    1.40%
HD113    50.26%   45.15%   3.34%    1.25%
HD114    53.85%   41.50%   3.58%    1.07%
HD115    50.48%   44.38%   3.90%    1.24%

Lehrmann and Guzman were the two top performers for the GOP, while Garza was the high scorer for the Dems. All three Republicans far outperformed Wayne Christian, with the difference being especially visible in the lower totals for the Libertarian candidates. Lehrmann and Guzman carried eight of the 14 State Rep districts, while Green managed to take only six against Garza, with HDs 102 and 115 coming within a point of being blue. In all three cases, HD105 was more Democratic than HD107.

What really stands out for me is the disparity in Green candidate totals. Add in the RRC race, and it it is quite apparent that the two best performing Green candidates were Latino/a. Each of the other races featured a major party Latina candidate, which likely exaggerated the effect further. I discussed this at a macro level before, so none of this should be too surprising. It’s just really fascinating to see it at a more granular level. The lesson I would draw from this for Democrats is that Latino voter engagement is more complex and multifaceted than we might think.

Last but not least, the CCA races:


Dist       Keel   Meyers      Ash  Reposa
=========================================
CD32    135,994  104,110   10,500   3,510
                        
HD100     9,656   30,633    1,571     733
HD102    28,668   25,212    2,434     839
HD103    10,290   25,247    1,644     808
HD104     7,418   22,993    1,149     844
HD105    21,920   22,480    1,841     787
HD107    25,897   25,482    2,241     831
HD108    43,510   29,495    3,644   1,039
HD109    11,235   51,414    1,297     624
HD110     4,138   29,786      757     465
HD111    12,539   42,891    1,279     711
HD112    28,187   23,120    2,240     844
HD113    27,147   24,944    1,994     806
HD114    35,595   27,826    2,537     771
HD115    29,577   26,015    2,399     875
                        
HD100    22.67%   71.92%    3.69%   1.72%
HD102    50.16%   44.11%    4.26%   1.47%
HD103    27.09%   66.46%    4.33%   2.13%
HD104    22.89%   70.96%    3.55%   2.60%
HD105    46.61%   47.80%    3.91%   1.67%
HD107    47.56%   46.80%    4.12%   1.53%
HD108    56.01%   37.97%    4.69%   1.34%
HD109    17.40%   79.63%    2.01%   0.97%
HD110    11.77%   84.75%    2.15%   1.32%
HD111    21.84%   74.70%    2.23%   1.24%
HD112    51.82%   42.51%    4.12%   1.55%
HD113    49.46%   45.44%    3.63%   1.47%
HD114    53.34%   41.70%    3.80%   1.16%
HD115    50.24%   44.19%    4.08%   1.49%

Dist     Walker  Johnson Strange S-Castro
=========================================
CD32    133,937  106,627   8,271    5,357
                        
HD100     9,277   30,966   1,183    1,214
HD102    28,067   25,890   1,955    1,223
HD103     9,909   25,425   1,171    1,486
HD104     7,067   22,888     805    1,708
HD105    21,553   22,789   1,379    1,348
HD107    25,519   25,883   1,615    1,470
HD108    42,970   30,333   2,947    1,471
HD109    10,910   51,776     931    1,013
HD110     3,931   29,745     558      939
HD111    12,141   43,230     907    1,224
HD112    27,643   23,689   1,744    1,320
HD113    26,878   25,260   1,469    1,343
HD114    35,066   28,487   1,968    1,199
HD115    28,851   26,763   1,847    1,373
                        
HD100    21.76%   72.62%   2.77%    2.85%
HD102    49.12%   45.31%   3.42%    2.14%
HD103    26.08%   66.92%   3.08%    3.91%
HD104    21.77%   70.49%   2.48%    5.26%
HD105    45.79%   48.42%   2.93%    2.86%
HD107    46.84%   47.50%   2.96%    2.70%
HD108    55.29%   39.03%   3.79%    1.89%
HD109    16.88%   80.11%   1.44%    1.57%
HD110    11.18%   84.57%   1.59%    2.67%
HD111    21.11%   75.18%   1.58%    2.13%
HD112    50.82%   43.55%   3.21%    2.43%
HD113    48.91%   45.97%   2.67%    2.44%
HD114    52.56%   42.70%   2.95%    1.80%
HD115    49.04%   45.49%   3.14%    2.33%

Dist    Keasler    Burns Bennett
================================
CD32    134,429  107,470  11,490
                  
HD100     9,518   31,274   1,710
HD102    28,210   26,096   2,677
HD103    10,127   26,011   1,752
HD104     7,392   23,511   1,392
HD105    21,842   23,012   2,081
HD107    25,630   26,129   2,509
HD108    42,923   30,705   3,834
HD109    11,114   51,813   1,564
HD110     4,079   30,030     975
HD111    12,540   43,238   1,523
HD112    27,901   23,798   2,531
HD113    26,940   25,409   2,401
HD114    35,129   28,774   2,620
HD115    28,999   26,874   2,791
                  
HD100    22.39%   73.58%   4.02%
HD102    49.51%   45.80%   4.70%
HD103    26.73%   68.65%   4.62%
HD104    22.89%   72.80%   4.31%
HD105    46.54%   49.03%   4.43%
HD107    47.23%   48.15%   4.62%
HD108    55.41%   39.64%   4.95%
HD109    17.23%   80.34%   2.43%
HD110    11.63%   85.59%   2.78%
HD111    21.88%   75.46%   2.66%
HD112    51.45%   43.88%   4.67%
HD113    49.21%   46.41%   4.39%
HD114    52.81%   43.25%   3.94%
HD115    49.43%   45.81%   4.76%

The main point of interest here is the third race, which featured a Libertarian but not a Green. Mark Bennett did better than one of the other Libs and about the same as the other, while Robert Burns did a little better than his fellow Ds; he probably absorbed a few of the votes than might have gone Green otherwise, but not too many. I don’t think there are any firm conclusions to be drawn here. And note again, HD105 was more Democratic than HD107.

So that’s what we have so far. I’ll have one more post, with county races, next. Let me know what you think.

CCA Judge Alcala not running for re-election in 2018

Our first open office for the next cycle.

Justice Elsa Alcala

A Texas Court of Criminal Appeals judge who is well known for her criticism of the death penalty announced on Thursday that she will not run for reelection when her term ends in 2018.

Judge Elsa Alcala, a Republican who was appointed to the court in 2011 by then-Gov. Rick Perry, said the main reason she won’t run is because of the “random and unreliable” results from partisan judicial elections.

“I have seen too many qualified judges lose their bids for election or reelection, and I have witnessed the converse situation too,” she said in a posted statement on Twitter Thursday morning.

[…]

The judge is known for her lengthy dissents. In a June opinion, Alcala argued it was time for the court to look at the constitutionality of Texas’ death penalty. Some arguments against its constitutionality are a nationwide decline in capital punishment, racial discrimination and lengthy stays in solitary confinement on death row, she said.

In her time on the court, the death penalty has become more publicized, and she thinks she played a role in that, she told the Tribune shortly after her announcement.

“I got some folks to think about things that maybe they weren’t thinking about before, so I’m proud of that,” she said.

You know how I feel about complaints about partisan judicial elections, so I’ll just glide past that. Scott Henson has characterized the CCA as being made up of a “Government-Always-Wins” faction and everyone else. Alcala, who was an Assistant DA and District Court judge in Harris County before being elected to the First Court of Appeals and ultimately appointed to the CCA, was not in that faction, and recently gave a look at how the CCA decides to issue or not issue habeas writs; those of you familiar with her colleague, Sharon “We Close At Five” Keller, will not be surprised. I just hope Judge Alacala’s departure doesn’t make the usually-awful CCA any worse. Best of luck to her in whatever comes next. The Press has more.

David Temple released on bond

We’ll see what happens next.

More than 17 years after the shooting death of his pregnant wife, former football coach David Temple walked out of the Harris County jail Wednesday and into the waiting arms of his family, ready to stand trial again if necessary for a murder he steadfastly maintains he didn’t commit.

Wearing a bright red shirt, Temple embraced his mother, father and two brothers, telling the media his release was possible only through God and the support of his family and attorneys.

“It’s been a long journey, and fortunately a portion of that journey has been completed,” Temple said. “We’re waiting for justice to be served, and for the people who put me there, who lied and cheated, be held accountable … .”

But Temple’s appellate attorney, Stan Schneider, cut him off, advising him not to speak further about the case.

Temple, 48, was released on a $30,000 bond and is set to appear in court Jan. 4 to show he will cooperate with any potential retrial or other proceedings. His conviction was overturned by the state’s highest criminal appeals court amid findings of prosecutorial misconduct.

[…]

Temple was convicted and sentenced to life in prison in 2007 after a volatile trial that pitted prominent defense attorney Dick DeGuerin against legendary prosecutor Kelly Siegler, who later became the star of her own TV show.

The Texas Court of Criminal Appeals concluded last month that prosecutors withheld significant evidence from defense attorneys, including information about an alternative suspect. Siegler has defended her actions in the case but could not be reached for comment.

Incoming District Attorney Kim Ogg – who takes office next week – has indicated her office will review the case and decide whether to proceed with a new trial.

Temple was granted a new trial late last month, with the district court ruling that found prosecutorial misconduct coming down last July. It will be interesting to see how Kim Ogg handles this, as it’s not clear to me there’s an obviously correct path to follow. One could reasonably conclude that despite the misconduct findings, Temple is still guilty and should be tried again, this time with all of the known evidence available to the defense so there are no further questions about the DA’s behavior. One could also conclude that even if Temple did do it, the odds of convicting him now are too slim to be worth the investment of resources it would take to re-try him, and he did serve nine years so it’s not like he got away with it. I don’t envy Ogg the decision.

One more thing:

The appeals court ruled DeGuerin was denied access to approximately 1,400 pages of offense reports, including an investigation of another possible suspect – a teenage neighbor accused of stealing two shotguns similar to the one used in the murder.

It was the fifth time since 2015 that the state’s highest appeals court has ordered a review of murder convictions based on prosecutorial misconduct in the Harris County District Attorney’s office.

Emphasis mine. Whatever you think of Kim Ogg or Devon Anderson or Pat Lykos or whoever else, if at the end of her tenure we can say that the Court of Criminal Appeals did not question any of her murder convictions based on prosecutorial misconduct, she will have accomplished something significant. The Press has more.

David Temple granted new trial

Wow.

Kelly Siegler

The state’s highest criminal court on Wednesday granted a new trial to David Temple, a former Katy football coach accused of killing his pregnant wife in 1999.

In an opinion posted online Wednesday morning, the court of criminal appeals sided with Temple’s lawyers, who argued in state district court in 2015 that Harris County prosecutors had illegally withheld crucial information during the 2007 trial.

“First things first: We get David out of jail,” said attorney Stan Schneider Wednesday in his downtown office.

Schneider said Temple will be eligible to bond out of jail in a few weeks, barring appeals from the state. If Temple’s case gets a new trial, Schneider will lead the defense, though he couldn’t say if the evidence withheld in the 2007 trial seemed likely to change the outcome.

It will be up to the incoming Harris County District Attorney, Kim Ogg, whether to appeal the court’s latest ruling or agree to go forward with a new trial.

The court filing Wednesday said several hundred pages of police reports had been withheld from the defense until sometime during the trail, in violation of legal precedent.

“The prosecutor believed, as evidenced by her testimony at the writ hearing, that she was not required to turn over favorable evidence if she did not believe it to be relevant, inconsistent or credible,” the filing said.

See here for previous blogging. The CCA isn’t exactly known for second-guessing prosecutors, so this is a big deal. Kelly Siegler has vigorously defended her actions since the allegations about her withholding evidence came out during the district court hearing last year, but as yet I have not seen a statement from her. It will be interesting to see what Kim Ogg decides to do with this – she could decline to go forward, try to work a plea deal, or ask the court to reconsider its decision. Whatever she decides to do, I’m guessing she’ll take her time making that decision.

Meanwhile, the CCA issued another big decision on what was clearly a big day before Thanksgiving for them.

Four San Antonio women who were imprisoned for sexually assaulting two girls more than 20 years ago are innocent and exonerated, the Texas Court of Criminal Appeals ruled Wednesday.

In the summer of 1994, the two girls – ages 7 and 9 – stayed at the home of their aunt, Elizabeth Ramirez, while their mother was away in Colorado, according to court records. Ramirez’s one-time girlfriend, Kristie Mayhugh, lived with her, and another couple – Anna Vasquez and Cassandra Rivera – would visit the apartment frequently. When the girls returned home, their grandmother reportedly notice a change in the girls’ behavior.

“[T]hey were subdued, scared, and refused to make eye contact. In mid-September, [their grandmother] noticed the girls playing with their dolls in a sexual manner,” according to court papers. “When she asked the girls why they were doing this, [one of the girls said] she and her sister had been sexually assaulted at their aunt’s apartment by the four women.”

In 1997, Ramirez, considered the ringleader, was sentenced to nearly 40 years in prison. The following year, the other women each were handed down 15-year sentences. In 2012, one of the victims announced she was coerced into making a false accusation. That same year, Vasquez was released from prison on parole, and in 2013, the other women were released as the case received another look.

The women are collectively known as the San Antonio Four, and getting a ruling of actual innocence, which qualifies them to receive recompense from the state, is not an easy thing to do; in fact, the visiting judge that originally freed them from prison didn’t think they met the standard for actual innocence. This Texas Monthly story about a documentary that was released last year, is a good overview of the case, so go give it a read. Happy Thanksgiving to you, Elizabeth Ramirez and Kristie Mayhugh and Anna Vasquez and Cassandra Rivera. Grits and the Current, which also has some good background and links to further reading, have more.

UPDATE: More from Texas Monthly.

A theory about third parties

Before I get to that theory, have you ever wondered about the people who vote straight ticket Libertarian or Green in Harris County? I got to wondering about them, because that’s the sort of thing that I think about at times like this. Here are the total numbers of such people, grouped by Presidential and non-Presidential years, going back to 2000:


Year  Total votes  SP Lib  SP Green   Lib%  Green%
==================================================
2000      995,631   1,935     4,503  0.19%   0.45%
2004    1,088,793   3,343            0.31%
2008    1,188,731   4,017            0.34%
2012    1,204,167   4,777     1,759  0.40%   0.15%
2016    1,336,985   8,781     4,577  0.66%   0.34%

2002      656,682   1,159     1,399  0.18%   0.21%
2006      601,186   3,052            0.51%
2010      798,995   2,506     1,110  0.31%   0.14%
2014      688,018   2,922     1,180  0.42%   0.17%

“SP Lib” is the total number of straight party Libertarian votes, and “SP Green” is the same for the Greens. “Lib%” and “Green%” are the share of these straight party votes to all votes cast in the county. If you look at the election result pages on the HarrisVotes.com website, you will see that my percentages are lower than the ones shown there. That’s because they calculate the percentage of these votes as a share of all straight-party votes cast, not a share of all votes. I did it this way to see what if any trend there was for Libertarian and Green voting overall. For comparison purposes, 30.01% of all votes in Harris county this year were straight ticket Republican, with 35.35% of all votes being straight-ticket Democratic.

As you can see, in the Presidential years the Libertarians had been slowly ticking upwards, with a bit of a jump this year, though the trend is more erratic in the off years. The spike in 2006 is odd, because the Libertarian candidate for Governor received only 0.61% of the vote that year. If you wanted to vote outside the two-party box for Governor in 2006, you had plenty of choices. The Greens weren’t officially on the ballot in 2004, 2006, or 2008, so there’s less of a trend to spot. I’d say they do better in or right after a year where they have a Presidential candidate who gets some attention. Whether any of this will hold next year is not something I’m going to speculate about at this time. My mantra for the next twelve to eighteen months is “conditions in 2018 will be different than they were in 2014 and 2010”, and leave it at that.

That brings me to my theory, which applies to low profile races – not President, not Senate, not Governor, sometimes not other races. I’m limiting myself to statewide contests here, since that’s where you get most of the third party candidates that an individual voter sees. In my case, there was a Green candidate for CD18, a Libertarian for SBOE, and nothing else below the state level. I believe that in these races, which this year would be the Railroad Commission and the two state courts, voters for third party candidates can be broadly sorted into one of three groups. The first group is the party faithful, which as we have just seen is a relatively small cohort. There are probably a few more people who vote L or G as a first choice but don’t vote straight ticket, but that’s still a small group even in the context of just third party voters. Most of the people voting third party in these races aren’t voting third party as a matter of course.

So who are they? Group Two I believe is people who normally vote for Rs or Ds but who refuse to vote for their candidate in this particular instance. That may be because the candidate of their party is too/not sufficiently liberal/conservative for them, because that candidate supports or opposes a specific thing that is of great importance to them, because the candidate has ethical baggage, or because they just don’t like that candidate for some reason. In these cases, they don’t want to vote for the candidate of the other party, so a third party it is. Gary Johnson obviously got a lot of these votes in the Presidential race, but the downballot exemplar for this one was the Railroad Commissioner race, where Libertarian Mark Miller got a bunch of newspaper endorsements for being the most qualified candidate running.

The thing is, I don’t think there are that many races like that. I think in a lot of these races, people just don’t know anything about any of the candidates. So if you’re someone who (say) generally votes Democratic but aren’t that committed to it and you’re looking at a race for the Court of Criminal Appeals, you may say to yourself “well, I know I don’t want to vote for the Republican, but I don’t know who any of these other people are, so I’ll just pick one and move on”. These people are my Group Three.

What that says to me first of all is that both Republicans and Democrats are leaving some votes on the table in these downballot races by not doing a better job of getting their candidates’ names out there. That’s not much of a concern for the Republicans, who continue to win by double-digit margins, but it could eventually matter. I see this as an extension of a problem that Democrats are increasingly having in their primaries, where candidates like RRC nominee Grady Yarbrough have won races by a combination of pseudo-name recognition and random chance because no one knows who the hell these people are. I have many wishes for Texas Democrats going forward, and high on my list is for the party and the donor class to take these downballot primaries seriously.

One possible exception to this may be for Latino candidates. Look at the top votegetters for each party: Supreme Court candidates Eva Guzman and Dori Contreras Garza. My hypothesis is that Latino voters in a Group Three situation will choose a Latino candidate, even possibly one from their non-preferred party, instead of just randomly picking someone. Again, this is in races where none of the candidates are known to the voters, and thus there could be a different outcome if people had more knowledge. If we ever get to that point, maybe we’ll see that difference.

Finally, I believe my theory is consistent with the Libertarian candidate almost always doing better than the Green candidate does in these situations, for the simple reason that the Libertarian candidate appears on the ballot above the Green candidate. If it’s true that some people just pick a name after having moved past the first two candidates, then it makes sense that the first candidate listed after those two would get a larger share.

Anyway, that’s my theory. I could be wrong, and I doubt anyone other than me had given this much thought. I’ll get back to the precinct analyses tomorrow. Let me know what you think about this.

Statewide review: 2016 was like 2008, but not in a good way

vote-button

There’s no point in beating around the bush, so I’ll just come out and say it: Despite the excitement about increases in voter registration and heavy early voting turnout. statewide Democratic candidates outside of Hillary Clinton generally did not do any better than their counterparts in 2008. Republican statewide candidates, on the other hand, were generally setting new high-water marks for vote totals. Every statewide Republican other than Wayne Christian topped Donald Trump’s 4,681,590 votes, with all of them but one besting it by at least 100,000. Meanwhile, only Dori Contreras Garza’s 3,598,852 votes exceeded President Obama’s 2008 tally. Overall turnout was up in Texas (in absolute numbers, though not in percentage), but while Dem turnout was better than 2012, it didn’t hit any new heights. I fear we may be at a plateau, as we have been in the off years since 2002.

Why am I not more encouraged by Hillary Clinton’s 3.8 million-plus total? Because I estimate at least 100,000 of her votes came from people who supported Republicans in other races, and because the dropoff from her total to downballot candidates was enough to show no visible growth. For these purposes, I’m using judicial races as my metric, as I believe it is a better proxy for partisan intent. I used as a baseline for comparison between 2012 and 2016 two Court of Criminal Appeals races – the 2012 Sharon Keller/Keith Hampton race, and the 2016 Mike Keasler/Robert Burns race. I believe these contests are low enough profile to draw a relatively small number of crossovers, and in this particular case they were the only such races each year to have just a Libertarian candidate in addition, thus allowing for a more apples-to-apples comparison. I put all the county totals into a spreadsheet and then calculated the difference between the two. From a Democratic perspective, there’s good news, so-so news, and bad news.

I’ll get to the news in a second. You can see the spreadsheet here. I’ve put a list of the 62 counties in which Democrats gained votes from 2012 to 2016 beneath the fold. Take a look and then come back, and we’ll talk about what I think this means.

Ready? Democrats really killed it in the big urban counties. Harris, Bexar, Travis, El Paso, and Dallas combined for nearly 240,000 more Democratic votes in 2016, compared to 83,000 for the Republicans, a net of over 150K. Dems took such a big step forward in Harris County that HD144 might not really be a swing district any more, while HDs 132, 135, and 138 are now in the picture as pickup opportunities, with HD126 a little farther out on the horizon. I’ll have more to say about Harris County beginning tomorrow, but I feel like maybe, just maybe, we’ve finally turned a corner. I know that the off-year turnout issue is a problem until we can demonstrate that it’s not, but I believe it’s getting hard to dispute the assertion that there are just more Democrats in Harris County than there are Republicans. I also believe that national conditions will be different in 2018 than they were in 2010 and 2014. Doesn’t mean they’ll necessarily be better, but they will be different, and when you’ve consistently been on the short end of the stick, having conditions change – even if you don’t know how they will change – is a risk you ought to be willing to take.

Democrats also showed a nice gain in the big Latino counties (Hidalgo, Cameron, and Webb), while netting over 9,000 votes in Fort Bend. I’ll be looking at Fort Bend data later as well, and while this wasn’t enough to push any non-Hillary Dems over the top there, it’s a step in the right direction.

The so-so news is that Dems more or less held steady in most of the big suburban counties, by which I mean they mostly lost a little ground but not that much. Other than Fort Bend, Dems posted a solid gain in Hays County and barely gained more votes in Brazoria County than the GOP did. They had modest net losses in counties like Tarrant, Collin, Denton, and Williamson, such that one might feel we are at or near an inflection point in those counties. In math terms, the second derivative is approaching zero. This is a genteel way of saying that we’re falling behind at a slower pace. Better than falling behind in huge chunks, but still not good news.

The bad news is that in several other suburban counties, and basically all the non-Latino rural ones, Democrats got crushed. Montgomery County continues to be a sucking chest wound, with 21,087 more Republican votes and 8,432 more Dems. Comal County is Montgomery’s little brother, with continued steady growth and a deep red tint that shows no signs of abating. And if you’re old enough to remember when Galveston County was reliably Democratic, well, the score here is 10,335 more votes for the GOP, and 1,521 more for the Dems. So, yeah.

It’s the rural counties where things really become dreary. I said the Dems gained votes over 2012 in 62 counties. That means they lost votes in 192 others. Now, most of these are small counties, and the losses themselves were small in most of them; the average loss was 323 votes. But Republicans gained an average of over 700 votes in each of those counties, and as they say after awhile it adds up. Plus, some of these counties are now more exurban than rural, and like the suburbs are seeing steady growth. Two examples for you are Johnson County, northwest of Travis and home of Cleburne, and Parker County, west of Tarrant where Weatherford is. Those counties saw a combined voter registration increase of about 20,000. Of that, 17,201 were Republican and 449 were Democratic. That right there is enough to negate the Democratic net gain in Dallas County.

The single most eye-catching item in here is Polk County, up US59 between Houston and Lufkin; Livingston is the county seat. Unlike Johnson and Parker, it has about the same number of voters as it did four years ago. The difference is that in 2012 fewer than half of registered voters bothered, while this year nearly everyone did. Turnout in the Presidential race in Polk County was an mind-boggling 89.48%, and nearly the entire increase came from Republicans. In this CCA comparison, Mike Keasler got 12,183 more votes than Sharon Keller did, while Robert Burns improved on Keith Hampton by only 1,845 votes. All this with only 38,530 total registered voters. OMG, to say the least.

So what should we be doing about this? Well, we should keep doing what we’re doing in the urban counties, because it definitely bore fruit this year. I’d like to think we’re starting to maybe get a little traction in the suburbs, at least some of them, but it’s going to take a lot more resources and an effort that doesn’t just gear up at campaign time to really get that going. Mostly, we need to have a way to make sure we’re being heard in these places, because I don’t think we are, not outside of the faithful who are there. If I were a fabulously wealthy person who wanted to move the needle outside the urban counties, I’d throw a bunch of money at the Texas Organizing Project and ask them to figure out (and execute) a way to do for these suburbs and exurbs what they’ve been doing in Pasadena. It’s slow and methodical and just one piece of the puzzle, but we have got to start somewhere.

Data on the counties where Dem turnout grew is beneath the fold. More to come over the next week or so.

(more…)

Off to trial for Paxton

No more appeals, so a trial is in the works.

Best mugshot ever

Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton are no longer asking to have a state securities fraud case against him dismissed, moving him closer to a trial on the criminal charges.

Paxton’s legal team confirmed Tuesday that it was getting ready for a trial, five days after a deadline passed for it to try one more time to persuade the state’s highest criminal court to look at the case. They apparently passed on that opportunity.

“We are preparing for trial in the state matter and have confidence in the strength of our case,” Paxton lawyer Philip Hilder said in a statement.

[…]

In the state case, Paxton’s lawyers had until Thursday to appeal the Court of Criminal Appeals’ decision last month not to examine the charges. The deadline came and went without Paxton’s team taking action, despite initially saying it planned to.

The Court of Criminal Appeals had already declined to hear Paxton’s appeal of the lower court rulings that allowed his indictments to stand. He had the opportunity to ask the CCA to reconsider their ruling, but his defense team apparently decided that wasn’t worth the effort. So here we are. I seem to recall a past news blurb that suggested his trial would be in the spring. That might be a bit of a distraction for the legislative session, in which case perhaps late spring/early summer will be a more likely time for this. Whenever it happens, it will be the biggest story in the state. Trail Blazers has more.

CCA declines to take Paxton off the hook

Sorry, Kenny.

Best mugshot ever

Best mugshot ever

The highest criminal court in Texas said Wednesday it will not hear Ken Paxton’s appeal of securities fraud charges, putting the attorney general on a path to facing a trial in the coming months.

“Today’s ruling marks an end to Mr. Paxton’s almost year-long attempt to avoid being judged by a jury of his peers,” Brian Wice, one of the special prosecutors handling Paxton’s case, said in a statement. “We look forward to going to trial and seeking justice on behalf of the people of Texas.”

The decision Wednesday was made by the Court of Criminal Appeals, which Paxton’s lawyers had asked to review the case as a last resort before trial. Without comment, the court announced it would not consider the appeal.

The decision makes the prospect of the state’s top lawyer sitting through a trial more likely than ever. The proceedings could start as early as next spring.

With the good news comes the bad news, I guess. This doesn’t mean that the CCA couldn’t step in to save Paxton later, after a conviction on one or more charges, it just means that they don’t see any reason for them to stop a trial from happening in the first place. So a trial we will have, barring the exceedingly unlikely event of a plea bargain. Stock up on the popcorn, y’all. Trail Blazers, the Current, and the Lone Star Project have more.

Endorsement watch: CCA

The Chron makes its recommendations for the Court of Criminal Appeals.

Judge Larry Meyers

Judge Larry Meyers

Judge, Court of Criminal Appeals, Place 2: Lawrence “Larry” Meyers

Accusing someone of having “the feels” seems more at home in a teenager’s Facebook argument than in a dissenting opinion from the Court of Criminal Appeals, but that’s what Judge Lawrence “Larry” Meyers wrote in State v. Furr, alleging that his colleagues cared more about their feelings on the case than the objective standards of law. After 24 years on this bench, the long-serving member of Texas’ highest criminal court has certainly given up on the usual collegiality.

“We’re not there to get along,” Meyers, 68, said during a meeting with the Chronicle editorial board. “We’re there to do the right thing under the law.”

Judge, Court of Criminal Appeals, Place 5: Scott Walker

Consider this race as evidence against electing judges.

Democrats are offering a candidate who was removed from the Bexar County appointed attorney list after she refused to represent defendants who wouldn’t plead guilty – Betsy Johnson.

Republicans are running a Dallas-area defense attorney with a politically famous name and no record of public service – Scott Walker.

We were ready to toss this one up or take a look at third-party candidates, but in his meeting with the Chronicle editorial board, Walker demonstrated a workman’s experience in the criminal court trenches that earned our endorsement.

Judge, Court of Criminal Appeals, Place 6: Robert Burns

It doesn’t take a deep look at the Texas judiciary to see that the prosecutor’s office is often the first step towards earning a bench. The relationship between district attorneys, police and judges is a tight one, and years of wearing the black robes can give even the most dedicated neutral arbiter an unconscious tunnel vision that undermines fairness in our criminal justice system.

Robert Burns, who was first elected to a Dallas County criminal district court in 2006, understands that problem well.

“Too many judges want to side with the state or the police and not be fair and impartial,” Burns, 52, told the Houston Chronicle editorial board. “Just call it right down the middle. Be fair, and when you do make procedural decisions, make sure they’re decisions that result in guilty people getting convicted and innocent people being set free.”

Meyers is the only statewide Democrat in office, having switched parties in 2013 to mount an unsuccessful campaign for Supreme Court. I still don’t know what to make of the guy – he’s good on some things and not on others, and while he’s given a standard “the party left me” rationale for switching from R to D, I can’t say I’ve seen any clear evolution in his judicial opinions. Burns is a Democratic challenger to another longtime incumbent, Mike Keasler, who will have to resign his position in four years if he is re-elected because he will hit the mandatory retirement age of 75. He’s the clearest choice of the three.

Paxton’s day in SEC court

That’s a slightly misleading headline, but you get the point.

Best mugshot ever

Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton will argue Friday morning in a Sherman courtroom that the federal civil fraud case against him should be dismissed, their latest effort to unwind the legal troubles that have dogged Paxton for more than a year.

[…]

In the SEC case, Paxton’s lawyers have argued the allegations represent a “dramatic overreach and lack any basis in law.” The SEC lawsuit, they also say, does not claim he made any false or misleading statements to potential investors in Servergy, a technology startup at the center of both cases.

“Mr. Paxton should not be left to labor under a cloud of suspicion while enduring years of costly discovery to refute claims that are meritless on their face,” Paxton’s lawyers wrote in their June motion to dismiss the SEC lawsuit.

They will get the chance to press that argument at 9 a.m. Friday in federal district court in Sherman before U.S. District Judge Amos Mazzant III. Paxton’s team is being led by Matthew Martens, a former top lawyer for the SEC.

James Spindler, a law professor at the University of Texas at Austin, said he would not be surprised if the court dismisses at least some of the charges before trial. He said SEC lawyers “have their work cut out for them” in specifically proving the charges of fraud, which he called “factually dense inquiries” in the context of a case like this one.

“Overall, it seems a little questionable,” said Spindler, an expert in securities regulation. “It depends really on what the facts are, and they haven’t disclosed a lot of the facts of the case yet.”

See here for the background. Let’s wait and see what the government’s case is before we make any guesses about his odds of success.

In the meantime, this also happened.

The state’s highest criminal court Wednesday morning dismissed all three appeals filed on Texas Attorney General Ken Paxton’s behalf, saying his lawyers neglected to include everything needed on the petitions.

The Court of Criminal Appeals gave Paxton 10 days to add what was missing — a copy of the concurring opinion from the Dallas-based 5th Court of Appeals, which in June rejected Paxton’s request to dismiss criminal charges related to private business deals from 2011 and 2012.

Defense lawyers corrected the mistake a little more than two hours after the court issued the unsigned order, which was opposed by Judges Barbara Hervey and Michael Keasler.

“We inadvertently left off attaching to our petition a copy of the concurring opinion from the court of appeals. We have cured the oversight and have refiled,” Paxton lawyer Philip Hilder said.

The error isn’t expected to significantly delay the handling of Paxton’s appeal.

[…]

A trial on the SEC’s accusations has been tentatively set for Sept. 11, 2017, and is expected to last about two weeks.

Lawyers have said a trial on Paxton’s criminal charges, if upheld by the Court of Criminal Appeals, could take place in the spring of 2017.

An oops, but not a big deal. The schedule information at the end of the story is more interesting. If Paxton isn’t successful in getting charges against him dropped, next year is going to be very busy for him. Judge Mazzant is not expected to rule today, so it will be awhile before we know this part of Paxton’s fate.

What can we do to increase the odds of a downballot Democratic victory?

Yesterday, I raised the possibility of downballot Democrats winning statewide races if 1) polling in the Trump/Clinton matchup remained at or below the six point spread in the recent PPP poll and 2) Democrats did a better job voting all the way down the ballot than Republicans, as has been the case in recent Presidential elections. What can Democrats do to increase the odds of this happening?

Let’s start by recognizing what we can’t do. Trump’s gonna Trump, Clinton is going to do what she does, and the numbers will be what they are. If you’re reading this and you know how you’re voting, you’re not part of this equation – you’re already factored in. We also can’t affect what Republicans, whether NeverTrumpers or not, do downballot. It’s my supposition that conditions are favorable for Republicans to see fewer votes in downballot races this year than they might normally expect, but that’s all that it is. Even if I’m right about that, it may not be enough to make a difference. All Democrats can reasonably do is try to position themselves as best they can to take advantage of this if there is something to take advantage of.

So what can we do? The good new is, this isn’t complicated.

1. Vote all the way down the ballot – I presume you already do that, but nothing is too obvious that it need not be stated. Vote all the way down the ballot, and vote for Democrats. I’ve been addressing the Supreme Court and Court of Criminal Appeals in these two posts, and before that I’ve been harping on the lower appeals courts. Don’t forget the district and county courts, too.

2. Spend your money and volunteer energy here in Texas – How much more incentive do you need than the prospect of winning a statewide race for the first time since 1994? Give a few bucks to your local party/coordinated campaign, volunteer to phonebank, you know the drill. Do something to spread the message. It doesn’t matter if there aren’t any local races of interest, either. If there can be a grassroots GOTV effort in Lubbock, there can be one anywhere. Find one and be a part of it.

3. Support the candidates in question – Here are the Democratic candidates running for Supreme Court and Court of Criminal Appeals:

Mike Westergren – Justice, Supreme Court, Place 3
Dori Contreras Garza – Justice, Supreme Court, Place 5
Savannah Robinson – Justice, Supreme Court, Place 9

Lawrence “Larry” Meyers – Judge, Court of Criminal Appeals Place 2
Betsy Johnson – Judge, Court of Criminal Appeals Place 5
Robert Burns – Judge, Court of Criminal Appeals Place 6

Meyers is an incumbent, having switched parties prior to the 2014 election; the rest are challengers. You could send them a few bucks to help them get their names out – even a little bit of extra name recognition may translate to a few extra people not skipping their race – or talk about them in your social circle. The name of the game is name recognition.

4. Reach out to left-leaning friends and family who won’t support Hillary Clinton – We all have people like this in our lives. A gentle suggestion that they vote for some downballot Democrats probably can’t hurt.

Like I said, not exactly rocket science. Everything I’ve said here is intuitive, and would have an effect on the margins, since that’s where an effect can be had. I think the key here is just thinking that it really may be possible. Again, I stress the “may be” part – I don’t want to over-promise, but I do want people thinking about this.

It’s not crazy to think that a downballot Democrat could win statewide this year

I’ll get to that headline in a minute. I’ve got some reading to sort through first. We’ll start with the most pessimistic, or perhaps the least blue-sky, story of how things are likely to go.

Arizona. Georgia. Utah. Indiana. Is Texas next?

Across the country in recent days, GOP presidential nominee Donald Trump has suffered polling collapses in a slew of traditionally conservative states. The deterioration raises the question: Is Trump such a catastrophic Republican standard-bearer that Democrats could actually poach their ultimate white whale, the Lone Star State?

No.

That’s the consensus of a raft of state and national Democratic insiders who discussed with the Tribune the possibility of Hillary Clinton winning Texas in November.

“I think that it could set off a little bit of a panic among Republicans, but you’re not going to see banners flying and people marching into Texas saying, ‘We’re gonna turn Texas blue,'” said Matt Angle, a Democratic operative with Texas roots.

[…]

So, what would an incremental victory look like for Texas Democrats on Election Day?

Party infrastructure was the mantra in several interviews. The aim is to excite dormant Texas Democratic voters into volunteering for the first time in a generation, even if it is out of distaste for Trump. Even now, Texas volunteers are phone banking to battleground state voters elsewhere in the country.

“We know it’s going to be a multi-cycle endeavor, but these numbers reinforce that we are making significant movement, particularly with Texas’ diverse new majority,” said Manny Garcia, the deputy executive director of the Texas Democratic Party.

State Democrats are also cautiously hopeful they can make gains in the Legislature, and maybe lay the groundwork for a viable campaign against U.S. Sen. Ted Cruz in 2018 when he is up for re-election.

Amid the cautious optimism, Democrats are willing to concede that anything is believable given the erratic nature of the Trump campaign.

Former U.S. Rep. Martin Frost, an Arlington Democrat, echoed many Democratic insiders when he said he has heard no chatter about competing for Texas in the fall.

“This is a crazy election,” he said. “Anything can happen, but I still think Texas is a reach.”

A more optimistic take on where things stand.

The [PPP] poll shows Trump leading Clinton by a 44-to-38 percent margin, with his strongest support among senior-age Texans, especially men. Among that group, the New York business tycoon holds a 63-33 percent lead.

With voters under age 65, Clinton leads 49-35. For those under 45, she leads Trump 60-35.

Among nonwhite voters in Texas, Clinton has a 73-21 percent lead, according to the poll conducted by the Democrat-leaning polling firm Friday through Sunday of 944 likely voters; the poll has a margin of error of plus- or minus-3.2 percentage points.

That split, said Rice University political scientist Mark Jones, who has studied how the changing generational demographics of voters affects elections, could be the most significant statistic from the poll and other recent surveys that have highlighted a similar trend in Texas.

“This election is an outlier because Trump in many ways transcends ideology and party,” Jones said. “The older the voters, the more likely they are to vote Republican. The younger the voters, the more likely they are to vote Democratic. And the Republicans’ base in Texas is growing older.”

[…]

Statewide, an estimated 14 million Texans are registered to vote, an increase of about 1 million voters over the last four years, according to the Texas Secretary of State’s Office, which oversees elections. Whether those are new Republicans or Democrats or independents is unknown, and party affiliation is determined by which primary a voter casts his or her ballot.

Officials in fast-growing Williamson County, in staunchly conservative GOP territory just north of Austin, said their registration numbers are up significantly.

During the 2008 presidential race, Williamson County accounted for just more than 220,000 of the state’s registered voters. The most current figures put Williamson County’s voter total at 294,329.

In Fort Bend County, a fast-growing GOP suburban stronghold southwest of Houston, elections administrator John Oldham said registrations have grown by 25 percent since 2008. That has added nearly 100,000 new voters to the rolls in just under eight years, he said.

Oldham estimated that about half of recently registered have not had Anglo or Hispanic surnames. Many have last names traditionally associated with Asian, Middle Eastern and African heritages, he said.

“That’s where we’re seeing a lot of growth,” he said.

For Brandon Rottinghaus, a political scientist at the University of Houston, surburban areas like Fort Bend County are the places to watch in November.

“Republicans in Texas have dominated the suburban vote, and that’s been one reason for their success,” Rottinghaus said. “But in this election, Trump is doing poorly among these voters – the suburban women, college-educated voters who are younger. (Gov. Greg) Abbott and (U.S. Sen. Ted) Cruz still do well there, but crossover voting in the suburbs could cause a moment that might allow the Democrats to do better.

“That is how the Republicans got their foot in the door in congressional elections years ago,” he added.

And finally, an X factor to consider.

There are now 272 electoral votes in states that RCP rates as leaning toward Clinton, likely to go to her or solidly in her column. Another 112 come from states rated as tossups (plus Maine’s 2nd Congressional District, from which an elector is chosen independent of the statewide result). On Wednesday morning, Clinton had a lead in six of those eight states, including a statistically insignificant three-tenths-of-a-point edge in Deep South Georgia.

Furthermore, in talking to Democratic and Republican strategists in recent days, it has become clear that the polls could be significantly underestimating the Clinton margins that we’ll see on Election Day. Here’s why: Clinton has poured money into both television advertising and field organizing even in states where she has an outside chance of winning while Trump has been inactive.

Republican and Democratic experts in field organizing say that a tiptop organization can make a small but significant difference — maybe as many as four or five percentage points — in a particular state. That is, where Clinton’s building an operation and Trump isn’t, polls are likely underrepresentative of her strength.

In a chat last week on the social media platform Sidewire, former Iowa Republican Party Chairman Matt Strawn and GOP strategist Doug Heye lamented the absence of a Trump field operation on the ground in the battleground Hawkeye State.

“The boots have largely been outsourced to the RNC staff that’s been on [the] ground. They are hustling to staff up,” Strawn said. “And as everyone learned watching Hillary [and] Bernie battle during caucuses, if it comes down to mechanics versus message at the end … well, we know how that turned out.”

That last one isn’t about Texas at all, and it may be irrelevant to the discussion at hand, since Republican Presidential campaigns don’t bother investing in Texas for the same reason that Democratic ones don’t – there’s no reason to. But there is a correlation between the national level and the state level, and if there are concerns about Republican turnout nationally – and there are, and they go beyond worries about campaign infrastructure – then there are concerns about it here as well, if not necessarily as great.

Which leads me to a conclusion that I’ve seen only articulated once, briefly, in the Beatty memo, which is this: It’s not crazy to think that Texas Democrats could win a statewide race or two this November.

Note that I am not talking about the Presidential race. The Beatty memo suggests that the Railroad Commissioner’s race could go either way, as nobody knows who the candidates are. I’m thinking more about the races for Supreme Court and Court of Criminal Appeals, for which the Dems have a full slate of candidates. The same argument about nobody knowing who the candidates are holds, but there’s also the numbers, for all of these races.

Look at it this way: A six-point Trump win in Texas, which is consistent with that PPP poll, translates to roughly a 400,000-vote margin for Trump. To pick some numbers out of the sky, a victory by Trump of 4,000,000 votes to 3,600,000 votes – a drop of about 12.5% for Trump from Mitt Romney’s 2012 total, with an increase of about nine percent for Hillary Clinton over President Obama in 2012 – would translate to 52.6% for Trump to 47.4% for Clinton in a two-person race. That’s a little less than six percent, but grant me that much optimism. (For the record, 4.1 million votes for Trump to 3.6 million for Clinton would be 53.2% to 46.8%, or a 6.4 point difference, so assume we’re somewhere in the middle if you want.) All disclaimers aside, I think we can all agree that as things stand today, a result like this is in the ballpark.

Now here’s the thing: There’s always some level of dropoff from the Presidential level to the downballot level. In the three most recent Presidential elections, there has been much more dropoff on the Republican side than on the Democratic side.


2004

Bush -  4,526,917
Kerry - 2,832,704

Candidate         Votes   Dropoff   Drop %
==========================================
Carrillo      3,891,482   635,435    14.0%
Brister       4,093,854   433,063     9.6%
Keasler       3,990,315   536,602    11.9%

Scarborough   2,872,717       N/A      N/A
Van Os        2,817,700    15,004     0.5%
Molina        2,906,720       N/A      N/A


2008

McCain - 4,479,328
Obama  - 3,528,633

Candidate         Votes   Dropoff   Drop %
==========================================
Williams      4,003,789   475,539    10.6%
Jefferson     4,092,181   387,147     8.6%
Wainwright    3,926,015   553,313    12.4%
Johnson       4,018,396   460,932    10.3%
Price         3,948,722   530,606    11.8%

Thompson      3,406,174   122,459     3.5%
Jordan        3,374,433   154,200     4.4%
Houston       3,525,141     3,492     0.0%
Yanez         3,428,179   100,454     2.8%
Strawn        3,482,718    45,915     1.3%


2012

Romney - 4,569,843
Obama  - 3,308,124

Candidate         Votes   Dropoff   Drop %
==========================================
Craddick      4,336,499    233,344    5.1%
Hecht         4,127,493    442,350    9.7%
Keller        4,257,024    312,819    6.8%

Henry         3,057,733    250,391    7.6%
Petty         3,219,948     88,176    2.7%
Hampton       3,163,825    144,299    4.4%

Republicans did better in 2012 than in 2008, to which I attribute greater enthusiasm on their part, which led to more straight-ticket and general downballot voting. They obviously had a lot of enthusiasm in 2004, but they also had some crossover votes at the Presidential level, as well as (I believe) a decent number of people who turned out just to vote for President. Dems, on the other hand, had less dropoff in every race except one, and in most cases the difference between R dropoff and D dropoff was large. I attribute that in one part to good messaging about straight-ticket voting, especially in 2008, and one part being that if you bothered to show up and vote for a Democratic Presidential candidate in Texas, you were probably pretty committed to the party as a whole.

I think this year combines the lack of enthusiasm on the Republican side that we saw in 2008, plus the possibility of people showing up to just vote for Trump and nobody else, like in 2004. Against that, some number of people who normally vote for Republican Presidential candidates will do something else in that race this year, then vote normally after that. Put it all together, and I think the likelihood of Republican dropoff in the 2004 and 2008 ranges is a reasonably likely outcome this year.

If that is the case, and if we are indeed headed for a Presidential race with roughly a six-point differential between Trump and Clinton, then the math is clear. Four million less ten percent is 3.6 million, or what I’m projecting Clinton to get. Sure, there will be some Democratic dropoff as well, but you could have 11 or 12 percent loss on the R side, with only one percent or so for a given D. That will vary from candidate to candidate for reasons none of us can predict or will understand, but that’s my whole point: Under these conditions, we’re basically at a coin toss for downballot statewide races. And if that happens, we could see one or more Democrats squeak past their opponents and win their races. Looking at the numbers for the two most recent elections above, Sam Houston and Susan Strawn would have won in this environment, with Mark Thompson, Linda Yanez, and Michelle Petty (2012) falling just short. All they needed was for the Presidential race to have been sufficiently close.

Now as always, this comes with a pile of caveats – the election is still three months away, this is based on one poll, even a seven or eight point lead for Trump would almost certainly render all this moot, there could be a whole lot of Johnson-plus-downballot-GOP voters, etc etc etc. I’m absolutely not saying this will happen, nor am I saying it is likely to happen. I am saying it is possible, and conditions could become better for it rather than worse. I wouldn’t have said this a month ago, and the next poll result may make me want to throw this whole post into the trash, but my original statement stands: As things look right now, it’s not crazy to consider the possibility that at least one downballot statewide Democrat could win this fall.

So now that we’ve had this thought, what are we going to do about it? I’ll address that in the next post.

State Bar dismisses other complaint against Paxton

No matter what else happens, our ethically challenged Attorney General can say he beat at least one rap against him.

Best mugshot ever

Best mugshot ever

Attorney General Ken Paxton telling county clerks they do not have to issue marriage licenses to same-sex couples is not a sign of “professional misconduct,” according to the State Bar of Texas.

The organization last week dismissed a complaint filed against the embattled top prosecutor by more than 200 Texas attorneys, who argued that he “violated his own official oath of office” by issuing a written opinion stating that clerks and public officials could ignore the U.S. Supreme Court’s ruling legalizing same-sex marriage if it conflicts with their religious beliefs.

In an Aug. 3 notice obtained by The Texas Tribune, the State Bar said, “The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct.”

[…]

Steve Fischer, a former director of the State Bar of Texas and one of the attorneys who filed the complaint, said that while he didn’t get the result he wanted, there is “no further interest to continue the grievance.”

“We sort of made our point that he can’t tell clerks to disobey a Supreme Court’s ruling,” he said. “It’s the law of the land. He’s entitled to his own personal opinion, but he should draw a line.”

See here for the background. This may not have risen to the level of misconduct, but it was hardly exemplary conduct either, especially from the Attorney General. I don’t think a mild slap on the wrist of some kind would have been out of place, but whatever. Everyone who wants to get married in Texas can do so, and the matter hardly raises any eyebrow any more. Whatever happened with this complaint, Paxton lost the real fight, with barely a whimper. I’ll take that.

Meanwhile, in other Paxton-trouble news, the special prosecutors have filed their response to his petition to the Court of Criminal Appeals to have the felony charges against him dismissed.

Defense lawyers raised issues that cannot be appealed before trial or were correctly decided when the Dallas-based 5th Court of Appeals upheld criminal charges accusing Paxton of securities fraud and failing to register with state securities regulators, prosecutors told the Court of Criminal Appeals.

“The Court of Criminal Appeals grants less than 4 percent of all petitions for discretionary review filed by criminal defendants. Our reply makes it clear that Mr. Paxton’s petition is not one of them,” prosecutor Brian Wice said.

The prosecutors also argued that Paxton, who filed his appeal Aug. 1, waited too long to challenge the two felony fraud charges, requiring that portion of his appeal to be automatically dismissed.

You can see the state’s reply here. They rebutted each of the defense’s specific claims in addition to asserting that the defense filing was too late, but the legalese was too thick for me to make it all the way through without my eyes glazing over. Suffice it to say, the prosecution begged to differ.

And finally, Paxton is asking the SEC for more time in his fraud case on their docket.

Contemplating an aggressive round of depositions, Texas Attorney General Ken Paxton has asked for an additional 3½ months to question potential witnesses about allegations that Paxton defrauded investors in private business deals five years ago.

The additional time, if granted by U.S. District Judge Amos Mazzant III, would delay until at least September 2017 a civil trial on fraud allegations made by federal regulators.

In a recent court filing, Paxton’s lawyers told the judge they will need more time to question as many as 46 potential witnesses, including state Rep. Byron Cook, R-Corsicana, and his wife, Kay.

[…]

Another reason to grant a delay, lawyers told Mazzant, is that Paxton could face a criminal trial as early as spring 2017 on state felony fraud charges related to his actions on behalf of Servergy.

“Mr. Paxton respectfully submits that, as a matter of fairness, the trial of his criminal matter should occur prior to the trial of this matter,” his lawyers said.

Paxton’s lawyers also informed Mazzant that they are not interested in reaching an out-of-court settlement with the SEC. Neither side has requested or made a settlement offer, they added.

SEC lawyers told Mazzant they expect to finish their depositions — which would include questioning Paxton and his wife, Angela — by Feb. 6. Paxton’s lawyers pressed for a May 26 deadline on depositions.

See here and here for the background. Paxton has also filed a motion to dismiss the SEC charges against him, which still awaits the judge’s ruling. You have to admit, defending himself from a myriad of charges relating to his bad behavior is a full-time job, so Paxton has a compelling case for delay here. We’ll see if the judge grants it.