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First Court of Appeals

Omnibus election report

It’s after midnight, I’ve mostly posted stuff on my long-dormant Twitter account (@kuff), and I will have many, many thoughts in the coming days. For now, a brief recap.

– As you know, neither Beto nor any other Dem won statewide, thus continuing the shutout that began in 1996. However, as of this writing and 6,998 of 7,939 precincts counted, O’Rourke had 3,824,780 votes, good for 47.86% of the total. In 2016, Hillary Clinton collected 3,877,868 votes. It seems very likely that by the time all is said and done, Beto O’Rourke will be the biggest vote-getter in history for a Texas Democrat. He will have built on Hillary Clinton’s total from 2016. That’s pretty goddamn amazing, and if you’re not truly impressed by it you’re not seeing the whole picture. We’re in a different state now.

– Beto may not have won, but boy howdy did he have coattails. Colin Allred won in CD32, and Lizzie Fletcher won in CD07. Will Hurd is hanging on to a shrinking lead in CD23, up by less than 1,200 votes with about 14% of the precincts yet to report. He was leading by 6,000 votes in early voting, and it may still be possible for Gina Ortiz Jones to catch him. Todd Litton (45.30% in CD02), Lorie Burch (44.21% in CD03), Jana Lynne Sanchez (45.25% in CD06), Mike Siegel (46.71% in CD10), Joseph Kopser (47.26% in CD21), Sri Kulkarni (46.38% in CD22), Jan McDowell (46.91% in CD24), Julie Oliver (44.43% in CD25), and MJ Hegar (47.54% in CD31) all came within ten points.

– Those coattails extended further down the ballot. Dems picked up two State Senate seats, as Beverly Powell defeated Konni Burton in SD10 (Wendy Davis’ old seat) and Nathan Johnson trounced Don Huffines in SD16. Rita Lucido was at 46.69% in SD17, but she wasn’t the next-closest competitor – Mark Phariss came within three points of defeating Angela Paxton in SD08, a race that wasn’t really on the radar. Oh, and in an even less-visible race Gwenn Burud scored 45.45% in SD09, while Meg Walsh got to 41.60% against Sen. Charles Schwertner in SD05 (he was just over 55% in that race). We could make things very, very interesting in 2022.

– And down in the State House, Dems have picked up 11 seats:

HD45, Erin Zwiener
HD47, Vikki Goodwin
HD52, James Talarico
HD65, Michelle Beckley
HD102, Ana-Marie Ramos
HD105, Terry Meza
HD113, Rhetta Bowers
HD114, John Turner
HD115, Julie Johnson
HD135, Jon Rosenthal
HD136, John Bucy

Note that of those seven wins, a total of four came from Denton, Hays, and Williamson Counties. The Dems have officially gained a foothold in the suburbs. They also lost some heartbreakingly close races in the House – I’ll save that for tomorrow – and now hold 12 of 14 seats in Dallas County after starting the decade with only six seats. This is the risk of doing too precise a gerrymander – the Republicans there had no room for error in a strong Democratic year.

– Here in Harris County, it was another sweep, as Dems won all the judicial races and in the end all the countywide races. Ed Emmett lost by a point after leading most of the evening, while the other Republicans lost by wide margins. Also late in the evening, Adrian Garcia squeaked ahead of Commissioner Jack Morman in Precinct 2, leading by a 112,356 to 111,226 score. Seems fitting that Morman would lose a close race in a wave year, as that was how he won in the first place. That means Dems now have a 3-2 majority on Commissioners Court. Did I say we now live in a different state? We now live in a very different county.

– With 999 of 1,013 precincts in, Harris County turnout was 1,194,379, with about 346K votes happening on Election Day. That puts turnout above what we had in 2008 (in terms of total votes, not percentage of registered voters) but a hair behind 2012. It also means that about 71% of the vote was cast early, a bit less than in 2016.

– Oh, and the Dems swept Fort Bend, too, winning District Attorney, County Judge, District Clerk, all contests judicial races, and County Commissioner in Precinct 4. Maybe someone can explain to me now why they didn’t run candidates for County Clerk and County Treasurer, but whatever.

– Possibly the biggest bloodbath of the night was in the Courts of Appeals, where the Dems won every single contested race in the 1st, 3rd, 4th, 5th, 13th, and 14th Courts. I count 16 incumbent Republican judges losing, with several more open Republican-held seats flipping. That is utterly amazing, and will have an impact far greater than we can imagine right now.

– Last but not least, both Houston propositions passed. Expect there to be a lawsuit over Prop B.

The Courts of Appeals

The other judicial races where Dems have a chance to gain ground.

Republicans dominate Texas politics — but their stranglehold is especially noticeable in the courts.

Republicans hold all 18 seats on the state’s two high courts. Of the state’s 14 appeals courts, Democrats hold majorities on just three. On the other 11 courts, Democrats have no seats at all.

Democrats are hoping to flip that advantage on Election Day. In their eyes, the stars have aligned. They have a high-profile liberal darling running a competitive race for U.S. Senate at the top of the ticket. They have a controversial Republican president expected to generate backlash in his first midterm election. And enough judicial seats are up for election that Democrats could flip the four sprawling appellate court districts that serve Austin, Dallas and Houston. Hillary Clinton won those districts in 2016, but the courts are currently held entirely by Republicans.

If Democrats can sweep those races in 2018, they’ll take control of half the state’s appeals courts. And strategists say that goal is in sight.

[…]

No Democrat has been elected to the Dallas-based 5th Court of Appeals since 1992. The six-county district includes liberal-leaning Dallas, but also some of Texas’ most reliably red areas. In Dallas, as in Houston and Austin, large, urban centers contribute the lion’s share of the judicial district’s electorate, but right-leaning rural and suburban voters in surrounding counties have handed victories to Republicans for the past several election cycles. Only the 4th Court of Appeals, based in San Antonio, has a partisan split with Democrats in the majority. The Legislature controls these maps; the districts have changed only twice since 1967, most recently in 2005.

[…]

Ken Molberg, a district judge in Dallas, ran for 5th Court of Appeals in 2014 and came up nearly 72,000 votes short. This year, in another attempt, he’s confident things will be different. Molberg, a former Dallas County Democratic Party chair, has accumulated several hundred thousand dollars — an impressive sum for such an unstudied race — and said his region of the state is “ground zero for the party this go around.”

“The potential to switch this court in one election cycle is there, and it would be somewhat earthquake-like if that happened,” Molberg said. “It’s a tough race all the way around, but my analysis is that it can be done.”

Molberg is the best-funded of the eight Democrats battling Republicans for seats on the 13-justice court. But he said the slate will likely succeed or fail as a group.

“I don’t think individual campaigns have any effect at the court of appeals or district court level. …That’s an example of where you’re almost entirely dependent on straight-ticket voting,” said Jay Aiyer, a political science professor at Texas Southern University. “At the courthouse level, it’s easier for one party to dominate.”

[…]

“There is a real conformity, a uniformity of judicial thought on these courts that I think would really benefit from different experience,” said Meagan Hassan, who’s running as a Democrat for the Houston-based 14th Court of Appeals. She pointed to the tiny fraction of dissenting opinions written by Houston-area appellate judges, arguing that ideological balance is needed for the critical decisions these courts make.

In Tyler, for example, an all-Republican court of appeals struck down as unconstitutional the state’s new “revenge porn” law. The 3rd Court of Appeals is currently weighing the city of Austin’s paid sick leave ordinance. And state appellate courts are the last appellate stop for the vast majority of criminal cases in the state — yet many state appellate judges have no background in criminal law.

Democratic wins, Hassan said, “would bring balance to the court that hasn’t existed there in 25 years.”

That’s a theme several of the CoA candidates mentioned in the Q&As I did with them this year. They also point out that a lot of the Court of Appeals rulings stand because they don’t get heard by the Supreme Court or the CCA. I wrote about these races in 2016, when there were several pickup opportunities available, in part due to the wipeout of 2010. Dems did gain one seat each on the 4th and 13th Courts of Appeals in 2016, the latter being one they lost in 2010. They had gained three on the 4th and lost one on the 3rd in 2012, with all of those being up for re-election this time around.

For the 1st and 14th Courts, which are the ones that include Harris County, Dems lost the CoA races by a wide margin in 2014 but came much closer in 2016. Here’s an example from 2014 and an example from 2016. The deficit was close to 150K votes in 2014 but only about 40K votes in 2016. The formula for a Democratic win is pretty straightforward: Carry Harris County by a lot, break even in Fort Bend, and limit the damage in Brazoria and Galveston. That’s all very doable, but it’s likely there won’t be much room for error. It all starts with running up the score in Harris County (or Travis County for the 3rd, and Dallas County for the 5th). If that happens, we can win.

Endorsement watch: Don’t forget the judges

The Chron got some national buzz for their blanket non-endorsement of judges who support the current bail structure, but overall they’re supported a large number of Republican incumbents on the bench. Not all by any means, but well more than a majority. I want to highlight three races where they endorsed Democratic challengers, as in all three cases the Republicans (two incumbents, one running for an open seat) are truly deserving of defeat.

For Supreme Court, Place 4, the Chron endorsed RK Sandill:

RK Sandill

District Judge R.K. Sandill is running for our state’s highest civil judicial office on a platform of moderation. We don’t usually hear that from judicial candidates, but most don’t run against an incumbent like John Devine.

Devine gained a reputation as an ideologue when he campaigned for district court with the promise to “put Christianity into government.” As a district judge, he cemented his reputation as a hard-right jurist when he fought to keep the Ten Commandments on display in his Houston courtroom. More recently, Devine wrote a bizarre dissent to a decision by his colleagues not to hear a case involving same-sex spousal benefits for city of Houston employees.

Devine wrote that government is justified in treating same-sex couples differently because “opposite-sex marriage is the only marital relationship where children are raised by their biological parents.” He completely ignored that the Supreme Court has held that the Constitution prohibits discrimination on the basis of sexual orientation in the case of marriage.

But you don’t have to rely on our assessment of Divine’s bias. Almost half of the attorneys polled in the Houston Bar Association 2017 judicial evaluation questionnaire gave him the lowest possible rating for impartiality. Sandill received more favorable votes on the Houston Bar Association preference poll than the one-term Devine — a rare occurrence of a challenger beating an incumbent. In the State Bar of Texas poll, Sandill received 2,446 votes to Devine’s 1,957.

Add our endorsement to the list.

Devine has been an embarrassment since he knocked off a perfectly fine district court judge in Harris County in 1994. He doesn’t belong anywhere near a bench. The Chron also endorsed Steven Kirkland for Place 2, but at least the incumbent he opposes isn’t a complete travesty.

For Presiding Judge of the Court of Criminal Appeals, the Chron endorsed Maria T. (Terri) Jackson:

Terri Jackson

The editorial board has faced so many tough decisions in our judicial endorsements that it’s a relief to have an easy choice. Voters should confidently pull the lever for Maria T. Jackson, 54, in this race for presiding judge on Texas’ highest criminal court. Jackson has been the criminal district court judge in Houston for more than a decade, handling thousands of cases ranging from low-level drug offenses to capital murder. She told us she’s only been reversed twice by the court she’s seeking to join.

The former municipal judge is proud of the many people she has helped to rehabilitate, but she first experienced transforming lives in the 1980s as director of a school that helped juvenile offenders and gang members.

Overall, Jackson’s approach reflects a blend of toughness and compassion. After she adopted more stringent probation policies for DWI defendants, the entire county soon followed her example.

The graduate of Texas A&M School of Law, formerly Texas Wesleyan School of Law, noted that people don’t tend to care about judges until they need them. But voters should care about ethics questions concerning the current presiding judge of Texas’ highest criminal court, Sharon Keller.

I trust you are familiar with Sharon Keller and her disgraceful body of work. If we want real criminal justice reform, we need some change at the top of the judicial heap as well as in the district courts and DA offices.

Finally, for First Court of Appeals, Place 7, the Chron endorsed Julie Countiss. They begin with the story of how outgoing Justice Terry Jennings switched to the Democratic Party just before the 2016 election, saying the GOP had left him behind:

Julie Countiss

Candidate Terry Yates, on the other hand, seems to fit in with the party Jennings abandoned.

Yates filed an amicus brief asking the 14th Court of Appeals not to construe the right to same-sex marriage to apply to equal partner benefits for city of Houston employees.

Counsel should have the right to advocate for the positions of their clients, but when we asked him about the legality of same-sex marriage during an editorial board meeting, Yates said he didn’t have a deep enough understanding of the overarching Supreme Court case to weigh in.

Throughout the meeting he dodged and weaved when we asked about his political activities and relationship with Steve Hotze — a political activist who once proclaimed that all the gays needed to be driven out of Houston and whose organization has been declared a hate group by the Southern Poverty Law Center.

The close ties to Hotze is more than enough to disqualify Yates. Countiss only got one paragraph in the Chron endorsement, but it’s enough. Her Q&A with me is here. If you have Republican friends who are willing to split their ticket here and there, these are three races you can pitch to them for that.

Judicial Q&A: Sarah Beth Landau

(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates. This is intended to help introduce the candidates and their experiences to my readers. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.

Sarah Beth Landau

1. Who are you and what are you running for?

I am Sarah Beth Landau. I’m a Harris County Public Defender and an adjunct professor of appellate litigation at Texas Southern University Thurgood Marshall School of Law. I am running for the First Court of Appeals, Place 6.

2. What kind of cases does this court hear?

The Court of Appeals hears all appeals from all cases ranging from civil to criminal, juvenile to probate, and family law, from a 10-county area.

3. Why are you running for this particular bench?

The short answer is that we need balance, fairness, and diversity of experience on the court. I was a federal public defender for 10 years before I came to work for Harris County. I had appellate culture shock when I began representing indigent criminal defendants in state court because there are many errors at trial that go uncorrected by the Court of Appeals. These are the kinds of errors that would be corrected in federal court. I think we can do better.

In looking at why this was happening, I realized that not one justice on the Court of Appeals has significant criminal defense experience. Nearly all of the justices come from the same large-firm civil background. They are all from the same party. They vote all the same way on cases nearly all of the time. The Court and the law would benefit from justices with different backgrounds, particularly since criminal cases make up a large percentage of the court’s business.

4. What are your qualifications for this job?

I have practiced law in a variety of settings for the last 20 years after graduating from Columbia University School of Law. I clerked for a federal judge and have done civil and criminal, public and private, state and federal, trials and appeals. Over the course of over 600 appeals, I have represented everyone from multinational corporations to average folks who could not afford to pay for an attorney. I have also taught and mentored law students for six years and enjoy giving back to my community through volunteer work and the arts.

5. Why is this race important?

The majority of the court is up for election this November so it is not just one or two seats at stake — control of the court is up for grabs. The court has been controlled by one party for over 20 years, so it is a key election for that reason as well. Most of the law is made at this level because the highest courts in Texas only accept a tiny fraction of cases for review. Most cases stop at the Court of Appeals level so the decisions of this court affect many people.

6. Why should people vote for you in November?

This position is a logical next step on my path of service to our community. I have been a devoted public servant for 12 years. This season, I have been fortunate enough to receive the endorsement of several non-partisan organizations, including the Association of Women Attorneys and the Mexican American Bar Association. I believe we can do better in extending justice to all who come before the court. It is time for a change.

Judicial Q&A: Richard Hightower

(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates. This is intended to help introduce the candidates and their experiences to my readers. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.

Richard Hightower

1. Who are you and what are you running for?

Richard Hightower, Democratic nominee for Justice, 1st Court of Appeals, Place 8.

2. What kind of cases does this court hear?

The 1st Court of Appeals hears both criminal and civil appeals from trial courts in ten Texas counties, including Harris County.

3. Why are you running for this particular bench?

Appellate courts in Texas should be balanced with justices elected from both parties. Currently all 36 of the appellate court justices overseeing Harris County (the 1st and 14th Courts of Appeals, the Texas Supreme Court, and the Texas Court of Criminal Appeals) were elected as Republicans. This is not a reflective balance of the diverse communities served. I believe that appellate court justices should serve in a fair and impartial manner, follow the law, and avoid political associations and relationships that place in question their ability to do so.

4. What are your qualifications for this job?

I have been a practicing attorney for over 37 years, graduating from Baylor Law School in 1980, and a member of the Baylor Law Review. I am currently the owner of Richard F. Hightower P.C. and serve as of-counsel to the Oaks, Hartline & Daly law firm. I have been a trial attorney for over 20 years, have represented both Plaintiffs and Defendants, and throughout my practice have represented the interests of our public school districts and community colleges in both urban and rural counties. I was co-counsel in one case argued before the United States Supreme Court. In addition, I have served as an outside examiner/officer and as a certified mediator in hundreds of disputes.

5. Why is this race important?

This race is important because voters have an opportunity to provide balance and a diversity of background and experience to the 1st and 14th Courts of Appeals. Fairness and justice for all are on the ballot as ten seats on these two courts are up for reelection this November. I am honored to have the opportunity to provide my broad experience and sound judgment to the 1st Court of Appeals.

6. Why should people vote for you in November?

With over 37 years experience as a practicing attorney, I have been involved in many of the types of cases that might come before the 1st Court of Appeals. I have experience in large firms and small firms, and I have experience in large counties and small counties. I have been involved in complex multi million dollar litigation and have also represented parties in family law, juvenile, probate, criminal, employment, and breach of contract cases. I was honored by my peers by receiving the AV Preeminent rating from Martindale Hubbell, the highest possible rating in both legal ability and ethical standards, and by being listed as a Super Lawyer by Texas Monthly Magazine. I also received more votes than my opponent in the 2018 State Bar preference poll sent to all lawyers in the ten county district served by the 1st Court of Appeals.

Judicial Q&A: Julie Countiss

(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates. This is intended to help introduce the candidates and their experiences to my readers. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.

Julie Countiss

1. Who are you and what are you running for?

I’m Assistant County Attorney Julie Countiss and I’m the Democratic nominee for First Court of Appeals,
Place Seven.

2. What kind of cases does this court hear?

The First Court of Appeals hears criminal and civil cases on appeal from the trial courts in a 10-county district. The district is comprised of the following counties: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller and Washington.

3. Why are you running for this particular bench?

The justice who has served on this bench for 17 years is not seeking re-election so it is an open seat. I saw an opportunity to run in a race without an incumbent. There is rarely ever an open seat on the First Court of Appeals. Usually, the justice who is stepping down leaves before the term expires so that the governor can appoint a like-minded replacement. The concern I have with a system of appointing rather than electing state court judges is the risk of elitism and politics infecting the process. Electing judges has its own pitfalls but it provides an opportunity to people who are willing to put themselves out there and do the hard work of campaigning and getting to know the voters and the precinct chairs and members of the bar. The doors to the courtroom are meant to be wide open for everyone and I am running to keep them open.

4. What are your qualifications for this job?

I have 16 years of experience and I was appointed Assistant County Attorney in 2014. I have the honor of serving the people of Harris County every day in complex federal and state court litigation. I am also in the Nuisance Abatement Group working with law enforcement to hold business owners accountable who profit from criminal enterprises like illicit spas where women are often trafficked. For the appellate courts, it’s important to elect candidates with solid trial court experience who understand the civil trial courts in particular. I won the State Bar of Texas Judicial Preference Poll for 1st Court of Appeals, Place 7 in 2018. My campaign has been endorsed by the GLBT Caucus of Houston, the Harris County Tejano Democrats, the Mexican American Bar Association of Houston, the Pasadena Bar Association, the Texas Gulf Coast Area Labor Federation/AFL-CIO, and several former appellate court justices, including my Dad who served on the 7th Court of Appeals in Amarillo.

5. Why is this race important?

In 90% of cases, the First Court of Appeals is the last chance for parties to seek justice in both criminal and civil cases. The nine justices on the First Court of Appeals were all elected or appointed as Republicans. I’m seeking the place currently held by Justice Jennings who is not running for re-election. Justice Jennings switched parties in 2016 and is often the lone dissenter. The dissent rate is approximately 1% on the Court. There should be more diversity of experience and diversity of thinking on the Court of Appeals. I’m more likely to bring those qualities to the court than my opponent who is very vocal about his anti-equality political beliefs and his dedication to Dr. Steven Hotze and the Conservative Republicans of Harris County PAC.

I also believe the quality of justice in the First District could be greatly improved by making equal access to justice a bigger priority. The overwhelming cost, time commitment and complexity of the legal process can be a barrier for so many people. Important decisions are made in our courts every day that impact the lives of working families and those decisions can really hurt their pocketbooks, property rights, civil rights, health, custody and marital property rights and employment. This is especially true for those who can’t afford a quality attorney. I would like to see more funding for legal aid and more incentive for attorneys to provide pro bono representation to low income individuals at the appellate level.

6. Why should people vote for you in November?

I have more experience practicing law in the civil courts than my opponent. For the appellate courts, it’s important to elect candidates with civil litigation experience who understand the civil trial courts. The justices on the First Court of Appeals spend close to 70% of their time on complex civil appeals. I stay up-to-date on important appellate decisions that impact my practice areas. I maintain a robust motions and trial court practice — writing and arguing complicated and contentious legal issues frequently. I have the core values, integrity, experience and dedication to public service necessary to be an excellent justice.

Judicial Q&A: Gordon Goodman

(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates. This is intended to help introduce the candidates and their experiences to my readers. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.

Gordon Goodman

1. Who are you and what are you running for?

Gordon Goodman
Candidate for 1st Court of Appeals, Place 2

2. What kind of cases does this court hear?

The 1st Court of Appeals hears both civil and criminal appeals from trial courts in 10 counties of Southeast Texas including Harris County.

3. Why are you running for this particular bench?

Many appeals only reach the courts of appeals level so this is where a large number of important questions for our region and state are addressed.

4. What are your qualifications for this job?

Prior Professional experience

  • NRG Energy, Inc.

Director of Governance and Enterprise Risk Management

  • Occidental Petroleum Corporation

Vice President-Planning & Control, Occidental Energy Marketing
Member, Occidental’s Risk Management Committee

  • E.I. DuPont de Nemours & Co.

President, DuPont Power Marketing, Inc.
Senior Vice President, Conoco Global Power

  • Howell Corporation

President, Howell Power Systems, Inc.

Prior Board Memberships

  • College of Liberal Arts & Sciences, Univ. of Houston

Dean’s Advisory Board (Former Chairman and Member)

  • Houston Area Urban League

Board of Directors (Former Member and Chairman of the Audit Committee)

  • Jesse H. Jones School of Business at Texas Southern University

Advisory Council (Former Member)

  • Blaffer Gallery, Univ. of Houston

Advisory Board (Former Chairman and Member)

Prior Professional Advisory Panels

  • Energy Oversight Committee, formed by GARP and API To implement the Energy Risk Professional (ERP) Certificate Program
  • Valuation Resource Group, panel formed by FASB to advise on issues arising under FAS 157 (Fair Value Measurements)
  • The Energy Trading Working Group, an advisory panel formed by the Emerging Issues Task Force at FASB to advise on FAS 133 issues

Professional Associations

  • The American Petroleum Institute’s (API’s) Risk Control Committee (Founding Chairman and Former Member)
  • The American Petroleum Institute’s (API’s) General Committee on Finance (Former Member)
  • Texas State, Pennsylvania, and Energy Bar Associations (Member)
  • The Bachelier Finance Society (Member)

Education

  • University of Pennsylvania Law School, Philadelphia, PA (1974-1977): J.D.
  • University of Pennsylvania, Philadelphia, PA (1971-1974): Bachelor of Arts, Magna Cum Laude

5. Why is this race important?

The lack of diversity of opinion on the 1st and 14th Courts of Appeals is striking given the wonderful diversity that we see in this region of southeast Texas.  I am eager to provide a different point of view on the most important matters of the day and to insure that fairness and justice is available to all parties when they bring appeals to these courts.

6. Why should people vote for you in November?

In addition to my support for civil rights, voting rights, equal protection, and due process under the law, I also bring extensive knowledge and a deep understanding of finance, commerce, and the important business questions of our day and time.  By having this expertise on the 1st Court of Appeals, we can provide a useful forum for the largest and most significant commercial disputes that arise in southeast Texas.

Paxton still pushing for a new judge

Still, he persisted, I guess.

Best mugshot ever

Texas Attorney General Ken Paxton’s lawyers are not giving up in their bid to get a new judge in his securities fraud case.

Earlier this month, Judge George Gallagher ordered Paxton’s trial be moved to Harris County from Collin County, where Paxton lives, after prosecutors argued Paxton and his allies had tainted the jury pool there. Paxton’s team wrote Friday to Harris County District Clerk Chris Daniel requesting that he assign the case to a new judge. Paxton “has not and will not give” his permission for the current judge to follow the case to Harris County, Paxton’s lawyers wrote to Daniel.

The letter, which was filed in court Monday, is the latest development in a standoff between Paxton’s team and Gallagher, whose spokeswoman said last week he will remain on the case. The spokeswoman, Melody McDonald Lanier, also said Gallagher does not need to rule on a motion Paxton’s lawyers made earlier this month that amounted to their initial request for a new judge.

In the letter to Daniel, Paxton’s lawyers continued to cite a part of the Texas Code of Criminal Procedure that says a judge ordering a change of venue may only continue to preside over the case with the consent of both sides. Gallagher, who is from Tarrant County, has been presiding over the case since its early days in 2015.

See here and here for the background. I know that the District Clerk assigns district court judges in new cases, but this is a continuation of a previous case, and it’s one where the judge was assigned from another county after the original judge recused himself. Is there anything in existing law to suggest that the District Clerk has the authority to assign a new judge after the venue was changed to the Clerk’s county? I have no idea, and based on the prior reports, this is something no one has asked for before. I’m kind of wondering why Team Paxton hasn’t gone to the 1st or 14th Courts of Appeals with this request; maybe he wants to show that he exhausted all other avenues first. Whatever the case, I have to assume the question will eventually wind up there. And I have to wonder, is this all worth it? Do they really think they’ve been screwed by Judge Gallagher so far, and that the risk of making things really awkward in his court is worth the possibility of getting a different judge, one who may not have any more tolerance for his lawyers’ tactics? Again, I have no idea. But it sure is fun to watch. The Chron has more.

Paxton wants a new judge

He may not get his wish.

Best mugshot ever

The judge presiding over Attorney General Ken Paxton’s criminal trial plans to remain on the case, regardless of Paxton’s request for a new judge, his spokesman said.

“He anticipates remaining the judge,” District Judge George Gallagher’s spokeswoman Melody McDonald Lanier told the Houston Chronicle Thursday.

Paxton’s criminal defense team requested a new judge after Gallagher moved Paxton’s criminal trial to Harris County from Paxton’s home of Collin County, a move the attorney general’s lawyers opposed. Special prosecutors argued the attorney general’s allies had worked to poison the jury pool there.

Lawyers representing the embattled Republican attorney general said in a motion Tuesday they would refuse to sign off on a procedural move to to keep Gallagher with the case at it moves to Harris County.

Asked for comment about Paxton’s motion to remove him as the case’s judge, Gallagher’s spokeswoman said “He can’t comment because he is the judge and he anticipates remaining the judge.”

[…]

“As far as I know, there is nothing in the Code of Criminal Procedure that addresses what is to happen if the defendant or defense counsel withholds the consent to which article 31.09 refers,” said George Dix, a law professor at the University of Texas at Austin, referring to the code Paxton cited in his motion. “No case, as far as I know, has addressed the meaning of this provision.”

See here and here for the background. As the DMN notes, what Paxton is asking for is basically unprecedented.

It’s quite possible no one else has ever asked for what Ken Paxton wants now.

This week, after Judge George Gallagher moved the attorney general’s upcoming criminal trials from Collin to Harris County, Paxton asked for a new judge. He cited a state law that’s meant to be procedural, a way for Gallagher to maintain the original case number and continue to use his own court reporter and clerk when the proceedings move to Houston.

But Paxton’s attorneys have interpreted the law to also require their client’s “written consent” for Gallagher to continue presiding over the case.

Paxton didn’t give his consent. He’s the first to refuse to do so and ask for a new judge in the process, experts said.

[…]

If Paxton’s motion is granted and upheld on appeal, it could set a precedent that will allow any criminal defendant or prosecutor to use the same tactic and get a new judge if a case is moved. But it’s unclear how likely that is to occur.

If Judge Gallagher denies the motion, the Chron story suggests any appeals would be heard by either the 5th Court of Appeals in Dallas or the 1st or 14th Court of Appeals in Houston. I don’t think this is likely to affect the proposed trial calendar, but as noted we are in unprecedented territory here. Already the entertainment value of this proceeding is off the charts, and we’re still five months away from jury selection.

City loses appeal of procedural argument in term limits lawsuit

Stay with me, because this is going to take a bit of explaining.

calvin-on-term-limits-for-dads

A state appeals court on Thursday rejected the city’s procedural challenge to a lawsuit that could force Houston’s mayor and city council members to revert to three two-year terms, from the two four-year terms voters approved in November 2015.

The Texas First Court of Appeals ruling did not address the merits of the underlying case, which centers on whether the city’s ballot language was misleading.

Rather, the court’s decision marks an incremental step in what is likely to be a lengthy appeals process that plaintiffs hope could trigger municipal elections as early as this fall.

Austin election lawyer Buck Wood, however, said he considers November mayoral and city council elections improbable, given the speed with which courts typically move.

[…]

The appellate court’s ruling affirms state District Judge Randy Clapp’s decision last year to reject Houston’s procedural challenge, which sought to get the case thrown out.

Clapp was not considering the substance of the case at the time, though he tipped his hand by calling the city’s ballot language “inartful” but not “invalid.”

Mayoral spokeswoman Janice Evans said Thursday the city attorney’s office is considering whether to appeal the procedural decision to the state Supreme Court.

If the trial court’s 2016 procedural decision holds, the case likely would return to Clapp for a hearing on the substance of whether Houston’s term limits ballot language obscured the nature of the vote by asking whether voters wanted to “limit the length for all terms.”

See here for the background. Where this gets confusing is that the original story didn’t explain all of what was happening in that first hearing. There was a motion by the plaintiffs for summary judgment, which was denied. That was the win for the city, as now a trial is required to settle the question of whether the ballot language was misleading or not. The rest of it was about procedural matters: Whether plaintiff’s attorney Eric Dick properly served the city notice of his lawsuit, whether the court had jurisdiction to hear the case, and whether attorney Andy Taylor could intervene to assist Dick. District Court Judge Clapp ruled against the city’s motion to dismiss on these matters. The city appealed that ruling, and the First Court of Appeals upheld Judge Clapp.

The city can appeal this ruling to the Supreme Court. If they do and they win, the lawsuit will be dismissed. If they lose, or if they choose not to appeal, the matter will be returned to Judge Clapp’s court for a trial on the merits of the lawsuit. The plaintiffs are hoping to get a ruling in time for there to be city elections this November; they claim August is the deadline for that, though I’d argue that more time would be needed for real campaigns to occur. However, as the story notes, even if the plaintiffs win, there’s no guarantee that city elections would follow as a result. What might happen instead is that the city would have to put a differently-worded term limits referendum on the ballot. That maybe could happen this November, or it might happen in 2018. Or even later than that, depending on how long it takes to get a ruling and how long the appeals of that ruling take. Remember how long it took to get a Supreme Court decision in the Renew Houston lawsuit? The 2010 referendum was subsequently voided more than a year ago, and yet here we are, with no new election for it in sight. Mayor Turner has joked that it will be up to his successor to get the term limits issue straightened out because it won’t be settled till after his eight years in office. I’m not sure he’s joking about that.

Precinct analysis: Brazoria County

I had some time to spare, so I spent it with the canvass reports from Brazoria County. You know, like you do. Here’s what I was able to learn.


        Trump   Clinton   R Avg   D Avg   Weber    Cole
=======================================================
Votes  36,572    15,127  37,036  14,996  37,917  14,678
Pct    68.58%    28.23%  71.18%  28.82%  72.09%  27.91%


        Trump   Clinton   R Avg   D Avg   Olson  Gibson
=======================================================
Votes  36,219    28,073  39,026  26,713  40,179  26,178
Pct    54.08%    41.92%  59.37%  40.63%  60.55%  39.45%


        Trump   Clinton   R Avg   D Avg   Thomp   Floyd
=======================================================
Votes  40,666    30,564  43,599  29,181  44,713  28,505
Pct    54.83%    41.21%  59.95%  40.05%  61.07%  38.93%

Votes  32,125    12,636  32,462  12,528
Pct    69.23%    27.23%  72.15%  27.85%

Brazoria County is part of two Congressional districts, CDs 14 and 22, and two State Rep districts, HDs 25 and 29. The latter two are entirely within Brazoria, so the numbers you see for them are for the whole districts, while the CDs include parts of other counties as well. The first table splits Brazoria by its two CDs, while the second table is for the two HDs. Incumbent Republican Randy Weber was challenged by Democrat Michael Cole in CD14, while Republican Pete Olsen was unopposed in CD22. The second group of numbers in the first table are the relevant ones for CD22; I didn’t include Olsen because there was no point (*). There were no contested District or County Court races, so the “R Avg” and “D Avg” above are for the four contested district Appeals Court races; these are the 1st and 14th Courts of Appeals, which as you know includes Harris County.

The second table is for the State Rep districts. In HD29, incumbent Republican Ed Thompson faced Democrat John Floyd, while Republican Dennis Bonnen was unchallenged in HD25. You can sort of tell from the tables and I can confirm from the raw data that HD29 mostly overlapped CD22, and HD25 mostly overlapped CD14. As I have done before, the percentages for the Presidential races are calculated including the vote totals for Gary Johnson and Jill Stein, which is why they don’t add to 100%. The other contested races all had only two candidates.

Still with me? If so, you can see that HD29 was much more interesting than HD25, and was where basically all of the crossover Presidential votes were. Trump lagged the Republican baseline in HD25, but those voters mostly either skipped the race or voted third party. Viewed through the Presidential race, HD29 looks like a potentially competitive district, but if you pull the lens back a bit you can see that it is less so outside that, and that Thompson exceeded the Republican baseline on top of that. It would be nice to point to this district as a clear opportunity, but we’re not quite there. There is another dimension to consider here, however, and that is a comparison with the 2012 results:


       Romney     Obama    Cruz  Sadler   R Avg   D Avg   Weber Lampson
=======================================================================
Votes  35,571    13,940  34,618  13,865  33,931  14,444  33,116  14,398
Pct    70.82%    27.75%  69.34%  27.77%  70.14%  29.86%  69.70%  30.30%


       Romney     Obama    Cruz  Sadler   R Avg   D Avg   Olsen  Rogers
=======================================================================
Votes  35,291    20,481  34,879  19,879  34,466  20,164  35,997  17,842
Pct    62.49%    36.27%  62.14%  35.42%  63.09%  36.91%  66.86%  33.14%


       Romney     Obama    Cruz  Sadler   R Avg   D Avg   Thomp   Blatt
=======================================================================
Votes  40,170    22,480  39,657  21,866  39,203  22,204  40,642  21,388
Pct    63.32%    35.44%  62.86%  34.66%  63.84%  36.16%  65.52%  34.48%

Votes  30,692    11,941  29,840  11,878  29,194  12,404
Pct    70.95%    27.60%  69.45%  27.64%  70.18%  29.82%

In 2012, Randy Weber was running to succeed Ron Paul in the redrawn CD14, which had a nontrivial amount of resemblance to the old CD02 of the 90s, which is how former Congressman Nick Lampson came to be running there. He ran ahead of the pack, but the district was too red for him to overcome. Pete Olsen was challenged by LaRouchie wacko Keisha Rogers, Ed Thompson faced Doug Blatt, and Dennis Bonnen was again unopposed. I threw in the numbers from the Ted Cruz-Paul Sadler Senate race in these tables for the heck of it.

The main thing to note here is that HD29 was a lot more Republican in 2012 than it was in 2016. Ed Thompson went from winning by 31 points in 2012 to winning by 22 in 2016, with the judicial average going from nearly a 28 point advantage for Republicans to just under a 20 point advantage. Total turnout in the district was up by about 11,000 votes, with 7K going to the Dems and 4K going to the Republicans. That still leaves a wide gap – 14K in the judicial races, 16K for Ed Thompson – but it’s progress, and it happened as far as I know without any big organized effort.

And that’s the thing. If Democrats are ever going to really close the gap in Texas, they’re going to have to do it by making places like HD29, and HD26 in Fort Bend and the districts we’ve talked about in Harris County and other districts in the suburbs, more competitive. If you look at the map Greg Wythe kindly provided, you can see that some of the blue in Brazoria is adjacent to blue precincts in Fort Bend and Harris Counties, but not all of it. Some of it is in Pearland, but some of it is out along the border with Fort Bend. I’m not an expert on the geography here so I can’t really say why some of these precincts are blue or why they flipped from red to blue in the four years since 2012, but I can say that they represent an opportunity and a starting point. This is what we need to figure out and build on.

(Since I initially drafted this, Greg provided me two more maps, with a closer view to the blue areas, to get a better feel for what’s in and around them. Here’s the North Brazoria map and the South Brazoria map. Thanks, Greg!)

(*) – As noted in the comments, I missed that Pete Olsen did have an opponent in 2016, Mark Gibson. I have added the numbers for that race. My apologies for the oversight.)

Races I’ll be watching today, non-Legislative edition

vote-button

This is my companion to yesterday’s piece.

1. SBOE district 5

I’ve discussed the SBOE races before. This particular race, between incumbent Ken Mercer and repeat challenger Rebecca Bell-Metereau, is the one that has the closest spread based on past performance, and thus is the most likely to flip. If it does flip, it would not only have a significant effect on the SBOE, which would go from 10-5 Republican to 9-6, with one of the more noxious members getting ousted, it would also cause a bit of a tremor in that this was not really on anyone’s radar going into 2016. Redistricting is supposed to be destiny, based on long-established voting patterns. If those patterns don’t hold any more, that’s a big effing deal.

2. Appeals courts

I’ve also talked about this. The five courts of interest are the First, Fourth, Fifth, 13th, and 14th Courts of Appeals, and there are multiple benches available to win. I honestly have no idea if having more Democrats on these benches will have a similar effect as having more Democrats on the various federal appellate benches, especially given that the Supreme Court and CCA will most likely remain more or less as they are – I would love to hear from the lawyers out there about this – but I do know that having more Dems on these benches means having more experienced and credible candidates available to run for the Supreme Court and CCA, and also having more such candidates available for elevation to federal benches. Building up the political bench is a big deal.

3. Edwards County Sheriff’s race

Jon Harris is an experienced Democratic lawman running for Sheriff against a wacko extremist in a very Republican county, though one with a small number of voters. This one is about sanity more than anything else.

4. Waller County Sheriff’s race

I’ll be honest, I didn’t have this one on my radar until I read this Trib story about the race, in which the recent death of Sandra Bland is a factor. Waller County went 53-46 for McCain over Obama in 2008, though the Sheriff’s race that featured a problematic Republican was a lot closer. It was 58-41 for Romney, which is close to what it was statewide. Democratic challenger Cedric Watson will have to outperfom the countywide base to defeat incumbent Glenn Smith, it’s mostly a matter of by how much he’ll have to outperform.

5. Harris County Department of Education, Precinct 2

There aren’t any at large HCDE Trustee positions up for election this year, so I haven’t paid much attention to them. This race is interesting for two reasons. One, the Democratic candidate is Sherrie Matula, who is exceptionally qualified and who ran a couple of honorable races for HD129 in 2008 and 2010. And two, this is Jack Morman’s Commissioner’s Court precinct. A win by Matula might serve as a catalyst for a strong candidate (*cough* *cough* Adrian Garcia *cough* *cough*) to run against Morman in 2018.

6. HISD District VII special election

You know this one. It’s Democrat Anne Sung versus two credible Republicans and one non-entity who hasn’t bothered to do anything other than have a few signs put up around town. One key to this race is that it’s the only one that will go to a runoff if no one reaches 50% plus one. Needless to say, the conditions for a December runoff would be very different than the conditions are today.

7. HISD recapture and Heights dry referenda

I don’t think any explanation is needed for these.

What non-legislative races are on your watch list for today?

Judicial Q&A: Barbara Gardner

(Note: I ran a series of judicial Q&As for Democratic candidates in contested primaries earlier this year. I am now doing the same for the candidates who were unopposed in March, which includes most of the sitting incumbent judges. As always, this is to help you the voter know a little bit more about the candidates on your ballot. I will be publishing these in the order I receive them. You can see the Q&As and interviews I did for the primaries on my 2016 Election page.)

Barbara Gardner

Barbara Gardner

1. Who are you and what are you running for?

I am Barbara Gardner, and I am running for the 1st Court of Appeals, Place 4.

2. What kind of cases does this court hear?

The Courts of Appeals, made up of 14 districts across the State, hear and write opinions on every type of law: car wrecks, real estate, commercial disputes, probate, employment, divorce, criminal misdemeanors – everything except felonies, which go straight to the Court of Criminal Appeals.

3. Why are you running for this particular bench?

The Courts of Appeals have become biased in their opinions, mostly looking for ways to rule for large corporations, to the disadvantage of individuals and small business. These courts generally decide the result they want, and then “shoe-horn” the law to fit that result. Also, they take away too many juries’ verdicts. I am running because I can bring balance and a better, fairer perspective to the 1st Court of Appeals.

4. What are your qualifications for this job?

I graduated #1 in my law school class; I have been a trial lawyer for over 30 years and have handled cases all the way up to the US Supreme Court. I was a law clerk for a federal judge when I finished law school. Also, I am board certified in Labor and Employment Law by the Texas Board of Specialization. I believe that Courts should follow the law, and they are not doing that very well. Some of my other accomplishments include:

• “Best Lawyers in America” (Employment Law), 2007–2016

• “Highest Possible Rating” in Legal Ability & Ethical Standards by Judiciary & Bar members, Martindale Hubbell 2015-2016

• “Texas Super Lawyers,” 2007–2016

• “Texas Top Lawyers,” 2012-2016

• “Women Leaders in the Law,” Fortune Magazine 2015

• “Top-Rated Lawyers in Labor & Employment,” Fortune Magazine 2013

• “The Best Women Lawyers in Texas,” 2013

• “Texas’ Best Lawyers,” 2009–2013

• “Top 100 Trial Lawyers in Texas” 2012

• “Top Lawyers,” Corporate Counsel, 2008-2011

• “Houston’s Top Lawyers,” 2006, 2007, 2011

• “Top Lawyers for the People,” 2007

• AV-Preeminent rating by peers in Martindale Hubbell

• Interviewed as expert several occasions on Houston’s Fox 26 News TV

• Former Partner & Head of Employment Law Section of Lam, Lyn & Philip

• One of founding principals and partner of Tucker, Vaughan, Gardner & Barnes

5. Why is this race important?

This race is extremely important because the Courts of Appeals’ written opinions constitute the law that controls every Texas citizen’s rights and conduct. There is a very limited right to appeal to the Texas Supreme Court. Even though the State Legislature writes statutes, the statutes may be a few sentences or a page or two in length. Then the Court of Appeals writes a long opinion about what the statute “really” means. Also, there are many laws that are not based on any statute, such as negligence, car wrecks, bad injuries and death. Those are based on the “common law” which the Courts of Appeals write.

Currently, more than half of the justices on the 1st Court of Appeals initially were appointed by the governor to get on the court, including my opponent. Most people know very little about Courts of Appeals, and so those appointed stay there for many years.

It is the job of the Court of Appeals only to determine whether the judge in the lower court made a legal error. The Courts of Appeals go far beyond that and take the case into their own hands, deciding many times a completely different outcome than the jury’s verdict.

Even if one tried to appeal to the Texas Supreme Court, more than half of those judges also were hand-picked and appointed by the governor. As I mentioned above, the governor chooses those who will carry out his pro-big business philosophy.

We need a change.

6. Why should people vote for you in November?

I am well qualified as described in #4 above. I know the courtroom like the back of my hand. And I am not beholden to the governor or big business. I will apply the law correctly and fairly, not because of any political persuasion.

Judicial Q&A: Jim Peacock

(Note: I ran a series of judicial Q&As for Democratic candidates in contested primaries earlier this year. I am now doing the same for the candidates who were unopposed in March, which includes most of the sitting incumbent judges. As always, this is to help you the voter know a little bit more about the candidates on your ballot. I will be publishing these in the order I receive them. You can see the Q&As and interviews I did for the primaries on my 2016 Election page.)

Jim Peacock

Jim Peacock

1. Who are you and what are you running for?

I am Jim Peacock running for Chief Justice, First Court of Appeals.

2. What kind of cases does this court hear?

Civil and non-capital criminal cases appealed from lower Courts.

3. Why are you running for this particular bench?

We need greater diversity of opinion on the courts of appeals in Texas. The courts have been dominated for several years by people of a particular mindset that I believe is not completely unbiased. Diversity of opinion can be derived from having different backgrounds and life experiences. The extent of my exposure to more diverse legal experience has enabled me to have a more open and objective approach to matters that will come before the court.

As the titular head of the court it is vital to have someone that is not beholden to any one group or limited by a closed political philosophy. I can offer that capability. Although most of the duties of the Chief Justice are the same as any other justice on the court, there are some differences. As the Chief of the court you can set an example for the entire court of openness and objectivity. I believe in leading by example.

Also the Chief Justice has some duties that bring him in contact with other political entities and subdivisions of government wherein the Chief Justice must represent the interests of the court and of the people that come before the court. I believe that my professional and life’s experience makes me well suited to that purpose. I offer an opportunity to bring change to the court without sacrificing ability or integrity.

4. What are your qualifications for this job?

I have tried nearly 200 jury trials to verdict covering extremely diverse areas of law. Some of the issues tried include: civil rights violations, disability discrimination, racial discrimination, slander, libel, invasion of privacy, fraud, usury, breach of contract, car wrecks, medical malpractice, sexual harassment, guarantor breach, premises liability, capital murder, murder, sexual assault, DWI, etc. The diversity of my experience and the variety of judges I have appeared before has given me a clear understanding of what it takes to be a good judge. I have represented thousands of individuals in my practice and have become adept at understanding the unique nature of each person and each case. I have experienced injustice and unfairness from courts that were indifferent to the rights of individuals. I have also experienced the pleasure of appearing before well qualified and compassionate jurists, one of which I aspire to be. My practice has placed me before dozens of trial courts in Texas, the Court of Appeals, the Court of Criminal Appeals, the Texas Supreme Court, Federal District Courts, Federal Bankruptcy Court, the 5th Circuit Court of Appeals, and the United States Supreme Court.

In addition to my trial experience I have taught numerous areas of law, to other attorneys, on many occasions. I have taught voir dire, opening and closing statements, direct and cross examination of witnesses, trial as theater, and the nexus between criminal and civil law.

5. Why is this race important?

The First Court of Appeals has nine justices. Presently they are all elected or appointed Republicans. The justices have generally come from large civil defense firms or from experience as criminal prosecutors. Virtually none of the members of the court have experience on the plaintiff’s side of civil ligation or the defense side of criminal litigation. The current Chief Justice has held the position for many years after working for a large civil defense firm and serving initially as an appointed then elected judge and later an appointed and then elected justice. Over the years the court’s rulings have consistently favored the defense side of civil cases and the state’s side in criminal matters. The frequency and consistency of the rulings favoring those sides is, in my opinion, not indicative of unbiased review of the cases.

When the rulings of the court overwhelmingly favor one side of litigation it can reduce the public’s belief in the objectivity and fairness of the court. It is crucial that the integrity of the courts be preserved and beyond reproach. We need balance to be returned to the courts in Texas and the Courts of Appeals are essential to that goal. The vast majority of opinions that establish the precedents to be followed by the courts of Texas are from the intermediate courts of appeals. Therefore, the jurisprudence of this state is disproportionately affected by those courts. Few cases are actually ruled on by the Supreme Court or the Court of Criminal Appeals. Thus, the intermediate appellate courts can have a pronounced effect by the sheer volume of their opinions. Ensuring an efficiently run court and pressing for timely rulings is important to obtaining justice.

The Chief Justice is also involved in lobbying various issues relevant to the conduct of the court and has additional administrative duties that pertain to the operation of the court. This race is to determine who will be the Chief Justice of this extremely important appellate court.

6. Why should people vote for you in November?

I have more practical litigation experience than anyone presently on the court. My trial practice has been diverse and has included extensive experience in both criminal and civil matters. I have served as a criminal prosecutor and defense attorney in hundreds of cases and truly understand both sides. I have also handled hundreds of civil cases and have experienced both sides of that docket as well. No one on the court has the multifarious background that I do. This court has jurisdiction over both civil and criminal matters and society would benefit from a justice that truly understands what it means to try cases in all areas of law that come before the court.

I also bring the ability to return balance to the court. I am not beholden to any one side or group. I can make rulings that are legitimately unbiased and based only on the evidence and the law. Since I have handled so many different sides of litigation, and represented such diverse groups and people, I can be truly fair and open to all. Because I have over 35 years of trial and appellate experience, I can be productive on the bench immediately and bring a pragmatic perspective that lawyers from a more limited background could not. I represent a change from the status quo by bringing a new and different set of opinions to a court that has been dominated by only one philosophy for far too long.

Endorsement watch: More courts

The Chron has a bunch of judicial race endorsements to make, beginning with the First and 14th Courts of Appeals.

1st Court of Appeals, Chief Justice: Sherry Radack

Both Republican incumbent Sherry Radack and challenger Jim Peacock strongly agree that service on this bench constitutes a great honor. That honor should go to Radack, 65, for another term, although Peacock came as close any challenger has to convincing us that the breadth of his experience as a litigator and the need for more philosophical diversity on the court would justify a switch. But ultimately, it’s hard for us to vote to unseat a sitting justice who is doing a good job, which Radack is.

Justice, 1st Court of Appeals,Place 4: Barbara Gardner

Plato imaged a world run by philosopher-kings, but Republican judge Evelyn Keyes is the closest that Houston gets. Our resident philosopher-judge, Keyes is a member of the prestigious American Law Institute, which helps write the influential model penal code. A graduate of University of Houston Law Center, Keyes also has a doctorate in philosophy from Rice University and a doctorate in English from the University of Texas. She’s penned numerous papers on legal philosophy, exploring the foundational underpinnings of our entire judicial system and arguing about the concept of justice itself.

Now Keyes is running for her third term – a “last hurrah,” she told the editorial board, before she is aged out under state law. If elected, Keyes will be forced to retire after four years of her six-year term and will be replaced by a gubernatorial appointment.

Justice, 14th Court of Appeals, Place 2: Kevin Jewell

This race for an open seat offers voters two very different candidates who would each bring great strengths in their own ways.

Republican Kevin Jewell, a graduate of the University of Houston Law Center, is board certified in civil appellate law and heads up the appellate practice at the Chamberlain Hrdlicka law firm. Jewell, 48, has spent his career practicing in appellate courts and his resume is practically tailor-made for this position.

Justice, 14th Court of Appeals,Place 9: Tracy Elizabeth Christopher

Justice Tracy Christopher is one of the “smartest, most reasonable judges” on this court. That’s not us talking – that’s her Democratic opponent, Peter M. Kelly, during a meeting with the editorial board. It is the kind of praise that should encourage voters to keep Christopher, a Republican, on the bench. A graduate of the University of Texas School of Law, Christopher, 60, is board certified in civil trial law and personal injury trial law, and served for 15 years on the 295th Civil District Court before her appointment to this bench in 2009. She’s received stellar bar poll ratings, and we were particularly impressed by her insight as to how the state Legislature has overridden common law in Texas, especially in medical malpractice and other torts.

And for the State Supreme Court.

Justice, Supreme Court, Place 3: Debra Lehrmann

Justice Debra Lehrmann, 59, has spent six years serving on the Texas Supreme Court and before that she was a Tarrant County family court judge for 22 years. In that time she has acquired a reputation as a hardworking and respected jurist with a record of success dating back to her days at University of Texas School of Law.

Her Democratic opponent and former judge of the 214th District Court in Nueces County, Mike Westergren, says that there needs to be more balance on the all-Republican court. Lehrmann agrees but they differ as to the nature of the deficit. Westergren argues for more ideological balance, while Lehrmann maintains the justices need to continue to challenge each other.

Justice Dori Garza

Justice Dori Garza

Justice, Supreme Court, Place 5: Dori Contreras Garza

What is Republican incumbent, Justice Paul Green, doing wrong on the Texas Supreme Court? According to his Democratic challenger, Justice Dori Garza, not much.

She told the editorial board that she’s not running against Green personally, but instead to provide greater diversity on the court.

The first in her family to receive a college degree, Garza, 58, attended night school at the University of Houston Law Center and in 2002 was elected to the 13th Court of Appeals, which stretches from Matagorda County south to the U.S.-Mexico border. She’s been re-elected twice and in 2010 was one of three candidates recommended by the Texas congressional delegation to serve as a federal judge in Corpus Christi.

If elected, she’ll bring different personal and ideological perspectives to a court that’s been critiqued as leaning in favor of corporations and state authority at the expense of everyday Texans.

Justice, Supreme Court, Place 9: Eva Guzman

It took 100 pages for the Texas Supreme Court to explain that our state’s school funding system was constitutional, if imperfect. But Justice Eva Guzman’s passionate concurrence should light a fire under Texas politicians who may think that winning at the Texas Supreme Court absolves them of any duty to improve our public schools.

They endorsed challenger Barbara Gardner over incumbent Evelyn Keyes because Judge Keyes will have to resign after four years due to the mandatory retirement age of 75. The main thing about both of these endorsement posts is that they basically like all of the candidates. They have a couple of clear preferences, but no races in which they consider only one candidate qualified. Consider that another piece of evidence to suggest that our oft-maligned system of partisan elections for judges maybe isn’t as bad as its frequently made out to be. My Q&A for Dori Garza is here, and I’ve got Q&As lined up for Jim Peacock and Candance White, so look for them soon.

Appeals Court judge Terry Jennings switches parties

Cool.

Justice Terry Jennings

Justice Terry Jennings

It was just after presiding over a same-sex wedding, in January, that the formerly Republican Justice Terry Jennings, of the Texas First Court of Appeals, started thinking more seriously about changing his party affiliation.

Jennings had been considering becoming a Democrat for years as he grew increasingly dissatisfied with the way the Republican Party had trended toward the fringes, turning “moderate” into a dirty word, he said. And as his children, two daughters in college and a son in high school, continued to ask their dad why he still identified as a Republican, Jennings said the question continued to grow harder to answer.

Then came the wedding.

When others commented to him that deciding to preside over a same-sex wedding was a decision many other Republican judges may not have made, “that’s when I started thinking, Well maybe I’m not in the right party then,” Jennings told the Houston Press in an interview Monday.

The change-over makes him the only Democrat among the nine justices on the First Court of Appeals. Democrats make up just 12 of 73 jurists on the state’s 14 courts of appeal.

Jennings made the formal announcement at the Harris County Democratic Party’s Johnson, Rayburn and Richards fundraising dinner on Saturday evening, saying “today’s Republican Party has chosen a dark path I cannot take.” Elected in 2000 to the First Court of Appeals (which hears Harris County civil cases), Jennings said he was once proud to call himself a member of the Republican Party, and had always considered himself a conservative judge who applied the law just as it was written. Now, however, Jennings says his principles no longer align with those of the GOP.

“It’s just a party I didn’t feel comfortable being a member of anymore,” he told the Press. “You’ve heard the common expression a thousand times: I didn’t leave my party; my party left me. And it’s true.”

I got a blast email from HCDP Chair Lane Lewis about this on Monday. As you know, I’m hoping he’ll have some company on the 1st Court after this election. Whether that happens or not, his term is up in 2018, and as the story notes, he’s not sure if he wants to run for another term. Solving the turnout problem so that this is a question with more than one viable answer would be nice. In the meantime, welcome aboard, Justice Jennings. The Chron has more.

What it will take to win the District Court of Appeals benches

I’ve mentioned a couple of times that one place on the local ballot where Democrats could potentially gain some real ground is with the district Courts of Appeals. There are no competitive Congressional or State Senate races, the one competitive State House race in HD144 would be Democratic-favored in any Presidential year, and the countywide races have a greater dependency on the candidates themselves than any other contest. Republicans have done well in those races even as Democrats were winning district court benches, with the GOP successfully defending the offices of District Attorney and Tax Assessor in 2008 and 2012. The stakes are higher this year with the GOP hoping to keep the Sheriff’s office as well. Those races will get a lot of attention, with the outcomes less likely to be determined by partisan turnout levels.

The judicial races are where the candidates are mostly at the mercy of the blue/red mix. The wild card in those contests are for the 1st and 14th District Courts of Appeals, which encompass more than just Harris County. Jim Sharp broke through in 2008 to become the first (and so far only) Democrat in recent years to claim a spot on these benches, but several other races that year were fairly close, as each of the Democratic candidates carried Harris County. Republicans had a much easier time holding those positions in 2012, but the overall trend as well as the dynamic of this year’s Presidential contest suggests Dems may have a good shot at these. Let’s take a look at the numbers from the last two Presidential years and see if we can take a guess at what would need to happen for that to be the case.


2008

Race         Harris D  Harris R     Diff  Others D  Others R      Diff     Total
================================================================================
14th CJ       568,713   539,696  +29,017   199,332   258,576   -59,244   -30,227
1st Pl3       585,249   526,393  +58,856   209,510   250,194   -40,684   +18,172
1st Pl5       565,338   543,216  +22,122   198,502   259,452   -60,950   -38,828
14th Pl4      561,284   544,873  +16,411   194,751   261,775   -67,024   -50,613
14th Pl6      569,641   536,050  +33,591   198,463   257,779   -59,316   -25,815
14th Pl7      571,737   533,566  +38,173   198,849   257,265   -58,416   -20,245


2012

Race         Harris D  Harris R     Diff  Others D  Others R      Diff     Total
================================================================================
1st Pl2       567,793   572,351   -4,558   194,826   297,572  -102,746  -107,304
1st Pl6       565,699   572,594   -6,895   193,294   298,479  -105,185  -112,080
1st Pl7       565,258   572,326   -7,068   191,908   299,769  -107,861  -114,929
1st Pl8       560,865   575,397  -14,532   191,293   300,076  -108,783  -123,315
1st Pl9       567,466   570,529   -3,063   192,017   299,588  -107,571  -110,634
14th Pl3      580,356   557,224  +23,132   197,511   294,162   -96,551   -73,519
14th Pl4      555,639   580,450  -24,811   188,891   302,216  -113,325  -138,136
14th Pl5      557,972   578,436  -20,464   190,155   300,711  -110,556  -131,020
14th Pl8      575,206   562,417  +13,211   196,161   295,426   -99,265   -86,476

There are a couple of things going on here. The level of Democratic turnout in each year is roughly equivalent. The average dipped from 570,327 in 2008 to 566,250 in 2012, but that’a less than one percent. The Dem totals dropped a bit more in the other counties, falling from an average of 199,901 to 192,895, with the difference being exaggerated a bit by Jim Sharp’s showing in 2008. The bottom line remains that while the average Democratic candidate in these races received about 10,000 fewer votes in 2012, those totals didn’t affect the competitiveness of these races.

What did that were the Republican turnouts, which rose considerably in Harris and in the other counties, though for slightly different reasons. Republican voters in Harris County were far more likely to skip downballot races in 2008 than they were in 2012. It was the same way in 2004, with about ten percent of their Presidential voters disappearing for races like these, while Democratic voters were far more persistent about filling out their ballots. That pattern changed in 2012, with Rs and Ds about equally likely to fill the whole thing in. Some of that is no doubt the effect of straight-ticket voting, but there were still over 400,000 voters in Harris county who didn’t vote straight ticket in 2012. Maybe it was increased partisanship, maybe it was people absorbing the local message to vote all the way down, but whatever the case, it had an effect. As for the other counties, the increases are basically the result of population growth in Fort Bend, Galveston, and Brazoria Counties. Put the two together and you can see the effect.

Obviously, that makes winning these races this year a challenge, but I believe it can be done. Republicans have little to no prospect for growth in Harris County, and having Donald Trump at the top of the ticket is more likely to be a drag than an asset. Democrats need to put up a decent margin in Harris County, and they ought to be able to, but that won’t be enough. There needs to be some help in Fort Bend, Galveston, and Brazoria for there to be a fighting chance. I don’t know what is going on in those counties to try to boost turnout, though I know Fort Bend Democrats have been pretty active in recent years. I may be the only person in the state obsessing about these races as attainable targets for this year – these are low-visibility contests that have no immediate impact – but they represent an opportunity that we don’t often get, and it’s not like there are a bunch of legitimately exciting legislative or Congressional elections to focus on. The point I’ve been trying to make is that this is a good year to be thinking about other parts of the political bench, which includes county offices and judicial races. Remember, these appellate court positions come with six-year terms, so anyone who wins this year could if they chose run for a statewide bench in 2018 or 2020. There’s no downside to any of this, but we have to be aware of it first.

Another view of Democratic goals for 2016

Sounds about right.

vote-button

Some Democrats say Clinton has a chance at winning a majority in Texas, where interest is heightened because U.S. Housing and Urban Development Secretary Julián Castro has been mentioned as a possible Clinton running mate. Castro said Friday that he isn’t being vetted as one.

They’re looking for Trump’s rhetoric to help unite Democrats behind their presumptive nominee after her hard fight with U.S. Sen. Bernie Sanders of Vermont, although signs of division still exist.

“We’re going to win. It’s going to be bigger than what Obama was able to do when he ran in Texas,” said state Rep. Senfronia Thompson, D-Houston. “Donald Trump has done one thing for us. He’s united us.”

Others simply are hoping for some progress, given the steep hill ahead of Democrats who last won a statewide election in 1994. The last time a Democratic presidential candidate lost to a Republican by only single digits in Texas was in 1996, when President Bill Clinton defeated Republican Bob Dole nationally and Reform party candidate Ross Perot got 7 percent of the vote.

“I think that the best that Democrats can hope for this cycle is that we’re getting better,” said Democratic strategist Colin Strother. “What Democrats can hope for this cycle is that everybody gets a little more engaged … that they get out there and start busting their knuckles and building our list and improving our fundamentals.”

Rice University political scientist Mark P. Jones put some parameters on what “better” could look like for Democrats.

“‘Better’ is keeping Trump’s victory in the single digits, and taking back somewhere around a half-dozen state House seats, taking back Congressional District 23 and turning Harris County blue,” Jones said.

In Harris County, he said, that means reclaiming the sheriff’s office, flipping the district attorney and tax assessor-collector offices and sweeping the overwhelming majority of countywide judicial elections.

That’s basically in line with what I suggested previously. On a great day, Dems could pick up two or three more House seats, and it’s not crazy to suggest that Fort Bend County, where Barack Obama won 48.5% of the vote in 2008, could be flipped, but they got the basics. I will note again that an under-the-radar opportunity for Dems is in the district Court of Appeals races. Here’s Texas Lawyer on this possibility:

But political experts who’ve taken a closer look at judicial races in Texas believe there’s one very important set of elections where Trump and his bombastic behavior could do some serious damage to his party’s ballot mates.

If a Trump effect is going to be felt anywhere in Texas, they believe it’s most likely to occur on Republican-held intermediate courts of appeals based in large Texas cities. Those races draw a pool of a mix of voters from both urban and suburban counties. And the split between Democrat and Republican votes have grown much closer in those courts in recent years.

Two simple things have to happen for the Trump effect to upset a down-ballot races in Texas, according to Cal Jillson, a Southern Methodist University political science professor who had studied the state’s voting trends for years.

First, Democrats in urban counties have to come out and vote at full strength to vote against him. And second, Republican voters who are turned off by the bigoted and often offensive candidate have to stay home on Election Day in November.

“When you think about Texas’ major cities, the inner cities are blue, the inner ring suburbs are purple and the outlying suburbs are red,” Jillson said. And the biggest problem for Republicans can be found in the purple suburbs, where stalwart Republicans may be turned off by Trump, he said.

“Two thirds of Republicans didn’t vote for Trump, but most are making their peace with him. And the money people are coming back to Trump,” Jillson said. “But … for a party to be competitive, they have to pull 90 percent of their electorate. And if you’re only pulling 85 percent up to 90 percent, you’ll lose. And that will effect congressional races and some state races.”

And the best place to watch the Trump effect in action on election night might be Houston’s First and Fourteenth Courts of Appeals and Dallas’ Fifth Court of Appeals. Those courts, which have six seats up for grabs, are based in solid Democratic counties but are surrounded by numerous smaller red counties that have made those courts safe seats for Republicans for more than two decades.

The Trump effect has Democrats believing they now have the best shot ever for electing a complete slate of candidates to the Houston and Dallas courts of appeals. Democrats mounted a complete sweep of trial court races in Dallas County in 2006 and nearly took all of those seats in Harris County in 2008.

Those aren’t the only ones to watch. Dems lost a seat on the 13th Court of Appeals in the 2010 debacle, for example. That bench, held by 2008 Supreme Court candidate Linda Yanez, is up for re-election this year, and Dems have an experienced candidate in a judicial district that gave over 58% of the vote to a Democrat in 2008. There are Democrats running for Republican-held benches on the 4th (anchored in Bexar County) as well. The 13th should be the easiest pickup, with perhaps the 4th being next, and the 1st, 5th, and 14th more challenging still, but those are all opportunities that should be watched. The weeds get deeper from here, but you get the idea. There are available gains and attainable goals. We need to define what we want and figure out how we want to get them.

Filing deadline highlights

I’m taking a look at interesting bits from the state and Harris County Democratic Party filings. You can see the latter here; there isn’t a page dedicated to this on the TDP webpage (why?) but via this press release we find the SOS candidate filing report, which once filtered for Dem only gives us what we want, albeit in a not-so-pretty package. We soldier on nonetheless. Here are the things that caught my eye.

Federal

– In addition to the three candidates with whom you may be familiar, your choices for President in Texas include Calvis L. Hawes, Keith Judd, Roque “Rocky” De La Fuente, Star Locke, and Willie L. Wilson. Hawes, Judd, and Locke are themselves from Texas.

– Democratic candidates filed for 30 of the 36 Congressional seats, the exceptions being 8, 11, 13, 19, 32, and 36. Of those, only 32 could be considered on the horizon of competitive, so no great loss. Incumbent Democrats facing primary challengers are Beto O’Rourke (CD16), Henry Cuellar (CD28), Eddie Berniece Johnson (CD30), and of course Gene Green (CD29), who like Johnson has two opponents, both named Garcia (Adrian and Dominique). There are seven candidates for the open CD15. Former Rep. Pete Gallego, trying to take back CD23, has a primary opponent to overcome first. Frequent candidate A.R. Hassan is one of two hopefuls for CD22. And hey, remember Ray Madrigal, the guy who ran against Wendy Davis in the gubernatorial primary in 2014? He’s a candidate for CD27, along with two other folks.

Statewide

– Your candidates for Railroad Commissioner are former State Rep. Lon Burnam, 2014 Senate candidate Grady Yarbrough, and Cody Garrett.

– All of the statewide judicial offices have candidates: Mike Westergren, Dori Contreras Garza, and Savannah Robinson, for places 3, 5, and 9 on the Supreme Court; incumbent Judge Larry Meyers (remember he switched parties last year), Betsy Johnson, and Robert Burns, for places 2, 5, and 6 on the Court of Criminal Appeals. I think you have to go back to 2002 to find the last time we had all such slots filled.

SBOE

– I guess first-term SBOE member Martha Dominguez decided not to run for re-election, because she didn’t file for it. Dominguez was more than a little flaky about running after her surprise win in the 2012 primary (why she was in the primary if she was reluctant to run for November remains a mystery), so no great loss here. Three candidates – Georgia Perez, Joe Fierro, Jr., and Lynn Oliver – are on the ballot to replace her.

– Two familiar names are back, Rebecca Bell-Metereau in SBOE5, and Judy Jennings in SBOE10. Both good candidates (you can search my archives for the interviews I did with them in 2010 if you are so inclined), with perhaps better chances of winning this time.

– There are three candidates for SBOE6 in Harris County – Jasmine Jenkins, Dakota Carter, and Michael Jordan. I know nothing about any of them at this time.

District appeals courts

– We seem to have these covered for Harris and the other counties in our two appellate districts:

Chief Justice, 1st Court of Appeals – Jim Peacock.
Justice, 1st Court of Appeals District, Place 4 – Barbara Gardner.
Justice, 14th Court of Appeals District, Place 2 – Candance White and Jim Sharp. Yes, that Jim Sharp.
Justice, 14th Court of Appeals District, Place 9 – Peter M. Kelly.

That appears to be a full slate, unless there are any unexpired terms I’m not aware of. DA candidate Morris Overstreet ran for Chief Justice of the 1st Court in 2010. Peter Kelly is a neighbor of mine, so that’s cool.

– There’s a contested primary for Justice, 13th Court of Appeals District, Place 3, in South Texas, which had been held by 2008 Supreme Court candidate Linda Yanez; she lost it in a heartbreaker in the 2010 debacle. One of the candidates is Leticia Hinojosa, whom those with long memories may remember as Rep. Lloyd Doggett’s primary opponent for the re-redistricted CD25 in 2004. Everything old is new again.

State Senate

– You know about the TMF-Menendez rematch in SD26. Another “rematch” is in SD19, where Sen. Carlos Uresti faces Helen Madla, widow of former Sen. Frank Madla, whom Uresti ousted in 2006. Let me just say that as much as I love the city of San Antonio, I’m glad I’m not living there this primary season.

– Sen. Eddie Lucio also has a primary opponent, O. Rodriguez Haro III.

– Virginia “Jennie Lou” Leeder is running for SD24, the seat vacated by Troy Fraser. She won’t win, but at least someone is running. No one filed for the other open Senate seat, Kevin Eltife’s SD01.

State House

– By my rough count, Dems fielded candidates in 90 of the 150 State House districts, which I believe means they are challenging 38 Republican incumbents. Offhand I don’t know how that compares to other years. Some districts where I would have liked to have seen a challenger include 17, 32, 45, 132, and 138. Easier said than done, I know. The Dallas County Democratic Party put out a release touting the fact that all of their districts have a Dem running in them. Good on them for that.

– Incumbents with primary challengers, according to the SOS: Toni Rose (HD110), Ina Minjarez (HD124; she won a special election late in the session, so no shock here), Alma Allen (HD131), Gene Wu (HD137), Ron Reynolds (HD27; he has three opponents), Sergio Munoz (HD36), and Mary Gonzalez (HD75; she is facing former Rep. Chente Quintanilla). According to the HCDP page, you can add Jessica Farrar (HD148) and Hubert Vo (HD149) to that list, with both of their opponents being hot messes. Farrar faces Dave Wilson – yes, that Dave Wilson – while Vo draws minor Mayoral candidate Demetria Smith. Pass the Advil.

– Open seat report: Three candidates in HD116 (vacated by TMF in his Senate quest), two in HD118 (Joe Farias; son Gabe won the special election to fill out his term), six in HD120 (Ruth Jones McClendon), three in HD139 (Sylvester Turner), seven in HD49 (Elliott Naishtat), and two in HD77 (Marissa Marquez).

– Other contested races: HD117 (Philip Cortez tries to win back the seat he won in 2012 and lost in 2014; he faces San Carlos Antonio), and HD144 (Mary Ann Perez tries to do the same but first faces Cody Ray Wheeler and Bernie Aldape). Also of note, Lloyd Criss (father of former Judge and 2014 candidate Susan Criss) tries his luck in HD23, which he once represented some years back.

Harris County

– There are twelve contested judicial races. These are mostly for Republican-held benches, but incumbent Elaine Palmer drew two challengers. Guess I better start sending out those judicial Q&As.

– Those 12 judicial races are for district and county courts. There are also four contested JP races. Incumbent Richard Vara (Precinct 6, Place 1) has an opponent, and incumbent Hillary Green (Precinct 7, Place 1; she is the estranged wife of outgoing Controller Ronald Green) has seven (!) opponents, including 2012 HCDP Chair candidate and 2013 Mayoral candidate Keryl Douglas.

– There are 26 people running for 8 Constable positions. Incumbents Alan Rosen (Precinct 1) has two opponents; Chris Diaz (Precinct 2) has three; Henry Martinez (Precinct 6) has four; and May Walker (Precinct 7) has one.

– Sherrie Matula, who had a couple of good runs for State Rep in HD129 prior to the 2011 redistricting, is a candidate for HCDE in Precinct 2, while Marilyn Burgess is running in Precinct 4. There are no At Large HCDE spots on the ballot this year.

– Commissioner El Franco Lee is unopposed, while former Council candidate Jenifer Rene Pool and Eric Hassan square off for the right to challenge Steve Radack in Precinct 3.

…And I do believe that’s a wrap. There may be some late additions or corrections – the SOS page may not have full information from the county parties, for instance – but this is a decent overview. There are a few names on the ballot that I wouldn’t mind seeing disappear, and trying to make sense of all these races and candidates will be a monumental task with not a whole lot of time to accomplish it, but overall this is a good thing. Much better to have a plethora of candidates than a dearth in a democracy.

Supreme Court requires HERO ballot language change

Whatever.

HoustonUnites

The Texas Supreme Court has again overruled Mayor Annise Parker’s administration in connection with the legal fight over her signature nondiscrimination ordinance, ruling Wednesday that the mayor and City Council erred in choosing the language that will appear on the November ballot when the ordinance faces possible repeal.

The justices, writing in “yet another mandamus proceeding concerning the City of Houston’s equal rights ordinance,” said the city charter is clear in requiring that voters be asked to vote for or against the ordinance. Parker had instead argued it was proper to vote for or against repealing the measure, and the council approved language with that approach Aug. 5.

“Though the ordinance is controversial, the law governing the City Council’s duties is clear. Our decision rests not on our views on the ordinance — a political issue the citizens of Houston must decide — but on the clear dictates of the City Charter,” the justices wrote. “The City Council must comply with its own laws regarding the handling of a referendum petition and any resulting election.”

[…]

The ruling rejected an argument from the ordinance’s foes that the ballot should not contain the words “Houston Equal Rights Ordinance,” which they said was politically charged.

Yeah, because nothing about this is politically charged. I don’t really get the fuss over this – voting to “keep” or “repeal” seems like two sides of the same coin to me, and if the petition is to repeal, then it’s logical that the vote should be to repeal – but if that’s the way it is then that’s the way it is. In the end, I doubt it makes that much difference, unless the number of easily confused people in this town is higher than I think it is.

By the way, on the matter of ballot language, I like the way the Press put it:

Frankly, we found Taylor’s language more confusing than the ballot wording, but the thing that really stuck out was Taylor’s other complaint — rejected by the court — that the language shouldn’t include the words “Houston Equal Rights Ordinance.”

“It is simply a gratuitous, albeit intentional, insertion designed to give proponents an edge at the polls,” Taylor wrote, adding that the ordinance’s supporters wouldn’t want “Child Predator Protection Act” appearing on the ballot.

The difference, of course, is that only one of those is accurate nomenclature.

Indeed. Never forget how much lying the leaders of the repeal movement have done. Mayor Parker’s statement is here, and the Trib, PDiddie, and Texas Leftist have more.

On a related matter, there’s still the Dave Wilson Potty Package Check Petitions, which one court ruled needed to be counted; the city has appealed that ruling to the First Court of Appeals. That was still being litigated as of yesterday, and I happen to have a copy of the city’s response to Wilson’s motion to have their appeal dismissed. To sum it up, the city is arguing that Wilson has cited no authority for his dismissal argument, and the trial court erred by granting Wilson temporary emergency relief without requiring him to prove a right to that extraordinary relief. As it happens, later in the day yesterday the appeals court denied Wilson’s motion to dismiss the city’s appeal, and gave the city ten days to “file a written response to this notice, providing a detailed explanation, citing relevant portions of the record, statutes, rules, and case law to show that this Court has jurisdiction over the appeal”. So we’ll still be arguing this at the end of the month, and that’s going to make it a very close call as to whether Wilson’s issue could get on the ballot, if the petitions were certified in the first place. Stay tuned.

Crusading against court fees

This is important work.

Jani Maselli Wood

Houston attorney Jani Maselli Wood scanned the itemized list of “court costs” that people pay when they get in trouble with Texas law to see how much her indigent client owed even while sitting in a prison cell.

Among other things her client was obligated to pay was a $250 DNA record fee, money that was divided to fund the state highway system and an account that issues criminal justice grants.

Maselli didn’t think the fee was a legitimate court cost, and relying in part on a 70-year-old case, Maselli convinced Houston’s 1st Court of Appeals that it was a tax collected by the judiciary. Attorneys for the state appealed that ruling and she is now scheduled to argue the issue before the highest court in Texas.

The defense attorney’s attempts to hold the state accountable for the money collected as “court costs” may sound quixotic, but the courts are taking her challenges seriously.

It could change the way Texas collects money and pays the bills.

“I’m trying to make sure the money goes to where you think it goes,” Maselli said. “If you look behind the court costs, statutorily, where the money goes, it rarely goes back to the courts.”

The courts have defined “court costs” as a recoupment of the cost of criminal prosecution. Maselli is arguing against fees that sound like they are connected to criminal cases, but which she says are not.

One of the fees charged to defendants after trial is a 14-item bundle called the Consolidated Court Cost.

Maselli has followed the money for each of the fees in that bundle to find they support things like the state highway fund, a criminal justice institute at Sam Houston State University or end up in biggest pot of all, the state’s general revenue fund.

“Only a small amount, like 12 percent, goes to the courts,” Maselli said. “It’s just not connected.”

The Observer wrote about Ms. Maselli last month. The Chron story doesn’t mention that she’s employed by the Harris County Public Defender’s office, which enables her to do this kind of work since she’s not tied to billable hours. I suspect many people, including myself, assumed that the courts were mostly funded by taxes, not “user fees”. It’s not like the “users” chose to be there, after all. If that’s the route we’re going to go, the least we can do is spell it all out. Kudos to Ms. Maselli for forcing that kind of reckoning on us.

Appeals court reverses ruling about pension retiree information

So much for that.

Mayor Annise Parker

Mayor Annise Parker

A state district court’s 2013 ruling that Houston’s fire pension board must turn over detailed information on its retirees to help city officials better project future pension bills has been overturned on appeal.

Justices with the 1st Court of Appeals issued the opinion Tuesday, arguing that, in essence, state law protects the city’s ability to request information on its pensioners but not at the breadth and depth the city originally sought when it sued the pension fund in May 2012. At the time Mayor Annise Parker argued she needed better data to project future pension costs.

Todd Clark, chairman of the Houston Firefighters’ Relief and Retirement Fund, cheered the ruling, and said the city has all the information it needs on retired firefighters.

“The city took a run at trying to convert the plain meaning of a statute providing for an independent audit into a license to rummage through a decade of pension members’ personal information,” Clark said. “Both taxpayer and pension resources were wasted by the city’s lawsuit.”

City Attorney Donna Edmundson said she and her staff still are reviewing the ruling and weighing the city’s options, which could include appealing the ruling or narrowing the city’s request for information.

Houston originally sought individual data on each retiree from 2000 forward, and later amended its request to target group data from that period. Edmundson said the ruling suggests state law may protect the city’s access to retiree information if it requests only group data dating back to only 2011.

“I think basically, on our part, we just need to go back in and refine our request a bit, just tweak it,” Edmundson said. “Obviously we’re reaching out to the firefighters trying to come to agreement on numerous issues. We’re just going to sit back on this for the time being since we do have other litigation pending, as well.”

Assistant City Attorney Judith Ramsey added that it was important for the city to pursue the case because state law requires Houston to audit its pension funds every five years, “and we felt that we needed the level of detail we originally asked for in order to do the kind of audit we were required to do.”

See here and here for the background, and here for the court’s opinion. Narrowing the request is probably the shorter path to some kind of resolution, though I suppose the firefighters could still appeal if the First Court of Appeals accepted a revised petition. I’m just guessing – if anyone knows better what the possible paths are, please leave a comment. Barring some kind of settlement agreement, which I would not bet on, I presume this will not be resolved by the end of the year, meaning that the next Mayor will inherit this. I wonder what legal strategy the various candidates would prefer to see Mayor Parker pursue. A statement from the HFRRF is beneath the fold.

(more…)

Appeals court revives MBIA lawsuit against Sports Authority

Here we go again.

A lawsuit against the agency that pays the debt on Houston’s sports stadiums is back on following an appeals court ruling.

Last April, a state district court judge ruled that a bond insurer could not sue the Harris County-Houston Sports Authority or the Harris County Sports & Convention Corp., saying they were immune from such legal action as government agencies.

MBIA Insurance Corp., with the National Public Finance Guarantee Corp., sued the Sports Authority in January 2013, asking that the cash-strapped agency be forced to collect more money to cover its obligations, including additional parking and admissions taxes at Reliant – now NRG – Stadium, and seeking damages for other alleged breaches of contract. The sports corporation, the county agency that manages NRG Park, also was listed as a party in the suit.

In an opinion issued last week, a three-judge panel from the First Court of Appeals ruled that the Sports Authority had waived its immunity when it entered into an agreement with MBIA – now National – that provided that the company, which insures $1 billion in bonds, would guarantee regularly scheduled principal and interest payments on them.

Upholding part of state District Court Judge Elaine Palmer’s decision, it also ruled that the sports corporation was not liable because the company had not accused it of breach of contract.

Sports Authority Chairman J. Kent Friedman said it has not yet decided whether to ask the First Court for a re-hearing, to appeal to the Texas Supreme Court or to “go ahead and try the case.” Deadlines to request a re-hearing or appeal are next month.

“I continue to be very confident in our position in the litigation,” he said. “All it really did is allow them the right to proceed with their lawsuit.”

See here, here, and here for the background. The Court’s opinion is here, and if like me your eyes glazed over after about five seconds, you can skip to the end and confirm that the bottom line is that the Harris County-Houston Sports Authority does not have immunity and thus can be sued, but the Harris County Sports & Convention Corporation does have immunity as Judge Palmer ruled and thus cannot be sued. The matter is now back in the 215th Court, pending a decision by either party to appeal the part of the ruling they didn’t like. Also, I’m glad to see that we seem to be done with that “Kenny Friedman” business, and J. Kent Friedman is once again being called “J. Kent Friedman” as well he should be. So there you have it.

MBIA appeals lawsuit dismissal

Here’s the brief that MBIA has filed with the First District Court of Appeals to overturn the dismissal of their lawsuit against the Harris County-Houston Sports Authority and the Harris County Sports & Convention Corporation. The issues presented for review are pretty straightforward:

1. The Sports Authority was authorized to waive its purported governmental immunity by the Texas State Legislature in Texas Government Code Section 1371.059(c), and it clearly and unambiguously waived any such claim of immunity in the operative deal documents.

2. The Sports Authority also waived its governmental immunity to suit, as provided in Texas Local Government Code Section 271.152, by entering into contracts for goods or services relating to the issuance of approximately $1 billion in bonds.

3. The Sports Authority, a joint creation of the City of Houston and Harris County, had no right to governmental immunity when it issued bonds in its proprietary capacity after a public vote by the citizens of Houston.

4. The Sports Corporation waived its governmental immunity to suit, as provided in Texas Local Government Code Section 271.152, by entering into contracts for goods or services.

I’ll leave it to the lawyers to evaluate their chances. Typically, it will be months, if not more than a year, to get an answer on this. In the meantime, I came across this link about the Sports Authority’s bond rating. The improving economy has the ratings services optimistic about its revenues in the near term. Take a look if you’re into that sort of thing.

Sanchez ends his Senate campaign

This news broke late Friday.

Leading Democratic U.S. senatorial candidate Ricardo Sanchez announced Friday that he’s ending his campaign to replace retiring Sen. Kay Bailey Hutchison.

In a statement issued by his campaign to supporters, Sanchez said anemic fundraising and the loss of his house to a fire had led him to conclude that a statewide campaign was “impractical for me at this time.”

“After extensive consultation with my family … I have decided to put family first and I will therefore end my campaign for the 2012 U.S. Senate seat as of today,” he said.

Well, that answers my question. Sanchez’s campaign never really got off the ground, and a month ago his house burned down, which is a tough thing for anyone to overcome. As we know, a lot of people were unhappy with his candidacy in the first place. This isn’t really a surprise.

“Politics abhors a vacuum. Someone will step forward,” said Jeff Crosby, a longtime Democratic consultant. “Someone will step in; who, I don’t know.”

Southern Methodist University political science Professor Cal Jillson said the situation Texas Democrats find themselves in is indicative of the party’s decade of electoral futility in statewide races.

“It is another sign of what people have been talking about for a decade, a very thin bench,” Jillson said. “You have some attractive young people in the Legislature and in city government … but they don’t have statewide name recognition.”

There’s always John Sharp, isn’t there? Surely he’s tanned, rested, and ready by now. I have no idea if anyone else will run. I don’t know how much it matters at this point. As to what Professor Jillson says, this is why I have been talking about making way for new blood. I disagree with him about the need for statewide name recognition, however, because almost no one currently serving at the state level had it beforehand. Rick Perry, Susan Combs, Todd Staples, and Jerry Patterson all came from the Lege. David Dewhurst was just some rich guy with no prior electoral experience before he ran for Land Commissioner. Most of the Railroad Commissioners we have had in the past decade or more were appointed to the position by the Governor before they won an election for the office. Only Greg Abbott, who was a Supreme Court justice before he was AG, had statewide experience. The fact is that when the state is ready to elect Democrats, it won’t matter much where those Democrats come from. What might speed that up is getting some Democrats who might like to run statewide into Congress and the State Senate, where their fundraising bases can be maximized. No matter how you slice it, though, the path to a statewide office involves a really big last step.

In other primary-related news, there were a few more filings in Harris County on Friday, with two races now having third candidates in them. In HD137, the seat being vacated by State Rep. Scott Hochberg, attorney Gene Wu has made his entry into the race. I’ve met Wu but don’t know a whole lot about him. I do know that the court-drawn HD137 has an Asian CVAP of 12.0%, which is third highest in the state behind HDs 26 (23.8%) and 149 (13.8%), wihch may add an interesting wrinkle to the race. All data is taken from here. In case you’re curious, the top ten districts in Plan H302 by Asian CVAP are as follows:

Dist County Incumbent Asian CVAP ========================================== 26 Fort Bend Open 23.8% 149 Harris Vo 13.8% 137 Harris Open 12.0% 66 Collin V Taylor 9.7% 112 Dallas Chen Button 8.4% 135 Harris Elkins 8.2% 115 Dallas Open 7.9% 27 Fort Bend Reynolds 7.8% 67 Collin Open 7.8% 129 Harris J Davis 7.3%

Obviously, that is subject to change. The other race with a third candidate now in it is HCDE Board of Trustees, Precinct 1, Position 6, the post now held by Roy Morales. This is not surprising when you consider that the Democratic primary will decide the outcome. The third candidate is Dr. Reagan Flowers, who according to her press release is “Founder and CEO of CSTEM (Communications-Science-Technology-Engineering-Mathematics) a non-profit focused on improving education for underserved and underrepresented children.” You can read some of her writings here. I look forward to interviewing all the candidates in this race so I can figure out which one to vote for.

Otherwise in Harris County, things are pretty well covered. It looks like all of the 1st and 14th District Court of Appeals seats have challengers. The main down note is that other than Keith Hampton’s challenge to Sharon Keller, there are no Democratic candidates for Supreme Court or CCA. I suppose we could get a late filing or two tomorrow, but that’s not terribly encouraging.

Finally, here’s a list of Democratic filings in Fort Bend. I don’t know offhand if they have any races unfilled or not – I’m not sure when their District Attorney position is up, for instance. Again, the legislative seats are subject to change at the whim of the court. As, of course, is the whole unified primary itself, as it requires fairly swift SCOTUS action to not be scuttled by the calendar. For now, we’ll all just pretend that won’t happen.

UPDATE The District Attorney office in Fort Bend is not up until 2014. All offices except Tax Assessor have Democratic candidates filed for them so far.

Endorsement watch: Appeals courts

I’ve regularly ragged on the Chron for their, um, casual attitude of late for getting endorsements done in a timely manner, so I must commend them for getting such an early start this year. They’ve covered the Governor and Railroad Commissioner races so far, and have now weighed in on the District Appeals Court races. Of the six, they went with two Democrats:

Place 8, 1st Court of Appeals: Robert Ray, a Democrat, is our choice to complete an unexpired term on this bench. Ray’s academic background as a psychologist and an undergraduate journalism major hold the promise of bringing a new and different perspective to the court. His work as a jury consultant gives Ray an appreciation for the work of juries that some contend is missing from the appeals courts.

[…]

Place 5, 14th Court of Appeals: Wally Kronzer, a Democrat, is board certified in appellate law and brings 22 years of experience practicing in that specialty to his candidacy for an unexpired term in this place on the court. Kronzer, a graduate of the University of Houston and South Texas College of Law, contends that his work in the less populous counties surrounding Houston gives him a perspective that is needed on this court. We agree.

Kronzer, a cancer survivor and longtime Little League coach, would bring strong legal background and life perspective to the bench.

Given the length of the ballot in Harris County this year – I’ve heard people say it’s the longest ballot ever, anywhere in America, thanks to all the judicial races – an early start is clearly called for. Let’s hope they maintain the pace.

Another appeals court case to be proud of

By “proud”, I mean “deeply embarrassed”. Here’s Rick Casey discussing a decision by the 1st Court of Appeals in which the infamous case of death row inmate Calvin Burdine and his sleeping lawyer, Joe Cannon is referenced, and not in a good way.

“Like the ‘sleeping lawyer’ case, this case will stand as a significant embarrassment in the history of Texas jurisprudence,” wrote Justice Terry Jennings in a stinging dissent.

This isn’t a death penalty case, but a lawsuit in which child protection authorities sought to terminate a father’s parental rights. We Texans consider families so important that we give indigent parents a tax-paid attorney to represent them if the state tries to take away their children.

In this case, John Spjut (pronounced “Spyoot”) was appointed to represent Frederick DeWaynne Walker.

Spjut didn’t sleep through the trial. He simply didn’t attend it. Nor did he do much preparation. Walker testified he called Spjut’s office at least five times but never reached him.

Spjut’s bills to the county do not indicate any contact with his client. He did bill the county for filing an answer to the state’s termination lawsuit, writing two letters to Walker, and spending one hour preparing for trial. Total fee: $750.

But on the actual day of the trial, Spjut didn’t show. Instead, he sent his brother Dan to try the case.

It must have been a challenge. Without a lawyer guiding him, Walker had a hard time finding the right courtroom and didn’t show up until after lawyers for the state had put on their case against him.

[…]

By Jennings’ estimate, based on the trial transcript, Dan Spjut’s direct examination of Walker lasted less than four minutes.

The entire trial, Jennings estimated, took less than 45 minutes.

Yet the two other justices on the panel that heard Walker’s appeal ruled that his right to have a lawyer had not been violated. Justice George C. Hanks Jr., joined by Justice Jane Bland, wrote that Walker had to prove that he would likely have won if his attorney had done a better job.

Hanks wrote that Walker didn’t prove that the way Spjut conducted his defense wasn’t “the exercise of reasonable professional judgment.”

Jennings argues in dissent that Walker received “assistance” of counsel “far below that afforded to the criminal defendant in the infamous ‘sleeping lawyer case.’ ”

“Walker’s appointed trial counsel never discussed the case with Walker and then abandoned Walker on the trial date,” he wrote.

I guess if there’s somebody who can be called a “lawyer” that’s with you in the courtroom, that’s good enough. I wonder if any of the justices who render opinions like this have the same expectation of what a basic level of assistance would be from, say, a doctor or a broker.

Sadly, neither of the justices who thought this kind of lawyering was A-OK are up for re-election next year – we’ll have to wait till 2012 to render our own opinions. On a side note, in searching around for info about Calvin Burdine and his snoozing attorney, I came across this old blog post that detailed some fun and games then-District Court Judge, now State Sen. Joan Huffman played in Burdine’s retrial. I wish I’d have remembered it before her election last year, but oh well.

One more judicial race

This was mentioned as a sidebar to a story about Governor Perry signing a bill, but I think it deserves more than that. There’s a new justice on the First Court of Appeals, which means there will be one more judicial race next year.

Gov. Rick Perry has appointed a Houston attorney to the 1st Court of Appeals to fill the unexpired term of a justice who retired in April, the Associated Press reports.

Michael C. Massengale’s term will expire at the next general election. He replaces Tim Taft of Houston, who was first elected to the court in 1994.

The 1st Court of Appeals has nine justices who hear appeals and original proceedings from 10 counties around Houston.

Massengale is a partner at Baker Botts L.L.P. and is president of the Houston chapter of the Federalist Society. He earned his bachelor’s degree from Dartmouth College and a law degree from the University of Texas at Austin.

Justice Taft won re-election unopposed in 2006, so Massengale or whoever beats him will be up for election for a full term in 2012. If form holds from 2008, Massengale will have a primary challenger as well as a Democratic opponent. He was appointed to Place 8, which as of my Class of 2010 So Far post wasn’t listed as a bench that was up for election. I presume that will be rectified shortly. As you know, I think the appeals court races will be a good opportunity for Dems next year, so I certainly hope new Justice Massengale gets a challenger soon. I’ll let you know when I hear something.

Jim Sharp investiture

Jim Sharp, who was elected to the First Court of Appeals in November, has asked me to pass along an invitation to his investiture, which will be held this Thursday, February 12, at 4 PM in the Gerald Treece Courthouse at the South Texas College of Law downtown. Details can be found here (PDF). Enjoy!