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Michele Petty

Precinct analysis: State courts

We return to our tour of the precinct data with a look at the statewide judicial races. These tend to be interesting mostly as proxies for base partisan support, but there are variations that reflect qualities about the candidates. That’s what I’m going to focus on here.

Dist    Green    Garza   Guzman Robinson  R SJ Avg  D SJ Avg
CD02  156,800  107,513  163,092  100,247   158,852   103,416
CD07  135,310  108,540  144,087   99,977   138,618   104,011
CD09   25,906  103,431   27,993  101,594    26,242   102,489
CD10   79,113   34,926   80,104   33,297    79,337    33,927
CD18   45,665  149,521   50,198  144,817    46,814   146,929
CD29   34,618   91,898   40,381   85,592    35,849    88,188
SBOE6 329,707  253,583  346,471  235,776   335,602   243,912
HD126  34,635   24,431   35,565   23,230    34,861    23,735
HD127  47,208   23,767   48,074   22,592    47,409    23,032
HD128  40,567   16,310   40,856   15,756    40,513    15,989
HD129  40,578   25,159   42,100   23,578    41,139    24,193
HD130  57,460   20,405   58,131   19,372    57,638    19,776
HD131   6,812   38,016    7,565   37,395     6,923    37,668
HD132  36,509   29,355   37,394   28,250    36,716    28,697
HD133  46,810   25,780   49,559   23,138    47,911    24,387
HD134  44,064   41,029   49,468   35,686    46,233    38,348
HD135  31,226   26,170   32,263   25,003    31,496    25,523
HD137   8,568   17,074    9,165   16,546     8,743    16,774
HD138  26,600   22,314   27,842   20,926    26,972    21,525
HD139  11,909   38,459   12,907   37,412    12,132    37,903
HD140   6,219   20,336    7,324   19,129     6,430    19,617
HD141   4,993   32,192    5,391   31,834     4,982    32,006
HD142  10,070   33,520   10,763   32,789    10,208    33,091
HD143   8,718   22,970    9,933   21,652     8,927    22,196
HD144  10,592   15,528   11,318   14,623    10,689    14,987
HD145  10,584   22,300   12,511   20,273    11,063    21,133
HD146   9,618   36,999   10,637   36,067     9,928    36,519
HD147  11,536   43,516   13,478   41,685    12,147    42,533
HD148  17,146   27,893   19,709   25,140    18,013    26,352
HD149  15,245   26,292   15,875   25,657    15,370    25,934
HD150  47,406   25,632   48,229   24,488    47,624    24,911
CC1    70,859  232,823   78,886  225,102    73,125   228,635
CC2   122,115  119,904  129,022  112,013   123,728   115,261
CC3   187,552  151,403  196,274  142,372   190,521   146,507
CC4   204,547  151,305  211,872  142,722   206,690   146,412

Dist    Green    Garza   Guzman Robinson    R Avg%    D Avg%
CD02   56.81%   38.95%   59.09%   36.32%    57.28%   37.29%
CD07   53.24%   42.71%   56.70%   39.34%    54.00%   40.52%
CD09   19.42%   77.53%   20.98%   76.15%    19.34%   75.55%
CD10   66.72%   29.46%   67.56%   28.08%    66.96%   28.64%
CD18   22.47%   73.57%   24.70%   71.25%    22.82%   71.64%
CD29   26.39%   70.04%   30.78%   65.24%    26.88%   66.12%
SBOE6  54.15%   41.64%   56.90%   38.72%    54.62%   39.70%
HD126  56.39%   39.78%   57.90%   37.82%    56.72%   38.62%
HD127  64.08%   32.26%   65.25%   30.67%    64.37%   31.27%
HD128  68.85%   27.68%   69.34%   26.74%    67.98%   26.83%
HD129  58.89%   36.52%   61.10%   34.22%    59.05%   34.73%
HD130  71.00%   25.21%   71.83%   23.94%    71.16%   24.42%
HD131  14.80%   82.57%   16.43%   81.22%    14.88%   80.97%
HD132  53.12%   42.71%   54.41%   41.10%    53.35%   41.70%
HD133  62.02%   34.15%   65.66%   30.65%    63.04%   32.09%
HD134  49.46%   46.05%   55.52%   40.05%    51.07%   42.36%
HD135  52.28%   43.81%   54.01%   41.86%    52.30%   42.39%
HD137  31.93%   63.63%   34.16%   61.66%    31.92%   61.24%
HD138  52.08%   43.69%   54.51%   40.97%    52.34%   41.77%
HD139  22.82%   73.69%   24.73%   71.69%    23.05%   72.01%
HD140  22.65%   74.05%   26.67%   69.66%    23.03%   70.25%
HD141  13.06%   84.21%   14.10%   83.27%    12.95%   83.21%
HD142  22.41%   74.60%   23.95%   72.97%    22.57%   73.18%
HD143  26.59%   70.05%   30.29%   66.03%    26.61%   66.17%
HD144  39.06%   57.26%   41.73%   53.92%    38.95%   54.61%
HD145  30.76%   64.81%   36.36%   58.92%    31.52%   60.21%
HD146  19.91%   76.58%   22.02%   74.65%    20.26%   74.54%
HD147  19.94%   75.21%   23.29%   72.05%    20.71%   72.50%
HD148  35.91%   58.42%   41.28%   52.65%    37.16%   54.37%
HD149  35.46%   61.15%   36.92%   59.67%    35.03%   59.11%
HD150  62.31%   33.69%   63.39%   32.19%    62.52%   32.70%
CC1    22.48%   73.86%   25.03%   71.41%    22.93%   71.70%
CC2    48.48%   47.61%   51.23%   44.47%    48.46%   45.14%
CC3    53.16%   42.92%   55.63%   40.36%    53.51%   41.15%
CC4    55.12%   40.78%   57.10%   38.46%    55.47%   39.29%
Justice Dori Garza

Justice Dori Garza

The figures above represent the races with Dori Garza and Eva Guzman, who were the top Democratic and Republican vote-getters among judicial candidates. Guzman was actually the high scorer overall, while Garza has the second-best Democratic total, trailing Hillary Clinton but topping Barack Obama in 2008. The other numbers are aggregates of all the Supreme Court and Court of Criminal Appeals candidates, where “R SJ Avg” means “Republican statewide judicial average” and “D SJ Avg” is the same thing for Democrats. The percentages have been calculated to include the third parties, though I didn’t explicitly list them for the sake of saving space.

The differences in each district are small, but they add up. Dori Garza received 162K more votes statewide than Savannah Robinson, while Eva Guzman collected 124K more than Paul Green. As previously expressed for third party candidates, I believe being Latina was an advantage for both Garza and Guzman, as I suspect they got the votes of some people who didn’t have a strong partisan preference and were perhaps drawn to a familiar name in a race where they didn’t know anything about who was running. This advantage is not universal – I suspect if I looked around the state, the effect would be small and possibly even negative in places that have few Latino voters. You can certainly see a difference for Garza in HDs 140, 143, 144, 145, and 148 compared to other districts, where the gap between her and the average D is around four points. It also doesn’t hurt that Garza and Guzman were both strong candidates, who were widely endorsed and (at least in Garza’s case) ran actual campaigns. None of this mattered this year, but if this had been a year where the margin at the Presidential level had been two or three points instead of nine, this could have been the difference between a close win and a close loss. I don’t want to over-generalize here, as in any year there will be a high scorer and a low scorer, but it’s something to keep in mind when we start recruiting candidates for 2018 and 2020.

But also keep in mind the fact that despite getting nearly 300,000 more votes than President Obama in 2012, Garza only received 41.12% of the vote, which is less than what Obama got that year. This is because the Republican vote was up, too. Compare Garza’s race to the Supreme Court, Place 6 election in 2012. Garza outpolled Michelle Petty by 279K votes, but Paul Green outdid Nathan Hecht by 629K. Go back to 2008 and Supreme Court, Place 8, and it’s more of the same: Garza improved on Linda Yanez by 170K, while Green did 738K better than Phil Johnson. The preponderance of new voters in Harris County were Democrats. That was not the case statewide. That’s a problem, and we shouldn’t let Hillary Clinton’s performance against Donald Trump distract us from that.

Precinct analysis: Comparing 2012 and 2008

Though the data isn’t yet posted on individual members’ webpages, I have gotten a copy of the 2012 election results by State Rep district, for which there was much rejoicing. The first question of interest is how much the 2008 results resembled the 2012 results in each district. I went by vote percentages as reported – that is, including third-party candidates – and compared Mitt Romney’s 2012 percentage in each district to John McCain’s 2008 percentage, and Obama 2012 to Obama 2008. I did this by taking the ratio of the 2012 percentage to the 2008 percentage. Statewide, Romney was three percent better than McCain – i.e., the ratio of Romney’s percentage (57.16) to McCain’s (55.45) is 1.03 – and 2012 Obama (41.38) was five percent worse than 2008 Obama (43.68), for a ratio of 0.95. If the difference were uniformly distributed around the state, you would expect Romney to have a 1.03 ratio in every district, and 2012 Obama to have a 0.95 ratio. Obviously, that didn’t happen, so I was interested in the places where each candidate did the best compared to 2008. Here’s a look at them:

Dist McCain Obama Romney Obama R ratio D ratio ==================================================== 108 53.86 44.88 58.97 39.30 1.09 0.88 047 53.85 44.75 58.03 39.31 1.08 0.88 055 60.67 38.13 65.29 32.99 1.08 0.87 134 52.46 46.48 56.37 41.72 1.07 0.90 017 56.54 41.93 60.56 37.15 1.07 0.89 045 51.66 46.72 55.17 41.82 1.07 0.90 136 51.81 45.92 55.06 41.22 1.06 0.90 023 51.35 47.77 54.56 44.24 1.06 0.93 064 56.98 41.84 60.28 37.32 1.06 0.89 114 52.36 46.57 55.21 43.47 1.05 0.93 048 37.53 60.77 39.55 56.84 1.05 0.94 052 51.93 46.18 54.69 42.40 1.05 0.92 012 59.77 39.38 62.59 36.18 1.05 0.92 093 57.57 41.60 60.19 38.25 1.05 0.92

There were a number of other districts in which Romney ran at least five percent better than McCain – remember, that’s 5%, not five percentage points – but I’m really only interested in the reasonably competitive ones. Rep. Craig Eiland is the only member of the House to win a district that was not carried by his party’s Presidential candidate; I’m pretty sure Sen. Wendy Davis can say the same thing for her chamber, but I don’t have those numbers just yet. The only other Democratic district represented above is Rep. Donna Howard’s HD48, though it wasn’t enough of a difference to be worrisome to her. That chart has a lot of good news for the Republicans, since it contains a number of their least-safe seats. Many of these seats will still be hotly contested in 2014 – where else are Democrats going to go to add to their delegation? – but the GOP starts out with a bigger cushion than they might have expected.

And here are the districts of interest that were more Democratic in 2012:

Dist McCain Obama Romney Obama R ratio D ratio ==================================================== 145 41.99 57.13 38.27 60.25 0.91 1.05 144 51.04 47.95 47.86 50.76 0.94 1.06 034 46.63 52.58 44.23 54.62 0.95 1.04 149 43.84 55.52 41.79 57.08 0.95 1.03 119 40.30 58.59 38.51 60.15 0.96 1.03 125 40.69 58.14 39.51 58.99 0.97 1.03 135 60.56 38.71 58.82 39.85 0.97 1.03 132 59.68 39.59 58.90 39.75 0.99 1.00 118 43.86 55.10 43.33 55.22 0.99 1.00 105 52.69 46.14 52.11 46.46 0.99 1.01 113 53.00 46.05 52.51 46.30 0.99 1.01 107 52.25 46.71 51.81 46.87 0.99 1.00

Again, I excluded the non-competitive seats. As above, mostly good news for Dems and their least-safe members, Eiland excluded. In two HDs where Democratic challengers ousted Republican incumbents (HDs 34 and 117), plus the open HD144, Dems had an easier time of it than you would have thought. There’s also some hope for pickups in 2014 or beyond, mostly with the three Dallas County seats.

Looking ahead to 2014, here are your “swing” districts, for some value of the term “swing”.

Dist McCain Obama Romney Obama Hecht Petty ===================================================== 017 56.54 41.93 60.56 37.15 53.13 40.61 064 56.98 41.84 60.28 37.32 57.23 36.38 094 59.62 39.45 60.27 38.09 57.45 37.73 093 57.57 41.60 60.19 38.25 57.17 37.98 097 57.62 41.41 59.55 38.91 57.30 38.25 138 59.30 39.82 59.16 39.29 57.48 39.00 108 53.86 44.88 58.97 39.30 58.66 36.49 132 59.68 39.59 58.90 39.75 57.32 39.41 135 60.56 38.71 58.82 39.85 57.09 39.77 096 57.97 41.39 58.58 40.20 55.68 40.73 047 53.85 44.75 58.03 39.31 55.30 37.87 065 56.11 43.04 57.51 40.83 55.62 39.89 032 56.40 42.57 56.91 41.43 52.98 42.12 134 52.46 46.48 56.37 41.72 56.41 39.30 115 54.91 43.86 55.37 43.08 53.74 41.67 114 52.36 46.57 55.21 43.47 54.98 41.33 045 51.66 46.72 55.17 41.82 51.11 41.39 136 51.81 45.92 55.06 41.22 51.07 40.33 112 54.89 44.03 55.01 43.48 53.01 42.79 052 51.93 46.18 54.69 42.40 50.70 42.05 023 51.35 47.77 54.56 44.24 49.41 46.77 102 52.18 46.64 53.01 45.31 52.01 43.53 054 51.20 47.93 52.90 45.73 49.92 45.71 113 53.00 46.05 52.51 46.30 50.34 46.10 105 52.69 46.14 52.11 46.46 49.18 46.28 043 51.45 47.94 52.05 46.92 46.72 49.10 107 52.25 46.71 51.81 46.87 49.73 46.29 144 51.04 47.95 47.86 50.76 44.08 52.33 117 46.49 52.52 46.71 51.84 43.46 52.79 034 46.63 52.58 44.23 54.62 40.11 56.07 078 43.64 55.31 44.05 54.29 40.84 53.47 118 43.86 55.10 43.33 55.22 38.76 57.79 041 42.16 57.05 42.28 56.54 38.86 57.22 149 43.84 55.52 41.79 57.08 40.46 56.95 074 41.15 57.91 41.51 56.93 36.18 57.25 148 41.43 57.49 41.07 56.58 38.79 55.59 048 37.53 60.77 39.55 56.84 37.43 54.95 125 40.69 58.14 39.51 58.99 36.03 60.35 050 38.01 60.27 38.78 57.75 36.33 56.25

Again, note that no one but Eiland won in a hostile district. Turncoat Republican JM Lozano gets partial credit for Michelle Petty’s plurality vote in HD43, but that’s at least partly a function of the unusually high Libertarian vote in that race, which generally suppressed Nathan Hecht’s percentages. Note how much more Hecht diverges from Romney than Petty does from Obama to see what I mean. Without factoring possible turnout differences into account, Dems have maybe six viable flip opportunities – Lozano, four Dallas seats, and HD54 – while the GOP has one clear shot and two other good ones. That’s assuming no further changes to the map, which may or may not be a good bet. Beyond that, we’ll have to see what the march of demographic change looks like and whether there’s anything to all this talk about investing in Texas Democratic infrastructure.

Endorsement watch: The Statesman gets in the game

In addition to their Sunday endorsement of Paul Sadler, the Statesman made up for lost time last week by finally getting around to making endorsements in various races. Among their first was a nice recommendation of John Courage.

John Courage

Texas Senate, District 25

District 25, which stretches from South Austin to northern San Antonio and Bexar County, is a Republican district, and Donna Campbell, a tea party favorite who crushed incumbent state Sen. Jeff Wentworth in the runoff, is heavily favored to win Nov. 6. Nonetheless, voters in District 25 should put aside their partisan inclinations and consider the alternative: Democrat John Courage.

Courage, an Air Force veteran and San Antonio schoolteacher, might be a longshot, but he knows the district better than Campbell, a recent transplant. His experience in education would make him a strong advocate for public schools, but education is not the only issue where he has the advantage over Campbell. From reforming the margins tax to transportation, from water to the electrical grid, Courage is the more informed, better-qualified candidate.

The Senate really will be a less functional place next year if Campbell wins as she is heavily favored to do. In the same editorial as this endorsement of Courage is one for the new HD136 as well:

Matt Stillwell

Texas House, District 136

District 136 is a new state House district that includes Cedar Park, Leander, Brushy Creek and a substantial part of Northwest Austin. Anchored in Williamson County, District 136 appears to be safe for the Republican in this race, Tony Dale, an Army veteran and member of the Cedar Park City Council. He’s a strong candidate who has a deep affection for his community and no doubt would serve his district’s residents well. But in a close call, we’re supporting Democrat Matt Stillwell.

An insurance agent who lives in Northwest Austin, Stillwell’s deep concern about the future of public education motivated his run for the Legislature. He says he’ll fight for public schools if elected and will do what he can to roll back punitive, high-stakes testing. He also understands how seriously underfunded the state’s roads are and how cuts to roads and highways, along with cuts in other areas, have not reduced spending or tax burdens but merely shifted costs and debt to towns and cities. He focuses on fiscally sound, gimmick-free remedies that would benefit District 136 in the long term.

As I said before, I think this race has the potential to be closer than people think. The shift in voter behavior from 2004 to 2008 was huge, and the district is likely to have evolved further since then. How much I don’t know, and of course it could have changed back. Stillwell is low on cash, but he’s been competitive in fundraising and hasn’t been greatly outspent, at least so far. I just think there may be more to this one than what the numbers might suggest.

After that, the Statesman opined on the statewide judicial races.

You may recall that Sharon Keller, chief justice of the Court of Criminal Appeals – the state’s highest criminal appellate court – was reprimanded after 300 lawyers filed complaints alleging dereliction of duty. The complaints stem from an incident involving attempts by lawyers representing a death row inmate to file motions after business hours. Keller told the lawyers that the clerk’s office closed at 5 p.m. and the inmate was executed later that night.

The incident garnered national attention and ended with Keller being reprimanded by the State Commission on Judicial Conduct. She appealed the reprimand and it was ultimately lifted. It was a victory but not a vindication because the specially selected court of review said a reprimand was not included in the options available to the Commission on Judicial Conduct in disciplining a judge.

Some might call that a technicality, but that’s ultimately what the law is — a collection of technicalities.

Then there was the case of Nathan Hecht, who is considered the intellectual leader of the Texas Supreme Court’s most conservative wing. Hecht was reprimanded for lobbying to confirm the nomination of Harriet Miers to the U.S. Supreme Court in 2005. That reprimand was also lifted, but the drama didn’t end there. Hecht raised eyebrows when he not only solicited contributions to pay the legal fees incurred in battling the complaint but asked a couple of friendly legislators to file bills that would have allowed him to use state funds to pay those bills. When state Sen. Jeff Wentworth, R-San Antonio, and former state Rep. Tony Goolsby, R-Dallas, learned that Hecht was soliciting contributions, they pulled their bills down

That was not the end of it. Hecht was fined $29,000 by the Texas Ethics Commission in 2008, declaring the discount extended to him on those legal fees was an improper campaign contribution. The matter has yet to be resolved.

Keller also tried unsuccessfully to have the state pick up the tab for legal fees and said she paid them out of savings and took out a loan.


Michele Petty

Democrat Keith Hampton opposes Keller in the general election. Michele Petty, a San Antonio lawyer, challenges Hecht. As Democrats, both face an uphill battle.

Hampton brings an impressive legal resume to the race as well as experience as a statewide candidate. He is known and respected for his criminal defense work and has notched a long bibliography of scholarly legal works.

Hampton is amply qualified both academically and ethically to serve on the court, but more importantly to carry a message that Texans demand a judiciary free of taint or bias.

The same standards should apply in the Supreme Court as well. There is no denying Hecht’s ability, talent and background.

Petty, on the other hand, is an unknown but is eager and is motivated. Her demeanor and approach is a marked and clear contrast to the more polished, patrician Hecht.

But Petty’s academic training is impressive. She was Baylor Law’s top graduate in 1984 and a member of the San Antonio Women’s Hall of Fame.

She understands well that she is running uphill. Win or lose, the state owes Petty its thanks for the effort. An airing of unpleasant history may save us a repetition of it.

It’s not quite an endorsement of Hampton and Petty, in the sense that the Statesman never actually uses words like “we endorse” or “we recommend a vote”, but they do say that “we all lose” if Hampton and Petty lose, so it’s pretty clear what they intend. Hampton, of course, has been sweeping up endorsements left and right, but as far as I an tell this is a first for Petty, about whom you can learn more here. Keller is a much easier target than Hecht, whose sins are more garden-variety, but some new blood would do both courts a lot of good.

Judicial Q&A: Michele Petty

Note: As I have done in years past, I am conducting written Q&As with judicial candidates. This one is a little different in that the questions were originally asked by someone else, but the idea is the same. Further explanation after the post.

Michele Petty

1. Please explain why voters should elect you over your opponent.

Justice Hecht thought it was OK to stick the taxpayers with nearly half a million dollars of his personal legal bills at a time when Texas is closing its parks and laying off its teachers. The cronies who submitted special appropriations bills on his behalf did not get the bills passed, so Justice Hecht sent letters to lawyers and litigants with cases pending asking for donations to pay off his debts. Some got handwritten notes. Those who paid $5000 or more according to Texas Watch won 8 out of 9 times. Those fees arose out of his appeal of the Judicial Conduct Commission Admonishment for “willfully and persistently violating” the judicial canons. The Admonishment was overturned on appeal by a panel comprised of a majority of Republican judges from his home Court of Appeals who were appointed by the Chief Justice who sits next to him on the Court.

Justice Hecht also has an unresolved $29,000 ethics fine from 2008 for accepting an illegal campaign contribution and then failing to report it. His appeal should have been dismissed want of prosecution over two and a half years ago under Travis County local rules, but the attorney general’s office has not filed the motion, and has not set the case for trial. (Attorney General Greg Abbott sat on the court with Justice Hecht.)

I have recent jury trial experience, run my own firm and am Board Certified in Civil Trial Law. Justice Hecht has not tried a case in 30 years and is not Board Certified in anything. I have been nationally recognized for a top ten verdict and have handled cases against multinational corporations. The Court is all Republican with only two women and no contingent fee or plaintiff’s practice attorneys. I would bring much needed perspective and balance to the court.

2. The Texas Supreme Court has been described as a “conservative court” for more than 15 years. Do you think that conservatism is a product of the justices themselves or of laws of the Texas Legislature that the high court must interpret?

Six of the nine Justices currently on the Court were appointed by Governor Perry, and some have advertised themselves as the most conservative on the court. While the Legislature has enacted conservative legislation in the last fifteen years, the court has gone beyond what was enacted and engaged in judicial legislation to further restrict the rights of injured Texans. Laws that did not pass legislatively were adopted by the Court, and the court has interpreted statutes in favor of businesses even though such language is nowhere in the statute nor legislative history.

3. The Texas Supreme Court has a reputation for being pro-business, especially in tort cases. Do you agree or disagree and what can be done to correct that impression?

The Texas Supreme Court deserves its reputation for being pro-business. Wal-Mart has been to the Texas Supreme Court 12 times and has won all 12 times between 1998 and 2005 according to UT law professor David Anderson. ( Wal-Mart prevailed in only 56 percent of the 81 cases in other states.) In a 2007 study of 69 opinions written by the court in 2004 and 2005, Anderson found that defendants won 87% of the time. From 2000-2010, the Texas Supreme Court ruled against consumers 79% of the time according to Texas Watch. Recent cases have eliminated entire causes of action and elements of recovery to insulate businesses from future suits.

The Justices have received so much business related PAC money that realistically Texas must change the way Justices are selected so that campaign contributions are no longer part of the equation. (Justice Don Willett received and spent over $1.4 million for his May primary.) Otherwise, Texas will have to turn blue with voters sweeping out a majority of the incumbents in the next election cycles to restore balance to the court.

4. Some critics of the court believe it goes out its way to disregard jury verdicts. What are some of the reasons the Texas Supreme Court should overturn a jury verdict?

A ten year study by Texas Watch reports that the Texas Supreme Court overturns jury verdicts 74% of the time; however, jury verdicts should be overturned when the trial court has committed reversible error or there has been jury misconduct. Trial judge mistakes in admission and exclusion of evidence, improper jury argument, defects in the jury charge and errors of law can justifiably cause the jury verdict to be reversed.

5. What do you hope to accomplish during a six-year term on the Texas Supreme Court?

I will work to provide better access to justice for the people of Texas. I have direct experience with legal services for indigent and low income clients in contested family law matters. I am sensitive to the needs of the indigent for legal services, but am also respectful of the family bar and those administering legal aid programs and will act to make sure that the solutions implemented are in fact workable and are not riddled with the “80 substantial defects” identified by the Family Law Foundation in the forms proposed by Justice Hecht’s committee. Access to justice also includes the opportunity to redress grievances in a court of law before a jury of peers. I will act to curb the court’s judicial activist trend that inhibits Texans’ ability to meaningfully have their day in court.

I believe that judges should not be career politicians and will work toward the adoption of sensible term limits. I will work to change the way justices are selected.

Note: This Q&A was sent to me by Petty; it was originally slated to run in Texas Lawyer but they edited out her charges against Justice Hecht, and she objected to that. The questions were all asked by Texas Lawyer. Petty added the following bits of information in a followup email:

This is the Texas Ethics Commission order Justice Hecht appealed

This is the Texas Judicial Conduct Commission Public Admonitition:

Making open beaches a campaign issue

This is great.

Michele Petty

The Texas Supreme Court’s decision weakening the state Open Beaches Act has become a key issue in the race for one of the two contested Supreme Court seats in the Nov. 6 election.

San Antonio attorney Michele Petty stood in front of a battered beach home in Surfside last weekend to criticize her opponent, Justice Nathan Hecht, for siding with the majority in Severance v. Patterson, the case that led to the controversial decision.

“Texans have shown their love for their beach and they want access to the beach, and the Texas Supreme Court has ignored that,” said Petty, who would be the only Democrat on the court if she defeated Hecht. Hecht did not respond to a request for comment.

The Open Beaches Act historically has been interpreted to allow the public beach to move landward with erosion, a concept known as a “rolling easement.” The court said the rolling easement does not apply if the erosion is sudden, as in the case of a storm. Although the decision applied only to West Galveston Island, it potentially could affect other areas of the coast.

“We now have private beaches in Texas where the public can be excluded,” Land Commissioner Jerry Patterson said after court issued its 5-3 decision in April. The ninth justice, Chief Judge Wallace Jefferson, did not participate.

Patterson, a Republican, would not go as far as supporting Petty, but said, “It’s an issue and the voters need to be aware of it.”

Patterson has been making an issue of this for awhile now. I’ll give him a pass on not going all the way – he does want to be the Republican candidate for Lite Guv in 2014, after all. Supreme Court races are generally low profile and the issues that usually get brought up don’t often resonate with voters. This time it may be different. Here we have the confluence of a longtime incumbent, a ruling that has been criticized across the political spectrum, a newsworthy issue, and a candidate who appears to be savvy about earned media. Michele Petty may not win this fall, but if she doesn’t it won’t be because the stars refused to align in her favor for her.

Petty withdraws lawsuit against Hecht

A couple of weeks ago, Democratic Supreme Court candidate Michele Petty filed a lawsuit that sought to determine if her opponent, Supreme Court Justice Nathan Hecht, had fulfilled his legal requirement to gather petition signatures from 50 registered voters in each of the state’s 14 appeals court districts. Petty alleged some technical violations in the petitions, and said at the time that if further investigation revealed that these did not merit Hecht’s removal from the ballot, she would drop the lawsuit. On Wednesday, she did just that.

Michele Petty

In a motion to dismiss her lawsuit, Petty told the Travis County District Court that her investigation revealed that voters “understood what they were doing” when they signed the petitions.

“Petty felt it would not be fair to invalidate their signatures because of error on the part of the circulators or notary,” said the filing.


However, Petty invited the Legislature to address the issue, noting that judicial petitions are a frequent source of legal challenges. Only Republicans and Democrats must collect signatures from 50 registered voters in each of the state’s 14 appeals court districts, she noted, while Green and Libertarian candidates do not.

“These different requirements raise constitutional questions as to whether Democrats or Republicans should be eliminated from the ballot due to petitions,” Petty wrote, asking lawmakers to end the practice.

Republican and Democratic leaders, however, have favored the petition requirement as a way to weed out fringe candidates for low-visibility judicial posts.

Maybe they should consider extending that requirement to State Board of Ed candidates. Be that as it may, I commend her for being true to her word. I also think that perhaps a better way to approach this is to make the petitions available online but only allow them to be downloaded and printed if these required fields are entered correctly first. Why make it a bigger deal than it needs to be?

Fifth Circuit sends open beaches lawsuit back to district court

Unfortunately, the headline makes it sound like better news than it is.

A federal appeals court Monday ruled that the Texas Open Beaches Act is unconstitutional in the case of a Galveston Island property, a ruling that puts the fate of Texas public beaches in doubt.

The 5th U.S. Circuit Court of Appeals sent the case back to Houston federal district court for retrial, but said that few issues were left to be decided.

“What issues must now be determined, aside from attorneys’ fees accruing to the appellant, is unclear,” the three-judge panel said in a three-paragraph opinion.

Chief Circuit Judge Edith Jones and Circuit Judge Edith Clement relied on an April advisory opinion by the Texas Supreme Court that essentially said the Open Beaches Act does not apply on West Galveston Island if the beach is rapidly eroded by storms, known as avulsion, rather than slowly eroded.

I was a little confused when I first read this, but after exchanging emails with the General Land Office, I got straightened out. A succinct explanation is in this 2010 Chron story about the original Supreme Court ruling.

[Plaintiff Carol] Severance initially filed suit in federal district court, which dismissed the case. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s dismissal but sent some questions to the Texas Supreme Court for answers, prompting Friday’s ruling.

And then the Supreme Court ruling prompted the Fifth Court to finish its task, which came back to them after the Supremes affirmed their ruling in April. As the Tuesday story says, there’s not much left for the district court to sort out, but there are sure to be more lawsuits filed by other beachfront property owners. One possible outcome of that, as former Land Commissioner Garry Mauro wrote in the Trib is that this could lead the Supreme Court to limit the scope of its ruling to lots on Galveston’s West Beach. Before that happens, voters will have a chance to take Commissioner Patterson’s advice and give a verdict of their own on the judges who voted against open beaches. Assuming he doesn’t get booted off the ballot, Justice Nathan Hecht faces Democrat Michele Petty in November. Remember that race when it’s time to vote.

Lawsuit filed against Justice Hecht’s ballot access


Michele Petty

Texas Supreme Court Justice Nathan Hecht’s Democratic opponent has filed suit seeking to delay the printing of ballots and other election material to allow time to investigate potential problems with Hecht’s candidacy petitions.

Several unfilled blanks in petitions from the Fort Worth area could invalidate signatures, leaving Hecht short of support needed to be a legitimate candidate, said the lawsuit by San Antonio lawyer Michele Petty.

Statewide judicial candidates must collect signatures from 50 registered voters in each of the state’s 14 appeals court districts.

Petty’s lawsuit, filed Friday in Travis County District Court, said several Hecht petitions did not have three blanks filled out – showing the candidate’s name, office sought and place number – in the Spanish-language portion of the forms.

Petitions also included inaccurate affidavits and problems with notary forms, the lawsuit said.

To allow time to investigate election law, Petty’s lawsuit seeks an injunction preventing the Republican Party of Texas and Secretary of State Hope Andrade from printing election materials or ballots containing Hecht’s name.

“We’re going to be taking some statements regarding that. If we find out there are irregularities, we’ll let you know; if not, we’ll drop the case,” Petty said today.

The lawsuit asks for Hecht any any replacement candidate to be barred from the general election. According to Ballot Access News, “Texas courts have usually not enforced ultra-strict compliance with such technicalities”. I can’t think of a recent example of a candidate who was allowed onto the primary ballot but then knocked off the ticket in November. Judge Hecht richly deserves to be sent packing, but I am not particularly comfortable with this kind of technical disqualification. The law is the law, but the remedy is awfully harsh and deprives the voters of a choice. Still, the candidates are responsible for dotting all the I’s and crossing all the T’s, and the party chairs are supposed to make sure they do that. I don’t know. We’ll see. TexParte has more.

Patterson wants to vote out anti-open beach Supreme Court justices

Fine by me.

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Voters should replace the five members of the Texas Supreme Court who issued an opinion weakening the state Open Beaches Act, Land Commissioner Jerry Patterson said Monday.

“We now have private beaches in Texas where the public can be excluded,” Patterson said. “I think folks should remember this when it’s time to vote.”


In an 5-3 decision, Justice Dale Wainwright wrote that the Open Beaches Act “does not create easements for public use along Texas Gulf-front beaches.” Public access exists only where established by long-term use, the opinion said.

Public access continues as gradual erosion moves the beach landward, but it ends if the beach is eroded by an “evulsive” event, such as a storm, according to the opinion. Justices Nathan L. Hecht, Paul W. Green, Phil Johnson and Don R. Willett joined Wainwright.

See here for some background. For the record, Justices Hecht and Willett are on the ballot this year. Willett has a primary opponent, while Hecht will be challenged in November by Democrat Michele Petty. (Justice David Medina, who dissented, is also on the ballot and has two GOP primary challengers, one of whom is the ever persistent John Devine.) When you go to vote in these races this year, just remember what Jerry Patterson said and you’ll be fine. Burka has more.