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Nathan Hecht

Why shouldn’t court records be made available online?

Seems clear to me that they should. What’s the case against?

Nathan Hecht, chief justice of the Texas Supreme Court, has noticed a curious trend in the state’s legal system: Folks are increasingly representing themselves in legal disputes, forgoing lawyers altogether.

“They really need legal help, but they don’t feel like they can afford it,” Hecht said.

But ditching a lawyer doesn’t make justice free. Obtaining legal records can be a big hurdle — time away from work, trips to a courthouse that may be far from home and copying fees that can run a dollar per page for documents that often run hundreds of pages.

“We’re talking about tens of thousands of people for whom getting a court record is probably impossible, at least practically,” said Hecht, who has long sought to help poor Texans navigate the legal system.

That’s just one reason he’s excited about efforts to deliver court records from all 254 counties to Texans’ fingertips through an online portal. Some urban counties — Dallas, Harris, Travis and Tarrant, for instance — individually put their records online. But scores of other counties rely only on old-fashioned paper, necessitating trips to the courthouse and making statewide research next to impossible.

The Texas Supreme Court, through its Office of Court Administration, has worked for years on a one-stop legal records shop. Called re:SearchTX, the project is coming out in phases, with plans to eventually provide widespread public access.

The Office of Court Administration last September extended a contract with Tyler Technologies, a Plano-based company that already has integrated every Texas county into a filing system allowing attorneys to electronically send documents to the clerks. Under that four-year $72 million extension, Tyler would keep that system running through 2021 and eventually open it to the public.

The public portal would be funded through fees that attorneys pay to use the system. It would function like PACER, a widely used federal portal that charges subscribers small fees for access.

“It’s just crucial,” Hecht said. “It’s important for transparency. The media and the public at large have a very fundamental interest in the public justice system.”

But county and district clerks are fuming. They’re pushing to kill the project in a wonky battle involving local control and privacy concerns, multimillion-dollar contracts and confusion about how the portal would ultimately work.

“Clerks have been doing this forever,” Tarrant County District Clerk Tom Wilder said last week at rollicking meeting of the Judicial Committee on Information Technology, which advises the state Supreme Court. “It’s a duplication of effort.”

If the records get breached, he later told a reporter, “it’s our ass.”

At least 168 counties have adopted resolutions opposing re:SearchTX. They’ve found friendly ears in a Legislature that often shrugs off arguments for more local control on other issues, such as oil and gas drilling and penalizing polluters.

Court records are public documents, and they should be available online. That doesn’t mean they need to be unsecured or indexed by Google – it’s fine to require a logon account with a verifiable password to view records – but the days of having to trek to a District Clerk’s office to retrive paper files, for which one needs to pay a per-page printing fee, need to be over. I’m sympathetic to Clerk Wilder’s position, so if a county has already digitized its court records, that should be sufficient. It’s the counties that haven’t taken this basic step that need to be brought into re:SearchTX. Of course, one reason why many of those counties are reluctant to do so, and why HB1258 has been filed to kill the data project, is because these counties make money retrieving and printing those paper files. Sorry, y’all, but that’s not a good enough reason to lag behind the times. Justice Hecht is correct. Court records should be available online. If a county isn’t already doing that and has no plans to do it in the short-term future, they should be made to participate in re:SearchTX.

Bail reform bills

Glad to see this.

Sen. John Whitmire

An unusual bipartisan coalition of lawmakers and judges has teamed up to back broad reforms in Texas that could eliminate cash bail for nonviolent offenders who are not deemed dangerous or a flight risk.

Bills introduced simultaneously in the House and the Senate this week by Sen. John Whitmire, D-Houston and state Rep. Andrew Murr, R-Junction, would require all judges statewide to use a proven risk assessment tool and quickly determine within 48 hours whether a defendant accused of a nonviolent crime might be eligible for a so-called personal bond — a measure that carries a financial penalty only if the person fails to how up for court. Now, defendants who can’t afford to pay bail are left in jail, even for minor crimes.

The proposals have been hammered out by jurists and legislators following reports that show more than 1,100 people died in Texas jails in the last decade – most of them pretrial detainees such as Sandra Bland, who committed suicide in the Waller County jail after being locked up after a traffic stop.

Nonviolent defendants detained after the first hearing would be re-evaluated within 10 days. And judges would be required to seek alternatives for those deemed mentally ill or disabled.

Supreme Court Chief Justice Nathan Hecht, who is backing the measures, said he and other members of the National Conference of Chief Justices of the United States generally have concluded that America’s bail bond system “simply doesn’t make any sense.”

He said he’d like to see Texas follow the model of New Jersey, Washington D.C., Kentucky, Arizona and other states in pursuing reforms that restrict or eliminate monetary bail for defendants who pose no real risks.

Hecht said bail reforms elsewhere already have saved taxpayers’ money by eliminating unnecessary jail expenses and spared hardships for low-risk defendants who often lose jobs, homes or their health while being locked-up awaiting trial.

“There are constitutional problems, there are practical problems, there’s a burden on taxpayers — change is just the right thing to do,” he said. “We’re just talking about low-level crimes —we’re not talking about crimes of violence. So across the country, there’s been an effort to change bail procedures to get away from high bond and jail time in all of these low-level crimes.”

Hecht chairs the Texas Judicial Council, 22-member group that includes Murr. Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals is vice chair. He said the council studied bail reforms and recommended changes last fall.

See here for some background. Via Grits, the bills in question are HB3011 and SB1338. Grits also notes that the bail bondsmen are fighting these bills, which is not surprising. A later version of this Chron story goes into that.

“We have a very conservative governor, lieutenant governor, Senate and House,” said Michael Kubosh, a Houston City Council member and long-time commercial bondsman. “To get all that through, there’s going to be a real battle, and our lobbyists are talking to them. They’re not going to want to let crime run rampant and give everybody free bonds.”

Kubosh and other industry supporters say bondsmen help make sure low-level defendants appear in court – and track them down when they fail to appear. They say they also get families involved, since relatives often must post cash or property to back bail bonds even when commercial bondsman are involved. He and other advocates are simultaneously monitoring a federal court challenge to a fairly rigid bail schedule used for years by Harris County judges even for low-level misdemeanor offenses.

[…]

The legislation also says that defendants are entitled to have lawyers present at pretrial detention hearings – not a common practice today.

On any given day, the Harris County Jail is crowded with 1,500 or more misdemeanor offenders awaiting trial. The county has spent more than $1.2 million in legal fees so far defending county court-at-law judges and hearing officers in the federal civil rights case before Judge Rosenthal.

Kubosh, the commercial bondsman, said he agrees that truly indigent defendants often don’t get personal bonds in Harris County. But he argues that bondsmen routinely save the county money by helping ensure that those who are released on commercial bond follow court conditions and by tracking down those who fail to appear. With fewer commercial bonds, he argues, “you’re going to see a spike in people thumbing their noses at the courts … you’ll see huge increases in warrants.”

No question, this would affect the bail bond business, and I can’t blame them for opposing these bills. I don’t agree with CM Kubosh’s assessment of what may happen if these bills pass, but there ought to be an objective way to evaluate it. Personal recognizance bonds are used with far greater frequency in other states. Is there any evidence to suggest that crime “runs rampant” where PR bonds are more the norm? Show me some numbers, or this is just going to sound like scaremongering.

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.

Republicans sure are hoping to get a bailout on school finance

Am I the only one who thinks that a lot of this sounds like wishful thinking?

BagOfMoney

The Texas Supreme Court may punt in a far-reaching school finance case, asking a lower court to assess the Legislature’s latest efforts on public schools. If it does, a new law may reduce the influence of trial judges elected in liberal Austin.

The Republican-backed law, passed largely along party lines, would deny Travis County’s Democratic judges their usual first crack at deciding multibillion-dollar lawsuits over school finance and politically fraught battles over redrawing congressional and legislative districts.

If it’s invoked in the school finance case, Attorney General Ken Paxton, a Republican, would ask Supreme Court Chief Justice Nathan Hecht, also a Republican, to name a three-judge panel. Two of the three would be judges who sit — and are elected — some distance from Austin.

Rick Gray, who represents hundreds of low- and medium-wealth school districts in the lawsuit, predicts that adding geographically dispersed judges to review the Legislature’s work won’t change the final decisions.

In recent years, lawmakers have underfunded schools even as they set higher academic requirements for students, he said. About 650 of the state’s 1,023 school districts joined the current suit, he noted.

“These cases are really not about politics,” Gray said. “If you’ve got more than 60 percent of your school districts saying, ‘We can’t do it,’ that screams at you that you’ve got a problem.”

[…]

In oral arguments before the high court in September, aides to Paxton argued that the justices should throw out the case or send it back to district court for a review of budgetary and school-related actions of the 2015 Legislature.

Gov. Greg Abbott, in a friend of the court brief filed in late August, made the same plea. The Republican governor said in this year’s session, lawmakers passed “important reforms,” such as $118 million in grants to enrich the quality of prekindergarten programs. Over the past two sessions, the state has boosted overall school spending by 17 percent, Abbott said.

Lawyers for the plaintiff school districts, such as Gray, said they doubt the Supreme Court will toss their suit or require further study.

They noted that Travis County District Judge John Dietz already reviewed the Legislature’s 2013 move to increase school funding by $3.4 billion, after lawmakers cut $5.4 billion to offset a severe shortage of state revenue two years earlier.

[…]

House Public Education Committee Jimmie Don Aycock, R-Killeen, said he discussed the case in October with Abbott, a former attorney general and Supreme Court justice.

“His prediction when I spoke with him was that there’s a 50 percent probability of a remand, a 25 percent probability of reversal and a 25 percent probability that there’d be substantial upholding of Dietz’s ruling — which leaves a 75 percent chance that the school districts will be unhappy,” Aycock said.

I’m not sure where Abbott came up with those numbers, but I’d guess it’s based on faith that we may finally have a Supreme Court that’s too conservative to care about school finance. I suppose the Supreme Court could remand the case back to a district court, but if so it will do so with instructions about how to revisit the case and what guidelines it should use to do so; it may also be that only part of the case is remanded. The point I’m making is that how they do so and what they tell the lower court to reconsider is of great importance. That said, it’s hard to escape the perception that underlying this is a hope that by doing so, and by getting (presumably) two Republican judges involved in the review, they can finally be free of this nonsense. That sure would be easier than actually dealing with it.

School finance ruling expected soon

Hold onto your hats.

BagOfMoney

For decades, the state’s 1,000-plus school districts vied against one another for a bigger piece of the financial pie. Now two-thirds of state districts have joined forces to say the system is unfair because it doesn’t provide adequate funding for all.

The state’s high court is expected to rule any day now on a lawsuit filed by those districts, which could force Texas lawmakers into a special session next summer. The districts hope the high court’s ruling will prompt lawmakers to overhaul the system as early as June 2016.

“School funding formulas in Texas are at least 30 years old,” said J. David Thompson, Houston-based attorney for the moderate-wealth districts, such as Dallas and Fort Worth. “Some of our formulas were determined when Ronald Reagan was president and before the fall of the Berlin Wall.”

[…]

Many say that the current case in front of the high court is the most far-reaching school finance lawsuit in state history because it represents the broadest coalition of state districts.

“Now, there are other problems with the system that are affecting all of us,” said Thompson, who represents moderate-wealth districts, like Fort Worth.

Randall “Buck” Wood is the longtime Austin attorney for property-poor districts that filed the initial set of school finance suits, which began in the 1980s and led to Edgewood IV. Three decades later, Wood said he never thought that he would be on the same side as property-wealthy districts.

“Everybody tried to support everybody else,” said Wood, whose group also represents the Arlington school district. “There wasn’t any backbiting.”

Houston’s Mark R. Trachtenberg, attorney for property-wealthy districts, says it’s no longer an adversarial situation.

“In this case, again, the Legislature cut $5.4 billion out of public education in 2011 and it impacted property-wealthy and property-poor districts,” said Trachtenberg, who represents the Carroll, Grapevine-Colleyville, Northwest, Plano and Highland Park school districts.

“It’s been a long time since Edgewood IV,” he said.

See here and here for the most recent updates. The story is a pretty good primer on How We Got Here that’s worth your time if you want a refresher, but the main news is what I highlighted. I should note that the predictions made in that last link for when we’d get a ruling were “January” and “springtime”, so if we really are in “any day now” mode, it’s going to hit a lot sooner than people expected. (This Trib story about Ken Paxton whining about school finance litigation contains a note that Supreme Court Justice Nathan Hecht suggested January as a likely time frame, though “any say now” was still possible.) If the Supremes throw the finance system out and basically force the Lege to come up with some number of billions of dollars to make things whole, that could have a significant effect on the upcoming Republican legislative primaries. I mean, that’s one reason why everyone figured the ruling would be later rather than sooner, to take the primaries out of the equation. We’ll know soon enough.

Bail reform for Harris County?

This would be a big deal.

go_to_jail

In jails across the country, including Harris County, a majority of the people behind bars have not been convicted of a crime. In the jail complex on the north side of downtown Houston, more than 6,600 people, about three-quarters of the prisoners there, are waiting to go to trial. Each one costs taxpayers about $45 a day.

Those prisoners are there because they can’t afford to pay bail, the debt a judge imposes to make sure defendants return to court.

Advocates for bail reform have said the system can be burdensome for low-income defendants, saying it inhibits their ability to go back to work, support their families and aid in their own defense.

Leaders at both the local at state level are now looking at ways to change that, possibly allowing defendants charged with lower level crimes to remain free without bail, but with a pledge to return to court. They will use a screening process that can predict whether defendants will return to court or if they might commit more crimes if released.

Earlier this month, Nathan Hecht, the Chief Justice of the Texas Supreme Court, announced the creation of a committee to study the issue for the Texas Judicial Council, the policy-making body for the state judiciary. Depending on the results, they may throw their support behind changes in the next legislative session.

Hecht said a recent report by the National Conference of Chief Justices showed that bail for suspects of non-violent crime, like drug offenses, is an unnecessary expense.

“It doesn’t help them and it doesn’t help the criminal justice system and it doesn’t help society,” he said. “It just creates additional burdens. If it’s easy to avoid and you end up at the same place, why wouldn’t you do it?”

Hecht said he wants to be able to prove that point before advocating for a change.

“The District of Columbia is pretty far along in revamping their system so that bail is not required,” Hecht said. “We’ll have Texas look at this and see if we can’t make some improvements.”

[…]

Some of those who oppose changing the system are the bail bondsmen who stand to lose business.

“Who’s going to chase these people when they miss court?” said Michael Kubosh, a bail bondsman and a city councilman. “You’re going to have to hire more government people to do it.”

When defendants use a bondsman to secure bail, they pay a fee-10 percent or more of the bail amount-and pledge collateral, usually property or automobiles, for the remaining amount.

If a defendant does not show up for court, the bondsman either has to pay the entire bail or go on a manhunt.

“If someone has a financial interest, then we can get ‘Billy Bob’ to show back up because someone will produce them,” Kubosh said. “Their mom will produce them before she’ll lose her house.”

He noted the cost of current system is paid by the people accused of crimes, not spread among taxpayers.

“If they miss court, a bondsman is financially obligated to the state to get these people back in custody,” he said. “We monitor every one of them every day, at no cost to the taxpayer.”

All due respect to CM Kubosh, but Harris County doesn’t owe bail bondsmen a living. The issue here isn’t with the people who make bail, it’s with the many people who can’t, and who as a result sit in jail – for which the taxpayers do foot the cost – even though they haven’t been convicted of anything and may never be convicted of anything, or – even worse – plead guilty to something they didn’t do in order to get out of jail. Basically, some number of people – more than is the case now – need to be released on their own recognizance, and more people need to be assessed a lower and more affordable bail amount. The goal here is to have fewer people in jail at any time, which is both more just and less expensive. If that means leaner times for the bail bonding business, well, that’s okay by me. The tradeoff is more than worth it.

On judicial elections and campaign finance

Ross Ramsey raises an interesting point.

BagOfMoney

It might seem silly to elect people who promise they won’t represent you, their political party or their donors, but that’s what we expect judges to do. They’re supposed to apply the law, and if they do any of those other things, they’re probably out of line.

Florida elects judges but bars them from raising their own campaign money. Lots of Texas judges — and Texas lawyers —would love to see similar restraints here.

“If you are an incumbent judge and you call a lawyer and ask for money, what is that lawyer going to say? No?” asks Wallace Jefferson, a former chief justice of the Texas Supreme Court who now practices law in Austin. “That incumbent judge is going to raise more money. But no one should feel pressured to contribute.”

Better, he says, to take the judges out of the fundraising business and leave the transactional part of politics to campaign committees and others.

It could happen: The U.S. Supreme Court upheld Florida’s law [in April] after challengers said it violated their First Amendment rights. That court was also concerned with whether asking for money sullied the impartiality of the elected judges. The court decided that was a serious enough public interest to justify the fundraising restriction.

“Simply put, the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors,” Chief Justice John Roberts wrote in the majority opinion.

[…]

This legislative session, state Rep. Rafael Anchia, D-Dallas, filed a bill that would start public financing of campaigns for appellate judges in Texas. It was sent to the House Elections Committee on March 9 and never heard from again.

Sen. and former state District Judge Joan Huffman, R-Houston, has a bill that would eliminate straight-ticket voting in judicial races — the idea is to free judges from the slings and arrows of party politics. That one is stalled, as is its identical twin in the House, filed by Rep. Kenneth Sheets, R-Dallas.

Jefferson and Tom Phillips, who preceded him as the Texas high court’s chief justice, wrote an amicus brief in the federal case, along with a couple of former chiefs of Alabama’s Supreme Court. “As former Chief Justices who have observed countless elections in our own States, and run as candidates for judicial office, we are well-acquainted with the genuine dangers — and sometimes actual abuse — present when judicial candidates personally solicit campaign contributions from parties and lawyers,” they wrote.

Now that the Florida law has been upheld, Jefferson thinks “it would be a step in the right direction” for Texas to take judges out of the campaign fundraising business.

“To me, money is not in the center except to the extent that the public believes, if a judge is accepting money from a lawyer or litigant, that they’ll be more likely to favor that lawyer or litigant,” Jefferson says. “I don’t believe that is generally true, but the public believes it. And I understand that belief. It undermines the ideal of impartial justice.”

I have been critical of Wallace Jefferson in the past for promoting the non=solution of making judicial elections non-partisan while ignoring the real problem of how judicial races are financed, so let me compliment him here for his advocacy for doing something about that problem. Pigs will fly before the Lege passes a bill allowing any kind of public financing of elections, but it’s still worth pursuing (kudos to Rep. Anchia for filing a bill this session to do that). If Jefferson, Tom Phillips, and Nathan Hecht can all support this, a bill like Rep. Anchia’s could get bipartisan support. The money people will fight it to the death, but that’s a fight we should all be willing to engage. Let’s get a nice long list of coauthors for this bill next time.

Abbott’s actions in the Hecht ethics case belie his “just doing my job” evasion

More accurately, it’s his lack of action that speaks clearly about his priorities and discretion.

Still not Greg Abbott

Attorney General Greg Abbott, accused of favoritism in his handling of an ethics case involving a Texas Supreme Court justice, says it’s not his duty to press the case that has sat idle for two years.

That reasoning, however, doesn’t stand up, according to an American-Statesman review of state law.

The issue began in 2008, when the Texas Ethics Commission fined Chief Justice Nathan Hecht $29,000 for violating campaign finance rules by getting a $167,200 discount on legal fees. Hecht appealed to Travis County district court, arguing that the agency misinterpreted state law.

With Abbott’s office defending the Ethics Commission, several years of sporadic action followed — until all activity ceased two years ago.

Defending the inactivity, an Abbott spokesman last week said his office wasn’t motivated to press the case because the ruling against Hecht remained in force — placing the onus to act on the chief justice.

But state law says otherwise.

The moment Hecht filed his appeal, the Ethics Commission judgment against him was vacated — or rendered void — to allow a Travis County district judge to conduct an independent review of the charges against him.

Legally, there is no judgment in place against Hecht, placing the onus to act on lawyers with the attorney general’s office.

[…]

Buck Wood, an Austin lawyer specializing in election law — mainly representing Democrats — said appeals of Ethics Commission rulings are rare, but the result is the same in every case.

“Once they appeal it, no enforcement action can be taken because it does vacate the decision,” Wood said. “The ethics fine is basically put on hold, and if (Abbott) doesn’t prosecute it, it’ll never get prosecuted.”

The inactivity is even harder to explain because Abbott’s lawyers believe Hecht’s appeal was improperly filed and should be tossed out.

A motion to dismiss the appeal, filed by the attorney general’s office in June 2012, argued that Hecht lawyer Steve McConnico failed to ask the Ethics Commission to reconsider its judgment against Hecht — a necessary first step before an appeal can be pursued in district court.

McConnico filed a brief rebutting the claim, and the last activity in Hecht’s appeal came in October 2012, when both sides filed responses trying to poke legal holes in each other’s arguments.

See here for the background. The 2012 filings weren’t included in the timeline of events put together by Texans for Public Justice, who has filed suit to toss Abbott off the case and appoint a special prosecutor that will actually do something, but the overall point stands. Nothing can or will happen in this case until one side or the other takes action, and since Team Hecht has no incentive to do anything – he’s in the clear for the time being, after all – that means Abbott needs to quit jerking around and do his job. Keep that in mind the next time you hear Abbott piously muse about how pursuing endless appeals of same sex marriage rulings and the like are “just doing his job”.

TPJ files suit against Abbott over Hecht ethics case

Here we go again.

An Austin legal watchdog group filed suit Wednesday to force action on a $29,000 ethics fine, levied against Texas Supreme Court Chief Justice Nathan Hecht in 2008, that has languished on appeal for 5½ years.

The motion from Texans for Public Justice seeks to remove Attorney General Greg Abbott from the case, saying Abbott has violated his legal duties by failing to pursue the case on behalf of the Texas Ethics Commission, which levied the fine.

“(Abbott) has helped his friend, former colleague and political ally by allowing the case to be inactive and dormant,” the motion said.

[…]

In Wednesday’s motion to intervene in Hecht’s appeal, Texans for Public Justice asked the court to disqualify Abbott, Republican candidate for governor, as the lawyer representing the ethics commission.

“By permitting, aiding and abetting, and acquiescing in almost six years of delay, Attorney General Abbott has violated his fundamental constitutional and statutory duties to ‘defend the laws’ of Texas and ‘represent the state in litigation’ … and he has failed to collect the fine that should have been collected years ago for the benefit of Texas taxpayers,” the motion said.

See here for a bit of background. The TPJ press release fills in the details.

Hecht’s troubles date to the short-lived 2005 nomination of his ex-flame Harriet Miers to the U.S. Supreme Court. Hecht’s promotion of Miers to conservative groups and the media drew a Texas Commission on Judicial Conduct rebuke for violating state prohibitions on political activism by jurists. Arguing that the First Amendment trumps judicial canons, Hecht attorney Chip Babcock overturned the admonishment in 2006.

Hecht’s victory spawned new ethical issues. The Texas Ethics Commission ruled that Babcock’s discounted legal fees amounted to an in-kind contribution to Hecht worth $100,000. Hecht failed to report this contribution, which exceeded judicial campaign limits. Following a rare formal public hearing, commissioners ordered Hecht to pay a $29,000 fine on December 11, 2008. Justice Hecht appealed to a Travis County court on January 27, 2009 and the Attorney General quickly filed a response on behalf of the Ethics Commission. Since those filings in early 2009, the case has languished. Setting a record for the longest appeal of a state ethics fine, the case runs the risk of being dismissed for lack of prosecution.

“Abbott has a duty to prosecute this cold case and collect from Justice Hecht,” said TPJ Director Craig McDonald. “Instead, he has sat on his hands for six years to protect a friend and political crony. Texas law recognizes no crony exception. It’s time for Abbott to act—or to find someone who will.”

TPJ’s motion asks the district court to remove Abbott from the case if necessary and to impose appropriate sanctions for “his extraordinary and egregious pattern of inaction and neglect in apparent deference and favoritism toward his friend and former colleague.”

TPJ’s filing argues that Abbott’s inaction violates provisions of the Texas Rules of Judicial Administration, Texas Disciplinary Rules of Professional Conduct, Texas Lawyers Creed and statutory and constitutional obligations of the Attorney General to promote the timely administration of justice. Abbott’s office, which has absolute discretion to aggressively pursue such matters, claimed in 2014 that plaintiff Hecht alone is responsible for advancing the case. Were this true, any defendant could beat any Ethics Commission rap simply by filing an appeal and then ignoring it.

I noted the five-year anniversary of the case last December. I get that TPJ could have timed the filing of their complaint differently, but come on. Abbott has time to file a zillion lawsuits against the federal government while simultaneously defending losers like the same sex marriage ruling, the school finance ruling, and the voter ID ruling, but he can’t assign a junior attorney or two to push some paper on this? His priorities as AG have always been the interests of the Republican Party first, and everything else second. There’s really no excuse for this. You can see the complaint TPJ filed here, the Ethics Commission order against Hecht from 2008 here, and their timeline of events here.

More primary thoughts

I wonder if Big John Cornyn will come to rue this interview.

Big John Cornyn

Big John Cornyn

BDS: At the kickoff for your reelection campaign in November, Governor Perry said that you are “the epitome of what I look for in a U.S. senator.” He has certainly been embraced by members of the tea party. But in your speech you said that Republicans should be the party of the “big tent,” which sounded an awful lot like it was pointed in their direction.

JC: To be clear, I was talking about being a welcoming party, not an exclusive party. I don’t know how we got off on this track, where some people are welcome in our party and some people are not. Hence my reference to Ronald Reagan’s line, “What do you call someone who agrees with you eight times out of ten? An ally, not a twenty-percent traitor.” Well, we’re at a point where you can agree with someone 98 percent of the time, but they think of you as a 2 percent traitor, which is just an impossible standard. I like to point out that my wife and I have been married for 34 years, we don’t agree with each other 100 percent of the time. We need to be a little more realistic about the goals, and we need to look not just at the short term but at the long term. If the goal is to change the direction of the country—and I would say to save the country from the big government track we’re on now—then we have to win elections by adding voters, not subtracting them.

That sound you hear is Steve Stockman rubbing his hands and cackling with glee. Remember, Steve Stockman is nuts. I know that term gets thrown around a lot, but seriously. That boy ain’t right.

Josh Marshall ponders what the implications are of Stockman’s entrance.

Everyone seemed to think Cornyn had successfully evaded a challenge and that he was home free. And Stockman got in just under the wire. I’m curious whether he waited so long precisely to assure a serious Democrat didn’t get into the race. As long as there’s no serious Democrat running, that will make it easier for him to argue he’s not another Akin in the making.

Of course, he is basically an Akin in the making, or an Akin before there was Akin (Stockman first came in in the ’94 Republican landslide but was too nuts and got bounced out after one term). But if there’s no credible Dem, maybe he gets through?

I seriously doubt the condition of the Democratic field for Senate had anything to do with Stockman’s move. I don’t think he operates that way, and I don’t think the Texas GOP would behave any differently towards him if he wins the nomination regardless. A better question is whether or not the DSCC and other national Dem groups get involved in the event it’s Stockman versus Maxey Scherr or David Alameel or Mike Fjetland. If it winds up as Stockman versus Kesha Rogers, we may as well just admit that this whole experiment in self-governance has been an abject failure and see if Great Britain is willing to take us back.

Speaking of Maxey Scherr, the El Paso Times covered her campaign kickoff in Austin.

[Scherr] said she is coordinating her effort with statewide Democratic organizations that are hopeful that with Texas’ changing demographics and, in Wendy Davis, an attractive candidate at the top of the ticket, 2014 will be the year Texas starts to turn blue.

[…]

“If I can raise $7 million, I can be competitive, and I think I can,” she said.

She plans to suspend her law practice and spend the coming year the same way she spent Monday — traveling the state in a motor home towing a car with a smashed-in hood and emblazoned with her campaign slogan, “Texas on Cruz Control.”

If she wins the Democratic Primary, Scherr will likely face Cornyn, but she says her real opponent is Texas’ junior senator, Ted Cruz, who won’t be on the ballot until 2018.

“This race is about Ted Cruz,” Scherr said. “This race is about Ted Cruz because John Cornyn has taken a back seat to Ted Cruz. It’s unfortunate that our senior senator of Texas has done everything that Ted Cruz, the junior senator, wants him to. He doesn’t have the guts to stand up to Ted Cruz on anything that matters to Texans and I will.”

[…]

Among the issues Scherr plans to attack Cornyn are education, health care, women’s rights and immigration. On the latter topic, Scherr said she’s tired of Republicans whipping up false fears about security on the border.

“Ted Cruz and John Cornyn have voted against a comprehensive immigration reform bill every single time it has come up. I find that offensive,” she said.

“I come from El Paso and El Paso been consistently rated as one of the safest cities for several years. What these guys want to do is militarize our border, put a military-type outfit along the border. But they are wrong about that. El Paso is a huge border city and we don’t need to militarize it. We are safe as can be. What we need to do is pass comprehensive immigration reform that doesn’t tear apart families.”

Even if Emperor Cruz stays out of the GOP Senate primary – well, at least if he doesn’t take any overt action – a Stockman win would cement the point that Scherr is making about Cruz driving the action. In a sane world, Cornyn would have nothing to worry about in March. He may yet have nothing to worry about, but I doubt he’ll run his campaign that way. Of the sane Democrats running, I see Scherr as having the highest upside. I look forward to seeing her first couple of finance reports to see if she can make any headway on that fundraising goal.

More news from El Paso:

Meanwhile, all of the El Paso County incumbents in the Texas House of Representatives have filed for re-election.

Four have challengers.

District 76 Rep. Naomi Gonzalez faces former state Rep. Norma Chavez and Cesar Blanco, chief of staff to U.S. Rep. Pete Gallego.

District 77 Rep. Marisa Marquez faces El Paso attorney Lyda Ness-Garcia.

District 75 Rep. Mary Gonzalez is being challenged by Rey Sepulveda, president of the Fabens school board.

And District 79 Rep. Joe Pickett, the dean of the El Paso delegation, faces Chuck Peartree.

I have no brief for Reps. Marquez or Naomi Gonzalez; they can explain their support of Dee Margo over Joe Moody (who did not get a primary challenger) to the voters. Pickett has been the Transportation Committee chair and has some juice, but he also voted for HB2; if he gets beaten up about that in his primary, I’ll shed no tears. The one legislator in that group I do care about is Rep. Mary Gonzalez, who is a force for good and deserves to be supported for re-election.

I mentioned yesterday that Rep. Marc Veasey avoided a rematch in CD33 with Domingo Garcia. I thought at the time that meant he was unopposed in the primary, but apparently not.

Several local members of Congress drew opponents as well.

U.S. representative, District 6: Republican Joe Barton (i), Frank Kuchar; Democrat David Edwin Cozad.

U.S. representative, District 12: Republican Kay Granger (i); Democrat Mark Greene

U.S. representative, District 24: Republican Kenny Marchant (i); Democrat Patrick McGehearty

U.S. representative, District 25: Republican Roger Williams (i); Democrats Stuart Gourd, Marco Montoya

U.S. representative, District 26: Republicans Michael Burgess (i), Joel A. Krause, Divenchy Watrous

U.S. representative, District 33: Democrats Marc Veasey (i), Thomas Carl Sanchez

There had been much speculation about whether former state Rep. Domingo Garcia, D-Dallas, would challenge Veasey for the 33rd Congressional District, setting up a rematch of last year’s hotly contested primary race. But Garcia put out a statement late Monday that he would not enter the race.

“I am truly humbled by the encouragement and support I have received to run for congress this year but after careful consideration I have decided against a run for congress in 2014,” he said. “I look forward to helping turning Texas blue and will continue to work to register and turn out more voters. I look forward to continuing to serve the community in one capacity or another.”

Democratic officials said Monday that little is known about Veasey’s challenger, Sanchez of Colleyville, other than that he is an attorney.

I feel reasonably confident that Rep. Veasey will win, but as always it’s best to not take anything for granted.

On the Republican side, Burka has a couple of observations. Number One:

Two trends are evident in this year’s campaign. One is that this is not necessarily shaping up as a tea party year. There are a lot of Main Street Republicans running for the House of Representatives — business people and school district leaders. Some of the candidates backed by Michael Quinn Sullivan might find themselves on the losing end of races. Matt Schaefer faces a strong opponent in Tyler. The same is true for Jonathan Stickland, whose opponent in Bedford is a popular former coach and educator.

That would be fine by me, but see my earlier comment about underestimating the crazy. Numero Dos:

The most significant late filings in the Republican primary:

(1) Steve Stockman vs. John Cornyn (U.S. Senator)

(2) Robert Talton vs. Nathan Hecht (Chief Justice, Texas Supreme Court)

(3) Matt Beebe vs. Joe Straus (House District 121)

(4) John Ratcliffe v. Ralph Hall (U.S. House District 4)

(5) Mike Canon vs. Kel Seliger (Texas Senate District 31)

Stockman is about as far-right as far-right can get in this state. Cornyn can swamp him with money, but the tea party will be out in force against Cornyn.

Talton is a conservative trial lawyer who is famous for once having stationed a DPS officer outside his door to prevent gays from entering his office. He is a threat to Hecht (the stationing of the DPS officer outside his door notwithstanding).

Talton’s most recent foray into elections was last year as the GOP candidate for Harris County Attorney. He won that primary but lost the general, and slightly underperformed his peers. Hecht of course is deeply unethical. The winner of that race faces Bill Moody in the general.

There’s still a lot to process from the candidate filings. I don’t have a full picture yet of everything, and I suspect there are still some unexpected stories to tell. I’m already thinking about what interviews I want to do for March; with the primary back to its normal spot on the calendar next year, there isn’t much time to plan. What caught you by surprise this filing period?

The oldest established permanent floating ethics probe in the state

The Chief Justice of our State Supreme Court, ladies and gentlemen.

Nathan Hecht

Texas Supreme Court Chief Justice Nathan Hecht, already the longest-serving member of the state’s highest civil court, has the dubious distinction of owning another record: the longest running appeal of a state ethics fine.

With the case dragging into its fifth year, watchdog groups are pointing the finger at Attorney General Greg Abbott for not pressing harder in court for a final resolution.

[…]

Hecht’s case is set to reach its fifth anniversary in Travis County District Court next month, making it by the far the longest-running legal challenge over an ethics panel fine in the agency’s roughly two-decade history.

“This whole matter has been swept under the rug for years and years without any resolution,” said Alex Winslow, director of Texas Watch, which monitors the state Supreme Court and filed the ethics complaint against Hecht. “Greg Abbott has the full discretion for pursuing this case and reaching some resolution for it and for whatever reason he’s opted not to do that.”

[…]

On Tuesday, Abbott’s office said it is not its responsibility to speed the ethics appeal along. That falls on Hecht’s shoulders, according to the Abbott’s office, since he filed the case.

“These watchdog groups’ claims make no sense because, to the extent the case is not advancing quickly, the result is that the attempt to overturn the Ethics Commission’s ruling is not advancing,” Abbott spokesman Thomas Kelley said in a statement.

The watchdog groups, however, said the case has seemingly fallen off the radar for both sides: it has sat dormant for more than a year, with not a document filed since October 2012. That marks the second time the case has gone at least 12 months without so much as a single filing.

With the ethics case hanging overhead, Hecht won re-election in 2012 to the Supreme Court and recently was sworn in for the promotion to chief justice.

“It gets more important every day now. Texans need to know whether the ruling of the Texas Ethics Commission that Hecht violated the law is valid,” said Craig McDonald, director of the watchdog group Texans for Public Justice, which filed the ethics complaint against Keller that resulted in a $25,000 settlement.

“It’s the burden of the attorney general to prosecute the case and from the outside it looks like the attorney general’s office has thrown this case in a dusty file cabinet.”

Abbott’s excuse for doing nothing is mighty convenient when you stop and think about it. As long as Hecht’s appeal is pending, he’s not on the hook for anything. It’s only once his final appeals have finished running their course that he might have to write a check. True, he might beat the rap, but why take the chance if there’s no pressure on him to ever bring this thing to a close? If Greg Abbott has no interest in pursuing a resolution, why should Nathan Hecht? The status quo suits him just fine, thank you very much. Burka, who suggests a way out of this, has more.

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 http://www.ethics.state.tx.us/sworncomp/2007/2707161.pdf

This is the Texas Judicial Conduct Commission Public Admonitition: http://texasweekly.com/documents/tcjc-hecht.pdf

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

Interesting.

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.