Tag Archives: Texas Supreme Court

Thank you for your service, Justice Johnson

It is with a touch of sadness and a bit of pride as well that I have just learned that a member of the Texas Supreme Court is retiring at the end of the year.

Justice Phil Johnson is calling it a career.

I’ve known Johnson for several years. I worked as editorial page editor of the Amarillo Globe-News and Johnson was chief justice of the 7th Court of Appeals based in Amarillo. Thus, he became a source for me. We developed a nice relationship over the years.

Why the sense of pride?

Well, it goes like this. When the vacancy occurred on the state’s highest civil appeals court 13 years ago, I authored editorials for the newspaper urging Gov. Rick Perry to look past the I-45/I-35 corridor from where all Supreme Court justices hailed. I checked out the histories all the remaining eight justices and learned they all came from communities within that swath that runs through Central Texas.

The newspaper urged Gov. Perry to look westward. Johnson expressed an interest in getting appointed.

To his credit, Perry did appoint Johnson to the court.

Now, I am not going to take credit for the appointment. It’s likely no more than a coincidence. After all, Johnson did have one powerful friend in the Texas Senate, fellow Republican Bob Duncan — a former law partner of Johnson in Lubbock — who very likely made it known to the “right people” that Gov. Perry needed to appoint Johnson to the Supreme Court.

So, I’ll take all the credit I deserve for Justice Johnson’s appointment.

I also want to wish this good man well as he rides off into retirement.

‘Equal protection’ or not, from the high court?

I totally understand that court rulings can be complicated and that there often is more than meets the eye.

Thus, the Texas Supreme Court ruled that Houston city employees aren’t guaranteed all spousal rights if they’re married to someone of the same sex.

The state’s highest civil appellate court said in its ruling that the U.S. Supreme Court’s ruling that legalized gay marriage didn’t cover all the benefit rights that one thought might accrue for the same-sex spouses. As the Texas Tribune reported: “As part of a case challenging Houston’s benefits policy, the Supreme Court suggested a landmark ruling legalizing same-sex marriage does not fully address the right to marriage benefits. Justice Jeffrey Boyd, writing on behalf of the court in a 24-page opinion, said there’s still room for state courts to explore the ‘reach and ramifications’ of the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges.”

Court ruling deals blow

I admit readily that I’m a bit slow on the uptake at times. However, as I read the U.S. Supreme Court decision on this matter, I am certain I read something about the court deciding that the 14th Amendment’s “equal protection” extended to gay couples just as it does to all American citizens. The U.S. Constitution is clear in its guarantee of equal protection under the law to every American; it doesn’t take Americans’ sexual orientation into account.

Why, then, aren’t same-sex spouses entitled to the same rights as those involved in heterosexual marriages?

My hope would be that the U.S. Supreme Court could clear up, somehow, this apparent discrepancy.

No real surprise; Texas high court endorses do-nothing school policy


At one level — had I been following this case more closely — I wouldn’t be surprised to learn that the Texas Supreme Court had ruled the state’s public school funding system to be “constitutional.”

I’ll admit that I haven’t been as avid a follower of this issue as I should have been.

The court ruled this week that the state is doing all it should be doing to finance public education. Never mind that previous courts, previous judges and educators across the state have said the state does far too little to support public education.

Not so, said the state’s highest civil appellate court.


The Dallas Morning News editorial I’ve attached to this blog post lays it out pretty well. The Texas Supremes have set an amazingly low bar for state public education.

The court has declared in its unanimous ruling that taking care of public schools rests exclusively with the Texas Legislature.

Here is what I do know about the state of public school financing in Texas.

The Legislature has dramatically cut state spending on public schools over the past several sessions. Do the Supreme Court justices now believe the Legislature is going to reverse itself, that it’s going to find more money to distribute equitably among the more than 1,000 independent school districts around the state?

Of course, the political ramifications must be factored in.

Republicans control — by wide margins — both legislative chambers. They also occupy every statewide office in Texas. That includes the nine individuals who comprise the Texas Supreme Court.

Who out there really thinks the justices ever were going to buck the policies set by their GOP brethren in the other two branches of state government?

Here’s part of what the Morning News said: “In refusing to intervene, they’ve placed an enormous responsibility to fix our system of school finance on the shoulders of state lawmakers, the same lawmakers who have refused for decades to do what is needed. As a result, Texas’ 5 million public school children will be the ones who most directly bear the costs of the high court’s refusal to fix a system that it concedes requires ‘transformational, top-to-bottom reforms.'”

The justices have recognized the state’s public education system is broken but they won’t do anything to fix it.

The ball’s back in the Legislature’s court. Again.

Do something, lawmakers, to repair the system you’ve broken.

Cruz and Cornyn: an uneasy Senate team?

cornyn and cruz

Every state is represented in the U.S. Senate by two individuals who, under an unwritten rule of good government, would seek to work in close political partnership.

The Texas Tribune has published an interesting analysis of the relationship of Texas’s two Republican senators, one of whom is running for president of the United States.

Ted Cruz and John Cornyn, according to the Tribune, aren’t exactly close. They aren’t joined at the hip. You don’t see them singing each other’s praises.

Is it a metaphor for what we’ve heard about Cruz?

It’s been stated repeatedly during this Republican primary campaign that Cruz hasn’t made many “friends” in the Senate. He doesn’t “play well with others,” the saying goes. He called the Senate majority leader, Mitch McConnell, a “liar” in a Senate floor speech and then just this past week said he had no intention to take back what he said.

It might be a big deal — in a normal election cycle. This one isn’t normal. As the Tribune reports: “In any other circumstance, it would be curious that a viable presidential candidate did not have the support of his fellow state Republican. But each man in this case represents the visceral divide raging in the party: Cornyn is the consummate establishment team player, while Cruz is the TEA Party insurgent.”

Cruz has been a senator for slightly more than three years. Cornyn was elected in 2002. What’s more, the Senate is Cruz’s first elected office; Cornyn, on the other hand, served as Texas attorney general and, before that, as a member of the Texas Supreme Court.

Cornyn knows how to play the political game in Texas. He’s good at it. Is he exactly my kind of senator? Hardly, but I do respect the man’s political skill.

Cruz brings another element to this game. I would consider it his amazing degree of hubris and utter fearlessness.

It’s long been said that the U.S. Senate is a 100-member club that requires a bit of time for members to feel comfortable. It took young Ted Cruz no time at all to grab a microphone on the Senate floor and begin blasting away at his rivals.

It’s only a hunch on my part but it might be that the Texas rookie’s rush to the center of the stage could have been a bit off-putting to the more senior legislator.

It used to be said that the “most dangerous place in Washington” was the space between Sen. Phil Gramm and a microphone. Gramm left the Senate some years ago. Ted Cruz has taken up that new — apparently with great gusto.

Is he a team player? Are Texas’s two senators — Cornyn and Cruz — on the same page all the time? Consider this from the Tribune:

“There are no whispered tales in Senate circles about heated arguments between the two men or icy glares on the Senate floor. Instead, the most frequently used word observers use to describe the relationship is ‘disconnected.’”



Restrict judges' fundraising

Restricting Texas judges’ ability to raise money from campaign contributors is a smashing, capital idea.

Let’s do it.

Oh, I almost forgot. Texas is the place that doesn’t like restricting political activity even among judges who are supposed to remain impartial and fair to all who appear before them in court. The big-donor lawyer isn’t supposed to be treated differently than, say, the lawyer who gives to another candidate who happened to run against the judge before whom he or she is appearing.


Ross Ramsey’s analysis in the Texas Tribune speaks to possible changes, though, in state law that might mimic a Florida restriction. Florida elects its judges, too, but judges cannot go around asking for money; that’s left to campaign committees.

It’s not nearly a perfect solution. My preferred reform would be to appoint judges initially and then have them stand for retention; if they’ve done a good job, voters can keep them in office, but if they mess up, voters have the option of kicking them out.

That won’t happen in my lifetime in Texas.

According to the Texas Tribune: “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.”

Jefferson is one of my favorite Texas judges. He always makes sense and I wish he still sat on the state’s highest civil appeals court. But … I digress.

One interesting ploy that many well-heeled lawyers use is to contribute to both candidates running for the same judgeship. Walter Umphrey is a high-octane plaintiff’s mega-lawyer in Beaumont, where I used to live and work. He is known as a Yellow Dog Democrat, but he would give big money to Republicans, just to cover his bets in case the Republican won a seat in Jefferson County, which at one time — but no longer — was one of the state’s last bastions of Democratic Party loyalty.

The whole notion of judges collecting campaign money from lawyers who might represent clients before those very judges is anathema to me.

Ramsey writes that a lot of Texas lawyers and judges feel the same way. They want to change the system.

The problem, as I see it, lies with the many other lawyers and judges who like the system just the way it is.


Perry IDs critical '16 campaign issue

It’s always a cold day in hell when former Texas Gov. Rick Perry draws praise from anyone on the left end of the political spectrum.

He’s done it, though, with an observation about what he believes is the most critical issue of the 2016 campaign for the presidency.

It involves the Supreme Court.


Steve Benen, writing a blog for lefty commentator Rachel Maddow’s blog, notes:

“But over at Bloomberg Politics, Sahil Kapur reported over the weekend on a South Carolina event, where former Gov. Rick Perry (R) highlighted a central national issue that doesn’t generally get as much attention.
“Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court,” he said. “Now this isn’t about who’s going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That’s the weight of what this election is really about.”
“That, I will suggest to you, is the real question we need to be asking ourselves,” he continued. “What would those justices look like if, let’s be theoretical here and say, if it were Hillary Clinton versus Rick Perry? And if that won’t make you go work, if I do decide to get into the race, then I don’t know what will.”
The next president likely is going to get a chance to appoint several justices to the highest court in the land. And those appointments always seem to outlast the presidencies of those who select them.
Perry knows a thing or two about these kinds of legacies. He built one himself as the longest-serving governor in Texas history. He appointed several justices to the state Supreme Court and judges to the Court of Criminal Appeals.
As Benen states: “Purely on institutional grounds, Perry is absolutely right – the makeup of the high court will likely give the next president a unique opportunity to shape much of American public life for a generation.”

Texas turns 'crazy'

It’s one thing to be called “crazy” by a Florida congressman, who in a previous life was a federal judge who got impeached and then tossed out of office by the U.S. Senate.

Alcee Hastings’ description of Texas didn’t sit well with some Texans. One of them is fellow U.S. Rep. Michael Burgess of, yes, Texas, who demanded an apology from Hastings.

It kind of reminds me of a family that fights among its members and an outsider joins the fight. You dare not join that family squabble. Make no mistake, some Texans actually might agree with Rep. Hastings. Others, though, disagree — vehemently. But that’s best left for Texans to argue among themselves.


Actually, our state has taken some strange turns over many years. I’ll concede that the current political climate here isn’t to my liking. I believe more than three decades living in Texas entitles me to chime in.

So, I will.

During our time in Texas, my family and I have watched the state turn from moderately Democratic to overwhelmingly Republican. Prior to our arrival in Texas in 1984, the state was much more heavily Democratic. Why, there once was a time when Democrats occupied every statewide office and all but one seat in the 31-member Texas Senate.

I’m betting Republicans around the country were calling us “crazy” in those days, too.

Now that we’ve turned all-GOP all the time, it’s Democrats who are hanging the crazy label on our politics and policy.

There some evidence that we’ve gone a little but loony in the Lone Star State. Texans keep electing some, um, interesting politicians to high office.

U.S. Rep. Louie Gohmert of Tyler just won’t accept that the president of the United States is constitutionally qualified to hold his office; our most recent former governor, Rick Perry, once came very close to suggesting that Texas might secede from the Union if the federal government didn’t stop taxing us so much; we have elected an attorney general, Ken Paxton, who’s been scolded by the state for soliciting clients improperly; our Legislature is likely to enact a law that allows folks to carry weapons in the open and it might approve a bill that gives folks permission to carry weapons onto college campuses; Texas still allows for partisan election of judges, which always results in superior candidates losing simply because they are affiliated with the “wrong” political party.

That’s just for starters.

One-party domination breeds craziness born of arrogance. Democrats wielded great influence in this state almost since its joining the Union in 1845 until the late 1970s. Our state Supreme Court — comprising all Democrats — became so friendly to the plaintiff’s bar that it became the subject of a “60 Minutes” probe into whether the justices were on the take. Then the state became a two-party battleground. For the past two decades, Texas has been a Republican playground.

And just as Democrats produced their own brand of craziness in the old days, Republicans have earned the right to be called crazy.

I’d rather we reserve the name-calling, though, for those of us who live with the craziness.

So, Rep. Hastings? Butt out!


OK, having said all that, here’s a link written by a columnist in Roanoke, Va. It was sent to me by a dear friend who lives there, but who grew up in West Texas. He knows Texas better than most folks I know.

Enjoy this bit of crazy talk.




Ex-judge committed egregious act

This story got past me when it happened, so I’m a bit late commenting on it, but it does give the Texas legal community something to ponder — such as how severe a sanction should a judge face if he or she commits an egregious act of judicial misconduct.

Elizabeth Coker used to preside over the 258th District Court in rural East Texas. She resigned her judgeship a little more than a year ago after it was revealed that she sent text messages from the bench to a prosecutor — prompting her with questions to ask that would secure the conviction of a defendant.


The text messages were sent during a child abuse trial in August 2012 to Assistant Polk County District Attorney Kaycee Jones, who was in the middle of a criminal case in Coker’s court.

I don’t know where to begin with this.

The State Commission Judicial Conduct worked out a deal with Coker for her to quit her judgeship. All she had to do was resign from the bench and there would be no additional sanction.

I’ve always understood that judges often have expelled people from their courtrooms for using text devices while court is in session. A former Texas Supreme Court chief justice, Tom Phillips, once told me that in Texas judges can rule their courtrooms like tyrants if they choose to do so.

I suppose that Phillips also implied that judges can run courtrooms with amazing leniency if they so choose.

One of the many astonishing aspects of this case is that Coker then ran for Polk County district attorney after quitting the bench. She didn’t get the job.

This blows my mind. A judge sends a text message with instructions to a prosecutor on how to ask questions that would result in a conviction and all she had to do was quit?

She got off way too easy on this deal.


The Time magazine story goes through this case in significant detail.

What does the Commission on Judicial Conduct do about these cases? For that matter, why isn’t the Texas Bar Association pitching a serious fit to this day over Coker’s terrible judgment on the bench?

The Time article seeks to cast this case in some political context, noting that Republicans had taken over in a part of the state that once was reliably Democratic. Coker switched parties, from Democrat to Republican, and that apparently caused some ill feelings.

That has nothing to do with anything. Coker should have been punished with far more than just losing her bench seat.



Criminal appeals court needs public defender

The Texas Court of Criminal Appeals long has been considered a lost cause for those seeking to appeal criminal sentences. The CCA has a long history of denying sentences handed down by trial court juries. It’s seen as a prosecution-friendly court.

Why not elect someone with experience as a public defender?

The Texas Tribune has put together an excellent analysis on the upcoming Republican primary for the state’s highest criminal appellate court. Seven GOP candidates are running for three seats on the court. One of the incumbents, Tom Womack, is leaving the court. His Place 4 seat has drawn three challengers. One of them is Jani Jo Wood, a public defender from Harris County.

According to the Tribune, Wood “has billed herself as a constitutional conservative with the most experience fighting ‘government overreach’ on behalf of defendants.”

“Currently, no one on the court has been a public defender,” she told the Tribune. “One judge out of nine doesn’t make a decision, but one judge out of nine can provide an insight into cases that other judges wouldn’t have.”


I’ve long thought the CCA, along with Texas Supreme Court — the state’s top civil appellate court — needed more diversity. The Supreme Court is loaded with pro-business lawyers and none from the plaintiff’s bar. The CCA is top-heavy with prosecutors.

Why not add someone with a different perspective to lend at least a touch of balance to the court’s decision-making process?

I believe that is the kind of message Jani Jo Wood is trying to convey.

In a perfect world, we could elect judges with no particular axe to grind. How do we find that person? They come either from the defense bar or are prosecutors. Lawyers running for these courts have to walk a fine line and seek to sell themselves to voters as jurists who can examine every case on its merits without regard to any bias they might have for one side or the other.

However, the Court of Criminal Appeals — with its long and sometimes contentious history of denying criminal defendants’ appeals — could use at least a little fresh perspective in its ranks.

No ‘hails’ to this new chief justice, please

Nathan Hecht is going to become the next chief justice of the Texas Supreme Court.

I’m not surprised Gov. Rick Perry would pick Hecht to succeed Wallace Jefferson, who is resigning to return to private practice. Perry — who’s served as Texas governor longer than anyone in history — seems to like longevity, and Hecht is the longest-serving member of the state’s highest civil appeals court. He’s also among the court’s most conservative members, which of course fits Perry’s litmus test perfectly.


Hecht, though, isn’t a good pick for a couple of reasons. First of all, he’s had some run-ins with Texas’s ethics rules relating to alleged misuse of campaign funds and his reported acceptance of more than $150,000 in discounted legal fees. Still, Perry found it OK to praise Hecht’s integrity … blah, blah, blah.

Maybe more important, in my view, is that Hecht represents the courts’ radical shift to the right, which has occurred over many years.

There once was a time when the Supreme Court was seen as a plaintiff’s paradise, where folks could sue big corporations and then appeal it to the highest civil appellate court and get, say, a verdict overturned or modified in their favor. The pendulum has swung dramatically in the other direction, so much so now that the court is viewed as overly friendly to those big corporations who get sued on occasion.

Hecht represents the court’s radical change in attitude.

To be sure, conservatives in Texas and elsewhere love to criticize liberal judges for being “activist.” They ignore the absolute fact that conservative judges and courts can be every bit as activist as their more liberal colleagues.

The Texas Supreme Court’s radical shift from one level of activism to the other extreme doesn’t make it more fair or balanced or unbiased. It just shifts the unfairness, imbalance and bias to the other side.

That shift is what Nathan Hecht brings to his new job.