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State appeals courts taking on a Democratic look

November 11, 2018

Texas Democrats may have fallen short in their efforts to unseat U.S. Sen. Ted Cruz or the Republicans’ top statewide leaders, but they managed to flip four influential state appeals courts in Houston, Dallas and Austin, and now hold majorities on half of the 14 obscure-but-vital regional courts.

“When we saw our huge turnouts in Dallas and Travis counties, and unprecedented numbers in Houston and Harris County, we knew it would be momentous.” said Gilberto Hinojosa, chairman of the Texas Democratic Party and himself a former appellate court judge. “We were taking a lot of courts.”

Democrats swept all but one contested appeals court race last Tuesday, removing 19 incumbent Republicans. In the 1st and 14th courts of appeals, both of which cover Harris County, Democrats had been absent entirely. Now they have majorities on both benches.

“This is a very big deal,” said Dallas appellate lawyer David Coale. “In the 5th court (covering Dallas and five adjoining counties), we have eight new judges overnight. In Houston and Dallas, two of the most important cities to the American economy, the courts of appeal have changed character.”

On the 5th Court of Appeals, a Democrat had not been seated since 1992.

The state’s highest courts, the Supreme Court and the Court of Criminals Appeals, did, however, remain firmly in Republican control. Democrats had dominated the statewide benches until the mid-1990s.

By now the reasons for the massive Democratic turnout are familiar - U.S. Rep. Beto O’Rourke’s aggressive race against Cruz and opposition to Donald Trump’s presidency - but ultimately such tidal shifts among judges depend more on straight-ticket voting than innovative campaigns or judicial brilliance.

“This had nothing to do with Anglo or Hispanic, liberal or conservative,” said St. Mary’s University School of Law professor Wayne Scott. “This was all about party affiliation. We should have a separate ballot for judges and then only the most informed people would vote.”

Mark Curriden, a lawyer and editor of “The Texas Lawbook,” observed: “I think even the Democrats who won Tuesday would say they don’t think partisan elections are all that great, but the leadership of both parties have not shown much desire to change the system.”

Texas is one of about seven states that still elect most of its judges in partisan elections that allow judicial candidates to seek campaign contributions, often from lawyers and special interests who may have cases before those judges.

It’s a controversial practice - corrosive, say many critics - that seems to invite potential conflicts of interest, but is often supported by factions in both parties that believe voters, not a governor or state commission, should determine who sits in judgment of the big and small cases that impact society.

Across the state, most contested appellate court races won by Democrats saw victory margins of 4 to 6 percentage points. The closest appeared to be in the 13th Court of Appeals, based in Corpus Christi, where Democrat Rudy Delgado beat Jaime Tijerina by just over 3,000 votes out of 447,882 cast.

Some reversals were dramatic. Ken Molberg, a former Democratic Party chairman, came up 70,000 votes short when he ran for the 5th Court of Appeals in North Texas in 2014. This time, he was the victor by more than 80,000.

On the 4th Court of Appeals, based in San Antonio and covering 32 South Texas counties, Democrat Beth Watkins defeated incumbent Republican Marialyn Barnard by nearly 4 percentage points; Democratic incumbents Patricia Alvarez, Luz Chapa and Rebeca Martinez won with roughly 6-point margins and Democrat Liza Rodriguez won an open seat by 5 points.

As in the previous election cycle, the 4th Court of Appeals will remain the only state appellate court that is all female.

These benches are, in effect, the court of last resort for about 95 percent of the criminal and civil cases coming out of state district courts. They handle thousands of cases annually, while the state Supreme Court might only hear about 100 cases a year.

Many of the Courts of Appeals civil cases would seem mundane matters about money and about half of them involve family law.

“But if it’s your child-custody case, and the trial court made an error, it’s the most important thing in the world,” said David Coale. “If your small company has gone bankrupt because a bigger company won’t fulfill its contract, these courts may be the only way you get justice.”

Hinojosa served on the 14th Court of Appeals and also is a former state district judge. He and other legal observers agree that Democrats on the bench in Texas tend to side with district courts and their juries more than Republicans.

“On the criminal side, it’s mainly law and order, and you see less ideology,” Hinojosa said. “But in areas like product liability, deceptive trade, personal injury law, labor law, discrimination … Democrats are much more likely to hold corporations responsible for irresponsible behavior.”

Coale said another major area of contention at the state appeals level arises in cases involving parties bound by arbitration, a practice that legal studies indicate usually favor corporations over consumers and small business.

“I would say that in all of these new Democratic-controlled courts there will be increased scrutiny paid to private arbitration,” Coale said. “And you would expect them to be more deferential to trial judges.”

Former Republican State Supreme Court Justice Craig Enoch, now in private practice in Austin, suggested that the biggest change may be for the lawyers themselves whose work is evaluated by the appeals courts.

“It used to be that you might tailor some of your arguments based on how judges had ruled in the past,” Enoch said. “But now there are so many new faces, so many judges who we really know very little about.”

bselcraig@express-news.net

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