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Gov. Rick Perry’s out-front support not only may have boosted Paul Green’s bid to unseat Steven Wayne Smith on the Texas Supreme Court but also appears to have affected the outcome of a court of appeals race in the March 9 Republican primary. Bill Green, a Texas Court of Criminal Appeals staff attorney, defeated Ernest Garcia, a former judge on the 126th District Court and attorney with Linebarger Goggan Blair & Sampson in Austin, for the GOP nomination for Place 4 on the 3rd Court of Appeals. The GOP nominee will face Democratic incumbent Justice Jan Patterson in the November general election. Garcia says he believes the governor’s endorsement and active campaigning for Paul Green affected the 3rd Court primary race. “There were people in Travis County who knew me and who believed Paul Green was running against me,” Garcia says. Garcia says a number of people attending a Republican function held in Austin in early December 2003 asked him why Perry had endorsed his opponent. That same question was repeated over and over as he campaigned around the 3rd Court’s 24-county district, he says. “I actually felt like I had two opponents,” Garcia says. “I felt like I was running against Paul Green and Bill Green. “ Bill Green did not return three telephone calls seeking comment before presstime on March 11. Garcia says he believes automated phone calls Perry made on March 8 to encourage people to vote for Paul Green heightened the confusion. “People kept coming up to me and saying, “So the governor’s endorsing your opponent,’ ” Garcia says. Paul Green’s campaign paid for the phone calls, which were made to about 250,000 Republican primary voters statewide, says Aaron Strasser, Paul Green’s campaign manager. Strasser says that only a small percentage of the calls went to voters in the 3rd Court district. The Office of the Governor did not return a message seeking comment about the automated phone calls before presstime. However, Garcia says the percentages by which Paul Green and Bill Green won in their respective races are so close that “it’s just eerie.” According to unofficial election returns, Paul Green won 53.14 percent of the vote to defeat Smith for the Supreme Court seat, while Bill Green won 53.17 percent to defeat Garcia in the 3rd Court race. Paul Green’s defeat of Smith, who beat the governor’s handpicked candidate for the high court two years ago, is the result of “Perry’s revenge,” says Anthony Champagne, a University of Texas at Dallas political science professor who has studied Supreme Court races over the past two decades. “I cannot think of any other real explanation for what went on in this election other than the governor got his revenge,” Champagne says. Smith stunned political analysts in 2002 when he defeated Perry appointee Xavier Rodriguez in the GOP primary. In the fall of 2003, Green unveiled his plans to challenge Smith and said at that time that he had been assured of Perry’s “unqualified support” in the primary. [See "Smith Draws First Opponent for 2004 Race," Texas Lawyer, Sept. 22, 2003, page 1.] However, Perry formally endorsed Green in mid-February. Perry’s backing provided fund-raising opportunities to Paul Green that Smith says he didn’t have. Smith says he collected about $40,000 in contributions at a June 2003 fund-raiser in Dallas, but that fund-raising got tougher after Perry’s support of Green became public knowledge. According to campaign finance reports filed with the Texas Ethics Commission, Green had raised about $445,000 by March 1, compared to the approximately $135,000 Smith raised by the same time. Champagne says it’s true that Smith did not raise much money for this year’s race. “But I think that’s in large part due to the governor getting the word out that [Smith] is not the candidate to support,” he says. Kathy Walt, Perry’s press secretary, disputes Champagne’s characterization of the election result. “I think the voters looked at the qualifications of the candidates and elected the individual who was clearly the better qualified,” Walt says. “The governor would not have endorsed me if he didn’t think I was the right man for the job,” Paul Green says. Green, 52, has served on the San Antonio Court of Appeals since 1995 and says he has written more than 1,000 opinions. Before winning the 4th Court bench, Green was a partner in San Antonio’s Green, McReynolds & Green. Smith, 42, says he has written seven opinions since taking a seat on the Supreme Court in November 2002. He was in private practice in Austin from 1991 until he joined the high court and before that served as a staff attorney for the Texas Legislative Council. Green says the endorsements he received from Perry, U.S. Sen. John Cornyn, R-Texas, and former state Supreme Court Justice Craig Enoch “helped open doors” for him during the campaign. But Green says his victory is the result of a lot of hard work. “I have been all over the state talking to people and trying to get my message across,” Green says. His message, Green says, is that he follows the law and doesn’t write law from the bench. Smith � whom Cathie Adams, president of the Texas Eagle Forum; Tim Lambert, Republican national committeeman and president of the Texas Home School Coalition; U.S. Rep. Ron Paul, R-Clute, and some other leading social conservatives endorsed � says that Perry and Cornyn intervened earlier in this year’s campaign and put more effort into Green’s election bid than they did for Rodriguez. Despite his defeat, Smith has no plans to leave the court early. “I want to make a contribution during my last 10 months on the court,” Smith says. Cal Jillson, a political science professor at Southern Methodist University, says the Republican hierarchy wanted Smith off the high court because his election sent a bad message to the rising Hispanic electorate in Texas after Smith defeated Rodriguez. “The interpretation of that was that Republican voters were attracted by the white-bread name of Steve Smith and were not attracted to the Hispanic name of Xavier Rodriguez,” Jillson says. “And that was not good. They need the Hispanic vote. And they wanted to get rid of Smith because some of his past activities did not reflect well on their big-tent initiative. “ Smith is best known as the attorney who represented Cheryl Hopwood and three other students in Hopwood v. Texas, the suit that ended the use of racial preferences at Texas institutions of higher education from 1996 until 2003, when the U.S. Supreme Court, ruling in Grutter v. Bollinger embraced using race as a criterion in admissions. Doug Alexander, a partner in Alexander Dubose Jones & Townsend in Austin, says Smith has been mostly in the mainstream on the Supreme Court. “I think he surprised a lot of people who were anticipating that he was going to get on the court and take extreme positions, and he didn’t,” Alexander says. Jillson says Smith has done little to call negative attention to himself during his short tenure on the court. “But he had baggage that the Texas Republican voters wouldn’t let him forget,” Jillson adds, referring to Smith’s involvement in Hopwood. Smith used many of the same campaign tactics that he did in his 2002 campaign, making use of e-mail and a Web site devoted to criticizing his opponent and his opponent’s supporters. Those tactics may have turned some voters against Smith, says former Supreme Court Justice Deborah Hankinson, who defeated Smith in the 1998 Republican primary, Smith’s first race for a seat on the court. “It may well be that some of his efforts made people realize that they had a choice to make in this race,” says Hankinson, now a Dallas solo, who supported Green. “I don’t understand how people who launch those kinds of attacks can be viewed as fair judges,” Hankinson says. “I think that is an empty charge,” David Rogers, Smith’s campaign manager, says of Hankinson’s comments. If, for example, Hankinson thinks it’s “dirty campaigning” to point out differences in candidates’ educational backgrounds, Rogers says he thinks she’s wrong. Champagne says Smith made a questionable move when, in an e-mail, he touted the fact that he graduated with honors from the University of Texas School of Law, while Green graduated from a school ranked by U.S. News & World Report in the bottom tier of all law schools, referring to St. Mary’s University School of Law. Many Texas lawyers graduated from law schools less prestigious than UT, Champagne says. Paul Green does not face a Democratic opponent in the November election. Supreme Court Justice Scott Brister, a Perry appointee who ran unopposed in the primary, faces a general election challenge from Democrat David Van Os, owner of David Van Os & Associates in San Antonio. A Squeaker In other high court primary challenges, the power of incumbency proved to be too much for all challengers. And nowhere was that more evident than in Judge Lawrence “Larry” Meyers’ race for his third term on the Texas Court of Criminal Appeals. Unofficial vote totals show Meyers won 65 percent of the vote to defeat former Jasper County District Attorney Guy James Gray. “I got whopped,” says Gray, who gained notoriety for prosecuting and convicting three white men for dragging to death James Byrd Jr., a black man, in 1998. Gray says he lost because he’s a former Democrat who switched parties for the race and faced an incumbent who he says is “entrenched” in the Republican Party. Another factor, Gray says, is that he’s from Jasper, which is not a popular place in the wake of Byrd’s murder. “It’s a lot better that I thought I would do,” Meyers says of his lop-sided win. “I’m appreciative and glad to have it over with.” Meyers will not face a Democrat in the November election. Two other Republican incumbents on the CCA also won. Judge Cheryl Johnson defeated Dallas County Assistant District Attorney Patricia Noble, and Judge Mike Keasler defeated Boerne attorney Steven Porter. Fort Worth solo J.R. Molina, a Democrat, will challenge Keasler in November. The governor’s appointees to the intermediate courts of appeals scored victories in the Republican primary. On the 3rd Court, Justice Bob Pemberton defeated William C. “Bill” Davidson, a shareholder in Austin’s Minter, Joseph & Thornhill, and will square off against Democrat Diane Henson, owner of the Henson Law Firm, for the general election. Justice Felipe Reyna, a Perry appointee to the 10th Court, beat Waco solo Lynnan Locke Kendrick, and will face Democrat Boyd Mangrum, also a Waco solo, in November. Justice Eva Guzman, of Houston’s 14th Court, defeated Houston solo Lloyd Wayne Oliver and doesn’t face a Democratic opponent. But Judge Reece Rondon, Perry’s appointee to Houston’s 334th District Court, lost to Sharon McCally, a shareholder in Houston’s Storey, Moore & McCally, in the Republican primary. Unofficial returns show McCally won by about 300 votes. No Democrat entered the race. Rondon and McCally each did not return a phone call seeking comment before presstime. In the Democratic primary, veteran state Rep. Ron Wilson, a Houston solo, lost his bid for re-election to State Board of Education member Alma Allen, who faces no Republican opposition. Wilson, who has served in the Texas House of Representatives since 1977, says his support of a new minority district for the U.S. Congress caused his defeat. “Trial lawyers and the [Democratic] Party got together to oppose me because I created a new 9th Congressional District,” Wilson contends. “If I had to do it again, I’d do it,” he says, referring to the creation of the district. Al Green, a former Harris County justice of the peace and former president of the Houston Chapter of the NAACP, defeated U.S. Rep. Chris Bell, who is an attorney, in the Democratic primary for the 9th District. Green faces Republican Arletta Molina in November. But the tightest race had to be the campaign for district attorney of the 8th Judicial District in Northeast Texas, where Heath Hyde, a Dallas County assistant district attorney, and Martin Braddy, an assistant district attorney in the 8th Judicial District based in Sulphur Springs, vied for the Democratic nomination. Braddy defeated Hyde by a mere five votes out of 4,200 cast. No Republican is seeking the office. “I thought I probably could have got six if I campaigned more,” Braddy says. “That’s pretty tight. “ Hyde, a native of Sulphur Springs, says he’s filing the paperwork to request a recount. “I told him he’d be stupid not to,” Braddy says of the recount request. “But it sure feels good to be on this side of the vote. “ Hyde expects the vote will likely change after the recount � but in whose favor is anybody’s guess. “Let’s just say I know how Bush felt,” Hyde says while picking up his campaign yard signs in Hopkins County.

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