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A newcomer on the Texas Supreme Court and two veteran judges on the Court of Criminal Appeals face challenges in the March 7 Republican primary. Supreme Court Justice Don R. Willett, appointed to the high court in August 2005 by Gov. Rick Perry, will square off against Steve Smith, a former Supreme Court justice who knocked off another Perry appointee in 2002. There’s a rematch for the top job on the Court of Criminal Appeals. Judge Tom Price is challenging Presiding Judge Sharon Keller; the two last faced off in 2000, when Keller was elected to head the CCA. Judge Charles Holcomb, who would be forced to retire from the bench in October 2008 when he turns 75, drew two GOP primary opponents for his Place 8 seat on the CCA. State Rep. Terry Keel, R-Austin, and Dallas County Criminal Court No. 3 Judge Robert Francis filed papers with the Republican Party to challenge Holcomb. With regard to the Willett-Smith match-up, two Supreme Court observers say Smith faces a different kind of race this year than he did in 2002, when he defeated then-Justice Xavier Rodriguez, a Perry appointee. Smith won the Republican primary despite spending only $9,500 compared to the $558,000 that Rodriguez spent on his campaign. [ See "Name of the Game,"Texas Lawyer , March 18, 2002, page 1.] Smith went on to defeat Democrat Margaret Mirabel, then a justice on Houston’s 1st Court of Appeals, in the 2002 general election. Rodriguez subsequently became a judge on the U.S. District Court for the Western District in San Antonio. However, Smith’s stay on the state Supreme Court lasted only 25 months. With Perry’s backing, former 4th Court of Appeals Justice Paul Green defeated Smith in the 2004 GOP primary. Doug Alexander, an appellate attorney and partner in Alexander Dubose Jones & Townsend in Austin, believes the 2002 upset was due primarily to the candidates’ names. “I don’t think Rodriguez was popped out because anybody had concerns about his work on the court,” Alexander says. “I think it all came down to the name game.” Smith has simplified his name on the 2006 ballot. In 2002 and 2004, he ran as Steven Wayne Smith; he is running as Steve Smith this year, as he did in 1998, when he lost his bid to unseat then-Texas Supreme Court Justice Deborah Hankinson, now the principal in Law Offices of Deborah Hankinson in Dallas. Smith says he used his full name on the ballot in two of his previous races because he thought it sounded more judicial but decided to run under a simpler name this time. Charles “Rocky” Rhodes, who served as a briefing attorney and a staff attorney for Raul Gonzalez and Greg Abbott when they were Supreme Court justices in the 1990s, says one of the things that Smith must do to prevail in the primary this year is get out his message. “That’s going to require a lot more money,” says Rhodes, an associate professor at South Texas College of Law. Rhodes says Smith will probably be at a disadvantage in fundraising. Willett, as a Perry appointee, is likely to receive more support from Republican contributors, he says. Smith doesn’t disagree. “His advantage over me is fundraising,” he says of Willett. “He’s the incumbent. Beyond that, he’s the governor’s appointee.” Noting that he plans to run a modest campaign that will be financed largely out of his own pocket, Smith says, “I’m looking at spending $50,000.” Willett’s response when asked about his fundraising goal: “Enough to win and plenty more. Seven figures � before the decimal point.” Smith believes the issue in the race is experience, which he says Willett lacks. Willett not only had no judicial experience before joining the court, but he had never argued an appeal or tried a case, Smith says. “You need people who can perform the work,” Smith says. “The court is behind.” Willett responds, “Bottom line: I’m running on my judicial experience and the full array of my wide-ranging legal background.” A former labor and employment associate with Haynes and Boone in Austin, Willett joined the staff of then-Gov. George W. Bush in 1996. As president, Bush appointed Willett to be the U.S. deputy assistant attorney general in the Office of Legal Policy in 2002. In that position, Willett helped interview and vet candidates for appointments to federal benches. Willett also served as special assistant to the president and director of law and policy for the White House Office of Faith-Based and Community Initiatives. Prior to his appointment to the Supreme Court, Willett served as the chief legal counsel to Texas Attorney General Greg Abbott, who applauded his appointment. Willett says that, during his time at the Texas Office of the Attorney General, he served on the trial team for the congressional redistricting case and helped draft the briefs to the U.S. Supreme Court for cases involving challenges to the Ten Commandments monument at the Texas Capitol and the Pledge of Allegiance. In 1992, Smith filed Hopwood v. Texas, in which Cheryl Hopwood and three other white applicants at the University of Texas School of Law alleged they were denied admission because affirmative-action policies gave preferences to less-qualified minority applicants. Smith won the suit at trial and on appeal, and the case eliminated consideration of race in admissions to Texas institutions of higher education for a seven-year period. But the U.S. Supreme Court, in its 2003 ruling in Grutter v. Bollinger, embraced race as a criterion for admissions. During his term on the court, Smith authored 15 published opinions. Among those was Smith’s 2004 majority opinion in Texas Department of Protective and Regulatory Services v. Mega Child Care Inc., in which the court held that the Texas Administrative Procedure Act provides an independent right to judicial review of contested-case decisions, when the agency’s enabling statute neither specifically authorizes nor prohibits such a review. Since leaving the Supreme Court, Smith has worked at reorganizing the Texas Legal Foundation, a nonprofit conservative public interest law firm that he founded in 1994. He serves as the foundation’s president and general counsel and also is a shareholder in Smith & Rogers in Austin. Smith says he’s counting on newspaper articles and editorials to differentiate between his qualifications and those of Willett. Willett believes he has the qualifications for the job. “Those who have observed my legal skills from up close, including the current attorney general of Texas, himself a former member of my court, agree that my varied legal skill set makes me a strong addition to the court,” he says. The winner of the Willett-Smith primary race will face Democrat William E. “Bill” Moody, presiding judge of El Paso’s 34th District Court, and Libertarian Wade Wilson, an Austin family-law solo, in the November general election. Moody says he picked the Place 2 race for the Supreme Court, because he thought the issue of experience was crucial. “I think I have a real wealth of experience,” Moody says, citing his almost 20 years on the state district court bench and 11 years as an assistant district attorney in El Paso. Wilson says the Libertarian Party asked him to run for the Place 2 seat. “I don’t have any criticism of any candidate at this point,” he says. “I’m simply offering myself as a candidate.” [See "Candidates Line Up for AG, Judicial Races," page 12.] Try, Try Again Keller, the CCA’s presiding judge, also faces a different kind of race than she did in 2000, when she defeated Price. Six years ago, Keller and Price were among four Republican candidates vying for the presiding judge’s job. Connie Kelley, an Austin criminal-defense lawyer, and J. Gary Trichter, a Houston attorney, also ran. Price led the foursome in the March primary, drawing 38.02 percent of the vote to 33.6 percent for Keller, who came in second, according to the official vote count on the Texas Secretary of State’s Web site. Keller won the nomination a month later in the runoff. In assessing her chances this year, Keller says, “There’s no guarantee that I’m going to win.” If Keller loses, she will be off the court on which she has served since 1994. She previously served as a prosecutor in the appellate section of the Dallas County District Attorney’s Office. Price, who has served on the CCA since 1996, will not leave the court if he loses to Keller, because his term is not up until 2008. He served on Dallas County Criminal Court No. 5 from 1974 until 1986, when he was elected to the 282nd District Court. A spokeswoman for Price says he was in Pasadena, Calif., for the Rose Bowl last week. He did not return two telephone calls seeking comment before presstime on Jan. 5. The winner of the Keller-Price match will face Democrat J.R. Molina, a Fort Worth solo, in the general election. Molina, who is certified in criminal law by the Texas Board of Legal Specialization, did not return a telephone calling seeking comment. With regard to the race for the Place 8 spot on the CCA, the incumbent’s age could become an issue. Under Texas Constitution Article 5, 1-a, judges must retire at age 75. Holcomb says he decided to run for re-election, even though he will have to retire in 2008, because he finds the job interesting and challenging. “I’m in good health,” Holcomb says. “In some ways, I feel better than I did when I was 60.” Keel, who did not return a telephone call seeking comment, is serving his fifth term in the Texas House and is a former Travis County sheriff and prosecutor. He is a founding partner of Keel & Nassour in Austin. In a Dec. 27, 2005, news release, Keel said that he can bring common sense and a solid practical background to the CCA. “I am the only candidate for this court ever who has served as a prosecutor, a defense attorney, a lawyer who has appeared before the court itself, a law enforcement official and a lawmaker with extensive experience in the enactment of criminal law,” Keel said in the release. “I think he missed one thing that’s important,” Francis says of Keel. “He’s got no judicial experience. I’ve got almost 10 years of experience.” On the criminal court bench since 1997, Francis was a Dallas County assistant district attorney from 1985 through 1990. He was in private practice from 1991 through 1996, practicing chiefly in criminal law. Francis also says that the fact Holcomb cannot serve the full six-year term is an issue in the race. “I think it’s something voters are concerned about,” he says. The winner of the Holcomb-Francis-Keel race will face Libertarian Dave Howard in the general election.
Candidates Line Up for AG, Judicial Races By the time the filing deadline passed on Jan. 2, a host of candidates � Republicans, Democrats and Libertarians � had filed with their respective parties to run for the job of the state’s top lawyer or for contested appellate benches. Following are their names, party affiliation, job title and city. Texas Attorney General * David Van Os, Democrat, president of David Van Os & Associates, San Antonio * Greg Abbott, Republican, incumbent * Jon Roland, Libertarian Texas Supreme Court Chief Justice * Wallace Jefferson, Republican, incumbent * Tom Oxford, Libertarian, partner in Waldman & Smallwood, Beaumont Place 2 * William E. “Bill” Moody, Democrat, judge of the 34th District Court, El Paso * Steve Smith, Republican, partner in Smith & Rogers, Austin * Don R. Willett, Republican, incumbent * Wade Wilson, Libertarian, Austin solo Place 4 * David Medina, Republican, incumbent * Jerry Adkins, Libertarian, Dallas solo Place 6 * Nathan Hecht, Republican, incumbent * Todd Phillippi, Libertarian, Midlothian solo Place 8 * Phil Johnson, Republican, incumbent * Jay Cookingham, Libertarian, Spring solo Court of Criminal Appeals Presiding Judge * J.R. Molina, Democrat, Fort Worth solo * Sharon Keller, Republican, incumbent * Tom Price, Republican, Court of Criminal Appeals judge Place 7 * Barbara Hervey, Republican, incumbent * Quanah Parker, Libertarian, Abilene solo Place 8 * Robert Francis, Republican, Dallas County Criminal Court No. 3 judge * Charles Holcomb, Republican, incumbent * Terry Keel, Republican, state representative and partner in Keel & Nassour, Austin * Dave Howard, Libertarian 1st Court of Appeals Place 9 * Jim Sharp, Democrat, Houston solo * Elsa Alcala, Republican, incumbent 3rd Court of Appeals Place 2 * Jim Coronado, Democrat, Travis County magistrate judge * Alan Waldrop, Republican, incumbent Place 3 * Diane Henson, Democrat. Austin solo * Bill Davidson, Republican, director of Minter, Joseph & Thornhill, Austin * William Paul “Bill” Green, Republican, staff attorney for Court of Criminal Appeals Judge Charles Holcomb * Lee Parsley, Republican, Austin solo * Will Wilson, Republican, former judge of the 250th District Court and a partner in Wilson & Varner, Austin Place 5 * Mina A. Brees, Democrat, shareholder in Munsch Hardt Kopf & Harr, Austin * David Puryear, Republican, incumbent Place 6 * Bree Buchanan, Democrat, clinical professor and director of the Children’s Rights Clinic at the University of Texas School of Law, Austin * Bob Pemberton, Republican, incumbent 4th Court of Appeals Place 3 * Richard Garcia Jr., Democrat, San Antonio solo * Rebecca Simmons, Republican, incumbent Place 4 * Dan Pozza, Democrat, San Antonio solo * Steve Hilbig, Republican, San Antonio solo * Grace Kunde, Republican, Seguin solo Place 5 * Lauro A. Bustamante, Democrat, San Antonio solo * Karen Angelini, Republican, incumbent Place 7 * Eddie De La Garza, Democrat, San Antonio solo * Phylis Speedlin, Republican, incumbent 6th Court of Appeals Place 2 * Ben Franks, Democrat, Texarkana solo * M.C. Bruder, Republican, Dallas solo * Andrew G. Khoury, Republican, Longview solo * Bailey C. Moseley, Republican, Marshall solo 7th Court of Appeals Place 3 * Pat Pirtle, Republican, judge of the 251st District Court in Potter and Randall counties, Amarillo * Walt Weaver, Republican, partner in Blackburn, Herrmann & Weaver, Amarillo 13th Court of Appeals Place 2 * Federico “Fred” Hinojosa, Democrat, incumbent * Rose Vela, Republican, judge of the 148th District Court in Nueces County Place 3 * Esther Cortez, Democrat, McAllen solo * Nelda Vidaurri Rodriguez, Democrat, incumbent Place 5 * Gina M. Benavides, Democrat, associate with Gonzalez & Associates Law Firm, McAllen * Errlinda Castillo, Democrat, incumbent 14th Court of Appeals * Place 6Leora T. Kahn, Democrat, Houston solo * Richard Edelman, Republican, incumbent

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