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With Texas’ highest courts already under Republican control, the GOP picked up four more seats on the mid-level appellate courts on Nov. 7, including a slot on the 9th Court of Appeals in the Democratic stronghold of Beaumont. Beginning in January, Republicans will hold 45 of the seats on the 14 appeals courts, and Democrats will hold 25. The courts handle appeals of civil and criminal cases. In other high-profile races, Republican Chuck Rosenthal won the race to succeed John B. Holmes as district attorney in Harris County. Rosenthal, a career prosecutor in the DA’s office, defeated Democrat James S. Dougherty with 54 percent of the vote. The increased Republican presence on the appellate courts comes as Texans voted Republican in the presidential election, which isn’t a surprise since Gov. George W. Bush faced off with Vice President Al Gore. What’s at issue, however, is whether judicial decisions will be impacted by the fact that Republicans will hold nearly two of every three seats on the state’s mid-level appellate courts. “In certain politically charged cases, it will have an effect,” says James Paulsen, a professor at South Texas College of Law. “Not because of the party affiliation, but because of the recent unfortunate tendency of the party and people associated with the party to put pressure on judges, and I am particularly thinking of the sodomy case, although that’s not the only case.” In the sodomy suit, some Republicans on the 14th Court of Appeals panel in Houston have come under attack by the Republican Party after they ruled in June that the state’s sodomy law is unconstitutional. But Paulsen says there may be a silver lining in the Republican cloud on the appellate courts — he says it could lead to better-qualified candidates. “When you look back at history when Texas was a one-party Democratic state, the party itself exercised a good bit of control over the qualifications of people endorsed for the Democratic primary. And you might hope that as the Republicans increasingly become the party that selects the state’s judiciary, that the Republican Party will exercise its own internal discipline to ensure the people running for the office are highly qualified.” RIDING COATTAILS? The turnover affects mid-level appellate courts in Houston, Beaumont and Austin. David Gaultney, a partner in Mehaffy & Weber in Beaumont, defeated Democrat Gerald E. Bourque, a solo in Spring, Texas, to become the first Republican elected to the 9th Court. “It took a lot of shoe leather, I can tell you that,” Gaultney says of his 53.7 percent to 46.3 percent win over Bourque for the post being given up by Justice Earl Stover. Some Democrats believe they were bushwhacked in the elections that drew a huge voter turnout in support of Bush’s presidential bid. The secretary of state’s office reports that total turnout exceeded 12.3 million. Justice Woodie Jones, a Democrat on the 3rd Court of Appeals in Austin, says many people who wouldn’t have voted otherwise came out to vote for Bush. “That’s the definition of ‘coattails,’ ” Jones notes. Others also subscribe to the coattails theory. “George Bush, I’m sure, brought a lot of the Republican judges along with him,” says Charles Bubany, the George H. Mahon professor of law at Texas Tech University School of Law. “There were a lot of short-term factors here with the special circumstances with the state’s popular governor running for president and with virtually nothing else contested in the state,” says Richard Murray, director of the Center for Public Policy at the University of Houston. “That has filtered all the way down the ballot to the judiciary.” Although Republicans are taking increasing control of Texas’ judiciary — all the state district judges in Houston, for instance, are Republican — Murray predicts a shift of that trend over the next decade in urban areas. Murray says Anglos, who tend to vote Republican in Texas, are moving out of the big cities into suburbs, and that shift will give Democratic voters more say in the election of district judges in places like Dallas, San Antonio and Houston. That change won’t have as much impact on the make-up of the appellate courts, however, because those judges are elected from broader districts, Murray says. In Austin, Republican David Puryear, a former Travis County court-at-law judge who works in the special crimes division at the Office of Attorney General, won 51.7 percent of the vote to 48.3 percent for Jones, who has served 12 years on the court. Puryear attributes his victory in 20 of the 24 counties in the district — he lost in Travis County, where Democrats generally run well — to the desire by residents in the outlying counties for a conservative-oriented court. He says his intent is “to add a conservative voice to the court,” which has one Republican member. The 1st Court of Appeals in Houston also took a turn to the Republican side, with the election of two new members. Incumbent Democrat Eric Andell was defeated in his re-election bid by Republican prosecutor Terry Jennings of Kingwood, and Scott Brister, judge of the 234th district in Houston, defeated Democrat Mary C. Thompson in an election to succeed retiring Democrat Michol O’Conner. Justice Margaret Mirabal, who is up for re-election in 2002, is the only remaining Democrat on the court. Like Jones, who won Travis County but not his appellate district, Andell won Harris County, but lost the election by falling behind Jennings in outlying counties. Andell, the only Democratic judge seeking re-election on the ballot in Harris County, says he takes some pride in carrying Harris County, but he says he knew it would be a tough battle to win heavily Republican counties such as Brazoria, Fort Bend and Brazos. Andell was defeated despite spending about $600,000, considerably more than the $50,000 spent by Jennings. The lame-duck judge suggests the outcome might have been different if there had been some other incumbent Democrats on the ballot. “I had no air cover and no ground cover. I just had to run my own campaign,” he says. But Jennings gives less weight to the Bush factor — he says voters saw a difference between his views and Andell’s. “Voters in this district want conservative, strict constructionist judges. When they see a Democrat in this district, especially in a district that has very few Democrats left, they see a liberal activist judge,” he says. ENDORSEMENTS MADE Bill Hammond, president of the Texas Association of Business and Chambers of Commerce, says the group endorsed the four Republicans who won seats held by Democrats on the appeals courts. The association sent out postcards in support of the candidates and joined the Texas Medical Association to do newspaper advertising for Gaultney, he says. Hammond says the TABCC backs candidates who the members feel would be fair in interpreting the law; he also says that a candidate’s party affiliation isn’t the most important factor. But he says, “Republicans are less likely to creatively interpret the law. They’re going to interpret the law as written.” But Jones says he believes the partisan label is “virtually irrelevant” in the mid-level courts. “I think it is highly unfortunate that we chose our judges on a partisan ballot… . I don’t think the partisan label has anything to do with how we do our jobs,” he says. Doug Alexander, an appellate specialist at Scott Douglass & McConnico in Austin, says he finds it “distressing” that quality judges like Jones get bumped off courts because of party sweeps. Jones consistently rated at the top of the Travis County Bar polls, says Alexander, adding that it may be time to consider an alternative way of selecting judges. “My bottom-line goal is good judges on the court,” he says. “I don’t want to stack it one way or the other.” Tracy Walters McCormack, a University of Texas School of Law lecturer, is doubtful that having more Republicans on the appeals courts will change how those courts view things. Whether a court is made up primarily of plaintiff lawyers or defense lawyers is a better indication of how it might rule, she says. McCormack, who teaches Texas civil procedure, says the courts of appeals are there to apply the law as it exists. “They’re not there to change the law or go out on a limb. That’s the Supreme Court’s job,” she adds. “I do think the business lobbies are over-estimating the powers that any individual judge on a court of appeals has for influencing the policies of this state,” McCormack says. “However, I would add that you change the complexion of a court one judge at a time.” Republicans maintained their grip on the Texas Supreme Court and the Court of Criminal Appeals in the elections. In the most publicized of the statewide judicial contests, CCA Judge Sharon Keller, a Republican, easily defeated Waco Court of Appeals Justice Bill Vance, a Democrat, to become the presiding judge of the state’s top criminal court — even though Vance had won endorsements from major newspapers across the state. Keller, who will replace Mike McCormick, says she doesn’t expect dramatic changes in the court when she assumes the administrative responsibilities. In the Place 1 race, Republican Charles Holcomb, a former justice on the 12th Court of Appeals in Tyler, defeated Libertarian Rife Scott Kimler, a criminal-defense lawyer from Beaumont, for the seat that Steve Mansfield is giving up. Republican Barbara Parker Hervey, a San Antonio prosecutor, defeated Democrat William Barr, a Dallas criminal-defense lawyer, for Keller’s Place 2 seat. On the Supreme Court, Republican Justice Nathan Hecht defeated Libertarian Mike Jacobellis and Green Party candidate Ben Levy for Place 1. Republican Justice Priscilla Owen defeated Libertarian Joe Alfred Izen Jr. in Place 2 and Republican Justice Al Gonzales beat Libertarian Lance Smith in Place 3. STATE DISTRICT COURTS While the polarization of the Democratic and Republican parties in specific regions of Texas — especially Dallas — made most judicial races as predictable as the sun rising in the East, a new factor may be tipping the balance in the general election. Female candidates, regardless of their party affiliation, made strong runs for the bench across Texas. In Travis County, Judge Ernest Garcia, a Republican who was appointed to the bench by Bush in 1999, lost his 126th District Court seat to Democrat Darlene Byrne in a close race. In Dallas, where Democrats have all but abandoned hope of taking a bench from the all-Republican judiciary, the only showdown for a trial court position was between popular Republican incumbent Bill Rhea and Mary Ann Huey. Most experts thought Huey, a sole practitioner, didn’t have a prayer of beating Rhea. Yet, she came within half a percentage point of toppling the incumbent — a shockingly close race. “From talking to people, some of these … women have said, ‘I’ve raised my daughters to vote for the woman first and the Republican second,’ ” Huey says. “ It’s just an incredible change. [Being female] was a negative when I was younger. And now it’s a positive.” Rhea doesn’t know why his race was so close, but he’s thankful for the end result. “I consider this a gift from the pure hand of God,” Rhea says. “He gave me a measure of humility, which I continually need.” True to its two-party reputation, San Antonio has repeatedly voted Democrats and Republicans onto the bench. Last Tuesday, voters solidified that reputation and were particularly kind to incumbents. Nearly every incumbent judge on the ballot, regardless of their party affiliation, was re-elected. “I would say the voters are giving the races to incumbents unless they have demonstrated a reason to be removed,” says Wayne Scott, a professor at St. Mary’s University School of Law. “And that is good.” Bush was allowed to appoint Republican judges to five new trial benches in San Antonio — all created during the 1999 session of the Texas Legislature. Only one of those appointees — Victor Negron, who served as judge of the 407th District Court — was defeated by a 7 percent margin. Democrat Karen Pozza, a sole practitioner, won that bench. In other San Antonio trial court races, Bush appointee Juanita A. Vasquez-Gardner defeated Democrat Demetrio Duarte Jr. by a 4 percent margin to retain the 388th District Court bench, while Bush appointee Phylis J. Speedlin fended off Democrat Milton Fagin by an 8 percent margin for the 408th District Court bench. Two of the Bush appointees didn’t even draw an opponent; those appointees were Laura Parker of the 386th District Court, and Bert Richardson of the 379th District Court. Maybe San Antonio Democrats should rethink the strategy of conceding benches out of fear of the Republican coattails at the top of the ticket, says Tom Rickhoff, a Republican justice on San Antonio’s 4th Court of Appeals. “Women did well and Hispanics did well and Hispanics who are women did well,” Rickhoff says. “For whatever reason, it’s a major teaching point.” The lesson may be that voters want good judges regardless of the party. “The judiciary in Bexar County is not particularly politicized by the voter base,” says Luther “Luke” Soules, a partner in San Antonio’s Soules & Wallace. “The people want people that judge [regardless of politics] and they support candidates that will do that.” One of the most interesting judicial races in far West Texas was that of 1999 Bush appointee Kathleen Cardone, who was challenged by Democrat Patricia Macias for El Paso’s 388th District Court. Even though El Paso is strongly Democratic, lawyers had hoped voters would keep Cardone, a well-liked judge who was previously appointed by Bush to a civil bench in 1995. She was subsequently defeated in the 1996 general election by less than a 1 percent margin. Despite local bar support, Cardone lost to Macias, an El Paso associate judge. Macias prevailed by an 18 percent margin. Travis County District Attorney Ronnie Earle, a Democrat, held on to his seat by defeating Republican Shane Phelps for the second time in four years. The victory gave Earle a seventh term in the DA’s office.

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