Jim Sharp wasn’t feeling too sharp the morning of Nov. 5. He’d been up all night watching election returns — results that eventually showed he had become the first Democrat elected to Houston’s 1st Court of Appeals in more than a decade.
Sharp’s win means something, several political observers say: Intermediate appellate courts in large urban counties — especially in Dallas and Houston — are no longer seen as the completely safe seats for Republicans they once were.
Sharp, a Houston solo, was the only Democrat to break through and win any of the six seats up for grabs on Houston’s 1st and 14th Courts of Appeals. Like most of the Democrats running for the intermediate appellate courts, Sharp hoped the surge in Democratic voters in Harris County would propel him onto the bench and offset votes in the other nine traditionally Republican counties in the 1st and 14th Court’s jurisdiction. But that plan worked out only for Sharp, who won the race by less than a 1 percent margin — about 18,000 votes.
Sharp admits he had a few advantages over his fellow Democratic candidates. He ran for an open seat, while others challenged incumbents. And it was his third shot at a 1st Court bench, so some voters knew his name. Still, the win comes as a surprise.
“I’m rather shocked,” Sharp says. “We had six of us running . . . all just tremendously qualified lawyers that would make great appellate court judges. But it’s just sad. I’m going to be lonely on that court — not that there aren’t some great justices there.”
Ed Hubbard, of counsel at Houston’s Coats Rose Yale Ryman & Lee, the Republican who lost to Sharp, did not return a telephone call seeking comment before presstime on Nov. 6.
Republicans say while it’s tough for them to carry Harris County now, the other nine counties that comprise the 1st and 14th Courts of Appeals’ jurisdiction typically vote with the GOP, making up for the loss and allowing them to hold on to the seats.
“The Houston appellate races were close, because Harris County makes up about 80 percent of the population of our 10-county district, and it went largely Democratic,” says 14th Court Justice Jeff Brown, a Republican who won re-election. “All of the incumbent appellate judges lost narrowly in Harris County, but won in every one of our other nine counties.
“Still, because Harris County is so large, that amounted to districtwide margins of less than 3.5 percent for each of us,” Brown adds. “We won by fairly wide margins in all the other nine counties except Fort Bend and Waller, each of which we won about as narrowly as we lost Harris.”
Republicans on the Houston appellate courts will likely continue to see contested general elections in the future.
“Certainly, I think you’re going to see Democratic challengers. We’ll continue to see that,” says Warren Harris, an appellate partner in Houston’s Bracewell & Guiliani.
In the three races for seats on Dallas’ 5th Court of Appeals, two Republican incumbents and one GOP candidate won their races, defeating Democratic challengers — some by narrow margins.
And the closing gaps mean Republicans on the 5th Court will likely continue to see challenges, says David Hanschen, a Democrat who is judge of the 254th District Court in Dallas. Hanschen took a shot at Dallas’ 5th Court of Appeals, challenging Republican incumbent Justice David Bridges. Hanschen lost by less than three percentage points — 42,000 votes — a deficit that was less than half that posted by David Weiner, a Dallas lawyer and Democrat who sought a seat on the 5th Court in 2004.
“With that sort of curve and progress, I think there will continue to be Democrats stepping forward,” says Hanschen of the 5th Court, which includes five other heavily Republican suburban and rural counties. “From four years ago, to move from a 100,000 loss to a 40,000 loss — that’s a lot of progress.”
“Admittedly, one of the reasons we’ve done so well in Dallas is the vast number of people [Republicans] that have moved from Dallas to the bedroom counties.”
Bridges did not return a telephone call seeking comment.
The races for Houston appellate courts produced close calls for Republican incumbents.
Democrat Bert Moser, a Houston solo who challenged Brown for his seat on the 14th Court, lost by a 3 percent margin.
Moser says he was counting on a huge turnout among Democratic voters and a modest showing by Republican voters in Harris County to pull off a win. The Republican vote was what he expected, and the Democratic vote was big — but not big enough, he says.
“This was the best chance we’ve had in a long time,” Moser says. “The turnout was not there. If we had gotten the projected turnout of 1.3 million [in Harris County] we would have won. But I have no explanation for that.”
Moser says he won’t make another appellate court run and doesn’t know if other Democrats can win seats on the Houston appellate courts. “It’s too early to see if it’s a Democratic trend in Texas or a one-time phenomenon given the excitement at the top of the ticket.”
Justice Bill Boyce of the 14th Court, a Republican, held on to his seat by a 1 percent margin, barely holding off Democrat Mary Markantonis, a lawyer with Houston’s Pappas & Suchma.
Boyce lost in Harris County but won the remaining counties in the 14th Court’s jurisdiction, which include Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Waller and Washington counties.
“Early voting in Harris County produced a margin for the challengers, and I had to overcome that with votes from Election Day and votes from the other nine counties,” he says.
Markantonis did not return a telephone call seeking comment.
Republican Justice Laura Carter Higley of the 1st Court kept her seat by a 2 percent margin, defeating Houston solo Leslie Taylor.
Taylor believes she had to take 53 percent of the vote in Harris County to win, and that didn’t happen.
“My observation over the last 14 years is that the appellate court races are won or lost with the straight party vote,” Taylor says. “And the reality is you win turnout, or you don’t. And there wasn’t enough.”
Taylor is unsure if she’ll run for the court again.
“It’s like asking a woman if she’ll have another child the day after her first is born — with a C-section,” Taylor says.
Higley did not return a telephone call seeking comment.
Democrat Joe Beverly, a partner in Houston’s Dow Golub Berg & Beverly, came close to beating 1st Court of Appeals Justice Adele Hedges, a Republican — another race decided by less than 1 percent of the vote.
Beverly thinks the races for the Houston courts of appeals are winnable for a Democrat but not in the next election cycle, in which Texas chooses its governor and turnout is not as heavy.
Hedges did not return a telephone call seeking comment.
Republican Justice Kem Thompson Frost of the 14th Court beat Houston solo Martin Siegel by less than 1 percent of the vote.
“It was so close. My kingdom for 11,000 more votes. Where can I get them?” Siegel says. “Overall, it’s encouraging [for Democrats]. I think this was a special and sort of unique election in many ways. But what it means for the future, I’m not enough of a political expert to tell what’s going to happen.”
Frost says she’s not sure why the margin was so close.
Mary Murphy, a Republican who’s judge of the 14th District Court, won an open seat on the 5th Court of Appeals by a 7 percent margin, defeating municipal Judge Don Chae. Hers was the biggest victory of the three races for the 5th Court, which she attributes to keeping partisan politics out of her campaign and meeting as many people as possible.
“I had a lot of bipartisan support,” Murphy says. “I went to as many events as I could and said, ‘The courthouse is the one place that politics shouldn’t matter.’ I’ve also been working all six counties as hard as I can for the last year and half.”
Chae did not return a telephone call seeking comment.
Fifth Court Justice Kerry Fitzgerald, a Republican, held on to his seat by a 5 percent margin, defeating Tina Yoo, a partner in Dallas’ Choe Holen Yoo & Burchfiel. Neither Fitzgerald nor Yoo returned telephone calls seeking comment.
Republican Ken Law, the beleaguered chief justice of the 3rd Court of Appeals, lost his seat to Democrat Woodie Jones, a former justice on the Austin appellate court.
Jones, a partner in Alexander Dubose Jones & Townsend in Austin, won by a 5 percent margin. The heaviest support for Jones came in Travis County, the largest of the 24 counties in the 3rd Court’s district, where he outpolled Law by an almost 2-to-1 margin.
Austin solo D. Todd Smith, a contributor to Jones’ campaign, says Jones received strong support from Travis County lawyers, among whom Jones is well known. Smith, author of the Texas Appellate Law Blog, says Jones sent several e-mails to the lawyers who supported him to ask them to spread the word to vote for him.
“It probably didn’t hurt to have a good number of lawyers in Travis County who supported his campaign contacting their friends to say, ‘Hey, vote for Woodie Jones.’ I thought that was a smart tactic on his part,” Smith says.
The vote count shows Law outpolled Jones in a majority of the counties outside Travis County. Besides Travis County, only Bastrop, Caldwell and Hays counties supported Jones.
Law, a former clerk on the 3rd Court, won election as the chief justice in 2002, when he defeated then-3rd Court Justice Lee Yeakel, now a judge on the U.S. District Court for the Western District of Texas in Austin, in the Republican primary and faced no Democratic challenger.
But Law has found the road to re-election bumpy this year.
In September, Texans for Public Justice, a watchdog group, filed complaints with Travis County Attorney David Escamilla, alleging that Law violated Texas Election Code §253.031(a) by accepting a $1,000 contribution from an out-of-state political action committee without providing the required information on the PAC in disclosure forms. TPJ also filed a similar complaint with the Texas Ethics Commission. Escamilla is in the process of looking for a special prosecutor, and the Texas Ethics Commission is bound by confidentiality statutes not to comment on any complaint.
Michael S. Hull, a partner in Hull Henricks & MacRae, represents Law in the matter and has said in earlier interviews that Law intends to comply with the law. However, the TPJ complaints provided fodder for Jones’ television advertising.
Law also made news in October, when 3rd Court Justice Jan Patterson, a Democrat on the 3rd Court, filed a petition for a writ of mandamus at the Texas Supreme Court. Patterson alleges in her Oct. 10 petition that Law instructed the 3rd Court’s clerk not to file her dissenting opinion to the 3rd Court’s refusal to recuse Justice Alan Waldrop, a Republican, from cases involving John Colyandro and James Ellis, political associates of former U.S. Rep. Tom DeLay. [ See "3rd Court's Dispute Over Dissent Now at Texas Supreme Court," Texas Lawyer , Oct. 20, 2008, page 4.]
Law alleges in his Oct. 13 reply to Patterson’s petition that he was enforcing the 3rd Court’s standard policy requiring all justices to circulate draft opinions to other justices on the court before the court releases the opinions.
In his TV ads, Jones also blasted Law for the 3rd Court’s backlog of cases, which Jones says is the largest among the intermediate appellate courts in the state. Statistics compiled by the State Office of Court Administration show that 12.8 percent of the 3rd Court’s cases pending as of Aug. 31 had been at the court for more than two years. The OCA statistics show that Corpus Christi’s 13th Court of Appeals, the intermediate appellate court with the second highest percentage of cases pending that long, had 2.9 percent of its cases pending for more than two years at the end of August.
Jones says his first priority when he takes his seat on the 3rd Court in January will be to address the backlog.
“I definitely want to throw all my energy into tackling the backlog,” Jones says, adding that he wants to make sure he keeps current on his cases and that the court implements procedures to help all the other justices keep up with their cases. “I don’t want to get current by having our cases transferred to other courts of appeals.”
Law did not return two telephone calls seeking comment.