3rd Court: Experience Counts

Two contested races for slots on the bench of Texas' 3rd Court of Appeals are the most important judicial races on this fall's ballot. The six-judge intermediate appellate court, one of 14 across the state, hears both civil and criminal appeals from 24 counties – including Travis, Williamson, Bastrop, Hays, and Caldwell. But unlike the other 13 appellate courts, the 3rd Court also considers disputes regarding state government, meaning the court routinely rules on a wide range of issues – from utility regulation to licensing disputes – that have statewide ramifications.

Moreover, because the state's two highest courts – the Texas Supreme Court and the Court of Criminal Appeals – pick and choose which cases they will consider, the 3rd Court often becomes the final arbiter in many, perhaps less glamorous but no less important, cases. "This is one of the most important races in the state," says incumbent 3rd Court Judge Jan Patterson, who is running for re-election to the Place 4 seat she has held since 1998. "We have statewide coverage. Cases concerning the environment, school finance ... they all come to our court."

While all four of the candidates running for the two open seats agree on the importance of the 3rd Court, they have very different opinions of what it takes to make a good 3rd Court jurist. Patterson and Democrat Diane Henson, who is running against Republican incumbent Bob Pemberton for the Place 6 seat, each have 25 years experience practicing both civil and criminal law in a variety of courts, including the 3rd Court. Their opponents, Pemberton and Patterson's GOP challenger Bill Green, gained most of their experience on the other side of the bench – working for state government or for other judges. When voters go to the polls this year they will, in effect, be deciding what kind of experience matters most.

In Patterson's opinion, only jurists with a wide range of broad, practical legal experience should be chosen to sit on the court. "We really need lawyers here in the courtroom [who] have had trial or appellate practices," she said. Every day the court determines cases that "change people's lives," she said – from termination of parental rights to all matter of criminal concerns. "Many people know how important every judge is; a bad judge can wreak havoc in everybody's lives."

After graduating from law school at UT, Patterson worked as a civil litigator in New York City before becoming a federal prosecutor working on organized crime and fraud cases. She returned to Austin as a federal prosecutor and began teaching at UT before returning to private practice, where she handled a variety of civil cases and white-collar criminal matters until her election to the 3rd Court. Patterson has a reputation for working hard and for being fair and well-reasoned – qualities that have earned her bipartisan support throughout the court's jurisdiction. Indeed, she has earned the endorsement of 22 sheriffs – both Democrat and Republican – and of Texas' major law enforcement associations, including the Combined Law Enforcement Associations of Texas, the Austin Police Association PAC, and both of the Travis Co. sheriff's unions.

Her opponent, Bill Green, has spent his 20-year career working as a staff attorney for a number of state appellate judges. To Green, it is his behind-the-bench experience that makes him qualified to take Patterson's spot on the bench. "I have worked on thousands of civil and criminal cases and have analyzed thousands of complex legal arguments," he wrote to the Chronicle. "This long experience has left me with a broad understanding of Texas law, with particular emphasis on trial and appellate procedure." Since graduating from law school at UT in 1983, Green has worked as a legislative assistant at the Capitol, then as a staff attorney with the 3rd Court, the Supreme Court, and the Court of Criminal Appeals, where he is currently assigned to Judge Charles Holcomb. In that time, Green says, he has drafted more than 400 opinions, including 24 death penalty opinions. (The 3rd Court does not hear death penalty cases, which are appealed directly to the CCA.) "I strive always to follow the law precisely as it is written," he said. "I do my best to be a scholar." Further, Green notes that over the course of his career he has worked with and maintained friendships with "judges of all political stripes."

Still, no matter how friendly his relationships, Patterson says that Green's behind-the-scenes experience is no substitute for real-world experience. "He has never practiced law before," she said. "I cannot overstate that."

A similar dynamic can be found in the Place 6 race, where incumbent Pemberton, appointed by Gov. Rick Perry to the 3rd Court bench last year to succeed Lee Yeakel (now a federal district judge), has spent much of his legal career behind the scenes. He worked as a staff attorney with the Texas Supreme Court before signing on as a junior attorney in the Houston office of megafirm Baker Botts LLP – which handles a variety of civil law cases. He then went back to the Supreme Court as a rules attorney before joining up with Perry, for whom he was later appointed deputy general counsel. In 2003, Pemberton briefly joined Akin Gump Strauss Hauer & Feld LLP, another megafirm, before being appointed to the 3rd Court in December.

"I am running on two things," Pemberton said. "First, I am the best-qualified candidate to serve in this office. Second, I have the right philosophical approach." Pemberton notes that he is "the only candidate with judicial experience" and that since assuming the bench last winter he has had to consider 100 appeals, and has developed a "record of fairness on the bench," which is "not about politics or a personal agenda." Indeed, Pemberton notes that he recently concurred with the court's opinion and ruled in favor of members of Austin's Democracy Coalition, who claimed the city of Austin violated their free speech rights during a protest outside the Governor's Mansion in 2002. "I wrote an opinion agreeing that their rights had been violated," he said. "I put law above the fact that the very person who appointed me [Perry] and the most important Republican in the country [Bush] were the ones being protested."

But to Henson, anecdotes are not qualifications. "You have to have [judges] who have experience – both trial and appellate experience," she said. Henson worked as a federal prosecutor, as a civil plaintiff's attorney – winning, among other cases, a noted Title IX suit against UT – and as both a civil and criminal defender. And she has practiced her skills before numerous courts – including the 3rd Court and several U.S. circuit courts of appeal. Conversely, she says, Pemberton has never served as lead attorney in any jury trial, has never argued a case on appeal, and has no experience in criminal law, which makes up about half of the 3rd Court's docket. "It bothers me that he exaggerates his experience," she said. "It goes to his credibility as a judge."

Pemberton says that Henson's overall characterization of his experience is "inaccurate," and that his lack of practical experience in criminal law is "not a hindrance." "I haven't served as a prosecutor, [but] I have, as a judge, dealt with criminal-law issues," he said. "As a judge, I have found that there's a minimal learning curve and the law is pretty straightforward." Pemberton notes that he has received the endorsement of "every major law enforcement" association, including CLEAT and APA. (In fact, the APA issued a dual endorsement, for both Pemberton and Henson.) Pemberton said that while he has "leaned more toward appellate [work] and the scholarly aspects of the law," this has informed his "impartiality and neutrality," unlike Henson, whom he called a "political activist" who has filed lawsuits "to further some political agenda."

Henson says she's heard him make this claim while campaigning, telling supporters that she "files lawsuits against schools, against UT." But what he doesn't mention, she says, is that those cases were in defense of disabled students who were being locked out of participation in extracurricular activities and, in the case of UT, in defense of women's rights under Title IX. "I don't think it is fair to throw cheap shots out there," she said. "I mean, are you against the disabled? Are you against girls playing sports? That is not a great message."