Four of Six: 3rd Court of Appeals
This year, four of the court's six seats are contested
By Jordan Smith, Fri., Oct. 27, 2006
Although Texas' appellate judicial races earn little voter scrutiny, what happens at the Austin-based 3rd Court of Appeals one of 14 intermediate appellate courts across the state and serving 24 counties in Central and West Texas has statewide impact. In addition to handling both civil and criminal cases, the 3rd Court is unique among the state's 14 intermediate appellate benches in that it also has jurisdiction over administrative disputes involving state agencies. The justices rule on a wide range of issues from utility and environmental regulations to licensing disputes that have statewide ramifications.
This year, four of the court's six seats are contested, including three currently held by Republicans two elected, Place 5's David Puryear and Place 6's Bob Pemberton, plus Alan Waldrop, appointed by Gov. Rick Perry last year to complete the term of deceased Justice Mack Kidd. Place 3 Justice Bea Ann Smith is retiring, making that an open seat. (Austin Democrat Jan Patterson and Chief Justice W. Kenneth Law aren't up for re-election this time around.)
All of the candidates agree that experience and dedication to the rule of law define the job of an appellate justice but they differ over the nature of that experience and dedication.
Place 2Alan Waldrop, Perry's appointee to replace Kidd, is best known as a lobbyist and chief outside counsel for Texans for Lawsuit Reform, the deep-pocketed political action committee behind the Legislature's sweeping 2003 "tort reform" bill. He's credited with authoring substantial portions of the House Bill 4 package, which delighted corporate defendants by placing caps on potential damages and constricting plaintiffs' access to the courts. But he insists voters should not confuse his legal advocacy with his judicial impartiality. He accepted the Place 2 appointment, he says, because he is able to "professionally divorce" himself from his former clients. "I think there is proof of my ability to do that." Waldrop points to the favorable comments of his tort reform adversaries including the Texas Trial Lawyers Association and Austin's retiring state Sen. Gonzalo Barrientos who, as the local senator, reportedly signed off on Waldrop's August 2005 appointment.
Waldrop's Democratic challenger is Travis Co. Criminal Magistrate Judge Jim Coronado, who has served on the bench as a magistrate and municipal court judge for nearly 18 years. He says his judicial experience, combined with 10 years of trying cases in front of the bench, set him apart from Waldrop. He'd like to see the 3rd Court return to regular oral arguments during which the justices have a chance to question lawyers for each side, and the lawyers have the opportunity to present their clients' best arguments. The 3rd Court has drastically reduced oral arguments. For years it heard arguments almost weekly, but in 2005 the justices heard arguments just 12 times, and this year only five times through October. Coronado thinks that's a mistake a sentiment shared by all four Democratic contenders. The incumbents argue that oral argument is needed only when there's a question of law that needs clarification, and thus they save litigants both time and money. Coronado disagrees: "I frankly think it is a disservice to the people of Texas. When you read a songwriter's work," he says, "you may find beauty and motion in the poetry. But until Sinatra sings it, [the] meaning doesn't reach you in the same way." Without oral advocacy, he contends, a lawyer's argument doesn't have the same resonance. Waldrop says he'd like to see the court hold more sessions but driven by the issues and not an arbitrary number say, once a week, no matter what.
Place 5Place 5 Republican incumbent David Puryear agrees. He notes that from 2001 to 2004, the court heard more than 100 oral arguments per year; the reason the number has dropped since then is because there's been a string of vacancies beginning with the retirement of Marilyn Aboussie who left in 2002, followed by Justice Lee Yeakel's appointment to the federal bench in 2003 and Kidd's death in 2005 not because the justices simply don't want to do the work.
His Democratic challenger, attorney Mina Brees, says that using vacancies as an excuse is inappropriate the remaining judges should "step up" and do more work. She says the justices simply haven't been getting their work done especially Puryear, who has only recently increased his output, and she says the majority of his opinions are on old cases some 2 or 3 years old. "That's not fair to the citizens of this state who pay [the judges'] salaries," she said. "I don't think [vacancies are] a good excuse, and I don't think the justices on the court should have an excuse." Brees, who's been practicing primarily civil and administrative law for 27 years, says she is more qualified and ready to work. Although she lacks criminal-law experience, which makes up roughly half of the court's docket, she says that criminal cases often don't entail the same level of research and discussion that complicated civil cases do.
Puryear suggests that Brees' assumption that the court is using open seats as an excuse is naive the 3rd Court has a larger workload than the other courts of appeal, primarily because it also hears administrative cases. Moreover, Puryear says that Brees is wrong about his workload: He says that data compiled by the state's Office of Court Administration actually shows that he's a consistent producer in 2005, for example, he was ranked third most productive appellate judge in the state. And as the only justice on the court with a criminal-law background before being elected to the court in 2000, Puryear spent nearly 17 years practicing primarily criminal law, including seven years as judge in Travis Co. Court-at-Law No. 6 he says Brees is wrong to say that criminal appeals aren't that weighty: "These cases involve fundamental rights; they couldn't be more important."
Place 3Democrat Diane Henson considers herself best qualified to fill Bea Ann Smith's vacant seat, in part because she has both criminal and civil experience. She's worked as a federal prosecutor and as both a civil defense and plaintiff's attorney winning, among other cases, a notable Title IX suit against UT. And she's won the lion's share of endorsements including those of the Austin Police Association and the Travis Co. Sheriff's Officers Association. This is her second run for the court in 2004, she lost the unexpired Place 6 seat to Bob Pemberton by just 23,319 votes out of 749,229 cast. She says the court needs to be sure to dispose of its cases in a timely manner especially cases where there are obvious questions about "fundamental fairness." The court needs to "not waste time and send back a stale case," she says. "There are some delays that are legitimate," she says, but there is "a lot of delay because people are just not working hard enough."
Henson faces Will Wilson, who was appointed to Travis County's 250th District Court in 1989 to serve out an unexpired term, but failed in his re-election bid a year later. Wilson also served as an assistant district attorney in Dallas before taking the bench as a municipal court judge in Rollingwood in 1985. Wilson, whose father served as Texas attorney general 1957-60, says he's the best candidate for Place 3 because of his varied experience on and off the bench, as a criminal prosecutor and as a civil attorney representing mostly small businesses.
During the primary, Wilson was accused of violating judicial canons of ethics and possibly Texas Election Code by using campaign signs advertising himself as "Judge Will Wilson" a reference to his previous time on the bench. A 1996 ethics opinion held that a candidate "who is not currently an active judge and who does not currently hold judicial office cannot use the title 'Judge' in any political advertisements or campaign literature." Yet Wilson says he used "Judge" in campaign signs and literature as an honorary title and not in an attempt to mislead voters and that he consulted ethicists who agreed that such use was not a violation of ethics or law. "This is an honorary title like, once a judge, always a judge," he says. "So, I think I'm correct." Henson disagrees: "We need judges who'll take the highest road when it comes to ethics, not judges who choose the slippery slope."
Place 6Democratic challenger Bree Buchanan, currently a clinical professor and co-director of the UT Law School's Children's Rights Clinic, says she decided to run for the bench out of "frustration." Like Brees, Buchanan thinks the court hasn't been working through its docket in a timely manner. Buchanan has spent most of her career in family law and says she's seen child-custody cases languish for two years or more. The reason, she suspects, is that "kids don't make campaign contributions." On a "real basic level," she says, the court is just "not getting [its] work done." And the institutional delay, she says, has real consequences on people's lives especially in cases involving children.
Incumbent Bob Pemberton says that while family law is certainly important, it makes up just 10% of the court's docket and he says he's better qualified to handle the bulk of the court's work. He was appointed to the court in 2003 to fill Yeakel's seat, and in 2004 narrowly beat Henson, with 51.55% of the vote, to serve the remainder of Yeakel's term. Like Waldrop, prior to joining the court, Pemberton worked mostly behind the scenes notably, as an attorney with the Texas Supreme Court and as Gov. Perry's deputy general counsel and Buchanan says her real-world experience in the courtroom is far more valuable than vetting legal cases for the governor. Pemberton insists he's been extremely productive, and that according to OCA figures, last year he was the most productive appellate judge. And Pemberton says he's proven himself on the bench he even earned the family-law PAC endorsement, he notes. "You get that kind of support for being the kind of judge that follows the law and not a [political] party," he says.
3rd Court of Appeals, Place 2
Alan Waldrop (R)*
Jim Sybert Coronado (D)
3rd Court of Appeals, Place 3
Will Wilson (R)
Diane Henson (D)
3rd Court of Appeals, Place 5
David Puryear (R)*
Mina A. Brees (D)
3rd Court of Appeals, Place 6
Bob Pemberton (R)*
Bree Buchanan (D)
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