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Legally Speaking: Know Before You Vote-The Texas Supreme Court Races

By John G. Browning | Feb 18, 2010

Editor's note: The original column first posted Feb. 18 contained a few inaccuracies regarding candidate Rick Green. The errors have been removed from this posting.

Early voting has begun for the contested elections in the March 2 primary, and as usual the down-ballot judicial races attract a lot less media attention than the headline-grabbing gubernatorial race.

But if there's one thing that annoys me more than the media overlooking a judicial contest, it's when they decide to cover a race and proceed to utterly blow the call.

When I write about legal issues, I hope it's akin to getting directions from an experienced truck driver who can warn you about the speed traps and construction delays while speaking knowledgeably about traffic patterns and the like.

If you're more inclined to heed the advice of a newspaper editor's endorsement, then maybe you feel that restaurant critics are credible sources regardless of whether they can boil water.

But if you care about who sits in those nine seats on the highest court in the state, impacting every issue from education and taxation to property rights and personal responsibility, then read on.

In the race for Place 5 on the Texas Supreme Court, incumbent Justice Paul Green has no opponent in the Republican primary, and will face Democrat Bill Moody in the general election. Judge Moody presides over a trial court in El Paso, and has made two previous unsuccessful bids for the high court.

Meanwhile, for Place 9, it's a showdown of "wise Latinas": Justice Eva Guzman, who made history last October with her historic appointment as the first Latina appointed to the Texas Supreme Court, and Justice Rose Vela, of Corpus Christi's 13th Court of Appeals.

Both GOP contenders boast similar resumes, with experience as trial court judges and on intermediate appellate courts, but Justice Guzman points out that she is no Republican newcomer.

"This is my fourth time on the primary ballot as a Republican Latina," she says, "and each time the Republican primary voters have looked to my experience, my qualifications and my proven track record in deciding to elect me."

The winner will face Democrat Blake Bailey, a Tyler personal injury attorney, in the general election.

When Texas Supreme Court Justice Harriet O'Neill announced last August that she would not seek re-election, she probably had no idea how crowded the race to fill her Place 3 spot would get. There are a total of six candidates in the Republican primary vying for the chance to face Democratic candidate Jim Sharp (a justice on Houston's 1st Court of Appeals who was elected to that bench in 2008) in November.

At one end of the qualifications spectrum is 39-year-old Dripping Springs solo practitioner Rick Green, who has no prior judicial experience. But it's not just this lack of experience that should give voters pause when considering Green, it's his colorful track record.

Rick Green served as a State Representative from 1990 to 2003. In 2001, he attracted unwanted attention for filming an infomercial for the nutritional supplement Focus Factor in his Capitol office - complete with backdrop of the Texas flag and Green's office chair with the state seal.

Although he did not receive any compensation for the infomercial, State ethics guidelines prohibit the unauthorized use of state property, and if it was intended as a political advertisement, it lacked a necessary disclaimer. Green quickly distanced himself from the controversial commercial, asking that his segments be removed.

The following year, Green and another state legislator were investigated by the Travis County Attorney's office for lobbying Texas Department of Health commissioners regarding the labeling of nutritional supplements; at the time of the lobbying, Green and his colleague were being paid by a law firm representing the supplement manufacturer Metabolife.

In 2001, Green also found himself in the public spotlight when he helped win an early release from prison for Melvin Cox, who had been convicted of defrauding investors of over $30 million.

Cox coincidentally happened to be a former board member of the nutritional supplement company Green had founded, and happened to have made a $400,000 loan to one of Green's companies in 1996.

In 2002, when flyers were distributed in Rep. Green's district attacking his opponent Patrick Rose about mold remediation lawsuits and plaintiffs, the tactic backfired. One of the targets of the ad, Melinda Ballard (who had prevailed in a $32 million homeowners' mold lawsuit), went public with the revelation that Green himself had filed a mold claim in 2001 and that his insurance carrier had paid for Green and his family to stay at Austin's downtown Omni Hotel.

Even out of office Green had difficulty staying out of trouble. Defeated by challenger Patrick Rose in 2002, in 2006 Green allegedly approached and punched Rose at a polling place, an incident that was investigated by the Hays County Sheriff's Department. So much for the judicial temperament that voters should want in a Supreme Court justice.

The remaining candidates for the Place 3 spot are considerably more qualified, but nowhere near as colorful. Debra Lehrmann is a Fort Worth family court judge, who has presided over Tarrant County's 360th District Court since 2000.

Rick Strange, a former energy lawyer from Midland, has served on Eastland's 11th Court of Appeals since 2005. 39 year-old Jeff Brown was appointed to Houston's 14th Court of Appeals in 2007, winning election to that bench in 2008.

Rebecca Simmons ran unsuccessfully for San Antonio's 4th Court of Appeals in 2000, but was appointed to a Bexar County district court bench in 2003 and later was appointed to the 4th Court of Appeals in 2005, where she has served since.

If experience matters to you, then the standout in this race is Dallas Court of Appeals, Justice Jim Moseley. Like his opponents, Moseley has ample experience in private practice (over 14 years), and he is no stranger to public service. A Reagan appointee, he served as regional director of the Federal Trade Commission from 1983 to 1987.

Justice Moseley has served on Dallas' 5th Court of Appeals since 1996, giving him more appellate experience than all of the other candidates combined. He has authored well over 1,000 judicial opinions (figures vary by sources, but Office of Court Administration statistics put the number closer to 1,600).

You might even say he's had a little on-the-job training; in 2003, he was commissioned by the governor to sit for a recused Texas Supreme Court justice in the case of St. Joseph Hospital v. Wolff, and wound up writing the court's opinion in that case.

A lot of lawyers apparently think highly of Justice Moseley as well; in the Dallas Bar Association's 2009 judicial evaluation poll, he was the highest-rated appellate judge.

When you look at campaign materials for the various candidates, you'll see a lot of the same themes being echoed - family values, a philosophy of judicial restraint, and so on.

But when I think of the significant issues bound to be considered by our state's highest court in the coming years, and the wide-ranging impact those decisions will have on our lives, I can't help thinking of the old "who would you rather have flying the plane if your life depended on it" question.

If the heroics of Capt. Chesley "Sully" Sullenberger in safely landing Flight 1549 in the Hudson taught us anything, it's that experience counts.

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