Analysis

Texas Top Court Untouched By 2nd Blue Wave In Big Cities

Law360 (November 4, 2020, 10:27 PM EST) -- The Texas judiciary this year experienced the second iteration of a blue wave that swept through lower courts in the Lone Star State during the 2018 midterm elections, with Democrats flipping 11 previously Republican-held seats at the district court level and adding eight appellate justices in urban courts.

But Democrats couldn't crack the Texas Supreme Court, a GOP stronghold that hasn't seen a Democratic justice sit on its bench since 1998. The four Republican incumbents up for reelection — Chief Justice Nathan L. Hecht and Justices Brett Busby, Jane Bland and Jeff Boyd — beat their Democratic challengers handily, by an average of 1 million votes each.

While Democrats continue to make gains in the state's major urban areas, attorneys say the blue trend hasn't picked up enough steam to make waves on the statewide level yet.

Appellate solo practitioner Chad Ruback told Law360 on Wednesday that he wasn't surprised with the Texas Supreme Court election results, which he attributed to Texans' tendency to vote for one party down the ticket. This year's election was the first without straight-ticket voting, which allows a voter to select all candidates from a major party in one stroke, but Ruback said it didn't appear to change how voters approached judicial races.

"The reason for this is likely that it is much easier to select all candidates from one's preferred party than it is to study up on the candidates of numerous races," Ruback said.

Yetter Coleman LLP partner Connie Pfeiffer agreed with Ruback.

"It's not surprising at all to see the Supreme Court's incumbent justices hold their seats," she told Law360 on Wednesday. "They are all really strong judges, and statewide races in Texas still favor Republicans."

Democrats picked up eight of the 13 challenged intermediate appellate court seats this year, sweeping three races for the Fifth Court of Appeals in Dallas and taking the only open seat for the Third Court of Appeals in Austin.

With those wins, Democrats have improved their majorities on both courts, from 4-2 to 5-1 in Austin and from 8-5 to 11-2 in Dallas. Democrats maintained their 6-1 majority on the Fourth Court of Appeals in San Antonio with incumbent Democratic Justice Rebeca Martinez's win over Republican challenger Renee Yanta.

In Texas' more rural districts, 11 unchallenged Republican justices won seats.

However, attorneys cautioned that a shift in the political party balance of a court doesn't necessarily cause a shift in the court's rulings. That echoes reactions to the Democrats taking more than two dozen appellate court seats in 2018.

"For the vast majority of cases in the intermediate appellate courts, there simply is not a Republican side to the case or a Democratic side," Ruback said. "It is newsworthy when there is a split between the Republican justices and the Democratic justices, but most cases have no such split."

And the cases that do bring the justices' "political stripes" to the surface comprise a small minority of the court's docket, he said.

Monica W. Latin, managing partner at Carrington Coleman Sloman & Blumenthal LLP, told Law360 on Wednesday that a justice's trial judge experience is more indicative of how they will rule than their political party affiliation.

"I think all judges want to get it right," she said. "And at the court of appeals, you have a group of judges working together on each decision, along with briefing attorneys. I have never felt that party affiliation plays a predictive role in how a panel will determine a particular appeal at an intermediate appellate court."

Any shifts in the intermediate appellate courts' rulings will also be balanced by the Republican Supreme Court, as T. Gerald Treece, vice president and associate dean at the South Texas College of Law Houston, told Law360 in the aftermath of the 2018 midterms.

Houston had a handful of races this week for appellate court justice, and they ended up split between the two parties.

In the race for the chief justice position of Houston's 14th Court of Appeals, Republican Justice Tracy Elizabeth Christopher bested her Democratic opponent, Jane Robinson, by 5,734 votes. And Democrat Amparo Monique Guerra defeated Republican Terry Adams by only 155 votes in a race for a seat on Houston's First Court of Appeals.

Newcomer Democrat Veronica Rivas-Molloy also edged out Republican Justice Russell Lloyd for a seat on the First Court of Appeals, and Republican Justice Ken Wise narrowly beat Democratic challenger Tamika Craft to keep his seat on the 14th Court of Appeals.

Democrats saw the biggest wins on the district court level in Fort Bend County, a southwest Houston suburb. All four Republican incumbents were defeated by their Democratic challengers in races for the 387th, 400th, 434th and 505th judicial districts. With this year's results, just one Republican judge is left on the county's eight-judge district court bench.

Seats in Dallas, Austin, San Antonio and Houston also turned blue Tuesday.

Republicans flipped one district court seat in Matagorda County, south of Galveston, where Republican Denise M. Fortenberry won an unchallenged race for the 130th District Court seat.

--Editing by Aaron Pelc.

For a reprint of this article, please contact reprints@law360.com.

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