Congratulations to Kent C. Sullivan, who has just been appointed by the Governor to the Fourteenth Court of Appeals in Houston. He will be serving out the unexpired term of Justice Wanda Fowler, and he will stand for re-election in 2010.

Justice Sullivan was formerly the First Assistant Attorney General, the highest-ranking appointee at the Texas Attorney General’s office (where I had the pleasure of serving with him) and, before that, he was a district judge in Houston.

Trying to make sense of close election results can be like trying to explain a small daily move in the stock market. What looks like a simple total number is really composed of many smaller pieces, each with its own story. Yet, every day business reporters have to say that the stock market moved up or down “because” of some factor. (( The more philosophical (or cautious) reporters hedge their bets by saying that the market moved “on news of” something. I need to learn that trick. ))

In Harris County, there was nearly a complete Democratic sweep of the district bench — but the races tended to be very close. Close enough that a little nudge, here or there, could lead to an incumbent judge holding onto a seat or losing it to a challenger.

The seeming randomness of those outcomes has confused even the winners.

It’s easy to surmise that a strong showing by the top of the Democratic ticket made the races close. But why did each challenger do slightly better or slightly worse? Why the particular outcomes?

An article in the Houston Chronicle today theorizes that the difference was whether a Democratic candidate had an unusual name:

The straight-party Democratic voting that ushered in a new batch of civil and criminal district judges in Harris County was not the surprise. It was why the three civil-court Republicans who survived were able to do so.

“It doesn’t seem that qualifications were the criteria voters used,” said Kerrigan. “There are some very good judges who were voted out.”

Jurists have a few theories on why some Republicans made it through, including the possibility that some voters simply didn’t complete their ballots. But the most common one is that voters were wary of Democrats with complicated or unusual names.

The GOP judge with the highest percentage of votes was civil Judge Sharon McCally, whose opponent was Ashish Mahendru.

Other Democrats who lost were Mekisha Murray, Andres Pereira and Goodwille Pierre. They lost to incumbents Mark Kent Ellis, Patricia Kerrigan and Joseph Halbach, respectively.

“How common a person’s name is has always been a factor in judicial races,” said civil District Judge Mark Davidson, who lost his race.

Davidson has been on the bench since 1989 and has been part of the judicial leadership in the civil courts.

“Up until 1987, people named Smith ran 14 times and won 14 times,” he noted, although Smiths have lost a couple of times since.

That’s a depressing theory about how voters pick judges. (( Then again, since judicial candidates are prohibited from discussing specific legal issues or pending cases, I have never quite figured out what “issues” we hope will guide the voters in the voting booth. ))

If there is an easy solution to this problem, I’d love to hear it.

The folks at Cowles & Thompson have a new blog covering state and federal cases of interest to Texas lawyers. It’s called Reverse and Render.

Welcome!

It’s good to have more voices in the conversation about Texas law, and I look forward to pointing my readers to interesting articles that appear on Reverse and Render.

If you’re interested in joining this larger conversation, there are of course consultants who will set up a blank blog for you. (( One such consultant (LexBlog) set up the sites for Reverse and Render, Todd Smith’s Texas Appellate Law Blog, and for Jeff Rambin’s Tyler Appeals Blog. )) It’s also possible to set up your own site, if you have the time and some interest in the the technology behind blogging. (I’d be happy to advise people about this latter path. I don’t know as much about the paid consultants.)

If you want to start a little slower — and don’t want the pressure of having to make new posts on an ongoing basis — you might consider a “guest post” on an existing blog. I’d be happy to entertain any short articles that would be of interest to Texas practitioners. If you have an idea for a guest post, just let me know.

Yesterday, Senator Cornyn released a press statement about the amicus brief he submitted in the City of Dallas v. Abbott case being argued before the Texas Supreme Court today.

The brief is now available online.

I had suggested that perhaps Cornyn would be offering advice about the Texas statute based on his own prior experience as AG. It turns out that the brief instead did emphasize a federal angle.

Cornyn’s brief argues that the statutory deadlines in the Texas open records law (the Public Information Act or PIA) should not be relaxed because they have recently been used as a model for an amendment to the federal Freedom of Information Act. In the end, the brief urges that (1) any relaxation of the Texas statute would impair Texas’s status as a national leader in this area and (2) any relaxation of the statute might nonetheless be followed by federal courts trying to make sense of those new federal amendments that were modeled on the Texas statute. (( There is of course some tension between saying “If you do X, people will not follow you” and saying “If you do X, people will blindly follow you.” The brief could be read, I suppose, as presenting alternative evils to the Court — an argument that either outcome should be bad, so you shouldn’t do X in the first place. Or there could be a more nuanced reading of Cornyn’s argument. ))

The brief takes no position on how to square the attorney-client privilege with the statute or how to evaluate whether there is a “compelling reason” not to disclose information protected by that privilege.

But, as an amicus brief, it doesn’t have to take an explicit position on the outcome. Instead, this amicus brief merely pointed out to the Court one possible implication of its decision that might otherwise have escaped its deliberations — how the Court’s interpretation of Texas law might bear on the interpretation of the federal FOIA. The Justices will be more informed about those concerns as they determine how broadly or narrowly to write any opinion in this case.

Former Justice Craig Enoch wrote an op-ed piece for the Austin American-Statesman about the upcoming election, “Enoch: Why electing good judges matters”.

Enoch note the drop off in the number of votes between the top-of-the-ballot races and the judicial races, placing fault on voters who do not educate themselves enough about the judicial candidates to form an opinion of them.

Meanwhile, former Justice (now-Senator) Cornyn has weighed in by filing an amicus brief in a case set for argument this Thursday at SMU. The case is City of Dallas v. Greg Abbott, No. 07-0931 (DocketDB), which is an open records case. The dispute is about whether a government entity waives its attorney-client protection for documents covered by a request if it fails to timely raise that objection to Open Records Division of the AG’s office.

The case, to my knowledge, doesn’t involve any questions of federal law. But Cornyn also held the post of Texas AG (from 1998 to 2002), and he may have submitted a brief to clarify the meaning of some of his own Open Records Decisions from his tenure. (Coincidentally, the same day that City of Dallas v. Abbott is being argued, the same day, the Court is also hearing oral arguments in the rehearing of the Entergy case, in which four legislators submitted a brief suggesting the Court had misunderstood their intentions. These types of “let me clarify my intent” briefs are fairly rare, so the students at SMU should have an interesting day.)

Today, the Dallas Court of Appeals ruled against Kim Brimer in his attempt to keep Wendy Davis off the fall ballot.

The court did not reach the actual question of Davis’s eligibility under the statute, instead concluding that the challenge became moot on August 22, 2008 — shortly after the Texas Supreme Court denied Brimer’s request for emergency relief.

The Texas Election Code provides “[i]f a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot.” Tex. Elec. Code Ann. § 145.039 (Vernon Supp. 2008). If the name of an ineligible candidate appears on the ballot, the votes cast for the candidate shall be counted and entered on the official election returns. Tex. Elec. Code Ann. § 145.005(a) (Vernon 2003). The general election is set for November 4, 2008. See Tex. Elec. Code Ann. § 41.002 (Vernon 2003). The 74th day before the general election was August 22, 2008. Accordingly, even if we declare Davis ineligible, her name will remain on the ballot and any votes cast for her will be counted. See Tex. Elec. Code Ann. § 145.005(a) (Vernon 2003). No order that we might enter would be effective to change this result….

Brimer’s only legally recognized interest in pursuing this appeal is to avoid being opposed by an ineligible candidate. Even if Davis is ineligible to hold office – an issue we do not reach in this appeal – her name will be included on the November 4, 2008 general election ballot in opposition to Brimer. We cannot, at this point, change that outcome and, therefore, this appeal is moot.

Brimer v. Maxwell, No. 05-08-01239-CV (Tex. App.—Dallas)

Brimer has 45 days, of course, to file his petition for review in the Texas Supreme Court, if he chooses. Update: Brimer’s campaign has now said that it is “leaving the question of eligibility to be determined by action taken after the election.”

An evidence professor has weighed in on the Court’s recent decision in Reliance Steel & Aluminum Co. v. Sevcik, No. 06‑0422 (Brister, J.). That was the case (mentioned here) in which the plaintiff had introduced evidence of the defendant’s gross revenues, even though it did not bear on the negligence issues in the case.

Professor Colin Miller blog post[blog post] focuses on the Court’s discussion of the “invited error” doctrine and its application to the situation when both parties try to introduce similar evidence:

According to the Court, “One party cannot violate the rules of evidence just because the other party tried to do the same, especially if the other party’s evidence was excluded.”

I pretty much agree with the Court’s ruling and its decision to order a new trial, but I do think that this last statement is a bit of an overstatement. If I were crafting the final line, it would have read, “One party cannot violate the rules of evidence just because the other party tried to do the same, as long as the other party’s evidence was excluded.” If the other party’s evidence were not excluded, then that would indeed trigger the invited error doctrine, and the other party indeed could violate the rules of evidence with regard to the subject broached by the evidence.

As the professor notes, his formulation would create a situation where one party’s violation of the rules of evidence automatically excused the other party’s. The Court’s formulation reserves discretion in the Court.

To my eyes, the professor’s suggested rule isn’t about the “invited error” doctrine at all, because it has nothing to do with whether the Court is invited into error. If anything, the professor seems to be extending a different sort of equitable principle (unclean hands?) to the evidence context. I think the Court got this one right.

Source: “Invitation Only: Supreme Court of Texas Finds Invited Error Doctrine Doesn’t Apply To Unsuccessful Attempts To Introduce Evidence” (EvidenceProf Blog)

Malpractice-Cap Challenge Rebuffed

On last week’s order list, the Court noted that it was declining to exercise jurisdiction in the direct appeal McKeever, M.D. v. Cerny, No. 08-0555.

That unsuccessful direct appeal was a constitutional challenge to Texas’s medical-malpractice liability caps and was written up here: “Medical liability cap case declined” (Fort Worth Star-Telegram).

Garza v. Coastal Moves East

Seismic trucks — called thumper trucks because of the impact devices they use to send waves through the ground — have been gathering information from New York roadways for decades. But the stakes have grown as natural gas prices have risen, spawning a flurry of prospecting and lease deals for the Marcellus Shale Formation.

A procession of seismic trucks can be heard from a good distance away. They operate with synchronized precision, bumper to bumper, advancing in groups of three or four to an uncharted stretch of land.

“Landowners cry foul over seismic searches”

This image of “thumper” trucks reminds me of a scene out of Dune. How does this involve Texas law?

At least one of the companies involved is relying on the Texas Supreme Court’s recent decision in Garza Oil & Gas Corp. v. Coastal Energy Trust, No. 05-0466, to support its right to “capture” that seismic information from the road. (( A rehearing motion was filed last week in Coastal. ))