State Attorneys Get a Scolding From an Appeals Court

A federal appeals court has scolded Texas for sloppy paperwork in a long-running squabble over attorneys' fees stemming from the larger battle over the state’s redistricting map. And it will cost the state more than $1 million.

The U.S. D.C. Circuit Court of Appeals on Tuesday ordered Texas to pay the fees of the lawyers who are challenging the Republican-led Legislature’s mapping of political districts – a complicated fight that dates back to 2011.

In 2013, a federal district court ruled that there was evidence that lawmakers intentionally discriminated when redrawing the boundaries. But the U.S. Supreme Court soon complicated the case when it struck down a key section of the Voting Rights Act that had forced Texas to seek permission before making changes to election procedures.

Texas filed a motion to dismiss the lower court’s decision on its map, arguing it was moot in light of the Supreme Court ruling. The lower court agreed, but said the plaintiffs “remain free to seek attorneys fees after dismissal.”

And they did.

Instead of filing an opposition to those motions, Texas filed an “advisory” declaring it did not intend to respond unless the court requested it to do so. It argued that the Supreme Court decision alone closed the door on the question about attorneys’ fees.

The appeals court on Tuesday didn’t buy it. Here’s what it ruled:

In short, various procedural and substantive complexities close the door on Texas’s claim that Shelby County instantly resolved the attorneys’ fees question in this case. Texas could have addressed those complexities by briefing them in an opposition to the Intervenors’ motions for attorneys’ fees, but chose not to do so. Texas also could have challenged the district court’s enforcement of its local rule to bar consideration of those issues on appeal, but it chose not to do that in its opening brief either. Texas gets no second bite at the apple now. What little argument Texas did advance in its “Advisory” provides an insufficient basis for overturning the district court’s award of attorneys’ fees.

*****

A new poll commissioned by John Coppedge’s Texas Bipartisan Justice Committee would suggest that Donald Trump is building momentum in Texas as well as he is everywhere else.

The poll shows that, as of Aug. 15, Trump was leading the pack of GOP presidential hopefuls with 24 percent support. Ted Cruz was next with 16 percent, followed by Ben Carson with 12 percent and Jeb Bush with 9 percent.

Rick Perry, Coppedge notes, was the least mentioned among the nine candidates on the survey.

Contrast that to the last University of Texas/Texas Tribune poll from June that had Cruz leading the pack with 20 percent support and Perry second with 12 percent support.

Trump, meanwhile, registered just 2 percent support.

The TBJC survey was conducted by the Florida-based polling firm Gravis Marketing and measured “976 registered Republican voters in Texas regarding opinions of national and Texas politics.”

The margin of error on the survey is 3 percent. The poll was conducted via phone using interactive voice response technology.

A New (But Familiar) Name Crops Up in SD-24 GOP Race

Ryan Downton, president of the Belton-based Little River Healthcare, is expected to announce a run for the open seat in Senate District 24.
Ryan Downton, president of the Belton-based Little River Healthcare, is expected to announce a run for the open seat in Senate District 24.

Ryan Downton, the former House Redistricting counsel, is seriously kicking the tires on a run in the open Senate primary to succeed outgoing state Sen. Troy Fraser, R-Horseshoe Bay.

We last heard from Downton when he unsuccessfully challenged Paul Workman in the Republican primary for HD-47 in 2012.

Downton now lives in Salado and is president of the Belton-based Little River Healthcare.

If he gets in, he’d have a shot at consolidating a base of support in Bell County, which accounts for nearly 40 percent of the population in SD-24. He’s expected to announce a candidacy sometime in the next few weeks.

*****

According to an article in the Denton Record-Chronicle, Denton criminal defense attorney Rick Hagen plans to run for the House seat being vacated by Myra Crownover, R-Denton.

Read King previously announced his intent to seek the GOP nomination for the HD-64 seat.

*****

Former President George W. Bush took some time on Thursday to write a fundraising appeal for his brother, Jeb.

After noting that “I rarely send emails like this,” Bush goes on to assure the reader that “My brother will be a tremendous President. … He's got a tough road ahead -- take it from someone who's been there. With his strengths and your support, he will succeed.”

*****

Houston mayoral candidate Bill King rolled out a long list of business leaders who have agreed to host a fundraiser for him on Oct. 6. Real estate developer and former state transportation commissioner Ned Holmes will host the event at his home.
Others on the host committee include former Lt. Gov. David Dewhurst, Texans for Lawsuit Reform co-founder Dick Weekley, and Bracewell & Giuliani firm chairman Pat Oxford, among others.

*****

Elena Villaseñor Sullivan has announced a run for the 131st District Court in Bexar County. She is a partner at the Jackson Walker law firm.

An announcement distributed Tuesday stated that she is a Democrat and that she "does not currently have an opponent."
The seat is currently held by Democrat John D. Gabriel, who has served since 1993. He last won re-election in 2012 when he prevailed with 54.2 percent of the vote.

*****

Found in our inbox: an invitation from HD-17 GOP candidate Brent Golemon to a presentation next month in Bastrop from Rick Green, the former state legislator, former Texas Supreme Court candidate and current traveling speaker for David Barton’s WallBuilders organization.

Green’s presentation, according to the invite, “explains how men and women of faith need to embrace the challenges facing liberty in America. The fight has only begun and the prize is the heart and soul of the greatest nation in history.”

Golemon is challenging incumbent John Cyrier in next year’s party primary, which would be a rematch of their special election showdown from earlier this year where the two Republicans were separated by 328 votes.

Judge Orders New Trial on One of Mauricio Celis' Convictions

Mauricio Celis, a politically connected Corpus Christi man convicted of impersonating a lawyer and indicted for impersonating a peace officer, will get another trial on the second conviction after a judge found his defense lawyers lacking.

“The court finds and concludes... that a new trial should be granted due to defense counsel’s ineffective, deficient and prejudicial performance,” ruled state District Judge Guy Williams.

Celis was arrested in late 2007, accused of acting as a lawyer without a license in finding and bringing cases to other attorneys. He was also accused of trying to take a naked woman into custody while he was wearing a bathrobe and flashing a sheriff deputy’s badge.

He was at the time a supporter of a number of political candidates, including Mikal Watts, then a candidate for U.S. Senate, 2006 gubernatorial candidate Chris Bell, several state representatives and judges. Along with the criminal charges, he faced civil actions from then-Attorney General Greg Abbott related to the allegations of practicing law with no license.

The conviction that resulted from that last incident; Williams found that Celis’ lawyers could have contested the police seizure of the badge in question and did not. Without that evidence, there would have been no basis for the charge against him.

Had his lawyers pursued that, Williams wrote, a jury could have found that the badge was issued to Celis by Duval County’s sheriff and that he was never asked to give it back. The judge also said Celis was told by Nueces County officials that if he returned the badge, no charges would be filed. Celis’ lawyers at the time didn’t pursue that defense, either.

Inside Intelligence: About Those Zombie Candidates...

For this week’s nonscientific survey of insiders in government and politics, we asked about the zombie candidate — the presidential hopeful who can't seem to find support from direct donors or in the polls but who doesn't depart the field because of the backing of one or more super PACs.

Former Texas Gov. Rick Perry might be the first and best example in the current GOP field, but it's likely he won't be the last to see his or her trajectory as a candidate altered by the existence of an affiliated super PAC.

A slight majority of the insiders think this ability to keep a campaign going even after the official campaign accounts are empty is a bad thing. Just 18 percent think a super PAC's ability to animate an otherwise moribund candidate is a good thing. An equal number believe this phenomenon has its positive and negative aspects.

The rise of the zombie candidate could potentially alter a couple of basic tenets of U.S presidential politics that have become established in recent decades: the primacy of the early primary and caucus states, such as Iowa and New Hampshire, and the ability of the electorate to winnow out the field early through pre-primary polling.

Majorities of the insiders agreed that those changes would happen. Fifty-seven percent believe the influence of early primary states are cut by the existence of zombie candidates and 61 percent believe the rich donors funding those super PACs override the influence of pre-primary polling.

We finished with a question about how long Perry will remain in the presidential race. Nearly two in five think he will make it out of Iowa but won't make it to the early primary contest in South Carolina. Nearly four in five don't think he'll be in the race by the time Texans vote in early March.

We collected comments along the way, and a full set of those is attached. Here’s a sampling:

.

Super PACs can potentially keep zombie candidates alive for months after their own accounts are empty. Is that good or bad?

• "The sooner the herd can be culled, the sooner a real candidate can emerge over the Trump noise."

• "While we don't need rejects hanging around, but it sure does help give an unknown candidate a chance to run with the big dogs."

• "One of the best presidents of the 20th century was Truman. He nearly ran out of money on his campaign. Who knows how many other greats didn't quite make it far enough to show what they could do."

• "No limits, immediate disclosure would be a vastly better system."

• "Depends on the candidate. Some zombies need to die. Some deserve to be kept alive until they can prove they deserve a second chance."

.

Keeping zombie candidates alive arguably cuts the influence of early primary states. Agree/Disagree?

• "Just because the PACs waste their money on dead candidates does not mean they will influence the primary outcome."

• "Iowa and New Hampshire have been afforded too much influence for too long. Good riddance."

• "Yes, and this is a good thing. Why should Iowa or New Hampshire always get to pick the candidates? Texas has one of the strongest economies, one of the most diversified populations, and routinely gives some of the most money to presidential campaigns — it's about time this state got a say in who runs for office."

• "Momentum will matter more than Super PAC $."

• "To some degree, but an uninformed electorate and sensational campaigns are to blame, too."

.

Keeping zombie candidates alive enables rich donors to override the clear Go Home message visible in pre-primary polling. Agree/Disagree?

• "They will just be puttering away their money, but I guess the super-rich don't care."

• "At this stage in the race, polling is simply name ID. Until we get into November or December, nobody will be tuned in. A candidate sinking right now (or not rising) means nothing."

• "It's still early, check back in February."

• "Early polling is only for tabloid coverage and no serious person reads any 'go home' meaning into them. Even using them to pick 10 people for a debate stage seems questionable. At this point in 1975, Jimmy Carter was in low single digits in national polls."

• "The entire campaign finance system is now set up to enable rich donors to override most democratic processes."

.

Where does Rick Perry’s run to the White House end?

• "RP wants to remain relevant so he can be in the mix/conversation for VP."

• "He's polling in the low single digits in Texas. He won't go through the embarrassment. He's done after Iowa."

• "It all depends on whether the super PAC can keep raising money at a level equal to (or even slightly less than) the burn rate. Even $17 million can go pretty fast when you are pushing uphill in multiple states. But if you can refill the fuel tank through those few super wealthy donors then you can keep going."

• "He won't have all the money he wants; but he'll have enough to stick around. He's running for second place or a Cabinet position at this point."

• "11/09/2011"

Our thanks to this week's participants: Gene Acuna, Brandon Aghamalian, Brandon Alderete, Jay Arnold, Charles Bailey, Dave Beckwith, Amy Beneski, Andrew Biar, Allen Blakemore, Tom Blanton, Chris Britton, Raif Calvert, Lydia Camarillo, Snapper Carr, Elna Christopher, Harold Cook, Kevin Cooper, Randy Cubriel, Curtis Culwell, Denise Davis, June Deadrick, Nora Del Bosque, Tom Duffy, David Dunn, Richard Dyer, Neftali Garcia, Bruce Gibson, Stephanie Gibson, Daniel Gonzalez, Jim Grace, John Greytok, Clint Hackney, Wayne Hamilton, Bill Hammond, Ken Hodges, Deborah Ingersoll, Mark Jones, Lisa Kaufman, Robert Kepple, Richard Khouri, Tom Kleinworth, Dale Laine, Nick Lampson, Pete Laney, Dick Lavine, James LeBas, Luke Legate, Mark Lehman, Ruben Longoria, Vilma Luna, Matt Mackowiak, Jason McElvaney, Steve Minick, Bee Moorhead, Mike Moses, Keats Norfleet, Gardner Pate, Robert Peeler, Jerry Philips, Allen Place, Gary Polland, Jay Propes, Patrick Reinhart, A.J. Rodriguez, Kim Ross, Grant Ruckel, Andy Sansom, Barbara Schlief, Stan Schlueter, Robert Scott, Steve Scurlock, Ben Sebree, Christopher Shields, Ed Small, Mark Smith, Larry Soward, Dennis Speight, Colin Strother, Michael Quinn Sullivan, Sherry Sylvester, Sara Tays, Trey Trainor, Corbin Van Arsdale, Ware Wendell, David White, Darren Whitehurst, Christopher Williston, Seth Winick, Angelo Zottarelli.

The Calendar

Saturday, Aug. 22

  • Memorial Service for the bikers of Waco, sponsored by 2 Million Bikers To DC; 2915 East Division Street, Arlington (8 a.m.)

Monday, Aug. 24

  • Travis County Democratic Party Community Conversation on Race & Policing; 1156 Hargrave Street, Austin (7:32 p.m.)

Wednesday, Aug. 26

  • 2015 Texas Association of Counties Legislative Conference; 110 East Second Street, Austin (Aug. 26-28)
  • Texas Impact Better Neighbors event, with speaker Bruce Elfant; 900 Chicon Street, Austin (6 p.m.)

Thursday, Aug. 27

  • The Great Texas Land Grab, hosted by the Texas Public Policy Foundation; 900 Congress Avenue #400, Austin (11 a.m.-12:30 p.m.)
 

The Week in the Rearview Mirror

The Department of State Health Services will allow an El Paso abortion clinic to reopen after a federal judge ruled that state health officials cannot enforce the state's requirement that abortion facilities meet hospital-like standards against the provider.

Don’t expect Texas Agriculture Commissioner Sid Miller to apologize over a social media post that appeared to call for the atomic bombing of “the Muslim world” – despite an outcry from critics. Miller, who is currently on a trade mission to China, did not personally share a controversial photo that appeared on his campaign Facebook account and has since been removed.

The Houston City Council used the wrong language when it put the Houston Equal Rights Ordinance, better known as HERO, on the November election ballot, Texas Supreme Court ruled Wednesday. The court ruled the council must reword the language because the vote should be on whether to affirm the ordinance, not repeal it. That means the ordinance will not take effect unless voters say so.

Lawyers for former Gov. Rick Perry are asking the Texas Court of Criminal Appeals to throw out the remaining count in the indictment against him.

After re-filing indictments against Attorney General Ken Paxton in his securities fraud case, two special prosecutors are pushing back against criticism from Paxton's attorney, who says Tuesday's action raises questions about the case.

Lt. Gov. Dan Patrick and state Sen. John Whitmire on Tuesday announced the creation of an interim jail safety study committee following concerns in the wake of the hanging death of Sandra Bland and the deaths of other jail inmates.

Facing a temporary restraining order, the University of Texas at Austin delayed plans to relocate over the weekend the statues of Confederate President Jefferson Davis and former U.S. President Woodrow Wilson.

The University of Texas System Board of Regents approved a new admissions policy for its 10 universities Thursday, mandating strict guidelines for how and when letters of recommendation are considered.

University of Texas at Austin President Greg Fenves announced Thursday that he has convened a group of students, faculty and staff to recommend policies for the school to comply with a new state law that will allow the concealed carrying of gun on college campuses.

Texas A&M University has dropped out of the race to host a presidential debate in 2016, citing high costs and logistical challenges. Two other Texas sites remain in contention.

The U.S. Environmental Protection Agency on Tuesday proposed another set of rules that would slash oil and gas sector emissions of methane, which often leaks from well pads, compressor stations, processing plants and other equipment used in production.

Disclosure: Texas A&M University and the University of Texas at Austin are corporate sponsors of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Political People and their Moves

Gov. Greg Abbott named Mike Swanson as judge of the 143rd Judicial District Court, which covers Loving, Reeves, and Ward counties. He named Sara Kate Billingsley of Odessa to the 446th Judicial District Court in Ector County.  He also appointed a pair of judges to courts in Collin County — and Piper McCraw of McKinney to the 469th Judicial District Court and Emily Miskel of Dallas to the 470th Judicial District Court.

Miguel Romano, Jr. of Austin was named by Abbott to the State Securities Board for a term to expire Jan. 20, 2021.

Malinda L. Cowen of Beeville was named by Abbott to the Texas Historical Records Advisory Board for a term to expire Feb. 1, 2018.

Abbott also made three appointments to the Stephen F. Austin University board of regents. He named Alton Frailey of Katy, Nelda Blair of The Woodlands and Scott Coleman of Houston, who is a reappointment, to terms to expire Jan. 31, 2021.

Peter Cramton, an expert in energy auctions at the University of Maryland, will join the board of directors of the Electric Reliability Council of Texas, which oversees the grid covering most of the state.

Hood County businessman Kevin Downing launched his candidacy late last week to replace retiring state Rep. Jim Keffer, R-Eastland.

Chente Quintanilla intends to run to regain the El Paso County House seat that he represented for five Legislatures beginning in 2003. In 2012, he opted for an unsuccessful run for county commissioner.

Senate District 1 candidate Bryan Hughes rolled out Monday the endorsement of the DPS Officers Association. He is running to succeed Kevin Eltife, R-Tyler, who has opted not to run for re-election.

Senate District 24 candidate Dawn Buckingham announced Monday the endorsement of the Association of American Physicians and Surgeons.

Corsicana businessman Thomas McNutt announced Tuesday an endorsement from former Republican Party of Texas Chairwoman Cathie Adams for his candidacy for the Texas House district currently held by Byron Cook.

Houston mayoral candidate Bill King announced on Wednesday that he has the backing of former Land Commissioner Jerry Patterson.

Julie Linn is stepping down as president of Texans for Education Reform to take a job as senior vice president at Great Hearts Texas. She will take a seat on TER's board of directors next month.

Deaths: Sam Tasby, 93, the lead plaintiff in the 1970 class-action lawsuit that would usher in the desegregation of Dallas ISD schools. A northeast Dallas middle school is now named for him.

Disclosure: Stephen F. Austin University was a corporate sponsor of The Texas Tribune in 2014. Texans for Education Reform was a corporate sponsor of The Texas Tribune in 2013. A complete list of Tribune donors and sponsors can be viewed here.

Quotes of the Week

Look at you, cowgirl! You look like you just got off a John Deere tractor.

Rick Perry to fellow GOP presidential hopeful Carly Fiorina when she showed up unannounced at a campaign event in Kimballton, Iowa

I'm not going to call it inappropriate or appropriate. I just think it was thought-provoking.

Sid Miller campaign spokesman Todd Smith on a controversial nuke "the Muslim world" Facebook post that was shared from the agriculture commissioner's account

Thank goodness! I gained 10 pounds from the stress of not having Blue Bell when I'm stressed!!!

Deanne Jordan Martinez of Waco, sharing excitement on Blue Bell Ice Cream's Facebook page after word that the iconic Texas treat will return to market Aug. 31

The American people often disagree on what the best approach should be to fixing the immigration system. But we have veered off now into a rhetorical targeting of immigrants themselves. The use of language such as ‘anchor babies’ is disgusting.

Russell Moore of the Southern Baptist Convention on the call by some GOP presidential candidates to end birthright citizenship

If there's just one sugar daddy behind a candidate, I can't imagine that person being elected.

Brian Ballard, a Florida lobbyist and Jeb Bush supporter, predicting that candidates dependent on the largesse of just a handful of rich benefactors won't succeed in the long term