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On naming a replacement for Judge Briones

I have three things to say about this.

Lesley Briones

Three years ago, Bill McLeod lost his spot on the civil county court-at-law bench in Harris County due to a paperwork snafu.

McLeod, a Democrat, had been presiding over Harris County Court at Law No. 4 in 2019 when he filed paperwork indicating he was seeking the office of chief justice of the Texas Supreme Court. His filing triggered an obscure — but reasonable — provision of the Texas Constitution which considers such an announcement by anyone holding a county judicial bench an automatic resignation. He was required to step down as soon as a new judge was named.

Despite McLeod’s protests, Harris County Commissioners Court swiftly moved to replace him. At the time, County Judge Lina Hidalgo reasoned that keeping McLeod as a holdover judge would invite conflicts of interest that could require him to recuse himself from some cases. A week later, Hidalgo and the two other Democrats on the commissioners court — Rodney Ellis and Adrian Garcia — voted to appoint Houston lawyer Lesley Briones to replace him.

“Judge, this is something we did not create; we wish we weren’t in this situation,” Hidalgo told McLeod during that meeting. “Voters deserve a judge who can be absolutely independent as he was elected to be.”

Briones’ speedy appointment rankled the two Republican county commissioners, who voted against her, calling the vetting process unfair and opaque. It appeared as if the Democrats were ramming through their preferred candidate, the kind of behind-the-scenes scheming that Democrats used to accuse Republicans of when they were in charge.

Now in a twist of fate, or hypocrisy, another potential conflict has emerged, this time involving Briones.

Like McLeod, Briones is running for office. She’s a candidate in the March 1 primary aiming to take on GOP Commissioner Jack Cagle in the November general election. Her November campaign announcement also triggered an automatic resignation from the bench — but unlike with McLeod, the Democrats who run the commissioners court are in no hurry to replace her. She’s kept her bench even as she campaigns.

The commissioners’ rationale for letting her stay in her seat defies logic. Let’s roll the tape.

[…]

Commissioners Court has convened seven times since Briones technically resigned. These meetings are typically all-day, marathon sessions that include scores, or even hundreds, of agenda items. Naming a replacement for Briones has been conspicuously absent from their to-do list. In effect, the commissioners’ indecision on Briones’ replacement leaves her collecting a county salary to run for political office.

While we commend Briones for doing her part by recusing herself from certain cases, this predicament reeks of hypocrisy. The Democratic majority’s excuses for the delay don’t pass the smell test.

Rafael Lemaitre, a spokesman for Hidalgo, said in a statement that the county judge “is not leading the search for a replacement judge given that Judge Briones is deftly and efficiently carrying out her full workload of cases, while avoiding conflicts of interest,” adding that she “remains open to recommendations by her colleagues on a person to fill the position.” Both Ellis and Garcia noted in statements that it’s been a challenge finding someone who is not only qualified but also willing to take on what would be a temporary job, since voters will elect a new judge for Briones’ seat in November.

Really? When Judge Erica Hughes of Criminal Court at Law No. 3 was appointed to a federal immigration bench in December, county commissioners had no trouble finding not one, but two qualified candidates to fill her seat in a short amount of time. They appointed Hughes’ replacement, Porscha Brown, at the next possible meeting on Dec. 14. When Brown declined the appointment, commissioners named Ashley Mayes Guice to the bench at the very next meeting on Jan. 4.

1. I don’t understand the reason for the delay, either. It’s not a good look for Judge Hidalgo or Commissioners Ellis and Garcia. At the very least, give a better explanation for the delay. And in addition to the issue of Judge Briones having to recuse herself for matters involving the county, there are surely lawyers appearing before her now who may be supporting one of her opponents for the Commissioners Court nomination. That can’t be a comfortable experience.

2. That said, I kind of suspect that their ultimate preference would be to name the winner of the primary for this seat to the bench, as that would minimize turnover in the event that candidate wins in November. The main problem with that is that it’s a three-way primary, meaning that a runoff is likely, and thus we wouldn’t get someone named until late May. Briones herself may still be campaigning for the nomination to Commissioners Court through that time, as she too is in a multi-candidate race, or she may have been knocked out of the race. None of this is a desirable outcome.

3. Greg Abbott, of course, appoints judges all the time in a fashion that takes advantage of the election calendar. His appointees are expected to be the nominee for the next election, though they sometimes draw primary opponents. That’s been a thing for a long time, going back well before Abbott. This doesn’t excuse or justify what the Commissioners are doing here, but it is another reminder of my point that a judicial appointment system is no less inherently political than a system of electing judges. You can’t take the politics out of a political process.

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6 Comments

  1. Kibitzer says:

    Amen, Kuff, it’s judicial politics. In this case, judicial personnel politics.

    The analogy with Abbott is very apt. Sometimes he would even re-appoint a previous appointee who didn’t make it through the election process. That’s how Jeff Alley is still on the Eight COA, albeit not as chief.
    https://www.txcourts.gov/8thcoa/about-the-court/justices/justice-jeff-alley/

    This is not to say that the appointee wasn’t highly qualified (having previously served as staff attorney on the same court), but it just goes to show how things work as far as who ends up sitting on court and how they get there, and make a cameback.

    As for qualified candidates on the local vacancy, what about Clyde Leuchtag? He has already had plenty of actual on-the-job experience on no-longer-Judge Cagle’s former CCCL1 bench.

    ‘suppose he is not the right color: more red than blue.

  2. Mainstream says:

    You could not do better than Clyde Leuchtag for a high quality judge.

  3. Manny says:

    Clyde is a Republican; his non-selection does not have anything to do with his color. As to qualified, I know many lawyers are better fit to be Judge, and they are Democrats.

  4. Kibitzer says:

    TEXAS CONSTITUTION, ART 16: GENERAL PROVISIONS

    Sec. 65. AUTOMATIC RESIGNATION ON BECOMING CANDIDATE FOR ANOTHER OFFICE.

    (a) This section applies to the following offices: District Clerks; County Clerks; County Judges; Judges of the County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts; County Treasurers; Criminal District Attorneys; County Surveyors; County Commissioners; Justices of the Peace; Sheriffs; Assessors and Collectors of Taxes; District Attorneys; County Attorneys; Public Weighers; and Constables.

    (b) If any of the officers named herein shall announce their candidacy, or shall in fact become a candidate, in any General, Special or Primary Election, for any office of profit or trust under the laws of this State or the United States other than the office then held, at any time when the unexpired term of the office then held shall exceed one year and 30 days, such announcement or such candidacy shall constitute an automatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law in the same manner as other vacancies for such office are filled.

    By this Kibitzer’s reading, there is no automatic resignation in the case of Briones, assuming the truth of the premise that she first announced her candidacy for another office in 2022, as opposed to last year. Her term expires at the end of this year and thus falls within the 1-year timeframe.

    As for her predecessor, William McLeod, however, this Kibitzer wonders why he kept signing orders and judgments after he announced with SCOTX run, which triggered his resignation. He had just been elected and taken office in January 2019, with almost four years to go.

    Where is the holdover provision that allowed him to stay on the bench? Logically, if the resignation is automatic and involuntary, the affected official doesn’t get to specify a different effectiveness date at some time in the future (like giving 30 days “notice”) or change his mind and take it back, for that matter.

    Sec. 30. TERM OF OFFICE OF JUDGES OF COUNTY-WIDE COURTS AND OF CRIMINAL DISTRICT ATTORNEYS.

    The Judges of all Courts of county-wide jurisdiction heretofore or hereafter created by the Legislature of this State, and all Criminal District Attorneys now or hereafter authorized by the laws of this State, shall be elected for a term of four years, and shall serve until their successors have qualified.


    So this establishes a four-year term of office, and the defeated incumbent gets to serve out the calendar year even though a challenger has been elected early in November and potentially longer if the successor is not ready to be sworn in on January 1.

    But under Section 65 the ongoing four-year term is terminated prematurely, so how does the hold-over provision even kick in when the forced resignation has already been triggered, the incumbent is no longer a judge, and a vacancy exists?

    What is the Kibitzer missing here? Has a court of competent jurisdiction ever ruled on this?

    There was another resignation scenario where a sitting CCCL judge resigned, and somehow stayed on the payroll, but that resignation (or attempted resignation) was voluntary, not accidentally triggered pursuant to a constitutional provision. And the judge in question went to work for a lawfirm, rather than running for another office, which raised different sorts of concerns.

    See Brian Rogers, Former Harris County judge thought she had quit, HOUSTON CHRONICLE (Feb 17, 2012)(“Smith was surprised to get her entire $12,000 monthly salary. According to the Texas Constitution, until a new judge is appointed she will continue to get paid – whether she likes it or not.”)

  5. Frederick says:

    That is a poor and hypocritical look for the Dems on the commissioners’ court

  6. Greg Degeyter says:

    You are probably correct on the Commissioners wanting to name the primary winner to the bench. If they wanted to keep optics clean they should consider naming someone who neither is running nor has expressed an interest in running for the bench as a placeholder. In order to minimize disruption to court business the placeholder could be assigned a docket of heavy Justice of the Peace court appeals to keep that docket moving.

    Not a perfect solution, but it takes away the bad optics minimizes the disruption to the bench when the lame duck appointment is over.