Justice Misses Half of Texas Supreme Court Arguments to Campaign

Texas Supreme Court Justice John Devine (R) hasn’t been present for an oral argument in more than half the cases the high court has heard since its current term began in September.

As the high court considered issues that will affect the lives of Texans—including cases over medical exceptions to Texas’ abortion ban and a law banning medicine for the purposes of children changing sexes—Devine was instead on the campaign trail. He has missed 28 of the 50 argued cases, only one the court signaled as a voluntary recusal.

On Thursday, he didn’t join other justices for arguments in El Paso, a rare trip away from their courtroom in Austin. He instead attended a campaign event near Austin.

That was the 18th day the court held oral arguments in this term, and the 10th Devine missed.

Uncommon as it may be, Devine’s missing work for campaign events isn’t a violation of the state’s elections code, said Andrew Cates, a Texas lawyer whose practice focuses on campaign laws. However, his absences raise questions about whether Devine can effectively do a job entrusted to him by voters while he’s on the road asking those very voters for their continued support.

“If he’s only listening passively and not interacting or engaging then I would think the public would take issue with that,” Cates said.

‘Really a Nonissue’

Devine, who is seeking a third term on the Texas Supreme Court, is the court’s only justice who drew a primary opponent among the three up for re-election.

He defends his absences as necessary for him to meet with voters and raise money for what has turned out to be a bruising primary challenge from Justice Brian Walker, a sitting judge on an intermediary state appeals court.

“It’s really a nonissue,” Devine said in an interview. “The fact is we’re elected and part of our job is to run for re-election. It doesn’t do you any good if you don’t get re-elected.”

Devine said he reviews briefs in cases before the court and then, for arguments he doesn’t attend, he watches archived video of the proceedings. But not being there means Devine can’t pose questions to lawyers, an often invaluable opportunity for justices to more fully develop their understanding of complex issues.

Devine said “my work ethic hasn’t suffered” and that the missed work is “easy to make up.”

Devine’s prioritizing his campaign over work assignments isn’t in violation of any statutory or ethics laws, said James Cousar of Holland & Knight LLP, but it is an issue that could subject him to scrutiny from voters.

Elected officials “have a lot of discretion as to how they perform or do not perform their duties,” he said.

However, Devine’s absences may run afoul of the state’s code of conduct, said Devine’s primary opponent Walker—a justice on the Second Court of Appeals in Fort Worth. The state’s code of conduct says a judge’s judicial duties “take precedence over all the judge’s other activities.” Devine contends his judicial duties include campaigning.

“When he fails to show up he’s thumbing his nose at the parties,” Walker said, “he’s thumbing his nose at the attorneys, and he’s thumbing his nose at the process.”

Fundraising Success

Devine’s campaign ventures have been fruitful.

He raised $106,000 in the final six months of last year, including pulling in $25,000 from law firm Vinson & Elkins LLP and $10,000 from Baker Botts LLP. A handful of law firms each gave $5,000.

He spent $145,000 in that time, leaving him with $51,000—five times the amount Walker had available for the stretch run to the March 5 primary.

His campaign spent $10,000 for a portrait of Devine that he donated to the 190th District Court, the Harris County civil bench over which he presided before joining the Supreme Court in 2013. From his personal expenses, Devine paid $2,500 to Texas Right to Life to sponsor a table at an Oct. 10 event.

Many of Devine’s expenses came in December, when the Supreme Court didn’t hold oral arguments. Most other expenses came on days when the court wasn’t in session.

Matt Mackowiak, a Republican political strategist based in Austin, said that because judges who run for statewide courts aren’t household names their re-election prospects can swing on face time with voters.

“I am a little bit sympathetic only because a lot of times they don’t expect to get challenges so when they do it creates not just anxiety but urgency figuring out how to raise money, how to get around the state to make appearances,” he said. “These folks are not statewide figures.”

Additionally, the timing of Devine’s campaign differs from other elected state officials, Mackowiak said. Legislators for example run for election between legislative sessions, not during their busy season.

The Supreme Court is scheduled to meet three more times before the primary.