Why are you seeking this bench and what 3 primary goals do you have in mind if you are elected?
I am running for the Court of Appeals because I want to serve the people of Southeast Texas. Litigants who have been through the trial court process can appeal final judgments and certain orders of the trial court. Those litigants deserve several things. First, they deserve an appellate court that will properly apply the law, not with an agenda to make, expand, or restrict the law. Next, they deserve an appellate court that will issue opinions that correctly apply that law to the facts of the case so the Texas Supreme Court has confidence in the opinions of the Court. Finally, litigants deserve prompt rulings and opinions from all Courts. My goals include having a case disposition rate of over 100%, meaning I am writing more opinions and disposing of more cases than are filed each month. I want the Beaumont Court of Appeals to be the most respected appellate court in the State of Texas so other appellate courts comfortably cite to Beaumont opinions as the authority on the subject. And finally, my goal is to draft every opinion knowing my role is that of a Justice and not as a legislator or a policy maker.
What have you done to prepare for serving in this role?
I have spent my legal career handling appeals. During my last two years of law school, I clerked for a law firm in Houston in its appellate section, writing appellate briefs. After law school, I was an attorney at Hope & Causey in Conroe, where I promoted to partner after five years. From the beginning, I handled all the appeals for that firm. This included both state and federal appeals. I have argued in front of the Texas Supreme Court and have gone to working appellate CLE's across the country. Since opening my own firm over ten years ago, I have focused my practice on appellate work. I am regularly hired as appellate counsel for other attorneys. I have been board certified in Civil Appellate Law since 1999.
What carries the greatest influence on your rulings: case law, the Constitutions, or other?
Without any doubt, it would be the Constitutions that carry the greatest influence on my rulings. Case law is important as are statutes and codes. But they must comply with the Constitutions to be valid.
Please describe the qualifications and experience that make you the best candidate for the office you are seeking.
There are two categories of qualifications and experience that make be the best candidate for the Court of Appeals. The first is who I am. I am guided by my faith and my principles. Recall Amy Coney Barrett's confirmation hearing in 2017 when Senator Dianne Feinstein remarked, obviously not as a compliment, that "The dogma lives loudly within you." This is aspirational for me in terms of how I live my life, how I have always lived my life. I have been Pro-Life before, it seemed, anyone else in my generation was Pro-Life. I remember being the lone voice criticizing Roe v. Wade in both college and law school. Even as I young lawyer, I heard about all the reasons abortion could be okay. What about the health of the mother? What if there was something "wrong" with the baby? What if the child was the product of rape? The only answer is that it is never okay. Never. I have thought that from the beginning and am not late to come to this conclusion - although I am certainly happy to no longer be the lone voice. I am conservative in all of my decisions. But on the bench, the words of the Constitutions matter. The words of the statutes matter. I will not add words to statutes. That is the job of the legislators. it is not the role of judges.
The next category of qualifications and experience is based upon my legal work. I heard someone recently say that there should be a test to be on an appellate court. There is. Of course, it is not a requirement to pass this test to be an appellate court judge but it is a pretty good indicator of the qualifications and experience of that candidate. It requires not only handling a substantial number of appeals. But it requires that appellate practice be a significant portion of your practice. It requires recommendations from judges, colleagues, and opposing counsel. And it requires a full-day rigorous test, given only once a year, with a pretty low pass rate (at least the year I took the test). There are currently about 108,701 lawyers in the State of Texas. Only 406 are Board Certified in Civil Appellate Law. I have handled more than 150 appeals and currently have about twenty appeals pending. I am regularly hired by trial counsel to handle their appeals. I know what I am doing. I am also very hard working. I continue to be intrigued and engaged by the law and love to research and write.
Do you think judges should be elected by the people, or appointed by a commission?
Judges should be elected by the people. To do otherwise takes this decision away from the voters. But voters who are not particularly engaged in politics often ask me: how are we supposed to know who to vote for? The answer is the same for any judge as it is for any other elected official. While the higher profile offices garner more coverage, the information regarding the candidates is available for anyone who does research. There are dedicated people across our community who do the research for those that don't. The information is there, the voter simply must spent a little time learning about who is on the ballot.
We have a new law in Texas creating specialized business courts to hear complex commercial disputes. These courts have been described as special courts for special people. The judges on this court must have more relevant experience. The trial court judges and the appellate justices of this business court, including the newly created 15th Court of Appeals, are appointed by the Governor. There are already discussions of constitutional challenges to these courts, in part, because the Judges and Justices are not elected.
In your view, what is the threshold for determining constitutionality of a legislative act? or a challenge to it?
The Founders created a Constitution “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415, 4 L.Ed. 579 (1819). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111, 2132, 213 L. Ed. 2d 387 (2022). On appeal, “[w]hether a statute is facially constitutional is a question of law that Texas appellate courts review de novo.” Ex parte Fusselman, No. 09-21-00129-CR, 2022 WL 1395316, at *2 (Tex. App. May 4, 2022).
What 2 things about your opponent do the voters need to know?
I am grateful that my opponent says that he is Pro-Life. But I have been to Texas Right to Life, Montgomery County Right to Life, LifeFirst, 40 Days for Life, and Pregnancy Assistance Center events, to just name a few, and have never seen him there. It is easy to say that you are pro-life on the campaign trail. It is quite another for this to be a core of your identity.
I believe my opponent is a nice guy and a good lawyer. But I do not believe he has the background and experience to be an outstanding appellate justice.
Are the United States and Texas constitutions living documents? Please answer in the context of Progressivism versus Originalism.
The United States and Texas constitutions are not living documents. By that, I mean they do not ebb and flow based upon popular opinion. Instead, the words that our framers used defined by the meaning at the time the Constitutions were drafted control. The Constitution should not be interpreted to advance or change social policy. But I also would not define these Constitutions as dead. Instead, Justice Scalia aptly described the United States Constitution as “enduring.”
Among the nine justices on the U.S. Supreme Court(SCOTUS), which one do you respect the most, and why? Which one do you respect the least, and why? What judicial philosophy should a SCOTUS Justice have?
Who I respect the least is easy - and troubling. Our Fourteenth Amendment provides:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This is a firm statement of equality under the law. And yet Justice Ketanji Brown Jackson, ignoring the very words of the Fourteenth Amendment says that the words mean something entirely different: that race-conscious policies are encouraged by the Constitution to rectify the nation’s history racial discrimination. That a current Justice on the United States Supreme Court would so interpret the actual words of our Constitution is, as I initially said, troubling.
Thankfully there are good choices from which to pick my favorite. I have long been a fan of Justice Alito and it is close call but rank Justice Clarence Thomas on top. Some of this is based upon familiarity. His wife is a graduate of Creighton University School of Law. Both my husband and my brother graduated from this law school. and Justice Thomas is a frequent speaker. He is conservative and (usually) quietly does his job. He is taking on the mantle of my all-time favorite, Justice Scalia.
A Justice of the United States Supreme Court should know that he or she is as the very top and the most visible of one of three branches of government. Those Justices may be the only appellate judges the general public could identify. And if for no other reason, they should focus on their role within the government. They are part of the judicial branch and obviously not the legislative or executive branch. Their jobs are to interpret, but not to make and not to enforce, those laws. As Justice Scalia explained: the Court is to interpret the text alone and nothing else. The law should be understood to mean what it says, and say what it means.
What Texas State court decision do you think has most impacted society? How and Why?
There are a litany of Texas state cases that impact society, the impact depending upon individual circumstances. For those involved in criminal and civil litigation, there are cases that guarantee the right to trial by jury. For those facing criminal prosecution, there are cases that define the State's burden of proof. For property owners, there are cases about the right to use that property and about liability for that property owner.
But for society as a whole, we all need water. And water law, including obtaining and paying for that water are important considerations. In Edwards Aquifer Authority v. Day, the Texas Supreme Court recognized that groundwater beneath the soil is part of the realty, and that each landowner owns it separately, distinctly, and exclusively, subject to police regulations and the law of capture. See 369 S.W.3d 814, 832 (Tex. 2012) (stating that the law about ownership of oil and gas in place applies to ownership of groundwater in place). Texas law recognizes the surface owners' property interest in the water in place found beneath the property's surface. FPL Farming Ltd. v. Env't Processing Sys., L.C., 383 S.W.3d 274, 280–81 (Tex. App. 2012), rev'd, 457 S.W.3d 414 (Tex. 2015) Day is a fascinating opinion that walks through Texas jurisprudence on property ownership, takings, and water law.
Please describe the best way for the average voter to determine which judicial candidate is best.
At the trial court level, many voters will be called for jury duty. That is a great way for voters to learn about their current trial judges. And voters can always go watch current trial judges in action. Appellate justices are different. Voters can watch oral arguments and can read opinions. But neither suggestion addresses the question of judicial candidates not on the bench. For that, there are many candidate forums for voters to attend. Many of these are posted-online.
Please describe the major challenges for your court over this next term.
One issue facing appellate courts across the State of Texas is dealing with the increased number of criminal appeals since the COVID restrictions have been removed. While the backlog caused by COVID remains in some counties in civil cases, for most counties in the Ninth Court of Appeals, those backlogs do not exist. Statewide the number of criminal appeals has increased from the prior year due to the removal of those restrictions. But in any year, appeals continue to be filed and the court's goal should always be to issue well-written and well-reasoned opinions that properly apply the law.
If elected, do you think you'd be invited to participate in the Freedom Caucus? Why or why not?
I hope so. I stand for everything included in the Freedom Caucus' Mission Statement. I agree with everything in the mission statement and in the principles for the Freedom Caucus.
How relevent today is Blackstone's maxim "All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer".
Innocent people should not be convicted. And convicting one out of every ten (or eleven) is not acceptable. Or one out of every hundred people as Benjamin Franklin said is also bad. We need not be convicting innocent people When the innocent are convicted, the actual guilty party is not. The Rules of Evidence and Rules of Procedure are based on this principle. They govern the admission of evidence. And those rules are written so the evidence that is considered by the fact-finder is reliable, relevant, and must meet rigorous standards before admission.
CSPOA says "Civil forfeiture laws pose one of the greatest threats to property rights in the nation today. They encourage law enforcement to favor the pursuit of property over the pursuit of justice, and they typically give the innocent little recourse for recovering seized property. And without meaningful transparency, law enforcement faces little public accountability for its forfeiture activity or expenditures from forfeiture funds." How should these Civil Forfieture issues be addressed?
Changes to civil forfeiture laws should be appropriately addressed by the legislature as this is codified in Section 59 of the Texas Code of Criminal Procedure. When criminals break the law, they should be punished. And sometimes the punishment should include losing the property they have used to commit their crimes. But there are limits. If the attempted forfeiture is an excessive fine, it violates the Eighth Amendment of the Constitution.
The Eighth Amendment, which is applicable to the states under the Due Process Clause of the Fourteenth Amendment, states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII; Robinson v. California, 370 U.S. 660, 675, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). A forfeiture is a “fine” under the Eighth Amendment if it constitutes punishment for an offense. United States v. Bajakajian, 524 U.S. 321, 327-28, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).
Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “excessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. Indeed, the United States Supreme Court has held that this safeguard is fundamental to the scheme of ordered liberty with deep roots in our history and tradition McDonald v. Chicago, 561 U.S. 742, 767 (2010). And so, against this backdrop the United States Supreme Court has held that the Eighth Amendment’s excessive fines clause applies to in rem civil forfeiture proceedings and limits the government’s powers to extract payments, whether in cash of in kind, as punishment for some offense. Austin v. U.S., 509 U.S. 602 (1993). And while there should not be any question, these same constitutional protections apply to the States. Timbs v. Indiana, 139 S.Ct. 682 (2019).
In a forfeiture proceeding, the State must show that the property sought to be seized is “contraband,” as defined by the Chapter 59 of the Code of Criminal Procedure. One Car, 1996 Dodge X-Cab Truck White in Color 5YC-T17 VIN 3B7HC13Z5TG163723 v. State, 122 S.W.3d 422, 424 (Tex. App.—Beaumont 2003, no pet.). To do that, the State must establish “a substantial nexus or connection” between The Property and the statutorily defined criminal activity. Id.
The Excessive Fines Clause in the Eighth Amendment to the U.S. Constitution prohibits “excessive fines imposed.” U.S. Const. amend. VIII: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (emphasis added). A forfeiture statute implicates the Excessive Fines Clause when the forfeiture in question constitutes “punishment,” at least in part. Austin v. United States, 509 U.S. at 610 (“Thus, the question is not, as the United States would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.”); One Car, 1996 Dodge X-Cab, 122 S.W.3d at 427 (evaluating whether Chapter 59 forfeiture constitutes punishment for purposes of the Excessive Fines Clause.).
Forfeiture under Chapter 59 of the Texas Code of Criminal Procedure is, at least in part, punitive. See 2007 Infiniti G35X Motor Vehicle, Vin JNKBV61E17M708556 v. State, No. 06-13-00057-CV, 2014 WL 991970, at *1 n. 1 (Tex. App.—Texarkana Mar. 13, 2014, no pet.) (mem. op.) (“the forfeiture statutes are punitive and subject to the Eighth Amendment.”); One (1) 1998 Blue Chevrolet Camaro v. State, No. 02-10-00252-CV, 2011 WL 3426263, at *3 (Tex. App.—Fort Worth Aug. 4, 2011, no pet.) (mem. op.) (assuming, without deciding, that forfeiture of defendant’s car constituted punishment); 1992 BMW VIN WBABF4313NEK00963/Brandon Lee Thompson v. State, No. 04-07-00116-CV, 2007 WL 2608364, at *1 (Tex. App.—San Antonio Sept. 12, 2007, no pet.) (mem. op.) (same); Vasquez v. State, No. 01-04-01221-CV, 2006 WL 2506965, at *6 (Tex. App.—Houston [1st Dist.] Aug. 31, 2006, pet. denied) (mem. op.) (holding that “Chapter 59 is subject to the Excessive Fines Clause”); One Car, 1996 Dodge X-Cab, 122 S.W.3d at 427 (“We hold that forfeiture in this case is sufficiently punitive to be subject to the Excessive Fines Clause.”).
The Supreme Court of the United States has adopted a “gross disproportionality” standard to determine whether a forfeiture is unconstitutionally excessive. United States v. Bajakajian, 524 U.S. 321, 336 (1998). Courts “must compare the amount of the forfeiture to the gravity of the defendant's offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.” Id. at 336-37.
In determining whether the forfeiture is “grossly disproportionate,” Texas courts consider these factors:
- the nature of the offense;
- the relationship of the offense to other illegal activities;
- whether the defendant was in the class of persons addressed by the forfeiture statute;
- the maximum fine and sentence for the offense committed and the level of culpability reflected by the penalties; and
- the harm that the defendant caused.
See 2007 Infiniti, No. 06-13-00057-CV, 2014 WL 991970, at *4; see also 1992 BMW, No. 04-07-00116-CV, 2007 WL 2608364, at *1.
One Texas court has found that forfeiture of property worth more than the maximum fine can be excessive. In One Car, the defendant was found with trace amounts of methamphetamine and pled guilty to a state jail felony. One Car, 122 S.W.3d at 423. The State sought to seize the vehicle in which the drugs were found, and the owner of the vehicle testified that it was worth $11,000. Id. The Court analyzed the Bajakajian factors and determined that the forfeiture of the $11,000 vehicle, when the maximum fine was $10,000, was grossly disproportionate, and, therefore, in violation of the Excessive Fines Clause. Id. at 427-28.
The court in One Car also reviewed opinions from other jurisdictions in which the Bajakajian factors were used to analyze similar state forfeiture statutes. Id. at 425-427. For example, an appeals court in Washington D.C. found that a forfeiture 50 times the amount of the authorized fine is grossly disproportionate. Id. at 426 (citing One 1995 Toyota Pick–Up Truck v. District of Columbia, 718 A.2d 558 (D.C. App. 1998). Similarly, the Wisconsin Court of Appeals found that forfeiture of a $28,000 truck was grossly disproportionate for a conviction that carried a maximum fine of $10,000. Id. (citing State v. Boyd and One White Chevrolet Pickup Truck, 238 Wis.2d 693, 618 N.W.2d 251 (App. 2000)). Finally, a Florida appeals court found that forfeiture of a vessel valued at more than eleven times the maximum fine was constitutionally excessive. Id. at 426-27 (citing Dep’t of Envtl. Protection v. Zabielinski, 785 So.2d 517 (Fla. Dist. Ct. App. 2000)).
Many Courts have engaged in this analysis. The Eleventh Circuit has stated that if the value of the forfeited property is within the range of fines prescribed by the legislature, a strong presumption arises that the forfeiture is constitutional, explaining that translating the gravity of crimes into monetary terms has been performed by the legislature in setting maximum permissible fines. United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1309 (11th Cir. 1999).
Apparently in conflict with current pratice in the courts Art. 19.27. of the Texas Code of Criminal Procedure states "ANY PERSON MAY CHALLENGE. Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge." What is the practical application of this statute?
There are only two possible objections to the array of grand jurors according to Art. 19A.152:
1. that the persons summoned as grand jurors are not in fact the persons selected by the method provided by Article 19A.051; or
2. that the officer who summoned the grand jurors acted corruptly in summoning the grand jurors.
Because the first objection point to Article 19A.051, that section says that prospective grand jurors shall be selected and summoned in the same manner as for the selection and summons of panels for the trial of civil cases.
The Code is clear that any person may make this challenge. And a person confined in jail in the county shall upon his request be brought into court to make such a challenge. The practical application of this provision of the Code of Criminal Procedure is that any person may make the objection. There is no limitation that it is only the accused person confined in jail that can make such an objection. However, the reality is that while any member of the public could make such a challenge, given the confidentiality rules surrounding the grand jury, it would be unlikely.
What distinguishes you from your opponent?
Two categories distinguish me from my opponent. The first is who I am. The second is my professional accomplishments.
I am a life-long Republican. But that is not just something that I say. I was a lawyer representing the Montgomery County Republican Party in 2000 when a candidate sued the local and state party. I have been a member of many local Republican and conservative organizations for years. I have supported local and state-wide pro-life organization with my time, talent, and treasure for many years. And I have not done so quietly. I have been quoted in the local newspaper criticizing bar associations supporting Roe v. Wade. I have publicly spoken about the effect of abortion on our society. My law school seminar paper addressed the economic impacts of abortion. But it is more than that. I live pro-life. When I was pregnant with my daughter, Rachael, my doctor asked if I wanted an amniocentesis to determine if everything was okay with her. With this test, there is a risk of spontaneous miscarriage. And so, of course, I declined. Because it did not matter if there was something that society might say was wrong with her. I was never going to have an abortion. We were blessed with Rachael. When she was twenty-two months old, she was diagnosed with Rett syndrome. She cannot walk. She cannot talk. She has no use of her arms or her hands. Rachael has taught us that a smile is worth a million words and that you can love someone so much, even if you can never, ever hear her voice. And so, when I hear that abortion might be okay when there is something "wrong" with the child, it physically hurts. That is my child. I know that God doesn't make mistakes and Rachael is exactly how she is supposed to be. And being pro-life does not stop there. I advocate for children and adults with disabilities and have similarly devoted my time, talent, and treasure to helping improve their lives. I am fiscally and socially conservative. I own my own business. I have more than twenty employees that work for my firm. I know the struggles of small business owners.
This is an appellate court. I am an appellate lawyer. I am Board Certified in Civil Appellate Law. I believe that if you ask anyone at the courthouse (judges, lawyers, staff), you will hear that I have a reputation for being smart and hard working. I do not believe that my opponent has that same reputation. I am not suggesting that he has a bad reputation. Instead, I suspect that he is just not known. I have received all of the accolades. I was a National Merit Scholar. I have been a Super Lawyer for years, the Top Women Attorneys in Texas, the Best Lawyers in America (none of which are paid for). I have broad experience in all the areas that the Court hears. Neither my opponent nor I are criminal attorneys. But my husband was a prosecutor for 14 years. While he was at the District Attorney's Office, I would write bench briefs for him, because, of course, I love to research and write. In State v. Azios, 966 S.W.2d 869 (Tex. App.--Beaumont 1998, no pet), the Court Appeals said this about me:
"Counsel for appellee's candor and straightforward discussion of the issues involved in this lawsuit is greatly appreciated by this Court and the Court wishes to publicly commend her for her compliance with the Rules of Professional Conduct, Rule 3.03, "Candor Toward the Tribunal."
