In the Place 8 race for the Supreme Court of Texas, incumbent Republican Brett Busby faces Democrat Gisela Triana, a justice on the Third Court of Appeals, which is headquartered in Austin and hears of cases from 24 Central Texas counties.
Busby is the second-newest member of the Supreme Court. He was appointed by Gov. Greg Abbott in February 2019 to succeed Justice Phil Johnson, who stepped down after 13 years. Before his appointment, Busby was a justice on the Fourteenth Court of Appeals in Houston and, before that, a partner and appellate litigator in the Houston office of Bracewell.
Triana is a first-generation American, the Texas-born daughter of Cuban immigrants who fled the communist regime of Fidel Castro in 1962.
If elected, she says, she would be the only member of the Supreme Court to have served at every lower level of the Texas judiciary. Before her 2018 election to the Third Court of Appeals, she was an Austin Municipal Court judge, a Travis County justice of the peace, a Travis County Court at Law judge and, for 14 years, judge of the 200th District Court in Travis County – the first female Hispanic elected to the district court bench in Travis County.
A graduate of the University of Texas Law School, she has also been a prosecutor in the Travis County Attorney’s office. And in the 1990s, she managed her own female-owned law firm, Hanko & Triana.
Busby describes himself as a seventh-generation Texan, a third-generation Eagle Scout and a life-long violinist. After graduating from Duke University and Columbia Law School, he clerked for U.S. Supreme Court Justices Byron White and John Paul Stevens. In 2018, while serving on the Fourteenth Court, he was named Appellate Judge of the Year by the Texas Association of Civil Trial and Appellate Specialists.
The following are the two candidates’ responses to written questionnaires from The Texas Lawbook.
Brett Busby
Q: What led you to practice law?
A: My mother, Jan Weaver Busby, inspired me to pursue a legal career. She was the only woman to graduate in her law school class from St. Mary’s in 1971, and she could not find a legal job. After I started to school, she found an established female practitioner in the estate and gift tax field who mentored her, and she later tried cases in the U.S. Tax Court. She was often underestimated by her opponents and would surprise them with her thorough preparation and tenacity, and she never lost a case. I planned to follow in her footsteps and pursue a career in tax litigation, but I discovered through my judicial clerkships that I really enjoyed appellate work.
Q: Tell us about your life and career before joining the Texas Supreme Court and how those experiences have shaped you into the justice you are today.
A: I’m a third-generation Eagle Scout, and my parents taught me to find opportunities to be of use. After law school, I had the opportunity to serve as a law clerk to justices Byron White and John Paul Stevens of the U.S. Supreme Court and to Judge Gerald Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit. I enjoyed the research and writing work and the process of developing and refining legal arguments, so I decided to specialize in appellate litigation and began my practice in Houston. While building a successful appellate practice and eventually becoming a partner at Bracewell, I also donated hundreds of hours of pro bono work to help those in need of legal services, and I had the opportunity to argue one of my pro bono cases in the U.S. Supreme Court (Day v. McDonough, 547 U.S. 198 (2006)). That case brought home the importance of having judges who understand that their role in our adversary system is to decide issues presented by the parties according to the law, not to become an advocate by looking for unraised grounds on which to rule for or against one side. Friends persuaded me that I could put this perspective to good use on the bench, and I ran for an open seat on the Fourteenth Court of Appeals and was elected in 2012.
Q: What led you to become a justice at the Supreme Court? Why is this the right fit for you now in this phase of your career?
A: My 22-year career as an appellate attorney and judge has prepared me to be a leader on the Supreme Court. I am the only sitting justice who specialized in appellate work in private practice, arguing cases before the U.S. and Texas Supreme Courts and appellate courts across the state. I began my career as a law clerk at the U.S. Supreme Court, built a successful Texas appellate practice and became board certified in Civil Appellate Law. I was named one of the Top 100 Lawyers in Texas in 2012 by Super Lawyers, and my fellow Texas appellate lawyers recently elected me as chair of the State Bar Appellate Section. This appellate experience helps me decide which cases the Supreme Court should grant to ensure that Texas law is consistent and predictable, understand the nuances of the complex cases we hear, reason together with my colleagues to determine the correct decision under the law and write clear opinions so that everyone will know what their rights and obligations are.
Q: How has your first year at the Supreme Court been? What have you learned?
A: As an appellate advocate, serving on this court is a dream job because it allows me to do work I enjoy while serving my state with colleagues I admire. The 2019-2020 [term] was a very busy and productive one. I wrote the most majority opinions for the court and learned to collaborate effectively with each of my new colleagues to reach the just and correct result in each case. The pandemic has also been a very challenging time for Texas and for our judicial branch. I am grateful for the opportunity to take a leadership role in the judiciary’s pandemic response, using new rules and innovative technology to ensure our courts are working safely and remain open to all who seek justice.
Q: What do you love the most about this job?
A: My favorite parts of the job are working collaboratively with dedicated colleagues as we discuss and refine our thinking on important legal issues, as well as mentoring the next generation of men and women who will become leaders of the legal profession in Texas. I hire two new law clerks each year, and giving them an opportunity to serve our state while helping them to develop their legal skills is one way I enjoy paying forward the investment that so many mentors have made in my career.
Q: Have you ever joined a vote or authored an opinion that you regretted? If so, tell us about that experience and what lesson you took away from it.
A: As Justice Gorsuch has wisely observed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. One example of an opinion whose result I personally disliked is Esters v. Texas Department of Transportation, No. 14-11-977-CV, 2013 WL 3947159 (Tex. App.—Houston [14th Dist.] July 30, 2013, no pet.). There, an employee of the Texas Department of Transportation provided evidence of egregious acts of racial discrimination by his supervisor. Unfortunately, his attorney did not file an administrative complaint until more than 300 days after these acts, and he did not argue that the 300-day period should be tolled. The jury therefore found against the employee, and we were constrained to affirm a take-nothing judgment. This case reinforced for me the importance of having judges who will rule based on the law, not personal or partisan preference, especially when doing so is hard.
Q: What are one or two opinions you’ve authored that are you most proud of?
A: As a justice on the Fourteenth Court of Appeals, I wrote an opinion explaining that our constitutional rule-of-law tradition allows a court to review affected citizens’ complaints that their city is refusing to follow a revenue-cap provision in its charter (Turner v. Robinson, 534 S.W.3d 115 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (Busby, J., concurring)). On the Supreme Court, I recently wrote an opinion holding that the Tenth Amendment forbids using federal preemption doctrine to rewrite state law, and that federal aviation law does not preempt reasonable state law limits on how much workers’ compensation insurance will reimburse for air ambulance services (Tex. Mutual Ins. Co. v. PHI Air Medical, LLC, 2020 WL 3477002 (Tex. June 26, 2020)).
Q: What sets you apart from your opponent?
A: Based on my record as a fair judge and experienced appellate attorney, the Texas Senate voted unanimously to confirm my appointment to the Supreme Court. I am a former U.S. Supreme Court law clerk who built a successful Texas appellate practice and handled many cases before the court on which I now serve. I am board certified in civil appellate law and was recently elected by my fellow Texas appellate lawyers as chair of the State Bar Appellate Section.
As a judge, my record shows that I serve the people of Texas by listening attentively, working hard and ruling fairly based on the law – not on personal or political views. Compare the reviews we receive from the lawyers who know us best: I’m honored to be rated consistently among the best and most impartial appellate judges in Texas in bar polls, and I was named Appellate Judge of the Year in 2018 by the Texas Association of Civil Trial and Appellate Specialists.
Q: What makes a good Supreme Court justice?
A: A good Supreme Court justice is experienced, intelligent, hardworking, courteous, attentive, collaborative, principled, impartial and articulate.
Q: What are the biggest challenges the Texas Supreme Court faces today (COVID and beyond) and how is the court addressing those challenges?
A: Texans of limited means face many obstacles in securing the basic civil legal services they need. As the Court’s liaison to the Texas Access to Justice Commission, I champion reforms that will help remove barriers to access and obtain more volunteers and funding. For example, a committee I led (1) successfully pressed for new legislation and rules that make it easier for lawyers licensed in other states to represent clients pro bono in Texas courts, and (2) developed revisions to the Code of Judicial Conduct that clarify what judges and clerks may do to inform unrepresented parties about relevant legal options and procedures. In addition, Texas lawyers now report donating more than 2 million hours of their time each year to help these Texans, which is a remarkable contribution. And the court has helped obtain hundreds of millions of dollars in state and federal funding for civil legal aid in Texas.
Our court is also leading the Texas judiciary’s pandemic response. We immediately issued emergency orders and provided technology to allow courts to hold virtual proceedings. As a result, Texas courts are a national leader in remote hearings, holding an estimated 440,000 remote hearings with 1.3 million participants lasting almost 1 million hours from March through August 2020.
Certain court proceedings must be held in person, however. In cooperation with the Texas Office of Court Administration and our regional presiding judges across the state, several Texas judges have now held in-person trials to test best practices for keeping the wheels of justice turning safely during this time. After considering their recommendations, our court recently issued an order that will allow resumption of in-person jury trials in the next few months with the approval of the regional presiding judge and local administrative judge and consistent with safety guidelines such as screening, face coverings, social distancing and courtroom rearrangement, evidence management and cleaning protocols.
As the liaison for access to justice, I am committed to revising our rules to incorporate lessons learned from the pandemic to help those who need legal aid. Online hearings in appropriate cases make it easier to obtain counsel, lower the cost of legal services and allow parties and witnesses to participate while taking less time away from their work. They can also facilitate obtaining evidence and put children and other witnesses at ease. But in-person participation plays an important role in trials and certain other critical proceedings, and our rules should continue to recognize that.
Q: There’s a population of lawyers in Texas who believe that the Texas Supreme Court is desperately in need of some fresh blood or at least some more dissenting opinions. Why should voters keep you on?
A: I am fresh blood on the Supreme Court, having been appointed by Gov. Abbott and confirmed unanimously by the Senate last year. I agree that dissenting opinions are important: They help shape majority opinions and develop views that may later be adopted by the court or the Legislature. Our Court issues many dissenting opinions each term. But I prefer to write majority opinions, and I work hard to produce opinions that will persuade my colleagues to join.
Q: No matter what you say here, there will be some voters who will not vote for you simply because they’re straight-ticket voters and you’re on the wrong side of their ballot. There is another group of voters who are inclined to do the same, but could be convinced otherwise. What would you say to them? Why should they vote for you even if your political party doesn’t match their values?
A: My Democratic opponent recently said in an interview that she has nothing against me but thinks I “happen to be on the wrong team.” I believe strongly that judges should not be on any team. Although Texans choose their judges through a partisan political process, judges must decide cases based on what the law says, not what they think the law should say or who they think should win. My record shows that I have ruled against positions taken by my own political party as well as my opponents’ parties because that is what the law required in each case. I also have a record of upholding the rule of law: the principle that everyone has an obligation to obey the law, and no one – including the government and its officials – is above the law.
Gisela Triana
Q: What led you to become a lawyer and a judge?
A: I am a first-generation American, the proud daughter of Cuban immigrants. My parents came from Cuba at the age of 18, fleeing Castro’s communist regime in 1962, with little else than each other. Not knowing the language or the culture, my father joined the Army as soon as he arrived in the U.S. and was stationed at Ft. Hood. I was born and bred in Texas. I grew up hearing the horrific stories of my family losing everything in Cuba under communism. My great-grandfather was a farmer, who lost his farm and his house. My grandfather was jailed without any notice to my grandmother of why he had been picked up or why he was being interrogated. My parents lived in constant fear of being accused of being antirevolutionaries and sent to prison. I knew at an early age that I wanted to be part of the American legal system, a system I had learned in school prevented the government from taking your life, liberty or property without due process of law. From a young age, I knew I wanted to be part of the system that guaranteed justice for all. I wanted to make sure neither my family nor any other family would have to go through that again. I graduated from the University of Texas School of Law at the age of 22 and have spent the majority of my 32-year career in public service trying to protect everyday Texans.
Q: What led you to enter this race?
A: I am running to bring balance, independence, fairness and diversity of thought to the Court. For over two decades, all the members of the court have been Republican. Currently, seven of the nine 9 were initially appointed to their present positions by a Republican governor. These political appointments have made the court result-oriented and beholden to special interests. Texans deserve a level playing field with an independent court that will follow the rule of law, not one that rules on the basis of a political agenda. Our founders were wise to create a jury system that brought people from different walks of life, with different experiences to judge a case. We need this diversity of thought on the court as well. It makes for better jurisprudence.
Q: Tell us a little bit about your career and how each chapter of your career would help you in your role serving on the state’s most powerful civil court.
A: I believe I am the best qualified for this position. For over 24 years, I have served as a judge in Texas. I worked my way up from municipal court to justice of the peace, to county court, to district court and, most recently, to the appellate court. If elected, I will be the only person on the Texas Supreme Court who has served at every lower level court in Texas. Most of my 32-year legal career has been in public service. I began as a prosecutor for the Travis County Attorney’s office, worked for the Texas secretary of state in the Election Division and had my own female-owned practice at Hanko & Triana LLP. As a civil district judge for 14 years in Travis County and as justice on the Third Court of Appeals, I have dealt with all the types of cases that appear before the Supreme Court, and so I am ready to do the job and will need little if any training. I have authored the most opinions on the Third Court of Appeals every year that I have been there. I have earned a reputation for being fair, courteous, independent, deliberate and knowledgeable in the law and for listening to all sides of a case.
Q: From your point of view, what is the most important thing that the Texas Supreme Court does in the overall ecosystem in the administration of civil justice in Texas? What would you do to make sure the state’s high court continues to fulfill that purpose?
A: The Texas Supreme Court is the court of last resort in all civil and juvenile matters. It should dispense justice with an even hand, not favor those that are wealthy or well connected. Justices on the court should decide cases based on the rule of law, not on the result they want. Texans have lost trust and confidence in their courts and do not believe that they will receive justice. As a justice on the Supreme Court, I will work hard to ensure that all are treated and protected equally under the law.
Q: In your roles as both a trial court judge and appellate judge, what has been the most valuable lesson you’ve learned about the relationship between the Supreme Court and the lower courts it presides over? How would you use that knowledge as a justice of the Texas Supreme Court?
A: Having been a trial judge for over 23 years, I learned that people come to the courthouse at their worst times, when they are most vulnerable, looking for justice. Most importantly, I learned that what they wanted most of all was to heard, to have their day in court. For most people, the trial court was their only chance at justice, their only exposure to the judicial system and their last bite at the apple. I learned how important it was to treat everyone with respect and dignity. As an appellate judge, those lessons have been instrumental. Sometimes, we can sit in what seem to be ivory towers, removed from the very actual effects of our opinions. We can lose sight of that in shuffling paper, in reading briefs and researching law. It can become an intellectual, or even academic, exercise. On any appellate court, including the Texas Supreme Court, we must always remember that there are real people in each case we decide.
Q: What’s the hardest lesson you’ve learned in your career? How would that lesson help you on the Supreme Court?
A: As a judge, you cannot please everybody. There will be winners and losers. Inevitably, you may have to rule in a fashion you’d wish you wouldn’t have to but have no choice because the law is clear. Sometimes, you will have to rule against lawyers you consider your friends because they are on the wrong side of the law. It is important that your rulings be fair and consistent and that you follow the rule of law. If you strive to get it right and give everyone a level playing field, more often than not, even though people may not agree, they will understand and accept your ruling. The legitimacy of the courts is based on people believing they are dispensing blind justice.
Q: What changes do we need at the Texas Supreme Court and how would you oversee those changes?
A: We need to restore balance, independence, fairness and diversity of thought to the Court. For over two decades, all the members of the court have been Republican. Currently, seven of the nine were initially appointed to their present positions by a Republican governor. These political appointments have made the court result-oriented and beholden to special interests. Texans deserve a level playing field with an independent court that will follow the Rule of Law, not one that rules on the basis of a political agenda. I also believe that in today’s racially and politically charged climate, lawyers and judges should be at the forefront and lead by example by requiring mandatory implicit bias training for all members of the bar. We all have implicit bias. We need to learn how to identify it and work diligently to overcome it. I try to do this on a daily basis.
Q: How do you think the high court has handled the COVID-19 pandemic? What would you do differently, if anything?
A: I believe the Supreme Court has handled the procedures of running the courts very well. They acted swiftly to close courthouses and have prevented in person hearings until Dec. 1.
I am sure this has prevented COVID-19 from spreading in the courts. However, I believe that they have handled the pandemic poorly in other areas. As a policy decision, the Court appropriately suspended residential evictions and debt-collecting procedures at the beginning of the pandemic in March. They reversed course in May, and at the height of the pandemic with over 1.2 million Texans out of work they rescinded that order because the governor decided it was time to reopen Texas. Even as the governor reclosed bars and other businesses and scaled back restaurants and gatherings in June because of the spike in coronavirus, and even as unemployment rate increased and the CDC called for us to shelter at home, the Supreme Court refused to protect those most vulnerable. It was not until September, when the CDC prohibited residential evictions from proceeding due to public health concerns, that the Texas Supreme Court acted, and that was not to suspend residential evictions in Texas but to merely require eviction petitions to notify tenants of their rights. It is impossible to shelter at home if you have no home. I would halt residential evictions of indigent Texans.
Q: Where are some areas you think Supreme Court of Texas needs improvement? What would you do to make those improvements?
A: We need to restore balance, independence, fairness, and diversity of thought to the Court. For over two decades, all the members of the court have been Republican. Currently, seven of the nine were initially appointed to their present positions by a Republican governor. These political appointments have made the court result-oriented and beholden to special interests. Texans deserve a level playing field with an independent court that will follow the rule of law, not one that rules on the basis of a political agenda. I also believe that in today’s racially and politically charged climate, lawyers and judges should be at the forefront and lead by example by requiring mandatory implicit bias training for all members of the bar. We all have implicit bias. We need to learn how to identify it and work diligently to overcome it. I try to do this on a daily basis.
Q: The Supreme Court races this year are unique due to the diversity of the challengers — all women — running against the incumbents. If elected, what would you do to help advance diversity and women among the judiciary and legal profession at large in Texas?
A: Two-thirds of the Texas Supreme Court are white men. There are only three women, no African Americans and only one Hispanic. I believe this lack of diversity contributes to the lack of public confidence in the court. Finding and being a mentor to up-and-coming lawyers and law students is a proven way to help advance women and minority lawyers in the legal profession and the judiciary. When I was a district judge in Travis County, several women and minority judges and I approached the Hispanic Bar of Austin and the Austin Black Lawyers Association to help develop a pipeline from the bar to the bench. We made presentations and encouraged these minority bars to begin developing ways to help identify, recruit, encourage, train and prepare minority lawyers to become judges.
Q: What sets you apart from your opponent?
A: I have spent most of my 32-year legal career in public service. I began as a prosecutor, worked at the secretary of state’s Election Division and then owned my own firm. I worked my way up as a judge from municipal court to justice of the peace, to county court, to district court and, most recently, to the Third Court of Appeals. I have won every election in which I have run, and if elected I will be the only person on the Supreme Court who has served at every lower-level court in Texas. I have worked most of my career mastering my craft and honing my judicial skills. Experience matters, and I humbly ask for your vote.
Q: No matter what you say here, there will be some voters who will not vote for you simply because they’re straight-ticket voters and you’re on the wrong side of their ballot. There is another group of voters who are inclined to do the same, but could be convinced otherwise. What would you say to them? Why should they vote for you even if your political party doesn’t match their values?
A: I believe I am the best qualified for this position. For over 24 years, I have served as a judge in Texas. I worked my way up from municipal court to justice of the peace, to county court, to district court and, most recently, to the appellate court. If elected, I will be the only person on the Supreme Court who has served at every lower-level court in Texas. Most of my 32-year legal career has been in public service. I began as a prosecutor for the Travis County Attorney’s office, worked for the Texas secretary of state in the Election Division and had my own female owned practice at Hanko & Triana LLP. As a civil district judge for 14 years in Travis County and as justice on the Third Court of Appeals, I have dealt with all the types of cases that come before the Supreme Court, so I am ready to do the job and will need little if any training. I have authored the most opinions on the Third Court of Appeals every year that I have been there. I have earned a reputation for being fair, courteous, independent, deliberate and knowledgeable in the law and for listening to all sides of a case.
Candidate responses may be edited to comply with Texas Lawbook style guidelines.
Publisher’s Note: This coverage of the 2020 judicial elections by The Texas Lawbook is being made available outside our paywall courtesy of Thompson Coburn and Carter Arnett.