Two sitting judges have asked the Texas Supreme Court to weigh in on the consequences of failing to comply with a new law requiring certain public disclosures about a candidate’s legal experience.
Justice Peter Kelly of the First Court of Appeals in Houston is arguing his challenger must be removed from the March primary ballot for her alleged failure to disclose certain information, and Harris County District Judge Brittanye Morris is arguing she was wrongly kicked off the ballot after she mistakenly put her driver’s license number in a field of the form where her bar number should have gone.
Justice Kelly filed his direct appeal to the Texas Supreme Court Wednesday, along with a motion for emergency relief and to expedite. Kelly argues Texas Democratic Party Chair Gilberto Hinojosa has wrongly refused to remove from the ballot his challenger in the March election: Amber Michele Boyd-Cora.
Because mail-in ballots will be sent out Jan. 20 for the March 5 primary, Kelly argues the case should be decided on an expedited basis.
“In this case of first impression, this court must decide whether a candidate who has failed to make mandatory sworn disclosures must be barred from appearing on the primary ballot,” Kelly told the court.
Boyd-Cora was originally supposed to file a response with the Texas Supreme Court by 4:30 p.m. Friday but has been granted an extension and the filing is now due Monday.
The law at issue is H.B. 2384, which Kelly argues was passed in part to “discourage from running those who must admit — publicly and under oath — that they have no relevant experience.”
H.B. 2384 requires those running for a seat on an appellate court to disclose their bar number, any sanctions or censures, certain criminal convictions, and descriptions of their legal practice over the past five years, including details about specializations, courtroom experience, the filing of appellate briefs and oral arguments.
Boyd-Cora is accused by Kelly of misrepresenting in her disclosures that she had a specialization in real estate and construction law and that she had filed an appeal or presented oral arguments within the last five years.
Kelly submitted a challenge to Boyd-Cora’s ballot application to Hinojosa on Dec. 20, raising five points:
- Alleging Boyd-Cora inaccurately answered the question about her appellate experience.
- Alleging she failed to provide adequate description of appellate briefs she’s filed or oral arguments she’s presented.
- Alleging she misrepresented that she had a “specialization” in certain areas of the law.
- Alleging she failed to state that she’s not board certified in any specialization.
- Alleging she gave “vague and conclusory answers” to questions about professional courtroom experience.
The following day, Dec. 21, Boyd-Cora submitted an amendment to her application. But Kelly argues that amendment came too late, 10 days after the filing deadline.
“In her amendment she supplied different answers to the three challenged questions admitting she was not board certified, specifying that she had one jury verdict case, and describing her last appeal — an appeal from an eviction,” Justice Kelly told the Texas Supreme Court in his petition for writ of mandamus.
Boyd-Cora holds a bachelor’s degree from the University of Oregon and received a law degree from Texas Southern University in May 2009. She has operated her own law firm since June 2012, according to her LinkedIn profile.
Justice Kelly, a founding partner of appellate litigation boutique Kelly, Durham & Pittard, was elected to the court in 2018. He holds a bachelor’s degree from Harvard and graduated from the University of Texas School of Law in 1990.
“This candidacy challenge is not about mere technicalities, but the right of the voters — as now guaranteed by statute — to have access to accurate, transparent information about the basic qualifications of candidates for judicial office,” Justice Kelly argued. “Chair Hinojosa failed to fulfill a duty imposed by law when he refused to reject the application of a candidate for a judicial office who did not answer or accurately answer mandatory questions about her experience and qualifications on the ballot application.”
Lloyd Kelley of The Kelley Law Firm, who represents Boyd-Cora, told The Lawbook he’s representing three other Black, female judicial candidates against similar challenges.
“What we have is white candidates trying to keep Black females off the ballot,” he said. “Peter Kelly doesn’t want to face a Black female in March.”
Susan Hays of the Law Office of Susan Hays in Austin, who represents Justice Kelly, hit back against attorney Kelley’s allegations that this lawsuit is racially motivated.
“The big picture about this issue is this law is about transparency. It forces judicial candidates to put the basic information about their experience and credentials and do it accurately,” she said. “That’s a good thing for democracy and justice. It’s not attacking qualifications. It’s transparency. It’s not at all as malicious as Mr. Kelley would like it to be.”
Kelley argued that H.B. 2384 does not supplant the qualifications for judges established in the state constitution.
“Did the constitution change this summer? No. Did the legislature pass new, kind of fuzzy requirements? Yes,” he said. “Does that alter the constitutional requirements? No.”
In particular, Kelley took issue with the wording of the questions judicial candidates are required to answer under the new law. He said some words, like “appeal” are not clearly defined. His client has appealed rulings from a justice of the peace court to a county court-at-law, he said.
“The question doesn’t lend itself to accurate answers,” he said.
Like Kelley, Hays said she is advising other candidate clients on bringing possible challenges to judicial candidate applications.
“This is the only one I’ve been reviewing that has risen to this level,” she said of the petition for writ of mandamus she filed on behalf of Justice Kelly. “Ms. Boyd-Cora did a particularly bad job on her application.”
One of the other challenges where Kelley is representing a judicial candidate was filed by Harris County District Judge Mike Engelhart against Mike Doyle, chairman of the Harris County Democratic Party.
Engelhart alleged in the suit he filed Jan. 1 and nonsuited Jan. 3 that Doyle should have removed his challenger — Erica Hughes — from the primary ballot based on allegedly illegitimate signatures Hughes included on the petition she submitted with her application for office.
Under Texas Election Code, judicial candidates must file with their application a nominating petition containing at least 250 valid signatures of registered voters.
Doyle issued a 17-page final determination after reviewing Engelhart’s challenge, writing that it was “unclear” to him based on case law whether he or the courts should make a determination on the issue of the legitimacy of the signatures.
“Nevertheless, although I do not believe I have a statutory duty to conduct a full-blown examination into the veracity of the petition, I do believe it is within my responsibility to conduct a limited review of the face of the petition for conclusive obvious facial indicia of invalidity,” he wrote. “I have done so. The results, though troubling, do not arise to a level I believe compel (or even authorize) me to reject the petition of Judge Hughes.”
Hughes was elected to the Harris County Criminal Court at law No. 3 bench in 2018 and in 2021 was appointed by United States Attorney General Merrick Garland to serve as an immigration judge.
Engelhart told the court in his notice of nonsuit that he may pursue his challenge via a writ of mandamus in the appellate court.
“It is clear from the four corners of the application filed with the Harris County Democratic Party that fewer than 250 registered voters signed the petitions submitted by Erica Roche’ Hughes on or about December 11, 2023,” the notice reads. “The appropriate remedy is mandamus.”
A search of court records Friday afternoon did not reveal that Engelhart has yet pursued mandamus in the appellate courts.
In the other case pending before the Texas Supreme Court involving a challenge to a judicial candidate’s application, Harris County District Judge Brittanye Morris argues Doyle wrongly rejected her application after she failed to include her bar number.
“By inadvertence and innocent mistake, relator Morris handwrote her Texas driver’s license number in the box which called for her to insert her state bar number,” Judge Morris told the Texas Supreme Court in the petition for writ of mandamus she filed Jan. 2. “Respondent Doyle did not notice the mistake and did not check to see if the number listed was or was not the correct SBN for relator.”
Doyle is supposed to file a response with the Texas Supreme Court by 4:30 Friday. The filing was not available before publication of this story.
The Texas Supreme Court cases are In re: Peter Kelly, case number 24-0011 and In re: Brittanye Morris, case number 24-0007.