Texas Supreme Court justice seeking reelection under fire for absenteeism, ethics concerns

As early voting is underway in the Republican primary, a Texas Supreme Court justice seeking reelection to a third term finds himself dogged by ethical concerns, chronic absenteeism and a self-admitted history of arrests for protests at abortion clinics.

Justice John Devine, 65, the fourth-most senior justice, having joined the high court in 2012 after ousting an incumbent, is taking heat from his GOP primary challenger, Judge Brian Walker of the 2nd Court of Appeals in Fort Worth.

Walker, 46, has spent his political campaign amplifying Devine's low attendance in court hearings — Devine has skipped 60% of oral arguments this term, while all but one of his colleagues have had perfect attendance, according to a Statesman analysis of video records — as well as other unflattering revelations about the incumbent.

Among them is Devine's failure to recuse himself from a 2022 sex abuse case against his former co-counsel Paul Pressler and longtime law partner Jared Woodfill, whose law firm, Woodfill & Pressler LLP, employed Devine for several years, according to a Feb. 13 report from The Texas Tribune.

Two justices who had worked for the law firm representing the plaintiff, Duane Rollins, recused themselves from that case, but Devine participated in the ruling and dissented from the court's 5-2 decision allowing the case to go forward.

The other justices up for reelection, Jimmy Blacklock and Jane Bland, are not facing primary opponents. Walker said Devine's conduct and his "activist" opinions motivated him to run against the more senior justice.

“I’m running against Justice Devine specifically because I think he’s extremely flawed ethically,” Walker said in an interview with the American-Statesman. “I think he’s an embarrassment to the people of Texas and to the judiciary.”

Devine and Walker are seeking a coveted GOP nomination for the all-Republican nine-member Supreme Court, which is Texas' highest avenue for civil cases. Whoever receives the most votes in the March 5 primary will advance to the Nov. 5 general election to face Democratic Judge Christine Weems of the 281st District Court in Harris County, who is uncontested in the primary, as well as Libertarian Matthew Sercely, a personal injury lawyer.

Devine and his campaign did not respond to multiple Statesman requests for comment.

In a statement to the Tribune, he said that he had never worked with Pressler and that, while he had "jointly tried some cases with Woodfill," he had no financial interest in his firm or in the case.

“Every judge working on a court knows other lawyers," Devine wrote. "In the practice of law, sometimes you are on the same side of the table, and sometimes it’s the other side. That is not a basis for recusal in a completely unrelated case decades later.”

Devine, however, was listed as co-counsel with Pressler in several cases, the Tribune reported. Pressler also supported Devine's run for a Harris County District Court in 1998, writing in a letter, "You know that you have my enthusiastic support, and I will be glad to do anything in the world that you want me to do to be of assistance to you."

The revelations about Devine have cast a cloud over the high court, and the judicial election, something than hasn't happened in years, said George Christian, senior counsel for the Texas Civil Justice League, a nonprofit business association that lobbies for judicial restraint and legal reform and leads an effort to inform voters about state judicial elections.

"Our Supreme Court has been historically — since around 30 years ago — very careful about the appearance of impropriety and the appearance of any kind of conflict of interest or anything that could put the court in a bad light," Christian. said. "This is just unfortunate."

The primary challenge also comes amid a term when several high-stakes cases involving abortion have trained a spotlight on the state's highest civil court — and on Devine.

After the court denied a Dallas woman's request for an emergency abortion of a nonviable fetus in December, a 2012 video resurfaced showing Devine enthusiastically telling a crowd of supporters for his first Supreme Court run that he was arrested 37 times for "rescuing" women at abortion clinics.

"Ladies and gentlemen, I want to submit to you that before I ever got into politics, my convictions were forged in the crucible of the pro-life movement," Devine tells supporters in the video. "Now, isn't it an irony that today I stand before you as one who could very well win the Texas Supreme Court?"

At least two of those incidents led Travis County juries to sentence Devine to serve a total of 118 days in jail and pay $1,500 in fines for criminal trespass in 1989, according to court records obtained by the Statesman.

Devine and his campaign did not respond to requests for comment on the criminal records, but he has said in an interview with the Tribune that he is able to interpret the law impartially despite his history of activism. His campaign website does not mention his past anti-abortion activism.

Texas law does not require candidates for judicial office to disclose misdemeanor convictions that occurred more than 10 years before the date on which the candidate would assume office. The law requiring disclosure of recent misdemeanors was passed by the Legislature in 2023.

The court is also weighing a decision in Zurawski v. Texas, in which 20 women are suing the state over what they allege is a dangerous lack of clarity about medical exceptions to the state's abortion bans. Devine was not present for the hearing Nov. 28 but will participate in the ruling, according to video records of the hearing.

More: Here's what the Texas Supreme Court's ruling against Kate Cox means for abortions

Devine has missed 60% of oral arguments this term

Walker has turned to YouTube and his campaign website to publicize that Devine missed 28 out of 50 oral arguments that the Supreme Court heard between September and mid-February, as Bloomberg Law first reported in mid-February.

The Statesman's review of video records of each hearing found that Devine's spot on the bench has remained empty since mid-February, with the justice missing all eight oral arguments heard between Feb. 20 and Friday.

The most recent absences bring his attendance rate to 40% this term, with the justice having missed all hearings Oct. 3-5, Nov. 28-30 and Jan. 30 to Feb. 1. Arguments are typically scheduled for three to six days each month.

Devine did not respond for the Statesman's request for comment on his absences but told Bloomberg Law in February that the work is "easy to make up" and that the absences were necessary for his campaign.

“It’s really a nonissue,” Devine told Bloomberg. “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 reads briefs ahead of arguments and watches replays of the hearings afterward, but his absences mean he isn't there to question lawyers' arguments. Questions from justices typically drive the 40-minute to hour-long hearings the court holds.

Campaigns consume a significant amount of time during reelection years, said Charlie Baird, a former judge on the Texas Court of Criminal Appeals, the state's highest criminal court. But "the amount of work Justice Devine is missing seems beyond the pale."

"You should not run for judge or be a judge if you're not going to make that (work) your No. 1 priority, just out of respect for your position and out of respect for the voters that put you there," Baird said.

The Statesman found that Devine is the only justice to have absences not related to recusals this term besides Justice Debra Lehrmann, the second-most senior justice on the court, who missed six oral arguments.

Walker has never missed an argument in his current job, 2nd Court of Appeals Clerk Deborah Spisak confirmed to the American-Statesman.

"Devine skipping the most visible part of his job ... makes one wonder how much time he is putting in for the nonvisible parts of his job," Walker said. "When I waited tables in college, we had an expression: 'If the dining room isn't clean, you know the kitchen isn't clean!’ ”

The Texas Code of Judicial Conduct states that "judicial duties take precedence over all other activities," Walker noted.

Devine has upper hand in campaign support, experience

Texas is one of eight states where partisan elections govern the selection of justices to the state's highest civil and criminal courts. Governors can appoint justices if a vacancy opens before a six-year term ends, and incumbents rarely lose their seats in reelection bids.

Devine has raised $234,000 in campaign donations this cycle, more than seven times as much as Walker had raised by early February, according to TransparencyUSA, a nonpartisan nonprofit that tracks money in state politics. He has also racked up endorsements from top Republican officials and groups, including Lt. Gov. Dan Patrick, Texas Attorney General Ken Paxton, anti-abortion lobbying group Texas Alliance for Life and the Texas Association of Business. Paxton and Patrick did not respond to Statesman request for comment.

Walker, who has raised $33,000, has been endorsed by the The Dallas Morning News, the Houston Chronicle and the San Antonio Express-News.

While both candidates have appellate court experience, Devine has spent 11 years on the state Supreme Court and Walker has spent three years as an appellate judge in his current role. Licensed by the bar in 1987, Devine also served a total of seven years as a district judge in Harris County from 1995 to 2002, according to his Supreme Court biography.

Walker, whose father is also a judge, was licensed to practice law in 2004 and served nine years as a judge advocate in the United States Air Force Reserve, according to his 2nd Court of Appeals biography.

Walker, a seventh-generation Texan, said his love for the state and the U.S. prompted his decision to switch from private practice to judicial work in 2021.

"Throughout my life, I've been committed to service," Walker said. "I took a significant pay cut to leave private practice to serve as a judge on the 2nd Court of Appeals, and now I feel called to serve at the highest level of the judiciary."

Early voting in the primary will run through Friday. Election day is March 5.

Statesman staff writers Serena Lin and John C. Moritz contributed to this report.

Editor's note: This story has been updated to reflect that Baird is a former judge on the Criminal Court of Appeals. Baird was previously mistakenly identified as a "justice" on the Court.

This article originally appeared on Austin American-Statesman: Texas election: Supreme Court justice skips 60% hearings, seeks return