“When I was running track, the guy you feared in the race was never the slowest runner.” -Bishop James Dixon, II
Find the “Terrific Ten” Harris County Enforcement poster – the one promoting all of the white male incumbents endorsed months before the primary election – and anyone can see the problem.
The NAACP applauds the Defender for being the first news organization to have covered the discrimination Black female candidates for judge have experienced this year. This comes as a result of new laws enacted by the Texas Legislature and the institutionalized systemic opposition to having Blacks in the Texas Court of Appeals.
Consider these facts: Out of 100 court of appeals positions in Texas, only two are occupied by African Americans: Justice Erin Nowell on the Dallas Court of Appeals and Jesse McClure who was recently appointed to the Court of Criminal Appeals. That means that out of almost four million Blacks in Texas, there are only two Black appellant justices.
Appalling facts to ponder.
No Black person has ever been elected to the two Houston Court of Appeal seats and no Black person has ever served on 11 of 14 courts of appeal in Texas. This absence of Blacks on the appellate courts is neither accident nor coincidence. But rather, this is a vestige of Jim Crow and institutionalized segregation.
From 1927 through 1953, the United States Supreme Court addressed five challenges to one of the most effective means of disfranchisement of Blacks, the use of a whites-only primary (“white primary”) to deny African Americans by excluding them from voting in the primary used to select candidates for the ballot.
In 1952, the High Court declared the all-white primary system unconstitutional in the case Terry v. Adams, 345 U.S. 461 (1952). Despite that victory, it was not until 1978 that a Black person was even appointed to an appellate court (Justice Henry E. Doyle). In the entire history of Texas, there have only been 11 Black appellate court judges, nine appointed and only two elected.
As Isabella Wilkerson identifies in her work, “Caste: The Origins of Our Discontent,” the absence of Blacks in office is a lingering legacy of the American caste system put into place for the legitimization of slavery and later Jim Crow Apartheid. What’s happening to these Black female candidates for judge is fruit from the same roots that produced these systems of discrimination.
Prompted by the 2018 election in which a large number of Black females were elected to judicial seats in Harris County, the Legislature and white incumbents worked on a “bi-partisan” bill to add requirements to judicial candidates’ applications. Revealingly, incumbents were exempted from having to comply with the new law.
Incumbent Justice Peter Kelly challenged Amber Boyd-Cora under the new law, claiming it was a “case of first impression,” relying on the new 2023 Texas Legislature H.B. 2384, claiming his Black female challenger was “not qualified” to run. This “Incumbent Protection Act” exempted incumbents (all white males) but required answers to tricky, ambiguous questions for any challengers, (targeting the Black females). Please note, in 2024, no lawsuit was ever brought against a white male under H.B. 2384. The only challenge made under H.B. 2384 was by white males against Black female challengers.
The Texas Supreme Court rejected Kelly’s challenge as well as the other challenges.
Incumbent Robert Schaffer waited until after the Supreme Court ruled to fashion his challenge to Harris County Democratic Chair Mike Doyle to remove Black female candidate, TaKasha Francis by filing what is known as a “friendly” lawsuit. Just as Mike Englehart tried to do, Schaffer only sued Doyle and did not name Francis as a party, seeking to have Doyle take a “dive” and let Schaffer win without opposition.
In the Englehart case, Doyle’s attorney participated in ex parte communication (the illegal act of one party communicating with the judge without the other party’s knowledge) and worked with Englehart’s lawyer in trying to get Judge Erica Hughes removed from the ballot. This same tactic was employed in the Francis case, with Doyle’s lawyer waiving a jury trial and waiving any advance notice of the trial setting such that the Court set the trial date only 10 days from the initial hearing.
Schaffer’s and Doyle’s lawyers again engaged in ex parte communication to arrive at the “trial by ambush.” However, at the legal insistence of Francis to the Texas Supreme Court the visiting judge granted Francis a continuance and a jury trial.
Schaffer’s lawsuit is based on his allegation that Francis hasn’t been a practicing lawyer. The legal definition of the “practice of law” includes “giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined” (Tex. Gov’t Code § 81.101). Francis has been a licensed and practicing attorney, litigating and trying cases, both individual and commercial, for over 19 years and has provided sworn testimony to that fact.
In addition, Francis provided sworn testimony by Mayor Sylvester Turner, who conclusively established Francis engaged in the practice of law while a City Director during his administration. What does Schaffer have to support his lawsuit?
Nothing.
Repeatedly, Schaffer and his lawyer have admitted they do not have any witnesses to support their challenge to Francis being qualified to run for judge. Schaffer’s lawyer admitted two days before the trial was set that he could not identify a single witness. Even now, Schaffer’s lawyer admits he does not have a witness and is going to try to “wing it” by taking a random deposition of the City Attorney.
Despite being named as the only “defendant,” Mike Doyle has not taken any effort to defend his denial of Schaffer’s challenge to Francis but instead is actively supporting her removal as indicated in the extensive letter he wrote giving his opinion that Francis was “ineligible” to be a judge.
Francis and Judge Hughes had both objected to Doyle being involved because of an apparent conflict of interest. Doyle is a personal injury lawyer with active multi-million cases before Judge Engelhart and Judge Schaffer. Doyle and the Harris County Democratic Party had already endorsed the all-white male incumbents last November which is in contradiction of the long-standing party rule that the party would not endorse any primary election candidates. As party chair, Doyle not only endorsed Kelly, Goodman, Hightower, Spain, and Zimmerer, but also helped raise money for them to oppose any Black challengers.
As to the latest challenge, the incumbents are applying the rules one way for the white male incumbents and another way for the Black female challengers. Talk about double standards. Schaffer alleges Francis is “ineligible” to run for judge because she worked as a director for the City of Houston. However, Gordon Goodman admits he didn’t practice law for the past 10 years because for five of those prior years he was an NRG marketing exec.
Likewise, Jerry Zimmerer ran his own IT company for several years prior to taking the bench. Under Schaffer’s analysis, since they didn’t go to court on a full-time basis, they too should be declared “ineligible” despite the fact they were elected in 2018 (on the “coattails” of the Black females who swept the Harris County elections).
As the Honorable Vanessa Gilmore reminds us, “When we prove we can win, they change the rules of the game.”
Schaffer is pursuing his lawsuit knowing he can’t win. But instead, he aims to cast dispersions on Francis as voters go to vote for the March 5 Primary. Better informed, voters may choose to consider why a sitting judge would file a frivolous lawsuit without having any evidence to support the claim of “not qualified” against a Black female who is clearly qualified to be on the ballot. Although the Chronicle endorsed all of the white male incumbents, they, in a weird argument, “urged” schools, courts, firms, and the Legislature “to act with urgency to make the world of appellate law as multihued as our great state of Texas.”
The issue before America is not the lack of a “multihued” court system. The complete absence of Blacks on the two largest courts of appeals that both serve the Houston area and from almost all other courts of appeal in Texas is without excuse. This is the continued manifestation and direct vestige of a historical system of legalized Apartheid that continues to exist. The vestiges of discrimination that keep Blacks out of some races include institutional discouragement, the early endorsement of whites only, fundraising for whites only, the creation of new ambiguous laws, and unsubstantiated legal challenges to remove Blacks from the ballot. To protect democracy, all these must be dismantled.
In Texas, Blacks are still fighting for equal voter rights. But even that isn’t enough if your vote is limited to “whites only” as candidates for judgeships when diverse representation is the goal. In the lyrics of the Broadway hit “Hamilton,” “I want to be in the room where it happens” applies to Blacks accessing the chambers of the Texas courts of appeals where judicial decisions happen that affect the lives of us all.
The injustice being done to Black female candidates by the Democratic Party Chair and the white male incumbents must be deemed unacceptable in America and Texas. We urge the Chronicle and all media to publish a story based on these facts. We appreciate the Defender and others for giving voice to expose these vestiges of Apartheid.
The contributions of the Houston NAACP do not constitute endorsements for any candidate; but we are committed to ending systems that threaten democracy and perpetuate racial inequity, inequality, and injustice. We should not be having this conversation in Black History Month in 2024, but we must. Help the NAACP get the word out for all citizens to vote in the March 5 Primary. May the best women or men win.
That is what Democracy looks like.
Article written by Dr. James Dixon, President NAACP Houston