Experience

 
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Private Practice

• former Baker Botts trial partner 

• practiced in areas of antitrust, commercial, tort, and bankruptcy litigation

• handled smallest to largest cases, represented plaintiffs and defendants

• twice recognized in “Big Suits” section of The American Lawyer, for work on Elloway v. Pate shareholder class-action trial (January 2006) and ASARCO v. Americas Mining Company fraudulent-transfer trial (June 2009)

•former president of the Houston Lawyers Chapter of The Federalist Society for Law and Public Policy (2005-2009) 

Public Service

• Justice, Texas First Court of Appeals — over 9 years of judicial service, with over 550 signed opinions

• Supreme Court of Texas Permanent Judicial Commission for Children, Youth and Families — appointed by Supreme Court of Texas to serve two terms as commissioner (2011-2017), then as Senior Judicial Advisor to the commission (2017-present) 

• H.B. 7 task force — appointed by Supreme Court of Texas to serve on task force to advise about procedures in parental-termination cases (2017-present)

• Texas Access to Justice Commission — appointed by Supreme Court of Texas to serve as commissioner (2018-present)

• Law clerk, U.S. Fifth Circuit Court of Appeals — 2 years as a law clerk to Judge Harold R. DeMoss, Jr.


Judicial Philosophy

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I believe in a limited role for the courts, in which judges help to clarify what the law is, rather than dictating what it ought to be. I consider myself to be an originalist and a textualist. By this I mean that I rely primarily on constitutional and statutory text to discern its original public meaning. 

+ Restraint

The courts, in their proper function, play a limited role in government and truly should be the “least dangerous branch.” Policy is to be determined by our elected representatives in the legislature, and by the executive branch, and courts should not go out of their way to impose their own view. Courts should act modestly, and they should respect the judgments of the other branches, which similarly swear oaths to preserve, protect, and defend the Constitution. In this sense, courts should be “restrained.”

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+ Engagement

Courts should not go to the opposite extreme and exalt deference over the responsibility to enforce constitutional boundaries. Judges should not distort the plain meaning of an unconstitutional statute for the sole purpose of avoiding the result of invalidating it. Courts exist to provide a remedy for people who have been injured, and judges must be “engaged” in their responsibility to preserve, protect, and defend the Constitution.

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+ Independence

It is the responsibility of the courts to explain what the law is, in a way that gives guidance to lawyers and is accessible to the general public. We are not forced to choose between the arguments of opposing advocates. We have an independent responsibility to the people to remain faithful to the law.

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+ Humility

In all public and official interactions, judges must display fairness, impartiality, and respect for all lawyers, as well as other judges and government officials. I believe judges should be modest about their role in government, and they should be constantly on guard against becoming too enamored with the trappings of office.

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Judicial Record

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As a state appellate judge, I have written over well over 1,000 legal opinions, including over 550 signed majority opinions. The First Court’s docket is split about equally between civil and criminal appeals. I am board certified in civil appellate law, and my extensive written record reflects fair, even application of the law. In over 9 years, the Supreme Court of Texas has only granted an oral argument once to review one of my majority opinions – an opinion applying federal constitutional law which was affirmed. See ETC Mktg., Ltd. v. Harris County Appraisal Dist., 476 S.W.3d 501 (Tex. App.—Houston [1st Dist.] 2015), aff’d, 528 S.W.3d 70 (Tex. 2017), cert. denied, 138 S. Ct. 557 (2017).

I have been an effective author of separate opinions, 4 of which have resulted in the Supreme Court of Texas granting review and issuing opinions consistent with mine:

  • Cohen v. Sandcastle Homes, Inc., 469 S.W.3d 173 (Tex. App.—Houston [1st Dist.] 2015). This important real property case required interpretation of a 2009 Texas statute concerning the effect of an expungment of a notice of lis pendens. My dissenting opinion focused on applying the text of the statute, rather than its “aims” as characterized by the panel majority. In reversing, a majority of the Supreme Court of Texas expressly stated that they agreed with my interpretation. See Sommers ex rel. Alabama & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521 S.W.3d 749, 755 (Tex. 2017).

  • Control Sols., Inc. v. Gharda USA, Inc., 394 S.W.3d 127 (Tex. App.—Houston [1st Dist.] 2012). This appeal arose from a lawsuit over a warehouse fire. My dissenting opinion explained that the trial judge was correct to reject, as unreliable, a complex series of expert opinions about the cause of the fire. Agreeing with my position, the Supreme Court of Texas held that all four expert opinions analyzed by my dissent were unreliable. See Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338 (Tex. 2015).

  • Tyco Valves & Controls, L.P. v. Colorado, 365 S.W.3d 750 (Tex. App.—Houston [1st Dist.] 2012). The appeal of this employment dispute resulted in three different opinions in the First Court. I concurred in the judgment, but for a reason rejected by the majority of the panel. Because the dispute related to an employee benefit plan governed by the federal ERISA law, I concluded that the state-law claims were preempted. The Supreme Court of Texas reviewed the case and unanimously affirmed, expressly stating agreement with my concurring opinion that the claims were preempted by ERISA. See Colorado v. Tyco Valves & Controls, L.P., 432 S.W.3d 885, 893 (Tex. 2014).

  • City of Houston v. Rhule, 377 S.W.3d 734 (Tex. App.—Houston [1st Dist.] 2012). This dispute involved a claim that a municipality breached the settlement of a workers’ compensation claim. I wrote a dissenting opinion, based in part on my interpretation of a statute that required the former employee to first present the claim to the appropriate administrative agency. The Supreme Court of Texas agreed with that analysis, and it reversed for lack of jurisdiction due to the claimant’s failure to exhaust administrative remedies. City of Houston v. Rhule, 417 S.W.3d 440 (Tex. 2013) (per curiam).


Other representative judicial opinions include:

+ Statutory Interpretation / Textualism

  • In re Stalder, 540 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2018) (orig. proceeding) (interpretation of Election Code’s disjunctive list of options for filing an application for a place on the general primary election ballot).
  • Pajooh v. Royal West Invs. LLC, Series E, 518 S.W.3d 557 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (interpretation and application of the statutory exclusivity of the charging order remedy).
  • Tanya L. McCabe Trust v. Ranger Energy LLC, 531 S.W.3d 783 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (interpretation of legislative revisions to correction-instrument statutes in the Texas Property Code).
  • Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Services, Inc., 500 S.W.3d 26 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (Massengale, J., dissenting) (interpretation of Texas Citizens Participation Act statutory timelines).
  • Schlumberger, Ltd. v. Rutherford, 472 S.W.3d 882 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (discussing function of legislative history with respect to interpreting Texas Citizens Participation Act).
  • Peterson Group, Inc. v. PLTQ Lotus Group, L.P., 417 S.W.3d 46 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (analyzing Business Organizations Code as applied to limited partnerships and declining to apply equitable veil-piercing to impose liability on a limited partner).

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+ Federalism

  • McClintock v. State, 480 S.W.3d 734 (Tex. App.—Houston [1st Dist.] 2015) (state exclusionary rule established by statute in Texas provides greater protection for individual liberty than federal exclusionary rule), rev’d, 541 S.W.3d 63 (Tex. Crim. App. 2017); see also McClintock, 541 S.W.3d at 75 (Alcala, J., dissenting); McClintock v. State, 538 S.W.3d 542 (Tex. Crim. App. 2017) (Alcala, J., dissenting from denial of rehearing).
  • In re Haynes & Boone, LLP, 376 S.W.3d 839 (Tex. App.—Houston [1st Dist.] 2012) (orig. proceeding, mand. ref’d) (state courts’ jurisdiction over legal-malpractice claims with embedded federal antitrust issues).

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+ Criminal law

  • Bailey v. State, 469 S.W.3d 762 (Tex. App.—Houston [1st Dist.] 2015) (en banc) (waiver of attorney-client privilege), aff’d, 507 S.W.3d 740 (Tex. Crim. App. 2016).
  • Cardenas v. State, 403 S.W.3d 377 (Tex. App.—Houston [1st Dist.] 2013) (interpretation and application of statutes and procedural rules governing imposition of court costs), aff’d, 423 S.W.3d 396 (Tex. Crim. App. 2014).
  • Jones v. State, 338 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2011) (analysis of staleness of information used to support probable cause for search warrant), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

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+ Forensic rigor

  • In re B.D.A., 546 S.W.3d 346 (Tex. App.—Houston [1st Dist.] 2018, pet. filed) (Massengale, J., dissenting on reh’g).
  • Hung Le v. State, 510 S.W.3d 96 (Tex. App.—Houston [1st Dist.] 2016, order).
  • Escobar v. Harris County, 442 S.W.3d 621 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
  • Saden v. Smith, 415 S.W.3d 450 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
  • In re Texas Windstorm Ins. Ass’n, 417 S.W.3d 119 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding).
  • Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (en banc) (Massengale, J., concurring).
  • Methodist Hospital v. German, 369 S.W.3d 333 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).
  • Wilkerson v. RSL Funding, L.L.C., 388 S.W.3d 668 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

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