GOP lock on Austin appeals court tested

Republicans haven't lost a race for the Austin-based 3rd Court of Appeals since 2008, but the November election might test that streak for four GOP incumbents who are seeking re-election amid heightened Democratic enthusiasm.

One race in particular has generated high interest, with political contributions topping $1 million — a staggering sum for a seat on one of the state's 14 regional appeals courts, which hear civil and criminal cases. The 3rd Court handles appeals from 24 Central Texas counties.

Republican Mike Toth, a former member of Texas Attorney General Ken Paxton's inner circle, has raised almost $620,000 since he defeated three opponents in the GOP primary and runoff. That total has been bolstered by almost $170,000 spent over the past month by the Republican Party of Texas for advertising to support Toth and the other GOP incumbents.

Toth also had raised $338,000 for his primary campaign.

Democrat Gisela Triana, a state district judge in Austin, has raised almost $320,000, a healthy total for a challenger that pushed the race well beyond the million-dollar mark.

"That is a mind-boggling number for a court of appeal race," said Mark Jones, a Rice University political science professor who watches elections statewide.

Early voting runs through Friday. Election Day is Tuesday.

Triana, 52, says she's the most qualified candidate, having served 22 years as a judge at every level of trial court in Texas, including municipal court, justice of the peace, county court-at-law and, since 2005, state district court. She also has been a defense lawyer, a prosecutor as trial director for the Travis County district attorney's office, and an attorney with the secretary of state's office.

"I have worked hard at my craft, at being a judge," Triana said. "My opponent has lived in Texas a little over two years. I don’t believe he has ever tried a case in Texas and has not practiced Texas law for very long."

Toth, 40, a senior adviser to Paxton for two years, was appointed to the court by Gov. Greg Abbott to fill a vacancy in September after emerging as the GOP candidate for the Place 6 seat.

Toth has served as a staff judge advocate, or military attorney, for the Marine Corps and as a major in the Marine Reserve. He also was a law clerk to two federal judges, including Edith Jones on the 5th U.S. Circuit Court of Appeals.

"The bottom line is I have top-level experience and success," Toth said. "I have experience and success at the highest levels of the attorney general's office, working with federal judges, litigating cases as a military lawyer who received three Navy and Marine Corps commendation medals, two on active duty and one in the reserves."

Austin lawyer Kerry O'Brien, who registered to run as a write-in candidate, has been another factor in the race, drafting a letter that was widely circulated in the Austin legal community and called Toth a "hyper-partisan newbie" whose campaign literature in the GOP primary said he stands with President Donald Trump against illegal immigration.

Toth said the letter ignores his "history of getting the law right. That's why I was promoted at the AG’s office, why the governor put his put faith in me, why three former Texas Supreme Court justices endorsed me."

Place 3

Another closely watched race pits Republican incumbent Scott Field, seeking his second six-year term on the court, against Democrat Chari Kelly, a prosecutor in the trial division of the Travis County district attorney's office.

Field, 49, is a former law clerk for the Texas Supreme Court with trial and appellate experience as a lawyer with Baker Botts before becoming a name partner in an Austin law firm and starting his own practice.

Field said he has been part of a court that eliminated a backlog of cases, cut the average time to deliver an opinion from 11 to seven months, and last year was the least reversed appeals court in Texas.

"If it ain't broke, don’t fix it," he said.

Kelly, 41, is a former Army judge advocate general, captain and paratrooper who was a staff attorney for a Texas Court of Criminal Appeals judge and a lawyer in the civil and Medicaid fraud division at the Texas attorney general's office.

Board certified as a specialist in criminal law, Kelly also served as a Comal County prosecutor before becoming a Travis County prosecutor in 2015.

"I'd come to the bench as a veteran, a former prosecutor and a defense attorney with both civil and criminal experience," she said.

Since the beginning of 2017, Field has out-raised Kelly $471,000 to $118,000.

Place 2

Republican incumbent Cindy Olson Bourland, appointed to the court to fill a vacancy in 2015, faces Democrat Edward Smith, an Austin lawyer.

Bourland was a private-practice lawyer for 20 years, handling business cases at trial and on appeal, in state and federal courts for two law firms and the Bourland Law Firm in Round Rock. She was also a University of Texas School of Law adjunct professor from 1994 to 2000.

Smith, a lawyer since 2006 and an Austin resident since 2008, got his start as a law clerk with the Superior Court of California in Santa Clara County and has represented injured workers and business disputes.

Bourland has raised almost $336,500 since Jan. 1, 2017, while Smith has raised $2,900.

Place 5

Republican Justice David Puryear, the senior justice on the court, faces Democrat Thomas Baker, a 34-year lawyer from Temple.

Before he was first elected to the court in 2000, Puryear was deputy director of the special crimes division at the Texas attorney general's office, a Travis County Court-at-Law judge from 1991-98 and a Travis County prosecutor from 1982-90.

Baker is a board-certified specialist in family law, a former assistant Bee County attorney, and a longtime lawyer for the U.S. Navy, including command judge advocate at Naval Air Station in Agana, Guam, and assistant staff judge advocate at Naval Reserve Force Command in New Orleans.

Puryear's campaign has raised almost $195,000 since the beginning of 2017, while Baker has raised no money, state finance reports show.