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FEATURE You’re the Judge BY LOUIS DUBOSE Before you, entangled in the arcana of mineral rights law, is a case that turns on a thirty-year-old deed executed by a grantor who “owned a 1/12 mineral interest. The deed contained a granting clause specifying 1/96 of interest and a subject-to clause specifying 1/12 of all rentals and royalty under any existing lease.” \(There is no In other words, a substantial sum of money rides on your decision. You look down from the bench and there is the attorney who has been your campaign treasurer for two years representing a party that won a 5-4 decision on the same case one year ago. But you had cast a vote for the losing party and your campaign treasurer has just shown up as one of the attorneys of record for the party that won the first hearing: What do you do? a. stand by your previous vote, because to do otherwise would at the very least appear to be an impropriety; b. change your vote, and risk reversing the court’s decision, despite the appearance of impropriety; c. recuse yourself, because your campaign treasurer’s lastminute appearance might suggest at a minimum the appearance of a conflict of interest. “B” might not seem like the correct answer. But that is how Supreme Court Justice Greg Abbott answered the quiz when Pennzoil and Concord Oil tried to settle a claim in the freewheeling civil justice system that has 60 Minutes gathering material for its second Texas High Court expos in ten years. Justice James Baker had initially voted for Concord but switched over to Pennzoil’s side, which would have reversed the ruling in favor of Pennzoil. But Justice Abbott moved from Pennzoil to Concord and the party that won the first round won at the rehearing, with a different mix of judges voting for it. His switch made no difference in the outcome, Abbott insisted. Had he recused himself, the result would have been a 4-4 tie. And a tie would not have overturned the Court’s first decision. “My recusal wouldn’t have changed the outcome. The result in the case would have been exactly the same. Absent this fact, the story is way incomplete.” Abbott also said that his vote “was based solely on the merits of the case,” and that claims made by his Democratic opponent are “libelous.” Abbott’s Democratic opponent claims that the judge’s behavior in Pennzoil v. Concord “doesn’t pass the smell test.” It smells so bad, David Van Os said, that he will file a formal complaint with the Texas Commission on Judicial Conduct. Van Os wants to know why Abbott’s campaign treasurer, Andy Taylor, signed on as an attorney of record exactly eleven days before the Supreme Court convened to reconsider its vote in the Pennzoil v. Concord case. Taylor was one of a team of lawyers representing Concord Oil, which a year earlier had won a 5-4 vote and needed to keep its five votes hanging together after Pennzoil appealed for a rehearing. A From “Justice for Sale,” 60 Minutes “There was no record of Andy Taylor working on the case,” Van Os said. “So why did he show up at the last minute to replace Luther Soules, one of the most respected litigators in the state? Taylor did not present an oral argument. Taylor did not file a legal brief on Concord’s behalf. But he was Greg Abbott’s campaign treasurer, holding up an exhibit, like Vanna White.” After the January 8 hearing, Justice Abbott changed sides and provided the winning vote for Concord although he had dissented and sided with Pennzoil a year earlier. In a telephone interview, Abbott told the Observer there were several valid reasons to switch his vote and that Taylor’s presence had nothing to do with them. Abbott, who was first appointed a vacant seat by Governor Bush and is facing election for the second time, was not on the Court when the case was first argued. “But I was on the Court.” Abbott said, “when the case was reargued…. The person who argued it, an oil and gas professor at St. Mary’s Law School [Laura Burney], did a remarkably effective job in pointing out the holes in Pennzoil’s argument.” Abbott added that law review articles and a number of amicus briefs filed by parties who had no immediate interest in the case also helped persuade him to change his vote. Andy Taylor’s presence at Concord’s counsel table did not. bbott said he never considered recusing himself. But his reasoning and his reciting a list of friends and supporters arguing the case recalls the 1987 60 Minutes report that attacked the Democratic majority for accepting contributions from 12 THE TEXAS OBSERVER NOVEMBER 6, 1998