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Home » 2022-03-01 Republican primary » Montgomery County » County Court at Law 1 » Brian Cain

Brian Cain
Party Republican
Born Houston, TX
Education J.D., Seton Hall University; M.A. Texas State University; B.A. - The University of Texas at Austin
Occupation Attorney
Religion Episcopalian
Marital Married
Children 2

Brian Cain


MCTP Score of: 81 Source

Submitted by john wertz on 2022-01-18 05:04:22



  • Personable;  strict constitutionalist
  • Wide variety of experience - criminal defense, family law, civil, probate and small estate planning
  • One of the 40 lawyers who is assigned 70-90 felony cases a year, a contract that is granted by one of the four judges in Montgomery County who handle felony dockets.


  • The court was set up as a specialized court to handle misdemeanor criminal cases but it sounds as if he wants to hear all types of cases.
  • Less experienced than his competitor but only slightly so
  • Concern about his wife being a BETO supporter, though he says he was a Trump Supporter


Video Interview 11/27/21 Source

Submitted by john wertz on 2022-01-03 23:46:23




What are the three main reasons you are running for this office? Do you see any potential conflicts of interest?

I am a licensed attorney, and have been practicing, since licensed, out of offices in Conroe, Texas. I have practiced in multiple areas of the law, including criminal defense, family law, civil, probate and small estate planning. From the outset of my career I have spent my time in a litigation practice that takes me into the courtroom on a regular basis, with multiple appearances in most if not every week of the year.

County Court at Law #1 is a court of general jurisdiction, but currently has only misdemeanor cases on its dockets. I have been working as both retained and state-appointed criminal defense counsel from the beginning of my career. For the last 3 years I have been one of the 40 lawyers who is assigned 70-90 felony cases a year, a contract that is granted by one of the four judges in Montgomery County who handle felony dockets.

Additionally, I have been handling family law cases since I first began practicing law. At the time that I began practicing in Montgomery County, CCL#1 had a significant famly law docket, and I appeared in that court on many cases. In my family law practice I have represented approximately 35 persons a year in this and other counties.

Although criminal defense and family comprise the bulk of my practice, I have also represented client in civil non-family matters, probated wills and intestate estates, and exectuted wills and other small estate planning documents.

My practice has included all of the areas of law that County Court at Law #1 is jurisdictionally competent to handle. As such I am qualified, moreso than those who maintain a more narrowly-focused practice, to fill the role for which I am seeking office. I have experienced, through the results of my clients' cases the effects of these various areas of the law, and understand better than someone who only practices in one area of the law the collateral effects that a judgment in one court might have for the same person in another court.

Please describe the best way for the average voter to determine which judicial candidate is best.

As in all things, I believe character is the most important quality in any person. Are they reliable? Do they do as they say they will do? Are they consistent? Can they be trusted?

These are difficult quesions to answer about someone without spending a considerable amount of time in the same professional or social circle. I believe the average voter should reach out to a few people who know each candidate and see if they can answer the questions I posited above. With social media as a tool, I believe this can be done without too much trouble. Of course, meeting the candidates in person would be preferable, but in a county that recently shot past 600,000 people and is still rapidly growing, that is not feasible for all voters.

Please describe what you believe are the most significant issues in this race, why and what you'll do to address them?

Montgomery County is a rapidly growing county. This tremendous growth presents a serious problem for the government of this county when one considers that growth usually means a growing government. This election cycle will usher in another County Court (No. 6) just as the last cycle brought us a new District Court (457th). As regular visitors to our courthouse know, there is a limit to the number of new courts that the current infrastructure can support. In the not too distant future, a new court may be needed, and there will be no available space in which that court can operate. I believe this looming resource scarcity is the number one issue facing the judiciary.

I am running, in large part, because I see this problem heading our way, and am interested in pursuing solutions to it. The first part of the solution, in my opinion, is to take better advantage of the resources courts have at their disposal. Taxpayer money was spent making our courtrooms friendly for remote appearances by parties and attorneys, and that resource is utilized some. However, I believe that more court business can take place on a daily basis by maximizing the use of Zoom and other remote appearance technologies.

Secondly, I believe that for certain charged offenses, such as Driving While Intoxicated (DWI) and Possession of Marijuana (POM), docket schedules can be shortened. This has already been done for the so-called "Rocket Docekt" for Assault Family Violence charges. DWI and POM charges are frequently found on our dockets, and increasing the speed at which those cases are cleared is paramount to better resource management in County Court at Law No. 1.

Finally, I am one of the few candidates that I can remember in the last several cycles that does not specialize in one area of the law, nor am I running a someone who wants to preside over one kind of case. I have an extensive criminal defense and family law background. My first trial was a civil case regarding non-payment on a contract. I have also probated wills and the estates which did not have wills. I am willing for County Court at Law No. 1 to change with the needs of the community, if the need arises. I can also, as all presiding judges can, handle cases from any of the other courts, should those judges find such an arrangement beneficial to them.

How relevent today is Blackstone's maxim "All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer".

It is as relevant today as it has ever been. Criminal law, moreso than any other are of state action, allows the state to curtail a persons freedoms. Indeed, their very liberty is at stake from the moment law enforcement believes they have probable cause to arrest. We should not liberally take away people's freedoms. A criminal judgment usually has life-long consequences, ranging from a fine to a temporary loss of libery all the way to loss of one's life. It is unfortunate that the high standards called for by this maxim likely does result in a certain number of law-breakers avoiding consequences, but the opposite result is simply untenable.

Understanding that all courts in MoCo have general jurisdiction, the board of judges has moved towards specialized courts. What types of cases are currently filed in the court you are running for? What is your experiences to handle this specific case type? Are you planning on asking to change the case allocation or case type assigned to the court you are running for if you win?

County Court at Law No. 1 currently handles misdemeanors. This includes Theft, Driving While Intoxicated and Assault cases. I have practices criminal defense since becoming admitted to the bar in 2009. This includes handling an extensive number of misdemeanors. I have been on the list of attorneys who is appointed misdemeanor cases since 2010. I am also currently one of the 40 attorneys in Montgomery Coutny who is appointment to represent people accused of committing felonies. I have tried both felony and misdemeanor cases to a jury.

I am not going to ask that CCL#1 be allocated different cases that it currently handles. My intention is to increase the speed in which misdemeanor cases are brought to a resolution, and be amenable to any changes that might be necessary as our county continues to grow.

What carries the greatest influence on your rulings: case law, the Constitutions, or other?

The United States Constitution and the Texas Constitution will always be the starting point for any decision I will make. Case law will, of course, inform my decisions greatly, but case law can, as we all well know, be wrong. There are a few such decisions that come to mind. 

Please describe the major challenges for your court over this next term.

The first challenge facing CCL#1 is the number of cases that it will be assigned to handle will continue to increase. Montgomery County is rapidly growing, and, while this is good for commerce and opportunity, this will put goverment to the test with regard to efficiency and versatility.

The second challenge facing CCL#1 is that Montgomery County continues to be one of the more dangerous places in the state with regard to alcohol-related crashes. This means that DWI charges will continue to be a heavy part of this court's docket. I see one of the roles of our next judge as finding new ways to address this problem, from a judical standpoint.

Do you think judges should be elected by the people, or appointed by a commission?

Judges should be elected by the people. An appointment process would allow for interests not necessarily connected to the local community or state in which the judges selected are to preside. We saw this very phenomenon play out this year with ERCOT, and the foreign-residing board members.

In your view, what is the threshold for determining constitutionality of a legislative act? or a challenge to it?

To deterimine the constitutionality of any law, one should first look at the founder's intent behind the section of the constitution which may or may not permit that law. For instance, a substantial amount of the expansion of our executive branch's powers came through laws supposedly backed up by the commerce clause of the U.S. constitution. For much of the 20th century, if Congress merely stated in the text of the law that the Commerce Clause permitted this act, then the act was permitted. This rubber stamp was finally laid aside in 2000 when the Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down a part of the 1994 Violence Agaist Women Act (relating to the ability to sue in federal court). The Supreme Court saw that Congress had gone far past the founder's vision of what the Commerce Clause was meant to enable. I would start with the founder's intent in looking at a law's constitutionality.

To what extent do you believe the state or federal government should be able to obtain court orders directing parents to do things for their children that the parent does not believe should be done?

This should be a very limited area of action for our government. The right to parent as each parent sees fit is sacred and paramount and protected by the U.S. Constitution. I would look harshly on any governmental body which seeks to interject itself into this decision-making process unless the parent(s) in question has acted in a criminal way which is contrary to the safety and well-being of their child.

Among the nine justices on the U.S. Supreme Court(SCOTUS), which one do you respect the most, and why?  Which one do you respect the least, and why?  What judicial philosophy should a SCOTUS Justice have?

I have respected Clarence Thomas for quite some time. He is a clear thinker, and also an efficient one. Moreso than even the late Antonin Scalia, he adhered to judicial principles of a limited government that more accurately reflects the text of the U.S. Constitution than the bloated behemoth which currently radiates out from Washington. He often offers only brief opinions, but why should an opinion be lengthy if the answer to the question is simply that the Constitution does not authorize a certain law or provision?

I have to say that when I read opinions authored by Sonia Sotomayor that I am often simply puzzled. I know she is an accomplished jurist, and I respect that she has a significant intellect, but I often feel that our values simply differ too much, and that she lets those values influence her opinions too much.

CSPOA says "Civil forfeiture laws pose one of the greatest threats to property rights in the nation today. They encourage law enforcement to favor the pursuit of property over the pursuit of justice, and they typically give the innocent little recourse for recovering seized property. And without meaningful transparency, law enforcement faces little public accountability for its forfeiture activity or expenditures from forfeiture funds." How should these Civil Forfieture issues be addressed?

My personal belief is that civil foreiture laws are in dire need of reform. I also believe there is broad public support for that reform, and the people should push their legislators to make those reforms. However, I am not running for the legislature, and the issues that certainly do need to be addressed cannot be done in a courtroom. 

What 2 things about your opponent do the voters need to know?

Unlike me, my opponent handles a mostly specialized caseload. Second, unlike me, he is not a native Texan or native to the Houston area.

What Texas State court decision do you think has most impacted society? How and Why?

Ex parte Slavin 412 S.W.2d 43 (1967)

This is the Texas case that every family law litigator knows governs whether the orders we write and have signed by judges is going to be effective for our clients. The holding is that any court order must be written so as to be unequivocal and unambiguous if the court is to use its contempt power to enforce that order. This ruling obviously limits judicial power, and was rightly made in doing so. Courts should have no greater power over our daily lives than granted by the legistlature, and when they are granted the power to order us to certain action or inaction, those orders must be writen precisely. This ruling affirmed that our courts were not meant to be simply another avenue for tyrranical use of governmental power.

Apparently in conflict with current pratice in the courts Art. 19.27. of the Texas Code of Criminal Procedure states "ANY PERSON MAY CHALLENGE. Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge." What is the practical application of this statute?

The statute allows a defendant to challenge the persons seated on a Grand Jury prior to the time it meets to consider a case. The import of this statute is that, even if there is a person on the Grand Jury who is not properly qualified to serve, an indictment issued by that Grand Jury cannot be challenged if the defendant made no objection to the makeup of the Grand Jury before it met to decide that case.

As a judge, what do you believe the goals of the criminal justice system should be?

There are several goals of the criminal justice system. The first is, and should remain, the protection of the public from the acts of anti-social persons. A criminal justice system that maintains the fidelity of its prohibitions but just punishment does just that. People should remain secure in their person, property and liberty, and trust in the criminal justice system to act when those things are violated. The next goal should be rehabilitation. A safe society will never remain so if the system punishes but does not seek to reform. For a court which can sentence a person to no more than one year in jail, this goal is highly important. Punishments in misdemeanors accomplish little if the convicted only learn different ways to harm society.

Who is endorsing you and what is their relationship to you?

I have not received any formal endorsements yet.


What are the top 3 areas where the budget for this office needs to be adjusted?

County Court at Law No. 1's impact on the county budget can be kept under control in three ways:

1. More jury trials - a court which tries more cases is one that is utilizing its resources to the fullest.

2. Faster docket schedules - this works in tandem with #1, because it gets cases to trial readiness quicker. As I've stated elsewhere, the volume CCL#1 needs to handle needs to increase because of the rapid growth in this county.

3.  Limiting the need for visiting judges - When a presiding judge is unavailable, but court proceedings must still take place, that is an additional expense that should not be regularly necessary. Proper planning can greatly limit the need for the expense of a visiting judge.

10th Amendment

What are the limits of federal judicial review as far as the 10th amendment is concerened?

The 10th amendment to the U.S. Constitution was meant to confirm the limited nature of the federal government's scope and reach. As we know, it was less than successful in its purpose, and in many areas the federal government is operating beyond the mandate set forth by our country's founders. Judicial review is one area where federal limitations of power should clearly have been adhered to by previous generations. Sadly, this is not the case. Judicial review has limited the impact of the 10th amendment as far back as 1819 when Justice Marshall ignored the 10th amendment in McCulloch v. Maryland and allowed for broad federal powers to grow out of the Constitution's necessary and proper clause.

The 10th amendment should, if properly adhered to, rebalance the powers of the federal government and of the states in a way that more accurately reflected our founders' vision of this nation. That would include a more limited role in our federal courts in reviewing state statutes which do not create controversies between the states or that cross state lines.


Is there anything in your background of an embarrassing nature that should be explained before your election? Arrests/Convictions? Bankruptcys?


What standards of behavior would you impose on yourself—inside and outside the courtroom?

My demeanor in the courtroom will be inviting to all. This is the people's forum, and they should feel welcome to attend, and very at ease in presenting their controversies and arguments. However, that will be paired with a strict adherence to decorum and a no nonsense attitude with regard to proceeding with the court's business.

When I am outside the courtroom I will remain myself. I carry myself as a representative of my family and upbringing, and as such treat all with respect and friendliness. I hope to become a representative of our government, and that will only increase my incentives for acting with dignity and warmth to all.

How will you improve the transparency and access to financial and other records for the public?

As far a financial records are concerned, I would willingly make the budget of CCL#1 available via any means that comport with federal and state law.

As far as other records from the court, most of those are maintained by the Couty Clerk's office, and a list of records for each case is available online, while the documents themselves can be requested from that office. If there are records that are not currently recorded and made available through the Clerk's office, I believe that change should be made.


What is the job of a judge?   What is your judicial philosophy?

The job of a judge is to take the state of the law, starting with the U.S. Constitution then Texas Constitution, the case law that flows therefrom and the specific statutes in question, and then apply them. The law is not meant to be malleable in the hands of a jurist. A judge who takes an active role in modifying the law is betraying the trust placed in them by the people to fulfill the role they were given. Further, I see the job of a judge as setting an even playing field for all litigants, and ruling in a way that upholds our laws. That job should be done in a way that moves cases quickly, giving care to the particularities of each case.

My judicial philosophy is to, above all else, produce predictable results for the people based on a strict construction of our laws, adhering to high standards of fairness for all involved and ensuring that cases are moved quickly and efficiently through the docket.