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Home » 2016-03-01 Republican primary » Texas » Supreme Court Justice Place 3 » Michael Massengale

Michael Massengale
Party Republican
Education Bachelor's Dartmouth College J.D. University of Texas School of Law
Occupation Judge, Texas First District Court of Appeals Place 8
Religion Christian
Marital Married

Michael Massengale


MCTP Rating of 94 - ENDORSED Source

Submitted by john wertz on 2016-02-21 21:54:03


  • Board certified in civil appellate law.  
  • Practiced complex commercial law
  • God centric.
  • Believes in limited role of courts and a textualist approach to interpreting statutes. 
  • Longtime member and leader of the Federalist Society.
  • Prioritize reaching consensus about textualist statutory interpretations.
  • Experience as an appellate judge Believes courts should be engaged to protect the Constitution
  • President of Houston chapter of Federal Society (a group that pushes back from the liberal dominance in the legal education system)
  • Made the right ruling regarding the Shariah divorce case, and willing to take on misleading scare tactics of Steve Hotze
  • Endorsed by: Grass Roots of America(Joann Fleming), Texas Eagle Forum Cathie Adams & THSC; Statewide Organizations


  • None



Please describe what you believe are the most significant issues in this race and why.

  1. My qualifications, experience, and demonstrated commitment to a conservative judicial philosophy.
  • Proper judicial philosophy. I believe in a limited role for courts, the original understanding of federal and state constitutions, and a textualist approach to interpreting statutes. By contrast, my opponent does not share my conservative judicial philosophy; she has adopted an activist role. She is the most frequent dissenter against the conservatives on the Texas Supreme Court. She has demonstrated her willingness to impose her policy preferences and subjective sense of fairness over the policy judgments of the legislature.
  • Superior experience and credentials. I am a former Baker Botts partner and I am board certified in civil appellate law. I have been recognized twice in American Lawyer magazine for my roles in high-stakes commercial litigation. By contrast, my opponent is not experienced with the important business disputes that come before the Texas Supreme Court, and she is not board certified in civil appellate law.
  • Proven record of constitutional judicial conservatism. I have a record of over six years of service on First Court of Appeals, and hundreds of written opinions. I am a longtime member and leader of the Federalist Society.
  1. My opponent’s record of judicial activism. Justice Debra Lehrmann had no record as an appellate justice before winning the 2010 primary election. Since joining the court, she is the most frequent dissenter against the conservatives on the Texas Supreme Court. Over half of her written dissents have involved the interpretation of legal reform statutes, and she has consistently opposed the interest of the party seeking the protections of tort reform. In two different cases, she is the only justice who would have held a tort reform statute unconstitutional under the state constitution - not one of her colleagues has agreed with her about this, making her a clear outlier on the court. To reach these results, my opponent has embraced the use of “legislative history” - statements by legislators during legislative debates, a press release by a legislator, etc. - while the majority of the court has relied on the plain meaning of the words of the statutes themselves. No conservative jurist would elevate legislative history over the plain text of a statute as passed by the Legislature and signed by the Governor, but Justice Lehrmann does. When explaining her record to the Texas Medical Association, Justice Lehrmann said that “as a professional who has devoted much of [her] professional life to the protection of children,” her lone dissent advocating that a statute of repose enacted to protect doctors and hospitals was unconstitutional “is not surprising.” I consider it not merely surprising, but shocking that a sitting Supreme Court Justice would explain her record in this way. Justice is supposed to be blind to the identities of the parties appearing before a court, and the Rule of Law applies to all. A justice who thinks it is her role to elevate her personal sense of fairness over the Legislature’s policy judgments as reflected in a validly enacted statute is not a conservative justice who reflects the values of Texas voters.
  2. My opponent’s abdication of office in the same­sex divorce case. Justice Lehrmann refused to participate in an important case implicating the validity of the Texas Constitution’s recognition of marriage as a union only consisting of one man and one woman. She has steadfastly refused to explain her non­participation. Her public statements on this subject are implausible. She has repeatedly stated in public that she was given “legal counsel” by a Texas Supreme Court staff attorney that she was required to recuse herself and that she could not give any public explanation. It is unbelievable that a sitting Supreme Court justice would hide behind actions attributed to a court employee who has no ability to publicly contradict Justice Lehrmann rather than taking ownership of her decision not to sit on the case. The fact of the matter is that if Justice Lehrmann had a valid legal justification, she could explain it to the voters without violating the privacy or confidentiality interest of any third­party, and no employee of the Supreme Court ever could (or would) prevent her from doing so. The new legal era of same­sex divorce in the United States has introduced a wide range of emerging legal controversies that will present themselves to the courts in the near future.
    Without knowing the reason for Justice Lehrmann’s non­participation in the most important case ever to have presented itself to the Texas Supreme Court on this issue, voters are unable to evaluate her ability or fitness to serve on future cases involving this issue. I will not shirk my judicial responsibilities when difficult or controversial cases come before the court. I will do the job, and in cases when the law requires me to be disqualified or recused, I will give an explanation if asked, identifying the reason for disqualification or recusal.

Are the United States and Texas constitutions living documents?  Please answer in the context of Progressivism versus Originalism.   

We are not ruled by the dead hand of the past, and the United States and Texas constitutions are “living documents” only in the sense that we have the ability to amend them over time to fit changing circumstances. We do this regularly in Texas.

That said, a constitution, properly understood, always retains the meaning ascribed to it by the citizens who enacted it. It is improper for a court to give a constitution a different meaning based on a judge’s view that the document should be changed to mean something different. To treat a constitution as a “living document” in this sense is an abuse of power and an affront to constitutional governance and the Rule of Law.

A proper judicial philosophy is faithful to the original meaning of constitutional text, and will not treat a constitution as a “living document” in service of progressive ideology.

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

It is notoriously difficult for average voters to get information about judicial candidates to make informed choices in judicial elections. That is why endorsements play such an important role. An average voter should seek out a person or organization which has thoroughly researched the candidates’ records, personally interviewed them, and made an informed and independent judgment based on values and criteria shared by the voter (as opposed to corrupted “pay for play” endorsements). The person or organization should be able to explain the basis for the endorsement.

How many days off per year should the officeholder of this position take to learn (seminars & workshops) or teach (give educational or motivational talks) or network with other county officials?

Every court is different. Some amount of continuing judicial education obviously is necessary. I have never been a trial judge and I have no opinion based on personal experience about specifics of what is reasonable in these regards for county­level trial judges, other than to observe that the Code of Judicial Conduct provides that “The judicial duties of a judge take precedence over all the judge’s other activities” (Canon 3(A)), and I don’t believe that teaching or “networking” qualify as judicial duties, though they can be good things for a judge to do to the extent they do not interfere with judicial duties.

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

See a complete list at Major endorsements include:


Texans for Lawsuit Reform PAC Texans for Fiscal Responsibility Texas Right to Life PAC

Texas Home School Coalition TEXPAC (Texas Medical Association) The Texas Conservative View Kingwood Tea Party

Betty Anderson - Montgomery County Texas Forum President and GOP Precinct Chair Reagan Reed – Montgomery County activist & 2015 Empower Texans Conservative Leader Honoree*

Cathie Adams - President - Texas Eagle Forum & Former Texas GOP Chairman* George Strake - Former Texas Secretary of State & Former Texas GOP Chairman* Kelly Shackelford - President & CEO - Liberty   Institute*

David Barton - President –  Wallbuilders*

Jonathan Saenz - President - Texas  Values*

JoAnn Fleming – Executive Director - Grassroots America We the   People*

Julie McCarty - President - NE Tarrant Tea  Party*

Jim and Robin Lennon - President - Kingwood Tea Party* Mary Jane Smith - Director - Texas Conservative View PAC* Skeet Workman - President - Lubbock Co. Eagle Forum* Maggie Wright - Past President - Texas Patriots Tea Party* Marie Howard - President - The Boiling Point Tea   Party*

Gale Sayers - San Antonio Republican Women Member & Grassroots    Activist*

Scott Brister - Former Texas Supreme Court Justice Jim Moseley - Former Court of Appeals Justice   Paul Pressler - Former Court of Appeals Justice  State Sen. Charles Perry

State Sen. Charles Schwertner State Rep. Dustin Burrows State  Rep.  Tom  Craddick State Rep. Jodie  Laubenberg

State Rep. Jeff Leach State Rep. Rick Miller State Rep. Dade Phelan State Rep. Matt Rinaldi State Rep. Scott Sanford

State Rep. Michael Schofield State Rep. Matt Shaheen State Rep. Drew Springer State Rep. James White State Rep. Bill Zedler

Joe Nixon - Former State Representative and Author of the 2003 Medical Liability Tort Reform Legislation

Reece Rondon - Former Judge – Harris County 234th District   Court

Ann and Bill McCullough - Former Harris County Probate   Judge

Ty Prause - Colorado County  Judge

Tommy Hahn - Colorado County Commissioner Pct. 3 Jay Johannes - Colorado County Attorney

Linda Holman - Colorado County District  Clerk

Paul Perry - Ellis County  Commissioner

Dr. Robin Armstrong - Texas GOP National   Committeeman

Ernie Angelo - Former Mayor of Midland and former Texas GOP National Committeeman

Bill Crocker - Former Texas GOP National   Committeeman

Karl Voightsberger - SREC SD 8 Dale Gibble - SREC SD 13 Randall Dunning - SREC SD 16 Virginia Prodan – SREC SD 16 Marvin Clede - SREC SD 17 Terri DuBose - SREC SD 19 Alma Jackson – SREC SD 26 Nunzio Previtera – SREC SD  26

Mark Brown - Chairman - Senate District  13

Mary Kathryn Pickle - Chairwoman - Senate District   17

Jim Hotze - Chairman - Senate District 17   Pam Moore - Colorado County GOP Chair Yvonne Dewey - Brazoria County GOP Chair Barbara Meeks - Galveston County GOP  Chair

Susanna Dokupil - Harris County GOP Vice-Chair Rosemary Edwards - Former Travis County GOP Chair Jean Ellis - Former Colorado County GOP  Chair

Sharon Albertson - Former President, Golden Corridor Republican Women* Patricia Henderson – Former President, Ronald Reagan Republican Women* Gary Shrum - President of Pearland Area Republican   Club*

Matthew Burnstein - Board Member, Texas Republican Liberty   Caucus*

Norma Jeter - GOP Volunteer of the Year, SD 7; Communications, Texas Tea Party RW*

Aaron Streett - Former US Supreme Court  Clerk


*Affiliated organizations listed for identification purposes   only

Why are you running for this office and what 3 major goals do you want to be measured by if you are elected?

My reasons for seeking election to the Texas Supreme Court:

  1. Importance of courts and proper judicial philosophy. Courts are playing an inappropriate role in imposing law under the guise of the Constitution. I have a history of dedicated adherence to a limited role for the courts, where judges say what the law, not what it ought federal and state constitutions as originally intended, and statutes should be interpreted based on their plain text. In contrast, my opponent has a record of being the most frequent dissenter against the conservatives on the Texas Supreme Court, and an activist approach to interpreting the state constitution and statutes.
  2. Qualifications. Among the candidates in my race, I have superior qualifications to serve on the Texas Supreme Court. I am the only candidate board certified in civil appellate law. I practiced complex commercial litigation at the highest level of the profession. By contrast, my opponent’s professional background is limited to family law. I have a strong work ethic and a proven record, having written hundreds of legal opinions as an appellate judge.
  3. Call to public service. I was raised in a military family and we have a tradition of service to our community. I have heard a calling to service as a judge. God has blessed me with legal talents and interest in the work of being an appellate judge - I enjoy reading, researching law, and writing legal opinions. I have been blessed with the opportunity to serve as a judge for 6½ years, and I have undertaken this new opportunity after much prayer, consultation with my family, and discussion with political and community leaders concerned with our courts.

My primary goals if elected to the Texas Supreme Court:

  1. Help the court to establish a strong voice in the national conversation about important legal developments. I will be a leader to identify important trends facing the courts nationally, and seek opportunities for the Texas Supreme Court to provide national leadership to decide these issues correctly, rather than allowing trends to develop and overtake us without Texas ever having a say, as happened with the same­sex marriage issue. Even if I cannot convince a majority of the court to become more engaged in this regard, I can be evaluated based on my separate writing through concurring and dissenting opinion.
  2. Help the court to prioritize reaching consensus about textualist statutory interpretations. Statutory interpretation is one of the most common and most important functions of this court. Some recent cases have threatened to undermine confidence in textualism by displaying a divide among the justices. In particular, if no majority consensus can be formed around an interpretation (as has occurred in the recent past), then the court is only creating greater confusion rather than providing clarification and guidance, which is its proper role. I have the background and experience to be a leader on this issue. By contrast, my opponent has significantly contributed to  creating problems in this regard. In particular, in the case of Jaster v. Comet II Construction, Inc. (Tex. 2014), the Court split 5­4 on the interpretation of a statute, but there was no majority of the court to support any reasoning.  Opposing opinions were written by Justice Jeff Boyd and Chief Justice Nathan Hecht. Justice Don Willett wrote a concurring opinion, in which he stated his complete agreement with Justice Boyd, and also contributed some separate analysis. Justice Lehrmann joined Justice Willett’s concurring opinion, except that she pointedly refused to join Justice Boyd’s opinion, depriving his opinion of a majority. Most curiously, Justice Lehrmann failed to write her own opinion to explain why she agreed with Justice Willett but could not join Justice Boyd (as Justice Willett himself did). This irresponsible and irrational voting behavior is a disservice to the state, which looks to the court for guidance about how the court will interpret statutes.Justice Lehrmann cast a decisive vote, yet she willfully deprived the legal community and the entire state of the benefit of any rational explanation for the confusion caused by her vote.
  3. Improve public confidence in the court by improving competence and efficiency. My own work ethic and professional experience, by themselves, will help to improve the court. But I am just one person. I would like to see the court improve its knowledge base by recruiting specialists in areas critical to the jurisprudence of the state, such as oil and gas litigation. I also would like to see the court commit to clearing its docket of all submitted matters by the time its term ends each year - preferably at the beginning of the summer like the U.S. Supreme Court, rather than the end of the summer.

Please describe the qualifications and experience that make you the best candidate for the office you are seeking.

  1. Proper judicial philosophy. I believe in a limited role for courts, the original understanding of federal and state constitutions, and a textualist approach to interpreting statutes. By contrast, my opponent does not share my conservative judicial philosophy? she has adopted an activist role. She is the most frequent dissenter against the conservatives on the Texas Supreme Court. She has demonstrated her willingness to impose her policy preferences and subjective sense of fairness over the policy judgments of the legislature.
  2. Superior experience and credentials. I am a former Baker Botts partner and I am board certified in civil appellate law. I have been recognized twice in American Lawyer magazine for my roles in high­stakes commercial litigation. By contrast, my opponent is not experienced with the important business disputes that come before the Texas Supreme Court, and she is not board certified in civil appellate law.
  3. Proven record of constitutional judicial conservatism. I have a record of over six years of service on First Court of Appeals, and hundreds of written opinions. I am a longtime member and leader of the Federalist Society.

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

I do not have personal knowledge about the Texas Supreme Court’s budget priorities. Speaking more generally about the Texas judiciary, I believe recent events have shown that greater investments need to be made in personal security for judges, particularly with regard to actual threats that are made against judges. I also believe that in order to attract qualified court staff (a separate issue from judicial salaries, which are set by the Legislature), the State must do more to keep salaries from becoming too divergent from market rates for similarly qualified legal professionals (as we do for other areas of professional hiring). Finally, to improve transparency, I believe the State must continue to invest in technological improvements in the area of electronic filing and public access to court documents and proceedings.

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

As one judge, I would not have the ability to unilaterally change any rules, and courts are notoriously conservative in this regard.

The Texas Supreme Court is generally considered to be fairly transparent to the extent case filings and oral argument recordings are easily accessible online, for free.

As noted above, I would be willing to explain to voters my non­participation in a case (whether because of disqualification or recusal). The Texas Supreme Court does not routinely disclose this information or require its disclosure, but I do not think a rule should be necessary in this regard. Each individual justice is at liberty to disclose these reasons if there is public interest in the matter.

Other civil liberty

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?

The federal government should not interfere with parent­child relationships.

The state government traditionally does play a role in protecting the health, safety, and welfare of children. The exercise of this responsibility occasionally comes into conflict with the rights of parents to raise their children as they see fit. I personally believe that the state government should be very careful and only reluctantly interfere when absolutely necessary to protect a child, in strict accordance with rules established by the Texas Family Code, and to an extent consistent with the constitutional rights of the parent.

Do parents have the right to block grandparent "rights" or doctor intervention? Why/not?

The Texas Legislature has enacted a presumption that a parent acts in the best interest of a child, and a grandparent can only overcome this presumption by proving, among other things, “by a preponderance of the evidence that the denial of” the grandparent’s “possession of or access to the child would significantly impair the child's physical health or emotional well­being.”

The legal issue of statutory grandparent access rights is one that occasionally presents constitutional challenges relating to the rights of the parents, and therefore I cannot prejudge the constitutionality of the grandparent access statute as applied to particular circumstances that could be presented in the future.


Where do you perceive the greatest corruption exists in Montgomery county courts?

I believe any judge who brings preconceived notions about who should win or lose in any legal dispute has a corrupted approach to the job and has abused the faith placed in him or her.


What can you do in your court to protect citizens from harm by illegal aliens?

Faithfully apply existing law in all cases presented to the court

Do the taxpayers have a responsibility to provide an interpreter for non-English speaking illegals?  As well, do taxpayers have-to-have one available during courtroom hours just in case someone might need their services?

At times it is necessary to communicate with any person involuntarily involved in the court system (such as a criminal prosecution). This is fundamental to the notion of due process. But this does not mean the government will be obliged to provide a courtroom interpreter in every imaginable circumstance. The need for an interpreter, and any corresponding government responsibility to provide for one based on the particular circumstances, must be judged on a case­by­case basis.

Without pre­judging any particular case that might come before the courts, I am unaware of anything in the Constitution that would require the government to have courtroom interpreters standing by at all times in anticipation of any person who might speak any language.


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

The primary job of a Texas Supreme Court Justice is to participate in the court’s duties of selecting cases to be decided by the court, participating in oral arguments and court conferences to decide those cases, and writing opinions to explain the outcome (or a justice’s disagreement with the outcome).

My judicial philosophy embraces both judicial restraint and judicial engagement  - as I understand these concepts and explain them below.

I believe 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. In particular, courts become the most dangerous branch when they impose elite values under the guise of “constitutional law,” because this wrongly removes issues from the field of democratic debate and imposes as “law” rules which never had the supermajority level of consensus necessary to enshrine a rule in the Constitution. To avoid these harmful results, 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 respect, courts should be “restrained.”

None of the foregoing should be misunderstood to say that courts should go to the opposite extreme and exalt deference over the responsibility to enforce constitutional boundaries. Judges should not distort the plain meaning of unconstitutional statutes, such as Obamacare, for the sole purpose of avoiding the result of invalidating them. Courts exist to provide a remedy for people who have been injured, and that includes We the People when we are all injured by government run amok. In this respect, judges must be “engaged” in their responsibility to preserve, protect, and defend the Constitution.

What is the proper role of a lawyer?

A lawyer loyally represents the interest of a client by ethically providing legal advice and representation. See also the Texas Lawyer’s Creed ( ate=/CM/ContentDisplay.cfm&ContentID=22241).

Among the nine justices on the U.S. Supreme Court, which one do you respect the most, and why? Which one do you respect the least, and why?

I respect Justice Antonin Scalia as a judicial pioneer who is largely responsible for the conservative revival of textualism and the quest to discern the original intent of the United States Constitution.

As the justice who has demonstrated the least fidelity to the Constitution and the most activist tendencies, I have the least in common with Justice Ruth Bader Ginsberg.

What is the single most important action the county needs to do to keep this a great community to live in?

With specific reference to the role of the courts, we must maintain a respect for the Rule of Law by uniformly enforcing existing laws, and by faithfully implementing constitutions and statutes based on the plain meaning of their text, as originally understood.

Should the state license barbers?  Lawyers? Why or why not?

The licensure of barbers is a legislative judgment best left to the legislature and the executive branch. I have a personal preference for minimizing government interference with economic freedom, however I would not abuse my role as a judge to overturn a validly enacted law just because I thought it reached further than I might prefer.

With respect to the practice of law, I think there are interesting arguments about the possibility of deregulation, but I would not personally advocate for that change. Lawyers are uniquely positioned to help - or harm - people who are particularly vulnerable. There have been many documented examples of abusive practices by attorneys, and regulation of the practice of law facilitates some policing of the profession that unfortunately has proved to be necessary. That said, I think the ongoing sunset review of the State Bar of Texas should correct some bureaucratic abuses and excesses, particularly the discrimination against religiously informed continuing legal education.

What carries the greatest influence on your ruling: case law, the Constitution, or other?

The Constitution provides the overarching principles that I am sworn to protect, preserve, and defend.

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


To what extent would you need to recuse yourself from cases because of conflicts of interest?

Only to the extent required by law.

I have purposely restricted our household’s investment activity to avoid financial conflicts of interest. I do not personally own stock in any publicly­traded companies for this reason.

Can the legislature effectively write law that makes sense for 13 million people? please explain your thoughts.

One of the most ingenious aspects of the design of American government is that it permits different kinds of decisions to be made at the different levels, as may be most appropriate. I personally believe that it is ideal to limit each level of government to the areas where it operates most efficiently and effectively, leaving as much as possible to be regulated at lower levels of government. Plainly there are state laws that do not effectively serve both rural and urban populations. But some laws affect all citizens of the state equally and therefore require legislation at the state level.