2008 Texas Supreme Court Race
Phil Johnson vs. Justice Linda Reyna Yañez
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Challenger's Profile: Official Bio of 13th Court of Appeals Justice Linda Reyna Yanez
Incumbent's Profile:  Photo and Official Bio of Texas Supreme Court Justice Philip Johnson

Wikipedia entry for Justice Johnson | Wiki profile for Linda Yanez | I am Justice Linda Yanez Speech |  
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Republican Incumbent Phil Johnson vs. Democratic Challenger Linda Yañez

2008 Re-Election Campaign for Place 8 Bench on the Texas Supreme Court. Two Democratic
candidates, both women, vied for the honor to take on incumbent Phil Johnson in the November general
District Court Judge Susan Criss of Galveston, the jurist of floating island blogger fame, and
Justice Linda Reyna Yanez, an incumbent on the
13th Court of Appeals seated in Corpus Christi, TX.
Yanez won in the primary. As first Hispanic female appellate court judge in Texas, Justice Yanez is a
trailblazer. She was appointed to the appellate bench by the late Gov. Ann Richards. Justice Johnson - a
Perry appointee who previously served as chief of the Amarillo Court of Appeals - rests on the
incumbency laurels and stands for reelection as "a judge, not a politician" expressly disavowing any
inclination to legislate from the bench. Yanez, with migrant farmer, legal aid and civil rights roots, rails
against a court hijacked by Republicans and is committed to change.
The Libertarian Party is also sending a candidate into the race: Drew Shirley
Also see --> Web page on Texas appellate judicial campaigns and elections

Candidates' Answers to Question Posed by the League of Women Voters (2008 Voter Guide)
Texas Supreme Court Opinions
by Justice Phil Johnson
Republican Incumbent
Phil Johnson
Democratic Challenger
Linda R. Yanez
Please describe the training and experience that qualify you for this
office? (50 words)
Phil Johnson - Rep. Incumbent in 2008 Texas Supreme Court Race
1975 Texas Tech Law School
honors graduate. Private practice of
law over 20 years; supervising
attorney in medium-sized law firm.
Board certified in Civil Trial and
Personal Injury Trial law. Texas
Court of Appeals Justice and Chief
Justice, 1999-2005. Texas
Supreme Court Justice 4/2005 to
Linda Reyna Yanez - Democratic Candidate for Texas Supreme Court in 2008
Senior Justice on the 13th Court of
Appeals, appointed by Gov. Ann
Richards in 1993, authored 1000’s of
appellate opinions, a former Clinical
Instructor and current faculty member
of the Trial Advocacy program at
Harvard Law School. I am a former
farmworker, elementary school
teacher, and legal aid lawyer
What does the term “activist judge” mean to you? Does this term
affect the public’s perception of the judiciary? Please explain (75
An “activist judge” is one who bases decisions
on what that judge wants the law to be,
instead of on legal precedent, legal reasoning,
valid legal principles and strict construction of
legislation. Public perception of the judiciary
is hurt by charges that judges are “activist”,
even when the charges are made just because
someone disagrees with the result of the
judge’s decision.
Definition depends on whose ox is being
gored. Some consider that interpretations of
the law which consider the law as alive and
responsive to changing mores in the greater
society as “activists”. Others consider that
interpretations of the law which pretend to
“interpret” the “intent” of the original writers
as “activists”. Result oriented analysis
should be of concern. We need a system that
promotes a judiciary of independent thinkers
committed to the rule of law.
What method of selection of judges is most
likely to result in a qualified, diverse, and
independent judiciary? (75 words)
I am not aware of studies relating methods of
judicial selection to quality or diversity of the
judiciary. Nor am I aware of studies relating
judicial selection methods to independence
of the judiciary. My opinion is that judicial
independence depends more on the length
of the term of office than on the method of
judicial selection.
If we are going to continue to elect our judges
then we should have single-member districts
for the two Supreme Courts. I favor a hybrid
system of appointment/election, which has a
non-partisan screening committee, including
members of the Bar and lay citizens. There
are many models in different states in which
appointed judges stand for retention elections,
reappointment procedures, Bar polls and other
permutations. Texans should consider these
alternatives to our current process.
Should a judge or justice recuse himself or herself from cases in
which the participating lawyers, their firms, or parties to the suit have
contributed substantially to the judge’s or justices’ election? Please
explain. (75 words)
The Texas Legislature has by law limited the
amount and timing of judicial campaign
Limits apply to all persons, including
parties, lawyers and lawfirms. A judge
need not recuse from cases solely because
of a contribution which is made within limits.
However, if the circumstances might
reasonably cause a judge’s impartiality to be
questioned, then the judge should recuse from
the case.
The current rules regarding recusal and
adequately address issues of
conflicts of interest regarding the judiciary.
As long as the judiciary is elected, judicial
candidates must raise money. In order to
significantly eliminate the issue of contributions
and the influence they may have on the
judiciary, Texans should have a better system
of judicial selection. I support eliminating the
election of our appellate bench. No system of
judicial selection is free of political influence.
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Chief Justice Wallace B. Jefferson
Justice Nathan L. Hecht
Justice Harriet O'Neill
Justice Dale Wainwright
Justice Scott A. Brister
Justice David Medina
Justice Paul W. Green
Justice Phil Johnson
Justice Don R. Willett

Also see opinions from
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2008 Opinions by Republican Texas Supreme Court Incumbent Phil
Johnson, Justice

Coastal Oil & Gas Corp. v. Garza Energy Trust, No. 05-0466 (Tex. Aug. 29, 2008)(Hecht)
(oil and gas, trespass, rule of capture)
Justice Willett delivered a concurring opinion.
Johnson delivered an opinion concurring in part and dissenting in part, in which Chief
Justice Jefferson joined, and in Part I of which Justice Medina joined.

In re Baylor Medical Center at Garland, No. 06-0491 (Tex. Aug. 29, 2008)(Brister)(HCLC, mandamus
proceeding abated to afford new trial judge opportunity to reconsider issue of granting / ungranting new
trial, plenary power) abatement order issued | stay order issued   
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Johnson delivered a dissenting opinion. (would address problem raised by the case through

Ulico Casualty Co. v. Allied Pilots Association, No. 06-0247 (Tex. Aug. 29, 2008)(Johnson)
(insurance coverage, non-coverage claim, waiver, estoppel)
Justice Jefferson delivered a concurring opinion, in which Justice O'Neill joined.

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, fees to landowner reversed))
O'Neill delivered an opinion concurring in part and dissenting in part.

In Interest of MN, a Child, No. 07-0698 (Tex. Aug. 29, 2008)(Johnson)
(termination of parental rights, appellate procedure, extension to file statement of points for appeal)
Willett delivered a dissenting opinion.   

Justice Johnson wrote a dissenting opinion in
Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Tex. 2008) (Majority Opinion by
Justice Medina) (
constitutional law, first amendment freedom of religion clause, demon possession and
exorcism, intentional tort claim by church member for mental anguish damages barred by church's
religious doctrine immunity, estoppel claim rejected)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Medina delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Brister, and Justice Willett joined.
Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and in Parts II-A, III,
and IV of which Justice Johnson joined.
Green delivered a dissenting opinion.

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6,
2008) (Phil Johnson) (
condemnation, implications of reduction of amount of land to be taken on land
owner's recovery of fees, partial nonsuit)
Willett delivered an opinion concurring in part and dissenting in part

Justice Johnson wrote an opinion concurring and dissenting in part in Perry Homes v. Cull,
which was joined by Chief Justice Jefferson and Justice Green
Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister)

Johnson delivered a dissenting opinion, in
Unauthorized Practice of Law Committee v. American Home Assurance Co., Inc., No. 04-0138 (Tex. Mar.
28, 2008)(Hecht)f

Fairfield Ins. Co. v. Stephens Martin Paving, LP, No. 04-0728 (Tex. Feb. 15, 2008)(Justice Wainwright)
(insurance coverage and indemnification of punitive damages arising from gross negligence)
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Hecht delivered a concurring opinion, in which Justice Brister, Justice Medina, and Justice Willett
Johnson delivered a concurring opinion.

City of Rockwall, Texas v. Hughes, No. 05-0126 (Tex. Jan 25, 2008) (Johnson) (annexation, arbitration)
Willett filed a dissenting opinion, in which Justice Hecht, Justice O'Neill, and Justice Brister joined.

2007 Opinions Written by Texas Supreme Court Justice Phil Johnson

National Plan Administrators, Inc. v. National Health Ins. Co., No. 05-0006 (Tex. Sep. 28, 2007)
(Johnson)(commercial law, contract,
insurance law, insurance code, fiduciary duty)
INSURANCE COMPANY; from Travis County; 3rd district (03-03-00306-CV, 150 S.W.3d 718, 09/10/04)2
The Court reverses the court of appeals' judgment and renders judgment.
Justice Phil Johnson delivered the opinion of the Court.

Guevara v. Ferrer, No. 05-1100 (Tex. Aug. 31, 2007)(Johnson)(auto PI, expert testimony to prove
medical expenses)

Quigley v. Bennett, No. 05-0870 (Tex. Jun. 8, 2007)(Johnson)(geologic services, no written contract,
royalty interest in minerals)

In Re Southwestern Bell Telephone Co., L.P., No. 05-0511 (Tex. Jun. 1, 2007)(mandamus, primary
agency jurisdiction)(Johnson)

In Re Bexar County Criminal DA's Office, No. 05-0613 (Tex. May 4, 2007)(Willett)(mandamus)
discovery, testimonial privilege, work-product privilege, subpoena quashed]
Willett wrote a separate concurring opinion in this case
Justice Johnson wrote a dissenting opinion in In Re Bexar County Criminal District Attorney's

Equistar Chemicals v. Dresser-Rand Co., No. 04-0121 (Tex. May 4, 2007)(Johnson)
[commercial equipment failure, implied warranty, tort liability, economic loss rule, measure of damages,
jury charge error, preservation of error]

Justice Johnson writes separately in university's appeal in an employment dispute
Justice Johnson delivered a concurring opinion in Baylor Univ. v. Coley
Baylor v. Coley, No. 04-0916 (Tex. Apr. 20, 2007)(Hecht)(wrongful termination, tenure, constructive
discharge, claim of jury charge error, jury instruction, no evidence of breach of contract)

2006 Supreme Court Opinions Authored By Justice Phil Johnson

Barker v. Eckman, No. 04-0194 (Tex. Dec. 1, 2006)(Phil Johnson)(bailment agreement)

Mack Trucks v. Tamez, No. 03-0526 (Tex. Oct. 27, 2006)(Justice Phil Johnson)
[personal injury law, PI, auto accident, expert testimony, reliability, exclusion of evidence, take nothing

Reata Construction Corp. v. City of Dallas, No. 02-1031 (Tex Jun. 30, 2006)(substitute opinion on
rehearing by Justice Phil Johnson)
[sovereign immunity, waiver of immunity by litigation conduct, waiver of immunity by suing or filing claim for
affirmative relief]  
Concurrence by Justice Brister  

In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Justice Phil Johnson)
In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Concurrence by O'Neill)
[arbitration, motion to compel arbitration, arbitration clause, binding, nonbinding, unconscionable]

Marshall v. Houston Authority of the City of San Antonio, No. 04-0147 (Tex. Mar. 3, 2006)(Justice
Johnson) [
forcible detainer]

Lopsided Arbitration Agreement Enforced by Mandamus

In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Justice Johnson)
In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Dissent by O'Neill)
[arbitration law, motion to compel arbitration, arbitration clause, binding, nonbinding, unconscionable]
This original proceeding presents the issue of whether the purchasers of a manufactured home must
arbitrate their claims against both the retailer and manufacturer of the home pursuant to a written
arbitration agreement between the purchasers and the retailer. The agreement specified that it inured to
the benefit of the manufacturer and gave the manufacturer a twenty-day period during which it could opt
out of arbitration. We conclude that the manufacturer’s opt-out right did not render the arbitration
agreement unenforceable and that the purchasers must arbitrate their claims against both parties.
Conclusion. . . .
We conclude that the trial court abused its discretion in failing to order the Ripples to arbitrate their claims
against the retailer and manufacturer. We conditionally grant the writ of mandamus and direct the trial
court to compel arbitration of the Ripples’ claims. The writ will issue only if the trial court fails to comply
with our directive.

Plaintiffs' Failure to Prove Causation With Proper Expert Testimony Entitles Defendant in Truck
Wreck Case to Summary Judgment

Mack Trucks v. Tamez, No. 03-0526 (Tex. Oct. 27, 2006)(Justice Johnson)
In this truck accident case the trial court excluded expert testimony as to what caused a post-accident fire
that burned the truck and the driver. After excluding the expert testimony because it was not reliable, the
trial court granted summary judgment. The court of appeals reversed. We hold that the trial court did not
err, reverse the court of appeals’ judgment, and render judgment that the plaintiffs take nothing.
Conclusion: The plaintiffs produced no evidence that the alleged defects of the Mack tractor were a
cause-in-fact of injuries to Abram Tamez. Because causation is a required element of each of the
Tamezes’ claims, the trial court properly granted summary judgment. Accordingly, we reverse the court of
appeals’ judgment and render judgment that the plaintiffs take nothing.

Dissents and Concurrences by Justice Phil Johnson

Brookshire Grocery Co. v. Taylor, No. 03-0408 (Tex. Dec. 1, 2006)(Hecht)
Johnson delivered a concurring opinion
Justice O'Neill delivered a dissenting opinion, joined by Justice Medina