Macias Loses Bid To Remove District Judge

May 07, 2008 - 16:41:15 CDT.

State Rep. Nathan Macias (R-Bulverde) on Thursday lost a bid to keep a visiting district judge from presiding over his objection to the results of the March 4 Republican primary in which he lost to Doug Miller (R-New Braunfels) by 17 votes.

The motion to have District Judge James Clawson of Temple removed from the case was denied in a brief two-sentence ruling by the Texas Third Court of Appeals in Austin.

Macias had filed his objection to having Clawson hear the case on April 24.

Earlier, on April 15, Macias had filed an objection to having Clawson preside over the trial, but Clawson disregarded the motion on April 22 and set a pretrial hearing for May 14 followed by a May 19 trial date.

Reportedly, Macias now has two options: continue to fight Clawson’s appointment in the Texas Supreme Court or move forward with the challenge of District 73 election results.

Macias had lost re-election to a second two-year term in the Texas House on March 4, ultimately by a 14,684-14,667 count from voters in Bandera, Comal, Kendall and Gillespie counties.

In his suit, Macias is arguing that the 2008 primary results should be overturned and that he either be declared the winner or that a new election be called.

Macias, who originally filed the lawsuit on March 31 in 207th District Court, had claimed the election results to be invalid due to alleged clerical errors and possible voter fraud.

In his recent filing before the Third Court of Appeals, Macias had stated in a news release that, “under the law, Chapter 74 of the Texas Government Code, every civil litigant has the right to one objection of an assigned visiting judge. It is simply a matter of right, not cause, and I trust the panel that hears the appeal will agree with our position.”

Reportedly, Presiding Judge B.B. Schraub had assigned Clawson to hear the case because the sitting district judges of Comal County are statutorily disqualified from hearing the election contest.

“We believe the assignment of Judge Clawson was a normal assignment made under the authority of the Government Code, and objections to an assigned judge under Chapter 74 of the Government Code are routinely granted every day throughout the Texas civil court system,” Rene Diaz, Macias’ lead council and himself a former district judge, had said. “There is simply no recognized exception under the law for election contests.”

However, in response, Miller pointed out in a news release issued by his office that Clawson is known for his experience in election cases.

Miller also said that Clawson had pointed out to the Macias legal team that the lawsuit was filed under the Texas Election Code -- not the Civil Code.

Consequently, Miller claimed, under that code, there is no provision to force the judge off the case without cause.

“Macias knows he has little chance to prevail in his appeal,” Miller had stated on April 28. “They indicated in court that they are not prepared to go forward with their case and this is an obvious attempt to buy time to get their case ready.”

Miller claimed that it was the Macias camp’s legal obligation to have its case ready two weeks ago, “but they admitted in court that they do not have it prepared for even now.”

The apparent winner added that so far, every one of Macias’ accusations against the elections administrators in all four District 73 counties “has fallen flat and they need time to create a new case.”