A discredited Houston political slate is attacking Michael Massengale, a conservative justice on the Houston Court of Appeals who is running for Texas Supreme Court. The attacks – leveled on behalf of the incumbent, Debra Lehrmann – are absurd and assume voters are ignorant of the law and how courts operate.

Massengale has a long history of leadership in the conservative movement and legal community. He has received endorsements across the board from conservative groups, including socially conservative organizations like Texas Values. However, the slate accuses Massengale of “backing homosexuality.”

The frivolous attack is based on a 2011 child custody case involving a lesbian couple that came before Massengale’s court. But for Massengale and the other justices to have ruled any differently on the case would have required them to abandon the law and engage in judicial activism.

The dispute was between one woman, Tammy Fountain, who was the legal adoptive parent of a child and her lesbian ex-girlfriend. The ex-girlfriend filed suit to obtain custody of the child. Fountain attempted to have the case dismissed for lack of standing, and when she lost that motion, she filed for a “writ of mandamus” with the Houston Court of Appeals, on which Massengale has served since 2009.

A petition for a writ of mandamus is not a traditional appeal. Mandamus is an extraordinary remedy that issues before the trial court has made its final decision. Mandamus writs are only granted when a trial judge clearly abuses their discretion and there is no adequate remedy on appeal. In other words, the burden to receive a writ of mandamus is very high.

The question in front of the Houston Court of Appeals was not whether the lesbian ex-girlfriend should receive custody after trial. Instead, the suit centered only on the question of whether the woman had standing to bring the suit under the law.

The Family Code is very clear on these matters. A person who has had actual care, control, or possession of a child for at least six months ending not more than 90 days before the filing of a petition in court may file suit seeking custody of a child. Furthermore, at the threshold stage of the case, the Houston Court of Appeals was required to assume the facts alleged by the ex-girlfriend were true in making its decision.

The evidence presented by the ex-girlfriend showed that she had actual care, control, and possession of the child for at least six months prior to her break-up with Fountain. As noted in the Court of Appeals opinion, the ex-girlfriend provided a place for the child to stay, the two women jointly cared for the child most nights, and she attended medical appointments and provided daycare for the child.

In fact, Fountain and the ex-girlfriend agreed to a temporary sharing agreement while the dispute was pending. As a matter of law, the ex-girlfriend had a right to file the case, even if she deserved to lose when it went to trial.

Under the circumstances, Fountain’s petition simply had no legal merit. The Houston Court of Appeals panel unanimously agreed to deny the petition. However, the panel went out of its way to note that their “recitation of the factual allegations [was] not intended to suggest anything about what the appropriate factfinder should determine for purposes of future proceedings in [the] matter.” In other words, just because the judges were required to follow the law and allow the suit to go forward, they expressed no opinion on the merits of the ex-girlfriend’s case.

Justice Debra Lehrmann knows all of these facts about how the law and courts operate. However, she has allowed and encouraged her supporters to attack Massengale in ways she knows are disingenuous. For any judge to rule differently than Massengale, they would have been required to abandon the rule of law and engage in judicial activism. However, given Lehrmann’s record of doing just that on the Supreme Court, maybe that’s the way she thinks judges are supposed to act.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.