John Devine Jr.

Notable Cases Continued:

• In re State of Texas (2020) Signed Hecht’s majority opinion. Denied a petition from the State for a writ of mandamus to prevent respondent county clerks from misinforming voters on disability requirements and improperly approving mail-in ballot applications (2). Held that lack of immunity to COVID was not a “disability” according to statutory mail-in ballot requirements (2). Concluded: "We agree with the State that a lack of immunity to COVID-19 is not itself a 'physical condition' that renders a voter eligible to vote by mail within the meaning of § 82.002(a). Confident that election officials will comply, we decline to issue the writ of mandamus." (24) Court held that clerks have no ministerial duty to determine whether applicants have a 'likelihood of injury due to a physical condition' in applying for a mail-in ballot—that determination rests on applicants (24).
  
• Texas v. Hollins (2020) Signed a per curiam opinion. "We hold that the Election Code does not authorize an early-voting clerk to send an application to vote by mail to a voter who has not requested one and that a clerk’s doing so results in irreparable injury to the State. We grant the State’s petition for review, reverse the court of appeals’ judgment, and remand the case to the trial court for entry of a temporary injunction prohibiting the Harris County Clerk from mass-mailing unsolicited ballot applications to voters." (14) The lower courts denied a temporary injunction because they found that the state would not be irreparably harmed by mailing out the applications (5). Found that the clerk’s action was not “necessary” because such a move was unprecedented (8). Held that ultra vires conduct (i.e. beyond an official’s authority) is inherently harmful to the state due to precedent (13-14).
  
• Abbott v. Anti-Defamation League (2020) Signed per curiam opinion. Denied petition for a temporary injunction against the governor’s requirement that there only be one mail-in drop off site per county because plaintiffs failed to show a probable right to relief based on the merits of the case (6). Found that the governor’s proclamations has expanded rather than impaired voting rights (6). Held that the Governor was permitted by the Disaster Act’s emergency powers to amend his earlier emergency proclamations even if the content was not directly tied to the disaster (7-8). Held that the October Proclamation placed a “lesser burden” on the right to vote, which according to precedent does not trigger strict scrutiny (11). Held that disparate impact claims due to county’s geographic size differences was not relevant because county size also has many impacts on elections under normal circumstances (16). 
  
• In re C.J.C. (2019) Signed Bland’s majority opinion. Held that the presumption that fit parents are acting in the best interests of their child applies when modifying an existing order that names a parent as the child’s conservator (2-3) because fit parents have a “fundamental right to make decisions concerning the care, custody, and control” of their children (3). Texas jurisprudence underscores the rights of fit parents to direct the upbringing of their children (10). The Texas legislature added a parental presumption to original custody determinations five years before Troxel (10). The majority opinion did not view an alleged instance of spanking as evidence that the father may not have adequately cared for his child (14). Court remarked that the trial court “essentially substituted its determination of Abigail’s best interest for her father’s”—which was the opposite of Troxel’s holding (15). The court rejected argument that Texas’ narrower non-parent standing requirements removed the need for the parental presumption (17-18), holding that the parents rights could still be violated by a “best interests of the child” determination even with the higher standing requirements (15).
  
• Alamo Heights Independent School District v. Clark (2019) Signed Guzman's majority opinion. Held that an employee named Clark could not have experienced sex discrimination (2). Also held that Clark failed to present evidence that she was fired out of retaliation for filing an EEOC charge (66). Argued that offensive behavior is not motivated by the victim's sex when the offender behaves the same way to people of both sexes (23-4). Originalist element: Said that "we cannot step beyond the words of the statute" and "context informs intent" (65). Good elements: Declined to expand sex discrimination to a generic category of sexually-related offensive comments. Recognized that it's different for a man to talk about sex to a woman than for a woman to talk about sex to a woman (54). Concerning element: Seemed to overly downplay some evidence. Denied that Clark ever alleged her harasser was homosexual, although Clark said that she believed her harasser was "hitting on her" (20). Dismissed any relevance in Clark's boss's comment that there would be "consequences" for Clark's EEOC charge (48), even though it seems this could be relevant to Clark's claim that her boss retaliated against her for filing an EEOC charge.
• In the Interest of H.S. (2018) Signed Lehrmann's majority opinion. Held that grandparents who cared for a child for eight months had standing to bring a suit affecting the parent-child relationship (1-2). Case turned on what "actual care and control" meant (8). Court sided with the precedent of Jasek which defined it as de facto day-to-day care, rather than In re: K.K.C. which said there was a legal representation requirement (8-9). Held that the Jasek construction was consistent with the idea of in loco parentis and that the law did not specify that legal representation was a requirement (10). Held that exclusive care was not a requirement because it was not included in the statute (11). Argued that the dissent conflates actual control and legal control (12). Argued dissent placed too much focus on the parents' conduct (12). Held that "actual care and control" means that 1) the non-parent lives with the child 2) non-parent cares for child's physical and psychological needs 3) non-parent makes authoritative decisions in the child's life (14). Held that the supposed temporary nature of the child staying with the grandparents did not change the facts because the parents chose not to assume care of her (16). Held that the "actual care and control" requirement puts the case outside the precedent of Troxel (18). Good elements: Said that words of a statute were used or not used for a reason (7). Concerning elements: Dissent argued that "actual control" cannot mean simply day to day care for the child because it would not be distinct from normal care-- it must mean the authority to make important decisions (11-12). 
  
• Pidgeon v. Turner (2017) Signed Boyd's majority opinion. Involved key issues. Held that the court had the authority to review the trial court’s interlocutory appeal. Appeals court said that the 5th Circuit precedent of De Leon should be followed, which is inconsistent with precedent that the 5th circuit is not binding on Texas (10). Held that the court of appeals language elevating De Leon to the level of binding rather than persuasive precedent was improper (11). The resulting uncertainty allowed the Supreme Court to review the interlocutory order (11). Plaintiff arguments (11-12). Held that De Leon is not binding on the trial court (12). Held that the injunction should not have been reversed but rather vacated, so that Pidgeon may petition for injunction again on remand (12-13)— this was not res judicata because Obergefell had substantially changed the law (13). Court declined to rule on questions of whether funds spend prior to Obergefell should be “clawed back” because Pidgeon never sought such relief in the injunction, and the injunction did not provide for it (17). Held that Obergefell did not necessarily entitle same-sex couples to the same benefits as heterosexual couples (20). Rejected amicus briefs asking the court to decide the issue there because there had not been briefing and full fact-finding (20). Held that it was unclear whether the mayor acted ultra vires or if that claim was still active post-Obergefell (22).

Justice John Devine is running for Supreme Court of Texas, Place 4.  Justice Devine is married to Nubia Piedad Gomez and the couple has six children.  

Employment: 

• Justice Devine was elected to the Supreme Court of Texas in 2012 and was re-elected in 2018. His term expires December 31, 2024.
• "He previously served for seven years as judge of the 190th State District Court in Harris County and for nine years as an appointed special judge for the Harris County justice of the peace courts."
• Elected to district court in 1995 and re-elected in 1998.
• In 2002, he was appointed as a special judge for the Harris County justice courts and served until 2011. 

Education: 

• Received J.D. from South Texas College of Law, 

Memberships/Associations: 

• Member, District of Columbia Bar Association,
• Member, Board of Civil District Judge Mass Torts Committee
• Member, Board of Civil District Judges,
• Member, Harris County Juvenile Justice Charter School Board
• Member, Harris County Juvenile Board. 

Awards: 

•  "Texas Size Hero" by Focus on the Family magazine. 

Public Statements:

• In Devine's announcement for re-election he released the statement: 
  • “It is with much prayer and consideration that I am enthusiastically announcing my candidacy for reelection to the Texas Supreme Court. During my tenure on the court, I have had the privilege of presiding over a wide range of cases and have always applied the law impartially and with careful consideration of all the arguments presented. I am committed to maintaining the trust and confidence the people of Texas have placed in me over the past 11 years. The Texas Supreme Court is critical in upholding the rule of law and protecting the rights of all Texans. I remain steadfast in ensuring the court system is fair and just. “ 
• Texans for Lawsuit Report PAC (TLRPAC) Chairman Richard J. Trabulsi Jr. said, “The Texas Supreme Court handles the most consequential issues facing our state, affecting everything from our jobs to our families and our freedoms[.]” “Justice Blacklock, Justice Devine and Justice Bland are jurists with proven track records of upholding the rule of law. Texans can count on these experienced, principled judges to apply our laws as written, never legislating from the bench. TLRPAC is proud to support them.” 

Notable Cases

• In re State (2023) Per Curiam. Justice Devine and Justice Blacklock concurred in the order granting relief. The Court "conditionally grant relief and direct[ed] the trial court to vacate the temporary restraining order." (7) The trial court "ruled that a prospective abortion would 'fall within the medical exception' to Texas’s abortion laws. Based solely on the verified pleading, it issued an order restraining the Attorney General from enforcing the abortion laws against Dr. Karsan and others related to the case." (3)"The trial court declared the abortion laws unenforceable based on the court’s opinion that the exception applies." (4) The State [sought] relief from the trial court’s order." (3) The abortion law prohibits abortion except when "in the exercise of reasonable medical judgment, the pregnant female . . . has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced." (2). The court said " [i]f a doctor, using her 'reasonable medical judgment,' decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion." (2) "Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise 'reasonable medical judgment,' the Legislature determined that the medical judgment involved must meet an objective standard." (4) These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice. Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception." (1) The court held, "[a] pregnant woman does not need a court order to have a life- saving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment." (6) "Each of the three branches of government has a distinct role, and while the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do." (7) Kate Cox and her husband Justin are the parents of two children. Ms. Cox is about twenty weeks pregnant with a third child—one who has received a tragic diagnosis. The Coxes and their doctor sue[d] to prevent the enforcement of Texas laws that generally prohibit abortion. " (1)
  
• In Re A.M. (2023) Blacklock, joined by Justice Devine, concurred in the denial of the petition for review. "This natural parental right [is] a basic civil right of man and far more precious than property rights. (1) "The court of appeals' opinion suggests that these punishments amounted to child abuse justifying the judicial destruction of a family. I disagree." (4) "However far out of favor such traditional disciplinary measures may have fallen in some quarters, a parent's choice to employ them should be afforded no weight in a termination proceeding. Threatening to withhold presents as punishment is a ubiquitous part of popular Christmas culture. A little hot sauce for lies or bad words seems downright humane compared to the vigorous mouth-washing feared by generations of foul-mouthed children and administered by generations of loving mothers. And how many parents at their wits' end have made their kids run around the block or do pushups or jumping jacks? If reliance on these old-fashioned punishments – and others like them, such as spanking – can be used against parents by a government that seeks to take away their parental rights, then 'the fundamental right of parents to make decisions concerning the care, custody and control of their children' is no longer what it once was." (4) "If some judges and juries around the state now believe that punishing children the way previous generations of American children were punished amounts to 'sordid maltreatment' justifying government intervention, the legislature may wish to make its views known. The advisability or efficacy of these punishments is not the issue. The issue is whether Texas parents still have the liberty to employ them as they see fit without fearing a knock on the door from Child Protective Services. I believe they do." (5)
• In re Salon a la Mode (2020) Joined majority in denying a mandamus petition which argued that COVID-19 restrictions violated Texas statutory law and the Texas Constitution. Wrote concurrence. Argued that global pandemics do not suspend state and federal constitutional provisions (1). "Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government’s anti-virus actions."(2) Justice Blacklock concluded, "[t]his original petition, which challenges several local officials’ coronavirus response measures, should first be presented to the appropriate district courts. The Supreme Court is generally a court of last resort. Our original jurisdiction to issue the requested relief is doubtful, and the petition is presented without supporting affidavits and with no record on which the Court could base its inquiry. Just as other government officials must not exceed their rightful power inextraordinary circumstances, this Court also must not do so. I therefore concur in the denial of the petition." (3).

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