Plan B Against “Justice” Mike Toth

Attorney Kerry O'Brien has not abandoned his personal campaign against 3rd Court of Appeals GOP candidate Mike Toth, recently appointed by Gov. Greg Abbott to the Place 6 seat to serve out Justice Bob Pemberton's unexpired term, even as Toth campaigns against Dem nominee and District Court Judge Gisela Triana. Asked if he thinks Toth is qualified for the seat under the Texas constitutional standard of 10 years as a practicing lawyer, O'Brien said bluntly, "No, he's not." ("Disorder in the Court … of Appeals," Sept. 27.)

O'Brien said he calculated Toth's legal experience – even including years as a military judge advocate and also as a law clerk ("which is not practicing law"), and concluded Toth still falls short of the 10-year requirement. "Had I realized this earlier," said O'Brien, "I would have filed a court action to disqualify him." But by the time he reviewed Toth's record, O'Brien said, "There would have been only four days to get it filed, briefed, and decided ... by the 3rd Court of Appeals."

O'Brien says "Plan B" is primarily to let people know about Toth's lack of qualifications, so he's created a Facebook page ("Jersey Mike Toth – Bad for Texas Justice") to oppose Toth's candidacy. He's also contacted District Attorney Margaret Moore and County Attorney David Escamilla suggesting they file a "quo warranto" suit against Toth, challenging his right to the office.

Finally, O'Brien appears as an alternative Republican write-in candidate on the Place 6 ballot. If Toth prevails on Nov. 6, it won't be for O'Brien's lack of trying.