Alan Albright – Nominee for the U.S. District Court for the Western District of Texas

An attorney who first became a judge over 25 years ago (and left the bench approximately 20 years ago) would not seem like a likely judge from an Administration focused on youth as a key criteria of nomination.  However, Alan Albright became a judge at just 32 years of age and left the bench before he was forty.  As such, the seasoned litigator, now 58, is still young enough to serve on the bench for another thirty years.

Background

Alan D. Albright was born on November 24, 1959 in Hershey, PA.  After getting a B.A. from Trinity University in 1981, Albright received a J.D. from the University of Texas Law School in 1984.  After his graduation, Albright served as a law clerk to Judge James Nowlin on the U.S. District Court for the Western District of Texas.[1]

After his clerkship, Albright joined McGinnis, Lochridge & Kilgore LLP. as an associate.  Two years later, he joined the Austin office of Akin Gump Strauss Hauer & Feld as an associate.  In 1992, Albright, only 32, was tapped to be a U.S. Magistrate Judge for the U.S. District Court for the Western District of Texas.

Albright left the bench in 1999 to join the Austin office of Thompson & Knight LLP.  Two years later, he left Thompson to join Gray Cary (now DLA Piper) as a Partner.  In 2005, he moved to the Austin office of Fish & Richardson as a Partner.  In 2009, he joined the Austin office of Bracewell & Giuliani (now Bracewell) as a Partner.  In 2014, he left Bracewell to become a Partner at Sutherland Asbill & Brennan.  In 2015, he returned to Bracewell as a Partner, and works there to this day.

History of the Seat

Albright has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on September 14, 2016, when Judge Walter Scott Smith Jr. retired amidst allegations of sexual misconduct.[2]  In February 2017, Albright applied for a federal judgeship with an Evaluation Committee set up by Texas Republican Sens. John Cornyn and Ted Cruz.[3]  He interviewed with the Committee in March 2017 and then with Cornyn and Cruz in April.  Albright interviewed with the White House and Department of Justice on July 18, 2017.[4]  He was nominated on January 24, 2018.

Legal Experience

Albright’s work in private practice can be divided into two periods sandwiched around his seven years on the bench.  The first period was from 1986, when Albright finished his clerkship, to 1992, when he became a federal judge.  During his period, Albright primarily worked in insurance litigation, starting at the Austin firm McGinnis, Lochridge & Kilgore LLP and then working for the Biglaw firm Akin Gump.

The second period was from 1999, when Albright left the bench, to the present.  In this period, the primary focus of Albright’s career has been on patent litigation, at the firms Thompson & Knight, Gray Cary, Fish & Richardson, and Bracewell & Giuliani (now Bracewell).  Notably, Albright represented Overstock.com in defending against a patent infringement action, representing the website through a jury trial (the jury found for the defendants).[5]

While Albright focused primarily on patent litigation , he occasionally handled other cases.  Notably, Albright represented the Williamson County government in defending against a suit brought by Robert Lloyd, a conservative Republican who claimed that the County had improperly taken his political affiliation and his opposition to abortion and same-sex marriage into account in rejecting him for a Constable appointment.[6]

Jurisprudence

Albright served as a U.S. Magistrate Judge on the U.S. District Court for the Western District of Texas from 1992 to 1999.  In this capacity, Albright presided over the pretrial aspects of approximately 1000 misdemeanor and civil cases and approximately 500 civil cases.[7]  He also presided over around 15-20 civil cases by consent.[8]   Among the more prominent cases Albright handled, he overturned a $275,000 jury verdict for a San Marcos plaintiff shot by a police officer on qualified immunity and official immunity grounds (his decision was affirmed on appeal).[9]  In another notable case, Albright found for the parents of a daughter who suffered permanent injuries during birth due to the negligence of the doctor delivering the baby.[10]

In his seven years on the bench, Albright was reversed by the Fifth Circuit in four cases.  In three of the reversals, the Fifth Circuit reversed plaintiff-friendly rulings by Albright.[11]  In the fourth case, the Fifth Circuit reversed the grant of summary judgment to the defendant in a Lanham Act case.[12]

Political Activity

Albright has been a frequent donor to Republican candidates.  Cornyn was a particular beneficiary, having received approximately $5000 from Albright.[13]  Albright also donated almost $5000 to Rudy Giuliani’s 2008 Presidential campaign.[14]

Additionally, Albright volunteered on the campaigns of several Texas politicians, including Republican Governor Bill Clements, and Democrats Bob Krueger and Henry Cisneros.[15]

Overall Assessment

Compared to other nominees from Texas who have incited more pushback, Albright is relatively uncontroversial.  His long-time tenure as a patent litigator has allowed Albright to steer clear of controversial cases while maintaining the intellectual vigor needed for the bench.  Additionally, supporters will argue Albright’s representation of Williamson County in defending against a discrimination suit brought by a conservative employee reflects an apolitical approach to the law.

Furthermore, Albright’s record on the bench is relatively non-ideological.  While Albright did overturn a jury verdict for a plaintiff against the cop who shot him, his ruling for the victims of medical negligence in a bench trial suggests that he is not biased against plaintiffs.  Furthermore, most of his reversals from the Fifth Circuit have been from plaintiff-friendly rulings.

Overall, these factors, combined with his age and experience, suggest that Albright will be considered a consensus nominee.


[1] Sen. Comm. on the Judiciary, 115th Cong., Alan D. Albright: Questionnaire for Judicial Nominees 46.

[2] Tommy Witherspoon, Probe of Federal Judge Ends With His Retirement, Waco Tribune, Sept. 29, 2016, http://www.wacotrib.com/news/courts_and_trials/probe-of-federal-judge-ends-with-his-retirement/article_232c914f-578a-5e3d-813e-0f963cd75be3.html.

[3] See Albright, supra n. 1 at 44.

[4] See id.

[5] Alcatel-Lucent USA v. Amazon.com, Inc., 6:09-cv-00422-LED (E.D. Tex. Nov. 2, 2011), aff’d, 505 F. App’x 957 (Fed. Cir. 2013).

[6] Lloyd v. Birkman, No. 1:13-cv-00505 (W.D. Tex.).

[7] See Albright, supra n. 1 at 13-14.

[8] Id.

[9] Tamez v. City of San Marcos, No. 93-CV-666 (W.D. Tex. July 8, 1996), aff’d, 118 F.3d 1085 (5th Cir 1997), cert. denied, 522 U.S. 115 (1998).

[10] Jackson v. United States, No. 1:96-cv-00491-ADA (W.D. Tex. Aug. 20, 1998).

[11] See Castillo v. City of Round Rock, Tex., No. A-96-CV-863 (W.D. Tex. Feb. 2, 1998), rev’d, 177 F.3d 977 (5th Cir. 1999), cert. denied, 528 U.S. 1019 (1999) (reversing denial of summary judgment to defendants, noting that claims were barred by qualified immunity); Travis v. Bd. of Regents of the Univ. of Tex. Sys., No. A-94-CV-712 (W.D. Tex.), rev’d, 122 F.3d 259 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1992) (reversing verdict for plaintiff on sex discrimination and retaliation claims); Texas v. Thompson, No. A-93-CA-343 (W.D. Tex. Dec. 12, 1994), appeal dismissed in part and rev’d in part, 70 F.3d 390 (5th Cir. 1995) (per curiam) (reversing denial of summary judgment to one defendant). 

[12] Soc’y of Fin. Exam’rs v. Nat’l Ass’n of Certified Fraud Exam’rs, Inc., No. A-92-CA-792/ A-92-CV-937 (W.D. Tex. Dec. 8, 1993), vacated, 41 F.3d 223 (5th Cir. 1995), cert. denied, 515 U.S. 1103 (1995).

[14] See id.

[15] See Albright, supra n. 1 at 29-30.

Judge Walter David Counts III – Nominee for the U.S. District Court for the Western District of Texas

Generally, Presidents select judicial nominees from the political party that they belong to: Republicans select Republican judges; Democrats select Democrats.  Where Presidents make cross-party appointments, they are typically in deference to home-state senators of the opposite party, or as part of a package deal to confirm judges of their own party.  One of the exceptions to this rule was the appointment of Judge Robert Junell, a Democratic state legislator in Texas, who was appointed to the U.S. District Court for the Western District of Texas by President George W. Bush.  Interestingly, President Trump’s nominee to fill the vacancy left by Junell could also qualify: U.S. Magistrate Judge David Counts.

Background

Walter David Counts III was born in Knox City, TX in 1961, the son of Walter David Counts Jr.  Counts attended Texas Tech University in Lubbock, graduating in 1983.  In the summer of 1983, Counts worked as a Congressional Intern for former Democratic Rep. Jack Hightower.

After college, Counts attended St. Mary’s University School of Law, graduating in 1986.  Upon graduating, Counts joined the Austin firm Martin, Cox, Greenberg & Jones as an Associate Attorney.  After a year there, Counts joined the Travis County District Attorney’s Office as an Assistant District Attorney.  In 1990, Counts left to set up a solo practice in Austin, only to return to the District Attorney’s Office in 1991.

In 1995, Counts joined the U.S. Attorney’s Office for the Western District of Texas.  In 1999, Counts became Deputy Chief of Major Crimes in the Criminal Division.  In 2009, Counts was appointed by the Chief Judge of the U.S. District Court of the Western District of Texas to be a magistrate judge for the court.  He currently serves in that position.

On March 15, 2016, Counts was nominated by President Obama to serve as a U.S. District Court judge.  With the support of Republican Senators John Cornyn and Ted Cruz, Counts received a Senate Judiciary Committee hearing on September 7, 2016.  However, despite the friendly hearing, Counts was never voted out of Committee and his nomination ended upon the conclusion of the Obama presidency.

History of the Seat

Counts has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on February 13, 2015, when Judge Robert Junell moved to senior status.[1]  After extensive negotiations between President Obama and Senators Cornyn and Cruz, a package of five nominees to the Texas federal bench were announced on March 15, 2016.[2]  The package included Counts’ nomination to the vacancy left by Junell.  While the package of judges received a joint hearing on September 7, 2016, they were never voted on by the Senate Judiciary Committee.

In January 2017, Counts applied for the vacancy again to the Federal Judicial Evaluation Committee set up by Cornyn and Cruz.  After interviews with the Committee and the White House Counsel’s Office, Counts was nominated for the vacancy on September 11, 2017.

Legal Experience

There have been only two short periods of time in which Counts has not been either a prosecutor or a judge.  First, after graduating from law school, Counts worked at Martin, Cox, Greenberg and Jones, a civil law firm based in Austin.  In this position, which he only held for a year, Counts represented public health companies and nursing homes in regulatory proceedings.  Second, from 1990-91, Counts maintained a solo practice, practicing criminal defense.  Other than these two short periods, Counts spent his entire legal career before joining the bench in one of two positions: as a state prosecutor in Travis County; and as a federal prosecutor in the U.S. Attorney’s Office for the Western District of Texas.

Travis County District Attorney

Counts worked in the Travis County District Attorney’s Office from 1987-1990 and 1991-1995.  As a state prosecutor there, Counts worked primarily in violent felony cases, including sexual assault and murder.  Counts notably prosecuted a convicted serial rapist who had assaulted and murdered young women after being released on parole.[3]  Counts was able to successfully prosecute Mr. McDuff and obtain the death penalty, even while having to navigate the evidentiary obstacles of not having the victim’s body.[4]

Notably, Counts also prosecuted Joel Rene Valdez on a rape charge.[5]  Valdez presented an unusual defense: that the victim’s insistence that he wear a condom implied her consent.[6]  Despite heavy media attention, Counts was able to obtain a conviction and a 40-year sentence against Valdez.[7]

U.S. Attorney

In 1995, Counts became a federal prosecutor in the U.S. Attorney’s Office for the Western District of Texas.  In this role, Counts prosecuted a variety of cases, including narcotics, firearms, immigration, white collar crime, and public corruption.  Among the more notable matters he handled, Counts successfully prosecuted Frio County Treasurer for setting up schemes to steal funds from county and federal programs.[8]  Counts also prosecuted two San Antonio City Council members for taking kickbacks from attorneys in exchange for city contracts.[9]

Jurisprudence

Counts has served as a U.S. Magistrate Judge since 2009.  In this capacity, Counts handles pretrial, grand jury, and discovery matters in criminal cases in the Midland/Odessa and Pecos Divisions of the Western District of Texas.  Counts also handles civil trials with the consent of both parties.

Among his more notable trials, Counts presided over the jury trial of two oilfield workers who sought unpaid overtime wages under the Fair Labor Standards Att (FLSA).[10]  After a jury verdict for the plaintiffs, Counts awarded them liquidated damages and attorney’s fees, denying the employer’s motions for a new trial.[11]  On the criminal front, Counts presided over the guilty pleas of four prominent Midland and Odessa citizens who were charged with mortgage fraud, bank fraud, and money laundering.[12]

In his eight years on the bench, Counts has written hundreds of Reports and Recommendations for federal district judges.  Of these, four have been partially rejected by the district judge.[13]  Of these, the most notable is Counts’ opinion in Sherwood v. United States.[14]  The case involved a habeas petition brought by a prisoner who argued that his right to self-representation during his trial was impeded.[15]  While Counts recommended that the plaintiff receive relief for his petition, the district court rejected this recommendation of relief.[16]

Political Activity

Counts has no political donation history, although his father, W. David Counts Jr., served as in the Texas state legislature as a Democrat between 1988 and 2002.

Overall Assessment

Generally speaking, nominees put forward by presidents of the opposite party (or presidents of both parties) fare well in the confirmation process.  The same process is likely to hold up for Counts.  Republicans are unlikely to object to Counts as he is the product of a recommendation process set up by Cornyn and Cruz, two conservative senators.  Democrats are unlikely to object to Counts given his previous nomination by President Obama, his ties to a prominent Democratic officeholder, and his relatively moderate record.

If confirmed, one can expect Counts to have a similar record to that of the judge he replaces.  Like Judge Robert Junell, Counts will likely be a center-right voice on the federal bench in Midland.


[1] John Council, U.S. District Judge Rob Junell Hits Career Peak, Texas Lawyer, Feb. 12, 2015, http://www.texaslawyer.com/id=1202717806165/US-District-Judge-Rob-Junell-Hits-Career-Peak?slreturn=20170918151134.

[2] Press Release, White House, President Obama Nominates Six to Serve on the United States District Courts (March 15, 2016) (on file at https://obamawhitehouse.archives.gov).  

[3] See State v. McDuff, No. 93-5281 (147th Dist. Ct., Travis Cnty., Tex. 1995).

[4] See id.

[5] See State v. Valdez, No. 92-5263 (147th Dist. Ct., Travis Cnty, Tex. 1995).

[6] Special to the N.Y. Times, Man is Convicted of Rape in Case Involving Condom, N.Y. Times, May 14, 1993.

[7] Sue Anne Presley, Rapist Asked to Use Condom Gets 40 Years; Terror ‘Indiscribable’, Victim Tells Court, Wash. Post, May 15, 1993.

[8] See United States v. Cantu, No. 5:07-CR-00662 (W.D. Tex. May 7, 2009).

[9] See United States v. Martin, No. 5:02-CR-00527 (W.D. Tex. Apr. 6, 2005).

[10] See Carley v. Crest Pumping Tech., No. 7:15-CV-00161, 2016 WL 8856917 (W.D. Tex. Jan 10, 2017).

[11] See id.

[12] United States v. Hilliard, No. 7-14-CR-00001 (W.D. Tex. Jan. 13, 2015).

[13] Lindig Construction & Trucking, Inc. v. Bonelli, No. 7:15-CV-00116 (W.D. Tex. April 6, 2016), adopted in part by 2016 WL 8677200 (W.D. Tex. Aug. 19, 2016); Nestor v. Penske Truck Leasing Co., L.P., No. 4:14-CV-00036, 2015 WL 4603313 (W.D. Tex. July 7, 2015), adopted in part by 2015 WL 4601255 (W.D. Tex. July 29, 2015); United States v. Venegas, No. 7:13-CR-00061 (W.D. Tex. Dec. 2 2013), aff’d, 594 F. App’x. 822 (5th Cir. 2014); Sherwood v. United States, No. 4:04-CR-00191 (W.D. Tex. Apr. 5, 2012).

[14] Sherwood v. United States, No. 4:04-CR-00191 (W.D. Tex. Apr. 5, 2012).

[15] Id.

[16] Id.