Although she's under felony indictment, 164th Civil District Judge Alexandra Smoots-Thomas earned enough votes in the Democratic primary to advance to a runoff election for her bench.

In a three-way race in the March 3 Democratic primary, Smoots-Thomas earned 33% of the vote, while Cheryl Elliot Thornton earned 41%. Thornton and Smoots-Thomas must now compete in a runoff on May 26 to determine who becomes the Democratic nominee. Whoever wins the runoff will compete in November against Republican candidate Michael Landrum.

Smoots-Thomas, who has been suspended from the bench since November 2019, has pleaded not guilty to seven counts of wire fraud in a case that alleges she embezzled over $26,000 in campaign contributions and used them for personal expenses.

Kent Schaffer, Smoots-Thomas' criminal defense lawyer, said that her prosecution is political, and he thinks she will beat the charges.

"I don't think the average voter had any idea that Judge Smoots-Thomas was under indictment," said Schaffer, a partner in Schaffer Carter & Associates in Houston. "I didn't hear it mentioned at all."

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Note: Vote total was 248,913. Source: Texas Secretary of State's Office. Graphic: Angela Morris/ALM

Thornton, a senior assistant county attorney in the Harris County Attorney's Office, said she chose not to discuss her opponent's indictment much on the campaign trail.

"I didn't want to be perceived as the one with the ax to grind," explained Thornton. "I just want an educated populace out there voting for the most qualified person."

If she wins, Thornton said she would use a different style on the bench, compared with Smoots-Thomas.

"My style will be not quite as flippant, and again, more empathetic towards the people who are coming before you," Thornton said. "One side has to win, one has to lose, but both sides should leave there with their dignity intact."

Thornton added that she did run across educated voters who were well aware of Smoots-Thomas' charges.

The government alleged in Smoots-Thomas' indictment that she engaged in a scheme to defraud donors by soliciting contributions for her campaigns. It alleges she spent more than $26,000 on her mortgage, her children's private school tuition, personal travel, a designer handbag and jewelry. She allegedly hid the misuse of campaign funds by filing false campaign finance reports and concealing her spending from her campaign treasurer, according to the indictment.

Days after her indictment, the Texas Commission on Judicial Conduct suspended Smoots-Thomas from her position without pay.

Her attorney, Schaffer, said he will be ready to defend Smoots-Thomas at her trial, currently scheduled for Sept. 15.

The case was originally scheduled for trial on Jan. 14, but has been reset twice, according to court records. Once, the judge's defense team asked for a delay because it was still waiting on discovery data from the government.

Another time, Schaffer asked for a continuance because he was scheduled for trial in another case, and he had hired an expert consultant who wasn't yet done researching the financial transactions at issue in Smoots-Thomas' case. Schaffer asked Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas to designate the case as a complex case because of its financial records and campaign-related documents.

The discovery in the case spans multiple years, involves a number of witnesses, and raises complex legal issues that will be argued in motions, Schaffer told the Texas Lawyer.

Schaffer said, "She is still presumed innocent, and I think she should win [reelection]."

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