Barry Smitherman 'doesn't have enough legal experience to apply for most of the jobs at the attorney general's office.
Interviewed Jan. 24, 2014, on KFYO-AM in Lubbock, state Sen. Ken Paxton of McKinney claimed Barry Smitherman, an opponent in the race for Texas attorney general, 'doesn't have enough legal experience to apply for most of the jobs at the attorney general's office.' Smitherman, who chairs the state Railroad Commission, 'has only 15 months of total legal experience,' said Paxton, vice chair of the Senate Transportation Committee and a former House member, who said he has 22 years' experience practicing law. That 15-month figure didn't hold up, though Smitherman separately acknowledged that he has spent less than three years practicing law. The others bidding for attorney general in the March 4, 2014, primary elections are also lawyers. Republican state Rep. Dan Branch of Dallas, who chairs the House Higher Education Committee, is a senior attorney and shareholder in corporate law firm Winstead PC; campaign spokesman Enrique Marquez told us by email Branch has practiced law for 30 years. The lone Democrat is Sam Houston, a Houston lawyer unrelated to the historical figure of the same name, who is nearing 27 years of private legal practice, as we noted in a 2013 fact-check. Traditionally, the state attorney general has been a lawyer, though according to the Secretary of State's office, the Texas Constitution doesn't require a law license or legal experience for the job, which was created in 1845, when legal qualifications were less formal. The attorney general does act as the state's lawyer, often filing lawsuits at the request of a department or branch of state government, as well as litigating cases, defending state laws and providing legal advice; another duty is approving public bond issues. Asked for his response to Paxton's claim, Smitherman told us by phone, 'Well, first of all, most of the jobs over there are non-judicial; they're non-lawyer jobs. So that's patently false.' Paxton spokeswoman Ashley Sewell told us via email that Paxton's comment 'was obviously given in the context of legal qualifications and legal jobs which require a licensed attorney. ... (T)he lack of Barry Smitherman's legal experience keeps him from being qualified for more than half of those jobs.' Sewell emailed us information on employees in the attorney general's office pulled from the Texas Tribune's online data portal. She said that of 718 'legal personnel,' 515 were classed as assistant attorney general employment grade IV or above. That, she said, meant the 515 positions required three or more years' legal experience; as backup, she sent two 2014 job postings -- one requiring three years for a level IV assistant attorney general opening and another requiring four years for a level V assistant attorney general job. On behalf of the AG's office, spokeswoman Lauren Bean told us by email that the agency has 4,073 employees, of whom 734 are lawyers, with 717 of those being categorized as assistant attorney general classifications I through VII. She said that the agency requires three years or more experience for classes IV and up; those categories account for 509 lawyer positions. Most of the remaining 'lawyer' jobs are director positions and the post of first assistant attorney general; these don't have a specific legal experience requirement attached. Rather, the job descriptions call for 'experience relevant to the assignment' and possibly a law license in a specialty area. So 509 AAG positions at the agency require three or more years' legal experience. That's 70 percent of the total 'lawyer' jobs on staff and 13 percent of all the agency's jobs. Smitherman told us he practiced as a briefing attorney and municipal bond attorney from 1984 to 1985, earned a master's degree in public administration and spent 16 years in investment banking, then began a second career as a prosecutor in the Harris County district attorney's office and was there 15 months before Gov. Rick Perry appointed him to the Public Utilities Commission in 2004. He was promoted to PUC chairman in 2007, then appointed in 2011 to the Railroad Commission, which he has chaired since 2012. 'If you're going to do a just-math exercise on how long I was in a law firm and how long I was in the Harris County DA's office, that's about two years and three months,' he said. But, he said, 'I think I probably could have come out of the Harris County DA's office as a baby prosecutor and gotten a job in the AG's office' because the Harris County office is so large and so busy. A year there, where his typical morning could start with a hundred or more cases to plead out or pursue, is like 'dog years,' Smitherman said.
Our ruling Paxton said Smitherman 'doesn't have enough legal experience to apply for most of the jobs at the attorney general's office.' Most of the jobs at the attorney general's office -- 87 percent -- don't require any legal experience at all. Of the 734 jobs that do, 70 percent have a minimum qualification of three years or more, which Smitherman would not meet. We rate Paxton's statement, which could have used clarification that he was focusing on lawyer jobs, as Mostly True. MOSTLY TRUE - The statement is accurate but needs clarification or additional information. Click here for more on the six PolitiFact ratings and how we select facts to check.