From KERA News:
Since Texas Attorney General Ken Paxton was acquitted on all counts during his impeachment trial in the Legislature last year, he’s been vocal about his scorn for the lawmakers who didn’t have his back and supported challengers to those Republicans who have faced primaries.
But Paxton is also seeking political revenge in races with traditionally less fanfare than others: the election for seats on the Texas Court of Criminal Appeals, the all-Republican court of last resort for criminal matters in the state, including death penalty cases.
Since the court’s 2021 ruling that it was unconstitutional to let the attorney general single-handedly prosecute election law violation cases, Paxton has taken to multiple platforms calling for voters to replace three of the judges who voted in the majority against him and are now running for re-election.
“Those races are more important than any races I’ve ever worked on in my life,” Paxton told Dinesh D’Souza, a conservative political commentator, on D’Souza’s podcast.
For the incumbent judges as well as lawyers and political experts, the race has called attention to the pervasive role of partisan politics in a field that prides itself on impartiality.
Texas v. Stephens
At the center of the case that sparked Paxton’s ire is Jefferson County Sheriff Zena Stephens, who was elected to office in 2016. The FBI found potential campaign finance violations on Stephens’ record while investigating someone else, court documents show. A Texas Rangers investigation later found Stephens received individual campaign contributions in cash that were greater than $100.
The findings were presented to the Jefferson County district attorney, who declined to prosecute the case. But by using the authority granted in the Texas Election Code, Paxton sought a grand jury indictment in Chambers County, directly west of Jefferson County. Stephens was indicted in 2018 on three counts of campaign finance violations.
But when Stephens’ appeal made its way up to the Court of Criminal Appeals, they sided with her in an 8-1 ruling. Judge Kevin Yeary wrote the dissenting opinion.
The majority found the attorney general was not allowed to prosecute criminal election cases without district attorney permission under Article II of the Texas Constitution, which states no member of the state’s executive, legislative or judicial branches of government, “shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”
“The Supreme Court looked at that and said that the attorney general, who is an elected member of the executive branch of government, can’t jump over and take over judicial functions,” said Cal Jillson, a political science professor at Southern Methodist University.
Paxton said in a post on X the ruling was “devastating for future elections in Texas” and said the court had given “Soros-funded district attorneys” all the power to prosecute election fraud in Texas.
The Court of Criminal Appeals also denied his motion for a rehearing in 2022.
Paxton couldn’t immediately endorse candidates to run against any judges because the decision came days after the filing deadline for the 2022 primary elections. This year, however, Judges Sharon Keller, Barbara Hervey and Michelle Slaughter are up for re-election.
With former President Donald Trump’s loss in the 2020 presidential election and the Jan. 6, 2021, storming of the Capitol setting the stage for election misinformation and distrust across the country, Jillson said it’s likely the attorney general is vocal about the three-year-old campaign finance fraud case because the cause resonates with his supporters.
“Usually these races are very quiet,” Jillson said. “The legal community supports the incumbent, the challenger almost always loses, and everyone goes about their business. But if there is visibility brought to a race — as in this case with these three incumbent judges — and money is put in, then everybody’s eyes light up and they look for a real fight.”
Texas Attorney General Ken Paxton speaks at a rally in support of President Donald Trump called the “Save America Rally” in Washington on Jan. 6, 2021.
Jacquelyn Martin / AP
The playing field
Texans for Responsible Judges is the political action committee endorsing the three challengers. Though it hasn’t reported receiving any funding from Paxton, the attorney general is a client of political fundraising firm Fundraising Solutions, LLC, where the PAC’s executive director Sam Vrana works.
“Recent rulings betraying conservative principles underscore the urgent need for change,” the PAC’s website reads. “Decisions that hampered efforts to combat voter fraud exposed underlying liberal leanings within the court, prompting us to mobilize for a shift towards judges who prioritize conservative values in their judgments.”
Paxton, Vrana and Texans for Responsible Judges have not returned KERA’s requests for comment.
Richardson attorney Lee Finley is challenging Slaughter for her Place 8 seat. Finley is a managing partner at Finley & Associates and previously ran for Collin County judge in 2022, losing to Chris Hill.
Slaughter was elected in 2018, one of the newest judges on the court. A self-described constitutional conservative and originalist, she wrote a 73-page dissent when the court denied Paxton’s motion for a rehearing in 2022, diving into the state and constitutional history she said informed her decision.
“I did that in the hopes that it would further explain to the public, ‘look, this is why we ruled the way we did,’” she said. “It is, you know, specifically driven by the law as written and as originally intended.”
Slaughter has been vocal about explaining the Stephens case. She said she and fellow judges knew the case would be controversial but were surprised by the public response when the motion for rehearing was filed — with phone calls, emails, letters and even death threats pouring into their offices.
“It was far beyond what we expected,” Slaughter said. “But at the same time, we cannot be driven by the outcome or who is involved. It has to be driven by the rule of law.”
Judge Barbara Hervey, who has been on the court since 2000, is facing Waco attorney Gina Parker in the race for the Place 7 seat. Parker previously ran for the Place 3 seat in 2020, getting 48% of votes against Judge Bert Richardson in the primary.
Hervey also said the backlash didn’t affect how she felt about the Stephens decision, but she said the potential impact of Paxton’s strategy for endorsing candidates is unsettling.
“We can’t predict the future, but if he were to replace half or three-quarters of the court with people he’s backed because of this one case, then are they going to recuse if something that involves him comes up before this court down the road?” Hervey said.
Of the three challengers, only Dallas attorney David Schenck responded to KERA’s requests for comment.
Schenck, 56, is challenging current Presiding Judge Sharon Keller. He was a deputy attorney general under now-Gov. Greg Greg Abbott and a former Fifth Court of Appeals justice until 2022. He ran against Justice Evan Young on the Texas Supreme Court last year, losing in the primary.
Schenck said he wouldn’t comment on the merits of the Stephens case as a judicial candidate and disagrees with the judges doing so. But he said the political conversation Paxton has generated around the decision is “healthy.”
“The more transparent the process, the more focused it is and the more the public can understand what’s happening, the better,” he said. “I don’t expect people to agree with every opinion I issue, but if they can’t understand it, then that’s on me. It’s not on the public.”
He said his broader concern lies with the integrity of the court, saying it takes the court too long to issue its opinions. He also cited Keller going on trial in 2009 and getting reprimanded for not allowing a last-minute appeal from a man the night before his execution in 2007, which helped cement the court’s tough conservative reputation.
“My view is they lost the left, they lost the middle, and now they’ve lost the right,” Schenck said. “And it’s not just that opinion on prosecuting election fraud. It’s a series of opinions.”
David Schenck poses for a photo in his office building Feb. 14, 2024. Schenck is challenging Judge Sharon Keller for the presiding judge seat on the Texas Court of Criminal Appeals in the 2024 Republican primary.
Toluwani Osibamowo / KERA
Keller said she worked in the appellate section of the Dallas County District Attorney’s Office until she was elected to the Court of Criminal Appeals in 1994, then elected presiding judge in 2000.
The judge declined to talk about her opponent in detail, but called Paxton’s characterization of the Stephens case misleading and the political pressure surrounding the case a bad thing.
“If our challengers win, that will encourage more people to try to affect or have an influence on our opinions and to challenge judges on the basis of one opinion they don’t like,” Keller said. “So, I think it’s an important election, not just for our court and how it proceeds, but for the judiciary in general.”
Both Keller and Hervey are 70 years old, meaning they’d reach the mandatory judge retirement age of 75 if re-elected for another six-year term. Hervey said she decided to run again because she feels her work isn’t finished, specifically in her role on the Texas Judicial Commission on Mental Health.
Keller has been re-elected four times. The judge said she’s never entirely certain she’ll defeat challengers — but she feels much less sure of her re-election chances this time around.
“There are a lot of people that normally would vote for me and have voted for me in the past that I think probably won’t,” Keller said. “I am not at all confident that I’ll win.”
Judicial elections are a process supporters say lets voters hold judges accountable. Others say the partisanship makes the appearance of impartiality difficult for judges on the bench.
Though the incumbents all said political intimidation surrounding the Stephens decision hasn’t affected the way they ruled in that case or others, Jillson said the race sets a precedent for all elections in Texas nonetheless.
“It does suggest that Texas politics is going to be more cutthroat, more zero sum,” he said. “And so, everyone — judges as well as legislators and others — will have to be more careful and have to calculate the positions that they take.”
