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Criminal appeals court judges targeted by Ken Paxton head to defeat

By William Melhado, The Texas Tribune

Criminal appeals court judges targeted by Ken Paxton head to defeat” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Two incumbent judges on Texas’ highest criminal court have been ousted and a third is expected to fail in her bid for reelection on Tuesday after Attorney General Ken Paxton targeted the Republicans over a 2021 ruling that struck down the attorney general’s ability to unilaterally prosecute voter fraud.

The Associated Press declared David Schenck and Gina Parker won their races over Judges Sharon Keller and Barbara Hervey respectively. Presiding Judge Keller was first elected to the bench in 1994.

Incumbent judge Michelle Slaughter was expected to lose to challenger Lee Finley.

Paxton targeted the judges as part of a larger political revenge tour in which he attempted to oust Texas House members who voted to impeach him in May.

In 2021, Keller, Hervey and Slaughter voted with five of the other Republican judges on the Court of Criminal Appeals in a voter fraud case. The 8-1 decision ruled that the Office of the Attorney General violated the separation of powers in the Texas Constitution by trying to prosecute election cases without the permission of a local prosecutor.

But in media appearances and primary advertisements, Paxton painted the three incumbents as rogue Republicans who stripped the attorney general’s power to go after voter fraud — a political topic dear to the modern GOP in light of former President Donald Trump’s false claims of election interference.

Together, the three incumbents had nearly a century of experience practicing criminal law, as prosecutors and jurists. Nine judges sit on the Court of Criminal Appeals which is the state’s highest criminal court. The Texas Supreme Court hears civil cases.

The Texas attorney general is the state’s chief lawyer, but leaves the prosecution of crimes — including voter fraud — to locally elected county attorneys and district attorneys.

With Keller, Hervey and Slaughter off the bench, there are still four judges on the court that Paxton has previously said should be ousted for voting against him in 2021. Two of those judges, David Newell and Bert Richardson, will be up for reelection in 2026 should they choose to run. Kevin Patrick Yeary, the sole pro-Paxton vote, will also be up for reelection that same year.

In a statement released by Paxton late Tuesday evening, the attorney general said the incumbent losses were a victory for democratic principles.

“To those who would seek to obstruct justice or undermine our laws, know this: The people of Texas will not tolerate it,” Paxton said in his statement. “Your days of judicial activism are numbered, and Texans are ready to hold you accountable.”

The all-Republican court is likely to remain entirely in GOP hands as the three elections are open to statewide voters. It’s been three decades since a Democrat won a statewide election.

Presiding Judge 

Schenck, who will now face Democratic nominee Holly Taylor this November, was gratified by Tuesday’s results, which he attributed in part to Trump’s recent endorsement. He said the issue of election integrity was important in all three races, even if he did not make it central to his campaign. Schenck has been hesitant to opine on the court’s voter fraud opinion.

Taylor, an assistant director in the civil rights division of the Travis County District Attorney’s office, ran unopposed in the Democratic Primary on Tuesday.

Looking forward, Schenck said he was eager to improve judicial integrity as part of the new generation of leadership.

“The public doesn’t believe courts are working fairly and they want impartial, competent and efficient judges,” he said Tuesday evening.

Schenck, a former judge for the state’s Fifth District Court of Appeals in Dallas, ran on campaign criticizing the pace at which the court moved. He argued the appeals court had lost the confidence from some in the legal community for the rate at which it delivered opinions. He previously ran for the Texas Supreme Court in 2022; he lost by 10 points.

Keller was elected to the criminal appellate court in 1994 as the first female judge. Prior to her decades-long tenure, Keller worked as an assistant district attorney for Dallas County.

Prior to this year’s election, Keller was the subject of several ethics complaints, which included a failure to disclose millions in personal holdings and an incident in which she closed the clerk’s office for the court as attorneys for a death row inmate attempted to file a last-minute appeal.

Place 7

Parker is a Waco attorney who has practiced both civil and criminal law. She disagreed with the current court’s decision in the 2021 voter fraud case, arguing it was an attack on the attorney general’s power and the Legislature’s ability to make laws that empower Paxton’s office. This is Parker’s second attempt to challenge a Republican incumbent on the criminal appeals court bench. In 2020, she lost to Judge Bert Richardson in that year’s Republican primary and he was eventually re-elected to his Place 3 seat.

When Hervey, who has been on the bench since 2001, was reached by phone Tuesday evening, she said, “Darth Vader is not supposed to win the war in those movies.”

Soon after AP called her race for Parker, Hervey said she was worried about the future of the court. She plans to work through the year to ensure someone would pick up the mantle of the programs she’s pioneered over the last two decades.

In addition to her judicial duties, Hervey co-chairs the Judicial Commission on Mental Health. She also runs an education program that provides legal courses and assistance to judges, prosecutors, defense attorneys and court personnel.

Had Hervey and Keller won reelection, they both would have had to retire before the end of their six-year terms given a Texas law requiring judges to leave the bench at 75. The governor would appoint someone to finish their terms.

Parker will face Democratic nominee Nancy Mulder, who presides over Texas Criminal District Court 6 in Dallas County, in the November general election.

Place 8

Finley, a U.S. Marine Corps veteran, has practiced criminal law for over 20 years, according to his campaign biography.

He came under scrutiny during the Republican primary over reports that he and his wife are facing a civil judgment after defaulting on a home mortgage payment in 2016. The couple appealed a district court decision ordering them to repay lenders, pausing the seizure of their home.

In November, Finley will face Chika Anyiam, the Texas Criminal District Court 7 judge in Dallas County, who already secured the Democratic nomination.

Slaughter, a former district judge in Galveston County, was in her first term on the criminal appeals bench after winning her election in 2018.

During the primary season, Slaughter pushed back against Paxton’s characterization of the 2021 opinion. She said the attorney general and her critics were pushing misinformation about her and the court.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/03/05/texas-court-of-criminal-appeals-republican-primary/.

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