Top three for Texas Court of Criminal Appeals

Even though Texas elects our judges, we expect that once they don the robe and take the bench, they’ll apply the law fairly and ethically, free of any partisan calculations. In one pivotal ruling in

2021, 8 out of the 9 Republican judges on the state’s highest criminal court did just that, siding with the Texas Constitution over the partisan desires of a corrupt attorney general.

Now that attorney general, Ken Paxton, himself indicted for securities fraud, impeached by the Texas House and accused by his own former staff of criminal wrongdoing, is out for revenge. He’s backing challengers for the three incumbents who are up for reelection in the Republican primary: Sharon Keller, Barbara Hervey and Michelle Slaughter. The Texas Tribune reported that Paxton allies formed a political action committee aimed at ousting CCA judges who supposedly “abandoned their conservative roots.”

How so? They ruled the Constitution doesn’t allow any Texas attorney general, including Paxton, to unilaterally pursue a voter fraud case without cooperating with local district or county attorneys. In another era, that would be considered a conservative opinion. The case that prompted the ruling involved the prosecution of a Jefferson County sheriff who listed a donation incorrectly on her 2016 campaign finance report.

We wanted to question Paxton’s picks about their impartiality and motives for running for the Texas Criminal Court of Appeals, a powerful body whose duties include reviewing every case that results in a death penalty. Only one, David Schenck, agreed to meet with the editorial board. Hervey’s opponent, Gina Parker, did not respond to multiple requests. Slaughter’s opponent, Lee Finley, declined because “our political philosophies are incompatible.”

There’s one more, unrelated, factor we considered: Texas’ new age limit of 75 for judges. Both Keller and Hervey are 70, meaning they would be forced to retire five years into their six-year term and the governor would appoint their replacements.

All this context helped guide us in the following endorsements:

Place 1, David Schenck

The court’s longest-serving presiding judge, Sharon Keller, 70, is running for a sixth term. While such experience is invaluable, Keller’s record has been spotty. She authored a 2019 opinion striking down a key provision of the state’s Open Meetings Act that had made it a crime for government officials to secretly discuss public business. In previous terms, she has been fined for ethics violations such as failing to disclose in financial statements millions of dollars of real estate and income.

Most troubling for a judge with Keller’s tenure is that the court’s docket has slowed to a crawl. Since 2014, the average time it takes for the CCA to decide a case has ballooned from 198 days to 439.

More efficiently managing the court’s docket is where David Schenck, 56, believes he can make the most immediate impact. He wouldn’t have much of a learning curve. He authored hundreds of appellate decisions in his six-year term on the 5th District Court of Appeals in Dallas County and chaired the State Commission on Judicial Conduct. In 2022, he didn’t seek reelection and instead made an unsuccessful run for the Texas Supreme Court — we endorsed him in the Republican primary — which handles civil cases.

In our interview, Schenck said that Paxton is “free to support whoever he wants” but that Paxton did not recruit him. He noted that in his current job as a commercial litigation attorney, he is, in fact, representing a plaintiff who is suing Paxton.

“Paxton’s concerns with this court go to one particular case, my concerns are independent and much broader; they relate to the function of the court,” Schenck told us, such as pushing judges to be more productive to clear cases off their docket and issue more frequent opinions.

Schenck has a deep understanding of the law and solid conservative credentials. Given Keller’s shortcomings and the fact that she would have to leave the bench before her term is up, Schenck is our pick in the primary.

Place 7, Barbara Hervey

Hervey, 70, is vying for her fourth term. While she prides herself on a textual view of the law, she told us she is most proud of her opinions on wrongful conviction cases. She has a healthy skepticism about eyewitness identification alone as a basis for conviction, in part from personal experience.

When Hervey was a law student in San Antonio, she said she was robbed at gunpoint on a bridge over the Riverwalk. While three perpetrators were arrested, Hervey could only positively identify the man who held the gun in her face and declined to identify the other two. Her discomfort with eyewitness identification motivated her to keep pursuing the interaction between law and forensic science.

“When cases come down to one or two eyewitness IDs, it’s a tool. But to base your whole case on that may be very problematic,” she said. “We’re all challenging situations because of the advances in science.”

Hervey’s opponent, Gina Parker, didn’t meet with us. Parker, 62, is a civil and criminal lawyer from Waco and a Republican Party activist with limited appellate experience. She currently owns a dental manufacturing company and ran unsuccessfully for this same court in the 2020 GOP primary.

While the fact that Hervey wouldn’t be able to serve out her full term is not ideal, it’s far less ideal to endorse an opponent utterly unqualified for this bench. Republicans who value competence should choose Hervey.

Schenck, Hervey and Slaughter are experienced jurists

Place 8, Michelle Slaughter

Slaughter, 49, is running for her second term. She is a former Galveston County district court judge with an originalist interpretation of the law. She counts Supreme Court Justice Clarence Thomas as her judicial idol and quotes the late justice, Antonin Scalia. As such, she firmly rejects the notion pushed by Paxton that the public has lost confidence in the conservative bona fides of the CCA.

“We are a very strong, conservative court, we’re a law and order court, we strictly apply the law as written,” Slaughter told us. “A judge should never, ever make a decision that is outcome-driven based upon who’s involved in it, or what the issue is. It should be driven by, ‘What is the law?

‘”

And the law is clear about who can prosecute voter fraud. The framers of the Texas Constitution of 1876 abhorred the centralized rule of the post-Civil War state government and they expressly limited the attorney general’s power, residing in the executive branch, to civil matters.

Slaughter’s opponent, Lee Finley, 53, is a Marine Corps veteran and a criminal defense attorney who ran unsuccessfully in the 2022 Republican primary for Collin County judge. Finley, who declined to meet with us, lacks the necessary judicial experience to sit on this bench. He certainly isn’t shying away from his association with Paxton, whose endorsement is prominently displayed on the home page of his campaign website. He told The Dallas Morning News editorial board that he shares Paxton’s concern about voter fraud. Unlike the justices who ruled against the attorney general, he suggested he disagreed with the ruling despite the plain language in our constitution.

To question Slaughter’s conservatism based on her vote in the Paxton ruling is absurd. She’s earned a chance to compete for reelection as a Republican in the general election.