Paxton’s push to oust incumbents puts spotlight on Court of Criminal Appeals primaries

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The three incumbents running for their seats on Texas’ highest criminal court were not well known political figures outside of the legal community. That was until they earned the ire of Attorney General Ken Paxton in response to a 2021 opinion over a voter fraud case.

Now, the three female Republican justices on the Court of Criminal Appeals, Presiding Judge Sharon Keller, Judge Barbara Hervey and Judge Michelle Slaughter, find themselves in the position of having their conservative credentials questioned in “low-information elections” in which they’re up against Paxton’s political machine.

“The Court of Criminal Appeals, who I am concerned was put there by George Soros ‘cause no one knows who they are, they’re all Republicans but even Republicans don’t know who they are,” Paxton told former Fox News host Tucker Carlson last month, referring to the Democratic mega donor.

The three incumbents, who have nearly a century of combined experience practicing criminal law, as prosecutors and jurists, have been accused by Paxton’s allies of abandoning their judicial duties and stripping the attorney general’s power to enforce voter fraud — a consequential issue for the modern-day GOP under former President Donald Trump.

Three years ago, a case stemming from Paxton’s effort to override a Jefferson County district attorney who declined to prosecute a sheriff over 2016 campaign-finance allegations was before the criminal appeals court. In a 8-1 decision, the court said 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.

The timing of the opinion was such that this primary is the first opportunity for Paxton to seek political retribution against some of the eight Republican judges who he believes ruled against him.

“It’s sad because he wouldn't know me from madam. I'm sure he doesn't know anything about me,” said Hervey, wondering whether Paxton had actually read the opinion he railed against publically. “That’s really pathetic.”

Hervey will face off against Gina Parker, a Waco attorney, on March 5. Presiding Judge Keller’s opponent is David Schenck, a former state appeals court judge. Slaughter will take on Lee Finley, lawyer from Paxton’s native Collin County.

The three incumbents have received financial support from Texans for Lawsuit Reform, a committee that Paxton has labeled a political enemy. The challengers all have the backing of a new PAC, Texans for Responsible Judges, but the three have not received contributions from the group, according to the most recent campaign finance reports.

Wendy Watson, a faculty member of the University of North Texas’ Department of Political Science, views these races as a referendum on Trump and his false claims of voter fraud.

“This is a loyalty test,” Watson said. “You didn't let Ken Paxton prosecute voter fraud, that must be because you are okay with voter fraud. Right?”

These races are “low-information elections,” races in which voters don’t know either of the candidates well, Watson said. So any tidbit of information that a voter may get from someone, no matter how wrong or skewed, may end up being the deciding factor behind a cast ballot.

Paxton’s crusade against the judges has coincided with a separate revenge tour targeting Texas House members who voted to impeach him in May. Paxton was acquitted of abuse-of-office charges by the Senate after a trial in September.

The Court of Criminal Appeals serves as a twin to the Texas Supreme Court, which handles civil, instead of criminal, cases. The nine judges on the court serve six years; new elections for three seats are held every two years during the regular election.

Presiding Judge

In the race for presiding judge, Schenck, a former state appeals court judge, is challenging Keller who was elected in 1994 as the first female judge on the Court of Criminal Appeals. Prior to her decades-long tenure, Keller worked as an assistant district attorney for Dallas County.

Keller argues that her experience on the bench is crucial to keeping one of the busiest appellate courts in the country running. Her responsibilities as the presiding judge include preparing legislative appropriation requests, testifying before the Legislature, hiring and firing court employees and coordinating the three parts of the court: the judges, the clerk's office and central staff attorneys.

“I've been a conservative judge for a long time, I know the law, and I know how to run the court,” Keller said.

Given her conservative record, Keller said it’s been weird not having the conservative part of the Republican Party on her side.

Keller, like her two colleagues up for reelection, have been subject of criticism from the far right wing of the party. In Keller’s case, she has also been the subject of several ethics complaints over her tenure, which include a failure to disclose more than $2.8 million in personal holdings and an incident in which she closed the clerk's office as attorneys for a death row inmate attempted to file a last-minute appeal.

Her challenger, Schenck, has stayed relatively quiet about Paxton's involvement in the race. The attorney general’s face is not plastered on his campaign website and Schenck has been hesitant to opine on the court’s voter fraud opinion. Schenck said Paxton is free to endorse any candidate he wants.

Schenck served on the state’s Fifth District Court of Appeals in Dallas for eight years. He left that office in 2022 to run for the Texas Supreme Court, a race he lost to Justice Evan Young by a 10 percentage point margin.

His campaign centers around broader structural concerns he has about the court. Those issues include the pace at which the court issues opinions and a general loss of confidence in the court. Schenck pointed to the number of opinions issued per judge in a year by the Court of Criminal Appeals, which came out to roughly 40 for fiscal year 2022. Compare that to the U.S. 5th Circuit Court of Appeals, which averaged 140 per judge for a similar time span.

“It's slow, it's unproductive and appears no one's presiding,” Schenck said.

Place 7

Judge Hervey has been on the bench since 2001, prior to which she worked as a Bexar County assistant criminal district attorney for 16 years.

Her experience with and knowledge of criminal law are crucial to the operation of the court, she said. On top of her duties as a judge, Hervey co-chairs the Judicial Commission on Mental Health and runs an education program that provides legal courses and assistance to judges, prosecutors, defense attorneys and court personnel.

“I think experience and dedication to these things are important to move the needle forward,” Hervey said.

On the controversial opinion, Hervey put it in simple terms: “Eight of us decided it was a good idea to follow the Constitution.”

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

The Constitution states the attorney general may “perform such other duties as may be required by law,” which Hervey’s opponent, Parker, pointed to when asked about her interpretation of the 8-1 opinion.

Parker is a Waco attorney who has practiced both civil and criminal law. In a statement to The Texas Tribune, she said that her experience as a prosecutor and defense attorney would bring a balanced perspective to the court.

Compared to Schenck, Parker has taken a more explicit stance on the 2021 voter fraud opinion. On Feb. 9, Parker told radio host Chris Salcedo that the opinion was an attack on the attorney general’s power and the Legislature’s ability to make laws that empower Paxton’s office.

“Thankfully Ken Paxton has taken a strong stand … against this type of activity on the court and it’s drawn attention to our race and this is what needs to happen in order to stop this kind of bad, erroneous decisions coming down from the court,” Parker said.

In response to the Tribune's questions, Parker pointed to Gov. Greg Abbott and Lt. Gov. Dan Patrick, who have both expressed opposition to the 2021 opinion. Patrick called the decision “completely unacceptable.”

Parker also noted that Hervey, who is 70, would have to retire before the end of her term given a Texas law requiring judges to leave the bench at 75. Keller is also 70 and would have to retire before the end of her term. The governor would appoint someone to finish their terms. Several Texas Supreme Court justices were appointed to the court before being elected to their positions.

Place 8 

Of the three incumbents, Slaughter has emerged as the loudest defender of the court’s past work.

“For there to be constant misinformation about the court, about the judges, about our opinion, and just such egregious misinformation, I just got really fed up with it,” Slaughter said.

Slaughter is completing her first term on the bench. Prior to her time on state’s highest criminal appellate court she was elected to the 405th State District Court in Galveston County in 2013 and served until 2018.

Slaughter’s challenger, Lee Finley, a Collin County lawyer, has prominently touted Paxton’s endorsement on his website. According to the campaign biography, Finley has practiced criminal law for over 20 years and is a U.S. Marine Corps veteran.

Finley, who did not respond to requests for comment, came under scrutiny for reports that he and his wife, Lynne, are facing a civil judgment as a consequence of defaulting on a home mortgage payment in 2016. Finley and his wife appealed a district court decision to seize and sell the house to repay lenders. The appeal paused the seizure and the parties are waiting for a judgment from the appeals court.

Finley financed his campaign through a series of private loans totaling $90,000, according to the most recent campaign finance reports.

Meanwhile, Slaughter received $15,000 in campaign contributions from Texans for Lawsuit Reform, the group that has earned the ire of Paxton, in addition to smaller individual donations. The committee donated the same amount to Keller and Hervey.

“Their work over the years shows they are independent-minded jurists who believe the words of our Constitution must be respected,” Lucy Nashed Cafrelli, a spokesperson for TLR, said in a statement. “Because TLR believes judicial independence and experience are critically important to maintaining a respected judicial system and strong democracy, we have endorsed Judges Keller, Hervey and Slaughter for reelection.”

Disclosure: Texans for Lawsuit Reform and University of North Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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