Paxton’s picks appear on track to cement Republicans’ hold on Texas’ highest criminal court

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Texas’ highest criminal court is on track to remain entirely in Republican control, with all three conservative candidates endorsed by Attorney General Ken Paxton leading against their Democratic challengers by wide margins early Wednesday morning.

David Schenck, Gina Parker and Lee Finley each unseated Republican incumbents during the primary, displacing almost a century of experience on and before the bench. Paxton had vowed to unseat judges who ruled his office could not unilaterally prosecute allegations of voter fraud.

Only Schenck has prior judicial experience, having served eight years on the Fifth District Court of Appeals in Dallas. Parker is a Waco attorney who owns a dental equipment company, and Finley is a Collin County criminal attorney and U.S. Marine Corps veteran.

Recently, the court has been in the spotlight around the execution of Robert Roberson, an East Texas man given the death sentence after being convicted of killing his 2-year-old daughter in 2002. Roberson has long insisted he’s innocent. While the Court of Criminal Appeals has repeatedly sided with the state and ruled that Roberson should die, a series of legal maneuvers from Texas House members convinced he’s been denied due process have delayed his execution.

The court most recently ruled 5-4 to execute Roberson, but three of the five judges who voted against him were unseated in the primary. With new faces on the bench, Roberson’s attorneys could ask for a fresh look at his case, although the new judges’ allegiance to Paxton may temper expectations for a different outcome.

In recent weeks, with Roberson’s fate in limbo, Paxton has taken a more aggressive stance, releasing troves of evidence from the original trial intending to prove Roberson’s guilt. In a press release, he said the House members had “grossly interfered with the justice system” and “created a Constitutional crisis on behalf of a man who beat his two-year-old daughter to death.”

Paxton political retribution

The path to putting these new faces on the bench begins way before this most recent election cycle. In 2018, after the Jefferson County district attorney declined to prosecute the sheriff over alleged campaign finance violations, Paxton’s office stepped in and obtained an indictment from a neighboring county.

This set in motion a legal back and forth over whether Paxton’s office had the authority to prosecute election cases without being asked by the local district attorney. That question ultimately landed in front of the Court of Criminal Appeals in 2021, which ruled 8-1 that this would be an intrusion by the executive branch into the judicial branch and violate the separation of powers clause of the Texas Constitution.

“The Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally,” the court ruled.

Paxton warned that this ruling would open the door to rampant unpunished voter fraud in Democratic counties, and vowed to work to unseat the eight judges who ruled against him. Speaking to the right-wing True Texas Project in February, Paxton called the ruling “the most insidious evil plot” and “as bad a thing as I’ve ever seen.”

The nine judges serve staggered six-year terms, with three seats up each year. This year, Chief Judge Sharon Keller and judges Barbarba Hervey and Michelle Slaughter were up for reelection. While Slaughter was in her first term, Hervey had been on the court since 2001 and Keller since 1994. She’d been chief judge since 2000.

Paxton allies started a political action committee, Texans for Responsible Judges, to recruit and support the primary challengers. Parker and Finley have made their allegiance to Paxton clear, both questioning the court’s ruling on the voter fraud issue. Schenk, who insists he was not recruited by Paxton, focused his campaign on judicial ethics and speeding up the courts.

After the primary routing by Paxton’s candidates, Hervey lamented to The Texas Tribune that “Darth Vader is not supposed to win the war in those movies.”

Former Court of Criminal Appeals Judge Elsa Alcala said even though these judges have the “taint” of Paxton’s politicking, it’s hard to know how any judge will rule once they take the bench and cases are before them.

“It is certainly possible for them to take their judicial oath seriously and to impartially make decisions regardless of the political forces that got them there,” Alcala said.

Alcala, who became an outspoken death penalty critic during her time on the bench, said she is also optimistic that this election could change things for the Roberson case and others sentenced to death. She believes the court has been too quick to side with the state on capital murder cases and unwilling to meaningfully reconsider cases under a 2013 “junk science” law, which some House members and Roberson’s attorneys have tried to use to overturn Roberson’s death sentence.

Alcala points to Keller, the longtime presiding judge, as a sticking point to reconsidering the role of the death penalty in Texas.

“I just think in general, the court didn't change with the times,” Alcala said. “She was the leader of the court, and so to me, she was where many of the problems [began] and ended.”

Alcala said she may be “overly optimistic” about what these fresh faces will mean for such an entrenched issue in Texas.

“But change is all we can hope for,” she said.