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

David Schenck, Gina Parker and Lee Finley each unseated Republican incumbents during the primaries, replacing nearly a century of experience on and before the bench. Paxton had he swore to give stool judges who pent-up his office could not unilaterally pursue allegations of voter fraud.

Only Schenck has prior judicial experience, having served eight years on the 5th District Court of Appeals in Dallas. Parker is a Waco attorney who owns a dental equipment company, and Finley is a Collin County criminal defense attorney and U.S. Marine Corps veteran.

Recently, the court was in the spotlight surrounding the execution of Robert Roberson, an East Texas man on death row after being convicted of killing his 2-year-old daughter in 2002. Roberson has long insisted he is innocent. While the Court of Criminal Appeals has repeatedly sided with the state and ruled that Roberson should die, a number of legal maneuvers Members of the Texas House, convinced that he was denied a fair trial, stayed his execution.

The court recently ruled 5-4 to execute Roberson, but three of the five justices who voted against him were upset in the primary. With new faces on the bench, Roberson’s attorneys may ask for a fresh look at his case, though the new justices’ loyalty 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 evidence from the original trial with the intention of proving Roberson’s guilt. In a press release, he said the House members had “severely 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’s Political Punishment

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

That set in motion a legal back-and-forth over whether Paxton’s office had the authority to pursue election cases without being asked by the district attorney. That question eventually came before the Court of Criminal Appeals in 2021, which ruled 8-1 that it would be an intrusion of executive power into the judicial branch and would 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 the prosecution unilaterally,” the court ruled.

Paxton warned that the ruling would open the door to unpunished voter fraud in Democratic counties and vowed to work to unseat the eight judges who ruled against him. Speaking to the right The real 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 justices serve staggered six-year terms, with three seats each year. This year, Chief Justice Sharon Keller and Justices Barbarba Hervey and Michelle Slaughter were re-elected. While Slaughter was in her first term, Hervey had been on the court since 2001 and Keller since 1994. She had been chief justice since 2000.

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

After the primary sweep by Paxton’s candidates, Hervey lamented to The Texas Tribune that “Darth Vader shouldn’t be winning the war in those movies.”

Former Court of Criminal Appeals Judge Elsa Alcala said that while those judges have the “taint” of Paxton’s politics, it’s hard to know how any judge will rule once they sit down and the cases are before them.

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

Alcala, which became a openly critical of the death penalty during her time on the bench, said she is also optimistic that this election could turn things around for Roberson’s case and others on death row. She believes the court was too quick to side with the state in capital-murder cases and unwilling to significantly reconsider cases under a 2013 “junk science” law that some House members and Roberson’s lawyers they tried to use it to overturn Roberson’s death sentence.

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

“I think in general the court hasn’t changed with the times,” Alcala said. “She was the leader of the court and, to me, that’s where a lot of the issues (started) and ended.”

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

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

This article originally appeared in Texas Tribune TO https://www.texastribune.org/2024/11/06/court-of-criminal-appeals-2024-election-results/.

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