Posted on 03/06/2024 3:03:51 PM PST by marktwain
Three judges on the Texas Court of Criminal Appeals were ousted by candidates endorsed by Attorney General Ken Paxton, who targeted the court after it ruled against him in a 2021 case.
Former Dallas appeals court justice David Schenck, Waco attorney Gina Parker and Richardson attorney Lee Finley were projected to defeat incumbents for the Presiding Judge, Place 7 and Place 8 seats on the state’s highest criminal court, according to the Associated Press.
This year’s primary presented the first opportunity for Paxton to attempt to oust some of the eight judges who ruled in 2021 the attorney general cannot unilaterally prosecute election law violation cases without district attorney permission.
Paxton has decried the ruling for years, arguing the court stripped him of his right to prosecute what he says is rampant voter fraud in the state.
Schenck, now an attorney with Dykema Gossett, ran against Presiding Judge Sharon Keller. Schenck was ahead of Keller with about 62% of votes, according to unofficial results from the Texas Secretary of State’s website early Wednesday morning.
Parker challenged Place 7 Judge Barbara Hervey. Parker was ahead of Hervey with about 66% of votes early Wednesday.
In the race for Place 8, Finley led with about 53% of votes over incumbent Judge Michelle Slaughter Wednesday morning.
While Schenck declined to comment on the merits of the Texas v. Stephens case in a KERA News interview, he said the attention Paxton has generated around the race helps bring awareness to Schenck’s other problems with the court, like how slowly he says the court issues its opinions.
“I just think the big picture is it’s healthy in a system where we have elections for judges for people to be able to say what they think about what the judges are doing and what their work product — whether it’s correct or incorrect, and that’s fine,” Schenck said.
Keller, who has been in office since 1994, told KERA News she wasn’t as confident in her chances of reelection leading up to the primary because of misinformation around the Stephens ruling.
“If our challengers win, that will encourage more people to try to affect or have an influence on our opinions and to challenge judges on the basis of one opinion they don’t like,” she said. “So, I think it’s an important election, not just for our court and how it proceeds, but for the judiciary in general.”
Neither the candidates nor the incumbent judges immediately responded to KERA News requests for comment Tuesday night.
Texans for Responsible Judges, a PAC with ties to the attorney general, endorsed all three challengers, while Texans for Lawsuit Reform and other PACs backed the incumbents.
The Court of Criminal Appeals races are not the only case of Paxton or his supporters retaliating against what he sees as his political opponents — the attorney general backed the primary challenger in races against House members who voted for his impeachment last year.
The races have put a spotlight on the role of partisan politics in normally quiet races. Brandon Rottinghaus, a political science professor at the University of Houston, said judges’ low political profiles can make it easier to pit candidates against them — especially in a field where appearing impartial is key.
“By their nature, the people who sit on these benches are unable to say and do certain things politically because there’s a code of ethics that prohibits them from doing that,” he said. “So, in effect, they can’t be as strong in their own defense as a candidate who is running for a state House seat.”
There is nothing in the constitution that empowers the attorney general to prosecute a crime. It authorizes him to represent the State in the Supreme Court and in some other proceedings. It does not give him general authority to do whatever he wants as long as he thinks he is enforcing the law.
By contrast, Art. V, s. 21 of the constitution expressly authorizes county attorneys (where there is no criminal district attorney) or district attorneys (where empowered by the legislature) the power to prosecute crimes. The Supreme Court has no criminal jurisdiction--criminal jurisdiction was taken away from the Texas Supreme Court in the constitution of 1876, and with it the Attorney General's power to represent the state in criminal prosecutions. Stripping the AG of the power to prosecute crimes was a deliberate decision, in response to what the framers of the 1876 Constitution viewed as the abuses of the AG under the Reconstruction government.
He isn't the only lawyer who represents the state, and his position as the state's lawyer does not mean he can do whatever he wants on the state's behalf on his own initiative. I am a lawyer and I represents a number of clients. I cannot file a lawsuit on behalf of any of them without their specific authorization. Likewise, the AG needs constitutional and legal authority to act for the state.
The case was in the Texas Court of Criminal Appeals, not the Texas Supreme Court. The opinion is here: https://casetext.com/case/state-v-stephens-121462/.
Another useful case is Saldano v. State, from 2002: https://casetext.com/case/saldano-v-state-1#p877.
How can there be laws that don’t get enforced and there is no remedy?
There is a remedy for criminal violation of the law: Prosecution by the DA or county attorney. If they refuse to do so, then you can petition to have them removed for incompetence or misconduct by a district judge. You can also elect a new one once their term is over.
We don't give additional powers to government officials beyond what the constitution grants just because "there must be a remedy." That's how progressives read constitutions, not conservatives.
Also, the exercise of prosecutorial discretion is an important check against government overreach. We really don't want to take that away by allowing just any government official to prosecute a crime if the DA decides not to.
Thanks so much for those links. I’ve lived most of my life in Texas but grew up in Tennessee. I never understood how the courts worked here until reading these documents.
“Another useful case is Saldano v. State, from 2002: https://casetext.com/case/saldano-v-state-1#p877.”
It states what I suspected based on the “other duties as assigned” job description of the attorney general in the Texas constitution:
“The Constitution gives the county attorneys and district attorneys authority to represent the State in criminal cases. It authorizes the legislature to give the attorney general duties which, presumably, could include criminal prosecution... Since 1923 the legislature has not given the attorney general any duty to prosecute criminal cases at any level of the courts of Texas.”
https://casetext.com/case/saldano-v-state-1#p880
Tex. Elec. Code § 273.021 specifically granted the attorney general authority to criminally prosecute election law violations. But the Texas Criminal Court of Appeals decided the law was unconstitutional:
“Zena Collins Stephens appeals both the court of appeals’ denial of a pretrial writ of habeas corpus and its reversal of the district court’s decision to quash Count I of the indictment. She presents the following question: May the Texas Legislature delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts? No. Because Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, we conclude that the statute is unconstitutional. Therefore, we reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.”
The Constitution specifically grants the attorney general the power to prosecute crimes when ASKED by county and district attorneys. The Constitution does not bar the attorney general from such prosecutions but allows them, with the caveat that they are requested. But the constitution also grants the legislature the power to define the job duties of the attorney general AND county and district attorneys.
The Separation of Powers clause specifies its scope and meaning:
“shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted”
Clearly, there is an exception when it specifically allows the attorney general to prosecute upon the request of county and district attorneys. Why is it NOT considered “instances... expressly permitted” when the legislature is specifically given the power to define the job duties of the attorney general AND county and district attorneys?
Certainly, there is a separation of powers between the three branches, but this interpretation grants UNLIMITED power to local jurisdictions and places them higher than state authorities. This means that a local DA could literally do anything and ignore the law. And if this lawbreaking included reporting fake vote tallies then the exclusive remedy would be null and void.
Will the Texas Court of Criminal Appeals declare Texas House Bill 17 (HB 17) unconstitutional as well?
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