The highest criminal court in Texas remain entirely under Republican control after All three conservative candidates backed by Attorney General Ken Paxton defeated their Democratic rivals by wide margins.

David Schenck, Gina Parker and Lee Finley each unseated Republican incumbents during the primaries, displacing nearly a century of experience in and before the bench. Paxton had vowed to remove judges who ruled that his office could not unilaterally prosecute claims 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 defense attorney and U.S. Marine Corps veteran.

The court has recently been in the spotlight surrounding the execution of Robert Roberson, an East Texas man sentenced to death after being convicted of killing his 2-year-old daughter in 2002. Roberson has long insisted in that he is innocent. While the Court of Criminal Appeals has repeatedly sided with the state and ruled that Roberson should die, a series of legal maneuvers by members of the Texas House of Representatives convinced that he has been denied due process have delayed its execution.

The court recently ruled 5-4 in favor of executing Roberson, but three of the five justices who voted against him were unseated in the primaries. With new faces on the court, Roberson’s lawyers could ask for a fresh look at his case, although the new justices’ loyalty to Paxton may temper expectations of a different outcome.

In recent weeks, with Roberson’s fate in limbo, Paxton has taken a more aggressive stance, releasing extensive evidence from the original trial intended to prove Roberson’s guilt. In a news release, he said House members had “seriously 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 retribution

The path to placing these new faces on the courts 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 intervened and obtained an indictment from a neighboring county.

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

“The Attorney General may prosecute with the permission of the local prosecutor, but may not initiate the process unilaterally,” the court ruled.

Paxton warned that this ruling would open the door to rampant and unpunished voter fraud in Democratic counties and promised to work to remove 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 “the most evil thing I have ever seen.”

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

Paxton’s allies started a political action committee, Texans for Responsible Judges, to recruit and support leading rivals. Parker and Finley have made clear their loyalty to Paxton and both questioned the court’s ruling on the issue of voter fraud. Schenk, who insists Paxton did not recruit him, focused his campaign on judicial ethics and speeding up the courts.

After the primary defeat 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 Alcalá said that although these judges bear the “taint” of Paxton’s politicking, it is difficult to know how a judge will rule once they take the bench and the cases are before them. .

“It is certainly possible that they take their judicial oath seriously and make decisions impartially regardless of the political forces that brought them there,” Alcalá said.

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

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

“I just think that, overall, the court didn’t change with the times,” Alcalá said. “She was the leader of the court and, to me, she was where a lot of the problems (started) and ended.”

Alcalá said he may be “too optimistic” about what these new faces will mean for an issue so deeply rooted in Texas.

“But the only thing we can hope for is change,” he said.