AG Ken Paxton pushes to oust three GOP judges who joined a ruling he opposes

AUSTIN -- Texas Attorney General Ken Paxton has gone to war against judges on the state's highest criminal court in hopes of ousting three fellow Republicans who joined a ruling that crippled his election fraud division.

Taking an unusually active role in elections for an attorney general, Paxton has attacked the Court of Criminal Appeals incumbents as RINOs, or Republicans in name only, and accused the judges of paving the way for liberal district attorneys to promote progressive agendas in the state's largest cities.

On Friday, the attorney general appeared in a political ad paid for in part by an organization connected to West Texas oilman Dan Wilks -- a key Paxton ally during his impeachment -- stating that supporting the challengers would "return election integrity" to the court.

The judges have defended the 2021 ruling as a conservative reading of the Texas Constitution, which deliberately dilutes the power of the executive branch, including the attorney general's office, in favor of local power.

Presiding Judge Sharon Keller called the campaign against her rife with "misinformation."

Fellow Judge Michelle Slaughter said Paxton is using "anger and hatred" to attack the court.

And Judge Barbara Parker Hervey said Paxton is engaged in "a power grab situation, which is just distasteful, stressful and just not fair."

Keller, Hervey and Slaughter are seeking reelection to the court, facing David Schenck, Gina Parker and Lee Finley, respectively.

The Court of Criminal Appeals is the state's court of last resort for criminal cases. All nine of its judges are Republicans who serve staggered six-year terms. Election day for the primary is March 5.

The Stephens case

Paxton's animus toward eight judges on the court relates to a December 2021 ruling that barred his office from unilaterally investigating voter fraud.

The case stemmed from criminal allegations against Jefferson County Sheriff Zena Stephens, who was accused of felony tampering with a government record and two misdemeanor counts of campaign finance violations.

Stephens allegedly accepted two illegal campaign donations in 2016 from a Beaumont car dealer under federal investigation that she listed improperly on a campaign finance form.

The Jefferson County district attorney's office investigated but did not seek an indictment against Stephens, the state's first black female sheriff and a Democrat. Texas Rangers referred the case to the attorney general's office and in 2018, and Paxton's office secured three indictments against Stephens.

The court's decision

The case meandered through the courts, eventually reaching the Court of Criminal Appeals on a challenge to Paxton's ability to bring charges against Stephens without the go-ahead from local prosecutors.

Her legal team's argument reached back nearly 150 years to the post-Reconstruction backlash that occurred when Democrats regained control of Texas' government, implementing a state constitution that weakened the executive branch by placing more authority and discretion in the hands of county officials, including district attorneys.

"The framers of the Texas Constitution did not trust government and wanted it deeply compartmentalized," University of Houston political science professor Brandon Rottinghaus said.

Stephens' legal team argued that Paxton's office had no authority to pursue allegations against the sheriff without the express permission of the Jefferson County district attorney's office.

In an 8-1 ruling, the Court of Criminal Appeals agreed, and charges against Stephens were dismissed.

Ruling sparks backlash

Paxton decried the ruling, saying it pulled the rug from under his election fraud division, a small but active group within the attorney general's office that Paxton often touted.

On social media, Paxton said the ruling gave Democratic DAs permission to stop enforcing voter fraud laws, and he urged his supporters to pressure the court into reversing its ruling -- a cause joined by most Republicans in the Texas Senate, Lt. Gov. Dan Patrick and the head of the state GOP.

Despite the pressure, the court stood by its ruling, and Paxton's voter fraud unit was essentially shut down.

In the years since, Paxton has asked the Texas Legislature to restore his power to investigate and prosecute election law violations, without success. He is frequently on social media to urge voters to toss out the three incumbents, and he has amplified similar messages from Donald Trump Jr. and others.

Judges defend ruling

Keller, the presiding judge who was first elected to the court in 2000, acknowledged that a narrative has taken hold painting the court as not conservative.

It has left the judges explaining themselves at campaign events attended by the state Republican Party's base, who continue to support Paxton by a wide margin.

"We didn't have any ulterior motive in deciding that case. We've just followed the law," Keller said.

Slaughter, who is seeking a second term, said she has welcomed criticism of the ruling while campaigning, saying it gives her the opportunity to discuss the legal reasoning behind the decision. In most cases, she said, voters come to understand the rationale behind the ruling.

"They might disagree with the outcome, but once they understand why we reached the outcome we did, then they appreciate the fact that we're not activists -- that we're just strictly following the law as written and as originally intended," she said.

Hervey, first elected to the court in 2000, rejected criticism that the ruling overturned a law that had been in place for more than 70 years, saying the Texas Constitution trumps legislation.

"They can hang on to some old statute or some interpretation of what the law is, but we follow the constitution," Herbey said. "We don't legislate from the bench and we follow the constitution. So that's as simple as it gets."

Challengers tiptoe on ruling

The challengers have tiptoed around stating how they would rule should an opportunity arise to overturn the Stephens decision. Ethical guidelines for judicial candidates generally prevent them stating how they would rule on a case.

Schenck, a Dallas appellate lawyer and a former justice on the Dallas-based 5th Court of Appeals who is challenging Keller, would not say whether he agreed with the ruling.

"I would write an opinion that people could understand more clearly than what they said," Schenck said. "Beyond that, I make no promises. I'm not here to trade outcomes for anything."

Parker, a Waco attorney who owns a dental business, said the Stephens ruling prompted her to consider running for office after failing to unseat another incumbent, Judge Bert Richardson, in the 2020 GOP primary.

"When the Stephens case was decided in December 2021, I began to consider running for office again," Parker said. "Early this fall, I made a firm decision to run."

Finley, a Richardson criminal law attorney, said in an email he was limited in what he could say about the ruling to avoid the appearance of a conflict of interest that might require his recusal from a future case, if elected.

"That said, I view the Stephens case as Judicial activism in its worst form," he said in an email. "The Court of Criminal Appeals chose to strike down a law that for more than 70 years helped to ensure election integrity in Texas. The problem created by the Court of Criminal Appeals with the Stephens case must be addressed."

Outside influences

Most of the money being spent on the primary is not by the court candidates, several of whom reported spending less than $5,000 in their most recent campaign finance reports.

But two political action committees are weighing in, including one closely allied with Paxton.

Texans for Responsible Judges was formed last year to oppose the three incumbent judges. A Jan. 16 campaign finance report showed that more than half of the organization's $90,000 came from a company owned by Texas oilman Dan Wilks.

Wilks and his brother, Farris Wilks, have given millions of dollars to campaigns, organizations and political action committees that support an ultraconservative agenda and oppose politicians seen as too moderate.

Organizations affiliated with Wilks include Defend Texas Liberty, which has fallen dormant since the Texas Tribune reported last year that its former head met with a prominent white supremacist. Wilks and one of his companies gave $50,000 to Texans for Responsible Judges after donating $350,000 to Paxton since 2021.

The political advertisement tracking website AdImpact also showed nearly $630,000 in ad buys from Judicial Fairness PAC, an organization that has taken hundreds of thousands of dollars from Texans for Lawsuit Reform, a political action committee that opposed Paxton in the 2022 primary.

Texans for Lawsuit reform has endorsed all three incumbents.

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