Photo credit: Miguel Gutierrez Jr. via The Texas Tribune

By Marissa Greene 

Originally appeared in the Texas Tribune

The nine-member Texas Court of Criminal Appeals is the state’s highest appellate court for all decisions on Texas criminal matters. But its pivotal role in Texas’ legal system does not mean it’s easy for voters to find information on the five candidates running for three seats on the court in November.

“The judicial elections in Texas are invisible to most voters, and so voters tend to vote for their partisanship or they tend to vote for incumbent judges whose names they might recognize,” said Cal Jillson, a political science professor at Southern Methodist University.

With high-profile races for Texas governor, lieutenant governor and attorney general grabbing the attention of Texans, voters tend to rely on their party affiliation in these low-information, down-ballot races.

“When there is a low-information election, from a political science perspective, people fall back on shortcuts,” said Mike Yawn, a political science professor at Sam Houston State University.

Here is what you need to know to be an informed voter about one of Texas’ most important institutions.

What does the court do?

Texas is one of two states in the U.S. with a bifurcated supreme court system, meaning there are two top courts in Texas. While the Texas Supreme Court handles civil litigation, the nine judges of the Texas Court of Criminal Appeals rule on criminal cases ranging from drug offenses to upholding the state’s “revenge porn” law, which prohibits posting someone’s intimate photos online without their consent.

Death penalty cases go directly to the Texas Court of Criminal Appeals while other appeals cases, known as appellate cases, go to one of Texas’ 14 lower courts first. The cases that start in the lower courts can get appealed and move up to the Texas Court of Criminal Appeals, where the judges can then decide to review or not review decisions made by one of those lower courts — a privilege called discretionary jurisdiction that allows them to turn cases back to lower courts for a ruling.

Most Texans are unlikely to ever interact with the Texas Court of Criminal Appeals in their day-to-day lives. But judges on the court deal with several criminal issues voters often feel strongly about.

That includes all death penalty cases, in which judges determine if there were any legal errors in the previous court’s proceedings before the state executes a defendant.

Texans saw this play out earlier this year when the court halted the execution of Ramiro Gonzales. Gonzales was scheduled to die by lethal injection 16 years after being found guilty of kidnapping, raping and killing Bridget Townsend when they were both 18 years old in Medina County, west of San Antonio.

Judges said his sentence should be revisited after a state expert said he wrongly told the jurors during the 2006 trial that people who commit sexual assault would be likely to do it again.

Because of the court’s ruling, Gonzales’ case went back to the county court where he was convicted. There, local officials will weigh the testimony’s effect on Gonzales’ sentencing. He could end up sentenced to life in prison instead of being executed.

Gonzales’ case is the exception in Texas — the court has upheld the vast majority of death penalty convictions.

The Court of Criminal Appeals is also the final court in which a defendant can appeal a felony conviction they believe was illegitimate. For example, the court recently ruled on the conviction of a North Texas woman who attempted to illegally vote in 2016 with a provisional ballot while she was on parole. The voter, Crystal Mason, was sentenced to five years in prison — though her vote never counted and she said she was unaware her conviction kept her from casting a ballot.

In May, Judge Jesse McClure delivered the Court of Criminal Appeals’ opinion that sent her conviction back to lower appellate courts to look at evidence of Mason’s intent. McClure’s fellow judges filed concurring and dissenting opinions on the case.

Decisions made by the Texas Court of Criminal Appeals directly impact defendants and also set precedents for how lower courts in Texas interpret the law and criminal procedures.

“Even though we might not have something directly involved with the Court of Criminal Appeals, it does affect the overall judicial system,” said Brian Smith, a political science professor at St. Edward’s University.

The judges on the Texas Court of Criminal Appeals ultimately have the final verdict on how they interpret the law. Judges are affiliated with political parties and are selected through partisan elections.

“​​So if you elect Republicans or you elect Democrats, you’re going to get a different perspective on the law because it is a partisan court,” Smith said.

Currently, all nine judges on the court are Republican. Democrats have not won a seat on this court since the late 1990s.

Judges on Texas’ Court of Criminal Appeals serve six-year terms. The state’s governor can also appoint judges to complete the remainder of an unfinished term if an elected judge resigns or dies.

Texans will be voting to fill three seats in November

Three seats on the Texas Court of Criminal Appeals will be on November’s ballot. Candidates walk a difficult line as they campaign, trying to avoid sharing stances that voters might believe would interfere with their position as a judge. The state’s judicial code of conduct keeps candidates from making pledges on how they would rule on certain cases.

“They don’t want to get too political because that would backfire against them,” Smith said.

Candidates are also subject to campaign finance restrictions from the 1995 Judicial Campaign Fairness Act, which limits how much money they can receive in donations from law firms, political action committees and individuals who might have a stake in particular court cases.

“They’re going to run very low-key campaigns where you focus just getting your name out there,” Smith said.

This election cycle, the three judges up for reelection are Mary Lou Keel, Scott Walker and Jesse McClure. While Keel’s seat is uncontested, Walker and McClure will face Democratic opponents Robert Johnson and Dana Huffman, respectively.

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