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Texas Supreme Court Candidate Chari Kelly on the Judicial System, Checks and Balances, 2026 Election

October 21, 20260 comments♥ 0
00:05 Hello, everybody. I'm Isaiah Mitchell with the Texan News. I'm joined by Justice Shari Kelly of the Third Court of Appeals and the state appellate court system. Justice Kelly served in the United States Army. She is a member of the UT Alumni Association, correct? Yes, UT Law Alumni Association. U.T. Law. Well, we were just talking before and actually about UT football when I learned of an interesting development in your loyalties. Yes, yes. So tomorrow's game day, and I went to the University of Florida for undergrad and the University of Texas for law school. So I say, gator first, Longhorn always. So tomorrow, you know, I'll be in the orange and blue.
00:44 Right. It's really, truly a crisis of conscience for you, I'm sure. That's funny. Well, to start with, I'd actually love to just talk a little bit more about your backgrounds. Sure. You could just tell me about how you got into law and how you came to this court. And what made you decide to run for the Supreme Court of Texas? Sure. My origin story, if you will. So I grew up. up in central Florida. I grew up in a home with my grandparents and my mother and my grandmother was a was a pilot in World War II. And my grandfather was in the army. He was a colonel in the army. And so there was a lot of value military service. So when it was time to go to school,
01:22 our family didn't have the money to send me to college. And I saw about an RTC scholarship. And I thought, hmm, you know, maybe I'll do this. And I almost didn't for a really, silly reason. I thought they make me cut my hair, which now as a grown-up sounds like the stupidest thing ever. But one of my friends came up to me and we were talking and he wanted to be in the military and he said, Shari, they're going to take one look at you and realize you're not the Army type. And that was the proverbial straw that broke the Campbell's back. And so I got an RTC scholarship and went to the University of Florida. And I ended up being the cadet battalion commander at the University of Florida. After a very rocky start, I will confess, as a cadet. I was
02:01 very clumsy. They called me crash, actually, was my nickname. And after, so I was commissioned as an officer, but I asked for a delay of my service to go to law school. And so I did get received that. So I was commissioned as a military intelligence officer, but I didn't go into that branch. And I got into UT, which is an amazing school. And so I came up to Austin for law school. I had no idea what Texas was like at that point. I thought there might be cacti here. Because it's very, I was not well traveled at the age of. of 22. And so I came here for law school and really loved it, but I always had my military commitment and to be a JAG officer, a lawyer for the Army. And so 9-11 happened my last year of law school,
02:44 which changed the whole world. And I graduated and went off to the Army JAG school. And I was at the JAG school when we were watching the war happen. So we were, you know, this group of lawyers learning how to be Army Jags, Army lawyers. It was a really crazy time. And I went on active duty and got married to my mock trial partner from law school, who's a native Texan. And I spent four years at Fort Hood. And I was a defense attorney for soldiers.
03:17 So I would defend soldiers accused of crime. So I said, defending those who defend America. And I did that for four years at both Fort Hood and Fort San Diego. and Fort Sam Houston, now Joint Base, San Antonio. And I would travel all around the south-west, representing soldiers at courts-martial. So I had detainee abuse cases. I had the military's first fetal manslaughter case.
03:41 It was an amazing, amazing job. And when I left active duty, I worked for a judge at the Court of Criminal Appeals, Judge Womick, who's now passed away, but who taught me a lot. And I was his staff attorney. So I would take the briefs and write draft opinions for him. And then I took a big change in my career and I went to the Attorney General's office. And I was in a civil litigation division where I worked on high stakes pharmaceutical litigation. It was civil Medicaid fraud. And so we would sue pharmaceutical companies for off-label marketing to Medicaid doctors. And I was the lead counsel on a case that settled for $19.9 million. I was pretty proud of that to help recover that. And I really love that work. And I did that for about five. years. And I had a real, at that time, I'd been a lawyer 10 years and a job that I had always
04:34 wanted that I had never had was to be a prosecutor. Because I'd been a defense attorney, but I'd never been on the other side. So I had a very humbling job search up and down the I-35 corridor where I was rejected by many a county. And then finally, in Comow County, New Bromfels, the DA there, gave me a chance. And I worked there, and I worked there. And I, I was prosecuting all kinds of cases, everything from drug use to theft of copper to attempt to capital murder. I had a, I prosecuted somebody who shot up a cop car with an AK-47 on I-35. Yeah.
05:13 And I was there for several years and then I had the opportunity to switch to Travis County. And so I was commuting every, I live in Austin. So I was driving two plus hours every day to go back and forth. But I wanted that job so bad because I wanted to. have that experience. And it really taught me a lot. And then I came to Travis County. And I was prosecuting cases that murder cases, um, uh, sexual assault, all kinds of, all kinds of different things. And while I was at the office, somebody approached me about running for the third court of appeals. And I really thought at first that there was, they were trying to set me up for something
05:52 because I was just surprised. I had pictured myself, well, maybe I'll be in the DA one day or something like that. And then I really, I sat down and I thought, you know, I love, I love the law. I've done lots of different types of law. I've practiced civil law. I practice criminal law. This court does it all. This would be perfect for me. And so I thought, okay, am I qualified for this bench? Absolutely. Do I want this job? Absolutely. And I ran in 2018. And I had people who laughed in my face and said I'd never win. And I did win. I won by a lot, actually. I won by 90,000 votes. And that's where I've been ever since. So I've been in appellate judge almost eight years now on the third court. Wow. Yeah. Well, I'd love to talk more eventually about 2018 because I think it's an
06:42 interesting election. But first, a lot of listeners, a lot of viewers probably are not that familiar with our judicial system and how it's set up. So maybe you could talk a little bit about the office you're running for and the court of criminal appeals to and how our system is is divided. Sure. So our appellate court system has essentially two faces. So if you, you know, if you're someone who goes to the trial court and you have whether it's a conviction or a verdict against you, and you're going to take that up to appeal, you take that up to appeal to one of our intermediate appellate courts. So we have 15 intermediate appellate courts. I say we judge other judges homework. We check other judges homework, rather. That's a better way of saying it.
07:25 And I sit on the one of the court in Austin, which covers Travis, currently said, which covers Travis County and 23 other counties. So it goes all the way up to San Angelo and all the way down to New Bromfels. A lot of people don't realize how big it is. And then the rest of the state is divided up into geographic districts plus the 15th Court of Appeals, which is a huge. unique animal in its own. And then who grades our homework? Well, we have a state with two Supreme Courts. There's only one other state in the union with two Supreme Courts. And that is Oklahoma. Who knew we could have anything in common with Oklahoma? Right. Yeah. Or bitterest rival. And so we have a criminal Supreme Court called the Court of Criminal Appeals, and then
08:14 the Texas Supreme Court, which handles all civil appeals. Now, I say that they do juvenile convictions which are considered or juvenile adjudications which are considered civil cases but they have you know they're they're involved in criminal law but that's a very tiny tiny part of their docket so I am on the intermediate court and I'm running to go to that next level up got it okay the Supreme Court I guess I should have said that at the beginning the Texas Supreme Court I should have said out at the beginning yeah yeah so thank you for that and the third court of appeals and the Supreme court have a bit of a history, right? So maybe you could talk about that. What do you mean? Tell me more. Before the 15th Court of Appeals was created, the third Court of Appeals generally took on
09:00 these cases that involve state agencies, state law, things like that, right? Maybe you could talk a little bit about that history. Sure. And we'll ask you a little bit also about some of your big cases in your own career. Okay, certainly. So the way that the statutes are written for all these state agencies, TCQ, the Railroad Commission, the comptroller or controller. Some people say, PUC, okay, the state agencies are located in Austin, and so the statute would say, well, jurisdiction for disputes about all these different things lies in Travis County Court. So all of those cases normally go to a Travis County district judge. So to appeal them, they geographically would come to the third court of appeals because we're in the district.
09:48 And so our court, it was kind of like the D.C. Circuit court in that it would take all of those agency cases. The D.C. Court of Appeals, rather, is what I meant to say. So we handled like the Paxton Whistleblower case or, you know, emergency powers of the governor, anything involving a state agency for a hundred years, I mean, more than a hundred years would come to the Austin Court of Appeals. The legislature, when I first became a judge in 2019, immediately started talking about redistricting all of the courts of appeals. And in 2018, there had been a big sweep of Democratic judges in intermediate appellate courts. And so immediately, they were working on new maps. You know, the Austin Court of Appeals was going to be mixed with another court of appeals. And that
10:38 happened for another session. They were going to move us to late one seat to Lake Jackson and the rest of us were going to go to Dallas and some were going to go to Fort Worth. Well then in the 2020, now let me think of my session, 2023. Was that the, I think so? I believe so, yes. 2023. They created the 15th Court of Appeals. So what they said is we're going to create this new Court of Appeals, and that Court of Appeals will be specialized for all of these cases involving public agencies, the governor, constitutional questions, but carve-outs. No criminal, no eminent domain, a little laundry list of things they did not want to do, no family law, but cases involving a state agency. So that court went online in 2024, and the legislature gave a
11:35 them three judges. What's unusual about the court is that the Texas Constitution says that our state is divided geographically into appellate districts. Well, the 15th, the district is the state of Texas. So it is a statewide elected race. And actually, the 15th Court of Appeals, this election cycle is flying really under the radar, and it's an extremely powerful court. So they created this court. The governor appointed three people. They still sit on the court. And then all of those cases that we did at our court were transferred to that court. And after it was created, and some of the justifications the legislature was, oh, it's numbers. We need to have, you know, equalize the numbers out between the courts, or we need to have people specialized in administrative law. Well, my court was specialized
12:22 in administrative law, as we had all been doing it. And so, as it turns out, after it was created, the governor went on the Texas Public Policy Foundation. It gave a legislative update, and it's on YouTube and said something like, oh, we had to create this court so the, so the liberal justices of the third court of appeals wouldn't handle these cases. And, you know, isn't this great? And he said that out loud. So it seemed pretty clear that there had been some politics involved in the creation of that court. And then now that we have data from two years that they have so many fewer cases than every other appellate court in the state. And granted, some of them are very good. complicated. They're not, you know, they're not your everyday family law case or something that's
13:11 potentially very well settled. They're involving things, you know, tax and TCU and regulation, but they're not all the hardest cases in the world. And so I don't have my numbers with me. I need to double check, but the, I mean, it's like, I feel like their caseload versus the Austin Court of Appeals caseload per justice was less than half. maybe more than that. And the constitutionality of that court has been tested, and the Supreme Court said, well, even though the Constitution doesn't say,
13:47 it says geographic districts, you know, we can infer that this is okay. So I'm really generalizing that opinion, but they've ruled that it's constitutional. So, and then they are all up for election now. But two years ago, now they're getting two more judges. So they'll have five judges.
14:08 My court only has six judges and where our filings are higher than ever. So now, will the legislature ever, would the current legislature ever add more seats to the Austin Court of Appeals? No. Yeah, no. I don't think so. But they need, I mean, our public, our court has not received any new seats since, I think, So think of the population growth.
14:34 And Travis County and the 23 other counties since then, it's a lot. It's a lot. Absolutely. Well, something else I'm curious about, because you mentioned being elected in 2018. Yes. And there's a lot of people drawing connections between 2018 and 2026, right? We've got this Senate race with a really strong Democratic candidate and facing an incumbent Republican, right? And, well, excuse me, not replacing an incumbent Republican, you know.
14:59 but there was a lot of seats in the state legislature that flipped Democratic in 2018. And as you said, also you were elected. And you were elected by a wide margin. Yes, yes. And the Houston Court of Appeals flipped, the Dallas Court of Appeals, the Austin Court of Appeals. I mean, there were a lot of the biggest statewide gains for Democrats that year were intermediate appellate courts. And I say in 2026. It feels like 2018, but on steroids.
15:33 How so? Well, just the, again, the excitement over the top of the ticket nominee. And I'll say nominees now. Like now, you know, there's this polling for Gina Hinojosa that's, you know, the excitement isn't just James Talarico. It's expanding, right? Where I felt like in 2018, people were definitely excited about the statewide candidates, but Beto was the star.
15:54 And, you know, for good reason. He really, he changed a lot of things about our state. that cycle, even though he didn't win just in campaigning and bringing attention to races. But I think that there will be more turnout in 26 and 2018, because if you look back in time, in 2018, everyone got so excited. So now people lined up for state-ride races in 2020 that perhaps hadn't been filled before. And it was, no, they were nowhere close. 2020 was not a good year for Democrats at all. then going forward in 2024 almost every democrat that i was elected with the intermediate appellate
16:34 courts they all lost they either lost to a challenger in the primary or they lost the general election all i mean all of all of the people that were elected i think judge triana and i and judge triana's on my court i think we were the only two democrats that kept our seats out of I can't even remember how many races. And actually a lot of incumbents lost because I think in the last election cycle, it was, you've been doing this job, but have you been doing it well enough? We need fresh blood. We need fresh thought, you know, from, you know, everywhere all around the country, people felt that way.
17:11 So why I think it's exciting now is, you know, in 2018, there were statewide Democratic candidates for the Supreme Court. And the point differential between them was, I think, 6.3 to 8.6, something around there. That was the margin in which they lost. Well, months ago, there was a poll by Cornyn Super PAC that said with Paxson at the top of the ticket, there'd be a drag 5 to 8 percentage points down the rest of the ticket. And let's just take that data, none of this recent data, and put that an overlay on 2018. Well, that would put, with 2018 turnout, all of those judge races in play. And they have not been in play for a long time.
18:01 And so that's exciting. I think one thing I'm curious about with voters is that there's almost this paralysis with judges where people feel comfortable voting for, you know, the railroad commissioner, even if they're not an engineer or the governor even if they have, you know, don't have this executive level experience. But when they get to the judges, they're like, well, I'm not a lawyer. So how can I vote in these races. And 10 of the 18 statewide candidates are judges, are judge positions. Four for the Texas Supreme Court, three for the Court of Criminal Appeals, and three for the 15th Court of Appeals. That's most of the ticket. But if you ask your everyday Texan, who are the statewide candidates, they have no idea that it's this huge part of it. And we have a unique
18:50 opportunity in Texas and that we get to select these judges. And so, but I think people feel differently about judges than other races. So maybe people would be inspired, you know, maybe they'll split their ticket on judges, right? Maybe they'll do a little bit more research on judges. I don't know. But it's, it's a definitely different voter dynamic because judges can't go out and say, I'm going to go to office and do A and B and C. That's not what judges do. And nobody wants, Nobody wants a Republican judge or a Democratic judge. They want a judge who will be fair to them. And a judge can't be fair to them if they're out making public statements about how they would rule about something, right?
19:36 Like you don't want to be in front of a judge who specifically gone forward and said, I don't believe in this concept, right? I mean, it's an expectation that everybody has. I mean, the judges are for everybody. The Republicans, the Democrats, the Libertarians, Green Party. independence. So I'm very curious to see with this 18 candidates, what will the, what will the, what will the, what will the, what will the, which races do they skip? Which races do they keep going? Because one thing that's sort of got, I think people, a little bit more excited down
20:09 the ticket is this whole railroad commissioner thing. I mean, think of all the people that were going to skip railroad commissioner. And now every, it's like everyone knows who bow French is. and more people are learning who John Rosenthal is. Well, that's just getting people a little further down and a little further down. And so I've heard this said many times recently, but the farther down you vote on the ballot, the closer it is your front door. But it can be intimidating.
20:39 I was just looking at like, okay, you know, state education board and all these like local candidates and the propositions. And I'm like, I want to vote on Monday. I need to make my voting plan this, you know, this weekend to make sure I know all the things that are out there. Right. Yeah, absolutely. And also just for our listeners benefit, we've got nine members on the Supreme Court of Tensions. Yes, yes. And there's four places up for election this year. Yes. And you're running to replace, the incumbent you're running against is Justice Sullivan. That's correct. He was appointed by Abbott, I believe in 2025. In January of 2025. Yes. Yes. He was his general counsel before he was appointed, similar to the Chief Justice.
21:19 was the governor's general counsel before he was appointed. Got it. And I'm curious, who was the AG when you were working? It was Governor Abbott was the AG. Okay, that's what I thought. Yeah. And, you know, I mean, I really enjoyed my time in that office. I think it's funny campaigning and people are like, oh, you worked for Governor Abbott.
21:38 Are you? So you were a Republican? I was like the AG's office is the largest employer of attorneys in the state. It's like a 500 person law firm. These are mostly career civil servants. They're not like blowing, you know, they're not like in charge of major policy or at the right hand of Governor Abbott.
22:02 But yeah, and it was a much different office than it is now. But I really love the work of our division. And my understanding now is that it's completely different. A lot of the people that were there have now left. Well, speaking of that office and also of the consequences of the justices we elect, a lot of the most high-profile cases of the Third Court of Appeals involved Attorney General Paxton. Oh, yes, yes, yes. And so I'll ask a little bit more in detail about those.
22:34 But to start off with, I'd like to hear just first of all some of the biggest cases that you consider. So the cases that you consider to be the biggest ones that you've decided on the Third Court of Appeals. We mentioned Harris County v. Abbott. But you could start with that and just talk about it. Sure. So Harris County versus Abbott was a case that came out during COVID. And it was really talking about what are the limits, if any, of the governor's disaster act powers. And so it was this concept of, all right, we have local government that makes regulations. We have the governor that makes regulations.
23:12 The governor's argument was, well, I'm always on top. I basically, you know, I basically, you know, get the last say. And so my opinion, and the case involved specifically, there was a local ordinance about whether or not, I believe it was, whether or not local businesses could have masks, could require masks for people to come in. The governor put as part of his emergency order, no, nobody, you cannot make that as a requirement. And so we have these conflicting orders. And I ruled, well, the governor doesn't have absolute authority on under the Texas Disaster Act, you know, he, the local, the locals have authority as well. And so the real limits of his authority, I feel like I've not yet really been vetted out.
23:57 But that's the case. And I'm proud of my ruling. And I obviously thought I got it right. Otherwise, I wouldn't have written it that way. And then it went to the Supreme Court and the Supreme Court reversed me. And I'll say, I don't get reversed very often. It's something like 5% of the time. But when I do, it's on something big. Something big. Yeah. Issues of constitutionality, state agencies, things like that. Yes, which I don't get anymore. Right. Right.
24:21 Which I don't get anymore. So, yeah. Now, I guess another big one, you mentioned Paxton. So we had the Paxton whistleblower case. And so what the Attorney General argued is that, well, I'm the elected official. I'm not there, and I'm not the agency, nor am I an employee of the agency. So the Whistleblower Act does not apply to me. I could not find in Texas jurisprudence another elected official who had ever argued that the whistleblower act did not apply to them.
24:54 And so we ruled that it applied to him. And then ultimately, you know, that case ended up settling. So it never really finally made its way through the court system at the end of the day because he ended up settling and saying, you know, I'm not admitting any guilt, but here, you know, take the state of Texas's money here. I haven't done anything wrong, but yes, I'm settling. I had another big public information. I've had several Public Information Act cases. I had one about the Sierra Club was requesting documents, and the TCEQ didn't return those documents
25:36 within a timely fashion, and so the AG said, okay, you need to turn over these documents. Well, then on appeal, the TCQ came up with all these reasons why they believed they had met the deadline. You know, they got a benefit because of a skeleton crew day, which at that time was not considered a holiday. And they went back and asked them if they wanted confidential information. And I said, no, you need to turn over the documents because when you go back and ask somebody for confidential information, do you want a request or do you want confidential information? you don't get confidential information. So it doesn't narrow the scope of the search. And I said that can't be used to reset the clock.
26:19 And then the Supreme Court overturned me on that. And that was actually an opinion of eight judges. And Justice Sullivan authored the majority. And he said, no, when you go back and ask for confidential information, that's narrowing the information and that resets the clock. And actually, Justice Busby dissented and said that's ridiculous. now. And then another big case involving UT, the Franklin Center case about documents from their internal investigation about admissions. And I ruled that those had to be disclosed. And then
26:54 the Supreme Court overturned me on that. So, I mean, part of the reason, I'm not saying, oh, I need to, you know, I'm seeking vengeance for these cases that have been overturned. But I have been an appellate judge for eight years. I have written over 800 opinions. You know, I'm board certified in judicial administration and only 19 judges in the entire state have that certification. I know I have the experience and the chops to be on that court. And in my particular race, my opponent, while he's worked for Governor Abbott, you know, in different capacities, he doesn't have that experience. And it feels like the whole state is interested in administrative law lately because of the PUC.
27:34 Oh, yeah. And so now everybody's Googling, what's S-O-A-H? What's this all about that? Yeah, yeah. Well, you know, with all the hurricane and hurricane, winter storm, Uri, you know, all of those rate cases and things came up. I think we've finally gone through our administrative things. But I also think people now when they've seen the national stage and they hear that a, you know, a district judge has like blocked something that the president's doing. Or people like, oh, oh, the courts have that power?
28:01 Because there is a narrative now in our nation that instead of three branches of government, three co-coes. equal branches of government that are checks and balances for each other, that no, no, no, the executive's number one. And if number, and if the legislature and the judiciary don't do what number one wants, then they're, they're unethical. They, you throw them out of office. They're doing something incorrect. And that's not our system. Our system is everyone is a check and balance on each other, particularly with judges, since I've been on the bench, it's changed the way people talk about judges and the open criticism of judges. And I'm not saying judges are without fault, but it used to be you got a ruling that you did not like, you appeal it. Okay. Now it's,
28:46 you get a ruling you don't like you, go on Twitter, truth social, or blue sky, or whatever, or online or on the news and complain and say, you know, this is terrible. These judges are terrible. One famous example on our state is after the Court of Criminal Appeals ruled on what ruled that the Attorney General did not have authority under the Texas Constitution to prosecute election fraud. Ken Paxton was furious about that. And he, and he went on law, or he went on a new show and said, call up all the courts of appeals, the criminal court of appeal judges that ruled this way and let me know what you think and listed their phone numbers online. And I know, several of the judges there, and they got death threats for that. Like, that's not, we don't want a
29:34 system where people feel like they can intimidate judges to get them to change their mind, because that's fundamental to our whole democracy at the end of the day. Well, as you said before, someone running for a legislature can tell voters that they'll try to pursue certain policies, and a judge can't really make those same assurances, right? So I'd like to hear about, your general legal philosophy just to start with, if you could describe that. Sure. So I feel like I'm very pragmatic. You know, every judge when they're dealing with an issue involving a statute goes to the text first and looks at the text of the statute. Is the statute clear? Or is it not clear? Is it ambiguous? Is it vague? And then may seek to go to other
30:20 sources to evaluate it. But I feel like I try to take each problem on its own, because you Because being an appellate judge is very humbling. No matter your entire career, you could have never practiced the amount of areas of law that you do as an appellate judge. There's just too many. And so it's like, today I'm going to learn probate law. Today I'm going to learn family law. And so I think that's good in that sometimes as lawyers, they often think, oh, well, I've done this before. I don't need to look up the rule.
30:56 right? I know this. They're falling back on their knowledge and maybe their knowledge of a statute is 20 years old when you're forced to go and look at something, you know, for the first time. So I feel like, you know, I'm practical. I obviously look at the text of the law. I mean, as every judge should do. And then just go, you know, and weighing practical considerations and precedent. And, you know, there's a hundred different things that could go into that formula. My criticism right now of a lot of judges who subscribe to like a particular label. Like, I'm an originalist. I'm a textualist. I do this every time. And there have been at least, I can remember if it's Harvard Law Review article about what that means and a recent presentation for the appellate lawyers in Texas. And it's like, yeah, you are until you aren't because I can show you many examples from our Supreme Court of cases where they're. they've not been originalists and they've not been textualists. They've come up with a new interpretation that wasn't in the statute, in the words of the statute.
32:05 So that's what I'm really hesitant to say, here's how I view every single case. And I wouldn't tell any judge to do that. But that seems to be sort of like the hot topic of the day. I just did all of the newspaper endorsement boards. And they all are like, are you a textualist? Are you an originalist? Do you believe in the living constitution? I'm like, I mean, I look at the text of the staff.
32:26 but I don't follow one particular way of looking at every, at every case, if that makes sense. Sure. We have this saying with amongst the appellate judges, you can't make decisions based on law feelings. Law feelings are like your gut when you first read something. You know, you might have an initial reaction, but you need to go research it and you need to go suss out, right, the statute at play and the case law and precedent and all of those things. Well, I was going to say, as a litigator, you're probably used to this kind of quibbling,
33:00 but when you say practical, I feel like a critical way of interpreting that could be dependent on the outcome of the case. And so maybe you could just expound on what you mean by that. Definitely not dependent on the outcome because it is not a wise decision as a judge to ever decide this is what I want at the end and how do I get there? The way I approach problems is going through the legal analysis to figure out what the result will be. It is never the reverse. Because it can't be, you know, I've heard people say, it's like, oh, well, this doesn't feel fair. Well, fair is not a legal standard either. Okay. I mean, something may feel unfair, but that doesn't mean that you change the result. I mean, a lot of what I do is reviewing the
33:46 lower court as an abuse of discretion. Would I have done things differently? Yes, but that's not my standard. My standard is has the judge acted so far outside the zone of reasonable disagreement that we need to change what they have done if it's an action, right? If we're reviewing an action of a judge. I'm just saying that's one piece of the one potential piece of the consideration. I see. Yeah. Well, to go back to originalism, Chief Justice Blacklock said at his, I think it's called the state of the court address last year. Yeah, the, you know, the, the, um, the, the, Yeah, state of the courts. Yeah, that he said the living constitution mode of interpretation is dead at the Texas Supreme Court.
34:30 Yep. And said that the Texas Supreme Court has a long precedent of originalist interpretation. And so I guess I would ask if you agree with that statement, at least about the court's precedent. And if so, how you would adapt to that or not adapt to that if you were to join the court? Well, I don't think the chief justice can speak for any of his other justices. I mean, everyone makes an individual decision there. I wonder how the other justices feel, particularly justices who've not always agreed with Chief Justice Blacklock. And he has recently again reaffirmed that, I think, at the Republican convention, he gave a speech and said we are all originalists and this is how we rule.
35:10 And when you are on a court with the chief, the chief is in charge of many administrative things, but the chief doesn't get to tell you how you vote or you analyze things. And I think a perfect example of that in most recently is Justice Boyd, who's no longer on the court. He did not go with the flow. He wrote a lot of separate writings. And he decided to retire early. And you, you know, can draw your own inferences about about what may have happened behind the scenes there. But Justice Lerman doesn't always go with the flow. she will write a dissent or a concurrence about something she feels strongly about.
35:53 So I'm not going to change the, let me put it this way. Another judge isn't going to say, Justice Kelly, now you're an originalist and this is how you have to tackle this problem. But like I said earlier, they are originalists until they're not. They're originalists and textualists until they're not. And so like the PUC, I mean the PUC, the PIA example that I gave, there's, Justice Sullivan said, okay, when you approach somebody and you ask them for confidential information that resets the clock, that's not in the statute.
36:28 So how is that originalism or textualism? You know, I mean, that the same argument could be made of the interpretation of the 15th Court of Appeals, the 15th Court of Appeals decision about whether or not it's constitutional. the Constitution says shall be divided into geographic districts. I see. How is the entire state a district? But they said, no, that's constitutional. So I would just say, you know, open the hood.
37:01 To open the hood and look under the hood is what I mean to say on some of these opinions. And so like, oh, okay, what are they really saying? What are they really doing? and I do that all the time. Got it. Yeah. Well, last thing, this is a little bit more hypothetical. Okay.
37:20 And I hope this doesn't veer into more of the territory of like a politician running for a legislature like we were talking about before. Oh, sure, sure, sure. But is there a ruling that the Supreme Court of Texas has made in, let's say, the last year, that you would like to have ruled on or wish had been ruled differently? Well, I mean, I could say all the cases. you know, who wouldn't love to be, you know, over there ruling on the case, ruling on my case. That could never happen, right? If I were on the Supreme Court, I could never rule on my own cases. But, you know, I mean, I'm proud of my PIA case.
37:53 That would have been an interesting case to tackle. There's a lot of, you know, the Supreme Court gets to pick and choose what it hears. And it's not going to pick and choose something that is well-settled area of law generally. but they get to select the type of verdicts that they review versus an intermediate appellate court that we've got to take everything that comes in the door. Right? There's no, I don't want to do that appeal. So there's a lot of power.
38:22 I would kind of take a step back and say, let's look at the types of cases that were put before them that they did not select. I see. I mean, you know, and I can think of examples of prior. years now I have to put my thinking cap here and go on there. But all of these cases are very important to a person or a group of people in a like a very deep way, whether it's a jury verdict that they won or lost, whether it's a constitutional issue that affects them or their children. I mean, the Supreme Court affects Texans every single day, which is why it's so important to not skip
39:07 these races. But I don't have a specific example of, man, this is this one, you know, one case I would have loved to get on. And I don't want to imply here that, oh, I've, you know, I have these set of things that I'm going to rule on when I get there. And then any judge who says something like that would end up being recused from those cases, you know, and who wants to be recused from the biggest cases in Texas? One issue I think will come up to the courts again. is this concept of the Court of Criminal Appeals and the Supreme Court and battling jurisdiction. And it came up a few years ago with the stay of the execution, that the stay of the execution that, you know, the CCA had denied and there was a sort of battle. Oh, is there some other authority that the legislature has?
40:01 And so I know there have been other lawsuits involving. the death penalty. Okay, so people suing TDCJ over the handling of the death penalty drugs. Now with that election, I mean, election with the execution recently that failed, right? There will be more litigation on this topic. This is a hot topic. And so people are bringing civil lawsuits and they're going to civil district court. Well, I know at least recently
40:31 the Court of Criminal Appeals issued a writ of prohibition, that's called when you tell a judge, don't do this, to a civil district court saying, this is the death, there's a writ of prohibition, do not have your hearing on this. So that's going to bubble up and there will be some challenges where the CC, the Court of Criminal Appeals and the Supreme Court, I think will be deciding or discussing who has jurisdiction over the matter. And that'll be interesting. I don't think that's really ever happened in our state before. I know my opponent, Justice Sullivan,
41:08 wrote in a concurrence that called the Court of Criminal Appeals an inferior court. Okay? And he said something on a podcast that, you know, they don't call it Supreme for nothing. So he's sort of given some hints to his feeling in that area. But that's something that'll be interesting to see what happens.
41:28 And it's especially interesting to me because, you know, I do have a board certified criminal law. Like, I've practiced a lot of criminal law. And the Supreme Court, while they don't do criminal law on the bench so much, or really at all, off the bench, they are involved in policy changes and funding for indigent defense and all these other things that touch criminal law when I'm not aware of any of them have ever been in that area of law before. Okay. Yeah. All right. Well, thank you so much for joining us today. Oh, yes. Can I ask you. Can I say one thing?
42:03 Please do. And then you can do with it what you see fit. So I'm proud to announce this week I was endorsed by not only the Dallas Morning News, but the San Antonio Express News and the Houston Chronicle this week in my race. All right. Yeah. All right. Well, I was joined today by Justice Sherry Kelly of the Third Court of Appeals running for the Supreme Court of Texas against incumbent James P. Sullivan.
42:28 Like we said before, there are four of these places up for election this year. We've reached out to candidates in all of these races and the other races that we're covering at the Texan. So stay tuned for more interviews if we can get them. And thank you again for joining us today. I appreciate it. Yes. And thank you so much. And again, Shari Kelly, and I'm running for place two on the Texas Supreme Court.
42:47 Thanks.