Barbara Hervey

Notable Cases:

• Bell v. State (2021) Signed per curiam majority opinion. Held that a jury charge which failed to accurately state the sequencing requirement of the habitual offender statute should be analyzed with a harm analysis, rather than treating the charge as an illegal sentence (1-2). Cited precedent and held that if a defendant's sentence is not supported by the prior convictions, then his sentence is "illegal" (6). Noted that in Almanza v. State the court held that errors in jury instructions do not warrant automatic reversal (7). Held that, while the facts of the Niles precedent were distinguishable, the holding still applied (8-9). Therefore, harm analysis was proper (9). Held that there was no dispute that the underlying convictions supported enhancement (10).
  
• Ex Parte Jordan Bartlett Jones (2021) Signed per curiam majority opinion. Held that third parties sharing revenge porn are only subject to Section 21.16(b) when the third party 1) shared the material under circumstances where the subject had a reasonable expectation it would remain private 2) knew there was a substantial or unjustifiable risk he did not have consent to share it 3) knowingly or recklessly identified the depicted person and caused the person harm through the disclosure (1-2). Held that the statute did not violate the First Amendment, properly construed (2). Held that review should be limited only to the offense charged (8). Held that Section 21.16(b) is a content-based restriction on speech that is subject to and satisfies strict scrutiny (11). Reasoned the restriction was content-based because it was limited to sexual media (14). Held that privacy was a compelling interest and the unauthoritzed disclosure of sexual media was a violation of privacy (17-18). Held that the law employed the least restrictive means test by narrowing the scope of the law multiple times throughout the text (31-32). Held that Section 21.16(b) was not overbroad (37). Good elements: presumption of constitutionality (6). constructions should only be narrowed if the text supports it (6). statutes should be construed according to their unambiguous meanings unless absurd (6-7). Rejected a potential construction because it would not be consistent with plain English (21). Avoided allowing the possibility of a less restrictive construction to diminish the text and compelling interest of the law (36).
  
• State v. Stephens (2021) Signed McClure's majority opinion. Held that Texas Election Code section 273.021 delegated a power properly held by the judicial branch to the Attorney General (AG) and was therefore unconstitutional (1-2). Cited precedent that the AG never had the authority to institute a criminal prosecution (5). Cited that the court had traditionally found a difference in powers between district attorneys and the Attorney General (8). Held that the court of appeals misconstrued the constitutional language empowering the AG to "perform such other duties as may be required by law," since ejusdem generis is limited to things of the same kind, and prosecution was not one of the powers granted to the AG (11-12). Argued that reading "other duties" sections so broadly greatly harms the separation of powers (13). Noted that prosecuting violations of election law was also not "required" as the constitution said, as the plain text said that the AG "may" prosecute violations (16). Held that the TX Const required county and district attorney consent (17).
• Watkins v. State (2021) Signed Newell's majority opinion. Held that documents showing evidence of prior convictions in a criminal prosecution were "material" to the case for the sake of discovery and ought to have been turned over by the prosecution (3). Held that evidence is "material" if it bears “some logical connection to a consequential fact" (3). Found that under Article 39.14(h) the State had a duty to provide any "relevant" evidence that would tend to negate guilt or mitigate punishment (22). Held that the meaning of “material” was plain, unambiguous, and synonymous with “relevant” when considered in context (24). Held that the court lacked clear precedent on this issue (31). Held that, even if "material's" meaning were ambiguous, legislative history did not support any clear meaning (47-48).
• Sims v. State (2019) Wrote unanimous opinion. Held that supression of evidence was not an available remedy under the Stored Communications Act (SCA) unless the violation also violated the United States Constitution, and that it was not a remedy under Article 18.21 unless the US or TX Constitutions were infringed upon (3). Held that the defendant did not have an expectation of privacy in the real-time location stored on his phone (3). Case involved a suspect who was found by pinging his cell phone, which he argued violated his Fourth Amendment rights (4). Noted that the SCA and Article 18.21 contain exclusivity provisions that are only waived in areas of conflict with federal/state constitutions (10). Rejected appellant's argument that the provisions were ambiguous, holding instead that the law did not need to be so specific as to exclude individual state and federal remedies (10-11). Held that the SCA and Article 18.21 were compatible with Article 38.23(a) by applying the “general versus the specific” canon (12). Held that the specific SCA and Article 18.21 prevailed over the general Article 38.23(a) (12-13). Held that SCOTUS' Carpenter precedent applied to both CSLI and real-time location information, and in such situations the precedents of Smith and Knotts were discredited (18-19). Held that whether a government had undertaken a search/seizure turned on whether the amount of information that was seized violated a reasonable expectation of privacy (19). Held that Carpenter indicated there was no bright line for when such an expectation was violated, and therefore it was determined case-by-case (19). Held that the defendant did not have a reasonable expectation of privacy in law enforcement pinging his phone fewer than 5 times (20). 

Justice Barbara Hervey (R) is running for Texas Court of Criminal Appeals, Place 7. Judge Hervey has three children and is a grandparent to two grandsons. She lives in San Antonio.

Employment:

• Justice Hervey was elected to the Texas Court of Criminal Appeals in 2000. She has won four elections since then. 
•  Previously served as the "Assistant District Attorney for 16 years in the Appellate Section of the Bexar County District Attorney’s Office in San Antonio."

Education: 

• Received her J.D. from St. Mary’s University School of Law in San Antonio 

Memberships & Associations:

• Created the Texas Criminal Justice Integrity Unit 
• Member, State Bar of Texas,
• Member, Texas Bar Foundation,
• Member, American Law Institute,
• Member, American Academy of Forensic Science, 
• Co-chair of the permanent Texas Judicial Commission on Mental Health
• Member, Senior Advisory Board for the Center for Statistics and Applications of Forensic Evidence (CSAFE),
• Member, Training Advisory Board for the Texas Police Chief’s Association.
• Founded, Texas Criminal Justice Integrity Unit
• Chair, Court’s Grant Committee for 20 years. "The Committee manages over $30 million per biennium to train judges, attorneys, and their staff.” 

Awards: 

• “The Rosewood Gavel Award is given to an outstanding judge or justice in recognition of his or her contribution to our constitutional democracy.” 

TXJudges.org candidate comparison.