David J. Schenck
Republican | Texas
Candidate Profile*
Leans Originalist
BIOGRAPHY
Name
David J. Schenck
Party
Republican
Election Year
2024
Election
General
Race
Presiding Judge, Court of Crim. Appeals
Incumbent
No
Links
EDUCATION
Baylor, Waco, JD, 1992
State Univ. of NY- Albany, Rockefeller School, Albany, BA Criminal Justice, 1989
WORK & MILITARY
Candidate did not provide
AFFILIATIONS
Republican Lawyers of Dallas, Char, Highland Park Methodist
Member, Lawyers for 2008/2012 Presidential candidates, General Election Statewide Co-chair
Republican Party, Delegate to senate, state and national conventions, American Law Institute
POLITICAL OFFICES HELD
Justice, Fifth Court of Appeals, 1/2015-present
Chair & Commissioner State Commission on Judicial Conduct, 2019-presnet
Deputy Attorney General, 2010-12
Commissioner, Texas Lottery, 2007-10
Delegate and alternate delegate Texas and RNC, 2008
POLITICAL OFFICES SOUGHT
Texas Supreme Court, 2022
ENDORSEMENTS*
CONSERVATIVE (18)
Texas Right to Life
Texas Home School Coalition (THSC)
Ken Paxton
Grassroots America: We the People
Donald Trump
OTHER (1)
BizPac
REPORTED BY CANDIDATE (3)
Montgomery County Tea Party
Troy Jackson
Others & Pending
SELECTED CONTRIBUTIONS
CONSERVATIVE
GIVEN BY CANDIDATE (23)
Denton County Conservative Coalition (2024)
Republican Women's Organizations (2024)
Texas Tea Party groups (2024)
State Republican Party Organizations (2023)
Collin Co Conservative Republicans (2022)
RECEIVED BY CANDIDATE (11)
Denton County Conservative Coalition (2024)
Local, County, and District Republican Organizations (2024)
Republican Women's Organizations (2024)
David Bridges (2016)
Jobs for Texas (2016)
LIBERAL
GIVEN BY CANDIDATE (0)
RECEIVED BY CANDIDATE (1)
Laborers International Union of North America (includes national, state & local affiliates) (2014)
OTHER INFORMATION
Candidate completed Ballotpedia's Candidate Connection survey in 2024.
When Justice Schenck was a practicing attorney, he cowrote a pro-gun amicus brief in the case D.C. v. Heller (2008).
"Our primary objective is to give effect to the legislature’s intent, which we ascertain from the plain meaning of the words used in the statute, if possible." (3)
(See: Dallas Cent. Appraisal Dist. v. Int'l Am. Educ. Fed'n Inc., 618 S.W.3d 375 (Tex. App. 2020))
Dickson v. Afiya Ctr., 650 S.W.3d 513 (Tex. App. 2021). Schenck dissented.
Background: Court denied motion for En Banc reconsideration. The appeal arose from the trial court's denial of Mark Lee Dickson and Right to Life East Texas's (RLET) Motion to Dismiss defamation and conspiracy claims under the Texas Citizens Participation Act (TCPA). The defendant’s, pro-life advocate, were sued for calling abortion "murder" and a "crime”. (3,11)
Dissent: Judge Schenck dissented from the appeals court's decision to deny en banc reconsideration (1). Schenck argued that relevant state law and the Free Speech Clause protected the expression of vigorous pro-life rhetoric like this. (6,14)"[F]urther injecting the judiciary into that debate [over abortion issues] [wa]s inappropriate and inadvisable—particularly in a state that has chosen partisan election of its appellate judiciary" (10).?Judge Schenck argued that the continuation of the lawsuit posed a significant threat to the constitutional right to free speech. He asserted that even outside the Texas Citizens Participation Act (TCPA), the inherent protections of free expression necessitated consideration of the constitutional implications of defamation claims.?Judge Schenck argued that the lawsuit aimed to suppress constitutionally protected speech and advocacy, exemplifying the very type of expression the Texas Citizens Participation Act (TCPA) was designed to safeguard.?Overall, Judge Schenck would “reverse the trial court’s denial of the motion to dismiss without delay[.]” (18) Judge Schenck concluded, “Because the panel decision directly conflicts with the holding of another court of appeals, impinges on a fundamental right, and injects the judiciary into an intractable political debate, I would grant the motion for en banc reconsideration.” (18)
Toyota Motor Sales, U.S.A., Inc. v. Reavis, 627 S.W.3d 713 (Tex. App. 2021), review granted, judgment vacated (Jan. 7, 2022). Judge Schenck dissented.
Dissent: Judge Schenck dissented arguing that the trial court allowed inadmissible evidence into the trial, that the evidence presented was not legally sufficient to establish all the claims presented, and that Toyota never waived its right to argue that federal law preempted state law. (1-2) Judge Schenck argued that the trial court allowed prejudicial evidence regarding Toyota's lobbying and a past fine unrelated to the case.
Background: The case arose after the Reavises were involved in a car accident while driving their Lexus. The Reavises sued Toyota, alleging design defects and failure to warn related to the vehicle's seatback and restraint system. During the trial, the jury found Toyota liable despite the company’s compliance with federal safety standards. The jury assigned 95% of the responsibility to Toyota, resulting in a total damages award of $242 million.
Tarrant Cnty. Coll. Dist. v. Sims, 621 S.W.3d 323 (Tex. App. 2021). Wrote a concurring and dissenting opinion.
Holding: The Court affirmed the trial court's denial of TCCD's plea to the jurisdiction concerning Sims' constitutional claims. However, it reversed the trial court's order regarding Sims' claims under the Whistleblower Act, rendering judgment to dismiss those claims and remanding the case for further proceedings consistent with its opinion. The Court held that “Sims' claim of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA).” (1) It also held that “Sims' remedy under the TCHRA forecloses any action under the Texas Whistleblower Act.” (1) Last, the Court held that “Sims' constitutional claims established the existence of a genuine issue of material fact to overcome TCCD's challenge to the trial court's subject matter jurisdiction.” (1)
Concurrence in part: Judge Schenck concurred in outcome only. Judge Schenck concurred in the majority's conclusion that Sims had "a viable claim" for sexual-orientation discrimination. (1) However, Judge Schenck disagreed with the majority’s analysis of whether the Texas Commission on Human Rights Act (TCHRA) subjected employers to claims of discrimination based on sexual orientation. He dissented from the majority's holding that a state prohibition against sex discrimination included a prohibition on sexual-orientation discrimination. (1-2) He argued that the district court had not considered how the U.S. Supreme Court's decision in Bostock v. Clayton County might affect state law and argued that this case was not suited to address this issue, viewing it as an attempt to create new law. Schenck rejected the presumption that the legislature intended for the TCHRA to incorporate Bostock, stating he could not support the majority's interpretation regarding the influence of Bostock on state law. "What matters, for our purposes, is what the law says and what the legislature understood it to mean at the time." (7) Judge Schenck, quoting another case said, "If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations". (12)?
Background: “Appellee Amanda Sims sued her employer, appellant Tarrant County College District (TCCD), claiming that she was discriminated against due to her sexual orientation and pled facts alleging a violation of the Texas Whistleblower Act and the Texas Constitution. TCCD filed a plea to the jurisdiction and moved to dismiss Sims' claims on the basis of sovereign immunity. The trial court denied TCCD's plea to the jurisdiction, and TCCD appeals. [Here] TCCD argue[d] the trial court erred in denying its plea to the jurisdiction.” (1)
Applicable Law: “An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; Tex. Lab. Code § 21.051. Similarly, Title VII provides the following:
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
42 U.S.C. § 2000e-2. Thus, both the TCHRA and Title VII prohibit discrimination 'because of · sex.'”
Dallas Cent. Appraisal Dist. v. Int'l Am. Educ. Fed'n Inc., 618 S.W.3d 375 (Tex. App. 2020) Authored majority opinion.
Holding: Affirmed. The Court “agree[d] with the district court’s conclusion that IAEF held equitable title to the Property so as to be entitled to an exemption from ad valorem taxation provided in Section 11.11 of the Texas Tax Code. (8) The Court found IAEF needed to show that the property was owned by the state and used for public purposes to qualify for tax exemption under Section 11.11 of the Texas Tax Code.
Background: IAEF operated charter schools in Dallas County, Texas, and leased property for this purpose in 2016. In 2017, IAEF requested an exemption from ad valorem taxes for the property under Section 11.11 of the Texas Tax Code, but DCAD denied the request. IAEF pursued an administrative appeal, which was also denied by DCAD's Appraisal Review Board. Subsequently, IAEF filed a petition for review in the Dallas County District Court, where both parties submitted cross-motions for summary judgment. After a hearing, the district court ruled in favor of IAEF, granting its motion for summary judgment, denying DCAD's motion, and providing the requested declaratory and injunctive relief. DCAD argued that the district court erred in granting IAEF an exemption for the property.
Applicable Law: “The Tax Code provides, except in circumstances not present here, “property owned by this state or a political subdivision of this state is exempt from taxation if the property is used for public purposes.” TAX § 11.11(a).” (4)
"I believe in adhering to the text of the Constitution as reflected in ordinary understanding of the words as of the time they were enacted. The same for statutes. I believe courts should not make law and must stay in their lane to assure public confidence in their elected institutions. Above all they must be fair and impartial as among all who might have business before them."
(See: Candidate completed Ballotpedia's Candidate Connection survey in 2024.)
QUESTIONNAIRE
RIGHT TO LIFE
Was Dobbs v. Jackson rightly decided according to the text of the Constitution? Please explain.
This country was founded as an experiment in government for and by the people. The conceptual adhesive that makes that possible is the rule of law and the idea that the law that governs the people will be framed by popular consent. When judges "discover" rules in the constitution without any credible basis for their having been embraced by the people at ratification or elsewhere, that breaks down, the people and the other branches of government are written out of the picture. When the idea that the states should all allow that women the right vote become popular, no one raced to the supreme court to obtain a decree to that effect (though the equal protection clause could have been urged as a basis for it). Suffrage advocates petitioned to put the issue on the ballot in states across the country and secured popular support for an the 19th Amendment. Those who disagreed accepted their loss as the product of a constitutional and democratic process. The Roe decision was completely untethered to the constitutional text and violated the Ninth and Tenth Amendment. The Constitution is a written document--ink and words. If judges need to resort to emanations to get to a result, they're violating their oath in my view as well as the Constitution's assignment of authority to the people.
I support a right to accelerate ending a human life.
Strongly Disagree
I do not believe that such a "right" exists. Any such right must be created by law with accountability for the choose to create it falling either to the people directly (if by constitution) or legislators who would purport to create it by statute in the states. I do believe in the right to decline artificial means of prolonging life and to advance directives.
Human life deserves legal protection from conception until natural death.
Strongly Agree
I agree. This includes all forms of state action from conception forward, including imposing death as a punishment for crime. I support the state's right to select death as a punishment and believe that the Constitution assures that any citizen facing such a prospect is entitled to due process, adequate counsel and, above all else, a judge who is fair and impartial as a matter of fact and objective appearance.
RELIGIOUS LIBERTY
Religious liberty is at risk in the United States.
Strongly Agree
2ND AMENDMENT
The right to bear arms is fundamental and must be protected.
Strongly Agree
I wrote the amicus brief for the Texas State Rifle Association and 47 others in Heller and supported like efforts in McDonald and other major 2d amendment matters. I am a life member of the NRA and TSRA.
OTHER IMPORTANT ISSUES
Which branch of government do you believe was intended to wield the most authority?
Legislative. All are critical, however. the judiciary was intended to be the most modest.
How should the court address public health and individual freedoms in the time of a public health emergency?
Follow the Constitution
JUDICIAL PHILOSOPHY
Which current or past U.S. Supreme Court justice best reflects your judicial philosophy?
At present, I would say Justice Alito. Recent past I'd say Scalia.
Is there a separation of church and state in the Constitution? Please explain.
Yes, but there isn't a separation between "religion" and state. The Constitution assures that there will be no official state religion, meaning that Rhode Island cannot declare itself a branch of a particular faith. But state officials are not required to abandon their religious beliefs, whatever they maybe as a condition of service. The words "In God We Trust" can appear on currency, Moses can be depicted in the US Supreme Court, and the Ten Commandments can appear on the lawn at the Captiol.
Should courts address threats to religious liberty in the United States? If so, how?
Yes. By enforcing the Constitution(s) (state and federal) right to free exercise as augmented by state and federal statutory guarantees, like RFRA and RLUPA, as I did as a volunteer attorney for what was then First Liberty.
Was Obergefell v. Hodges rightly decided according to the text of the Constitution? Please explain.
I think not. As I indicated above, the operative, relevant text of the Constitution has not changed or been amended by the people who are entitled to be governed by it since the civil war era. The idea that states were regulating and defining marriage was well known in the 1870s as was the concept of homosexuality. Nothing in the text presented to the voters for ratification would have alerted them to the idea that they were surrounding their authority to makes those decisions. Thus, I see the opinion as wrongly decided and as depriving the people of their right to be governed by state law and themselves in the Ninth and Tenth Amendments.
Was Bostock v. Clayton County rightly decided under the law? Please explain.
Same as 4, but statutory
I agree that “the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” (Troxel v. Granville, 530 U.S. 57, 65-66 (2000); quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
Strongly Agree
I've written numerous opinions on this during my time as an appellate justice. My record speaks for itself.
What should a judge do when legislative texts and court precedents dictate different results?
Follow the text. This is more difficult when the judge sits on a lower court and a directly superior court has held otherwise in applying the same text. If so, the question is whether the superior court considered and rejected the reading the lower court judge would follow. If that's the case, he or she is stuck and must follow, as a private would the orders of a superior officer, though he (unlike a soldier) can write separately to explain why the superior court should reconsider. If the precedent comes from any other source (a court of appeals in another part of the state, for instance) he or she might acknowledge it but is still obliged to follow the text. If the judge is sitting on a terminal court, then only its prior decisions have precedential effect. Again, where the court has previously directly considered and ruled improperly the judge should consider whether the court's decision has been embraced by the legislature as correct in the interim but otherwise follow text
When should a judge overturn past court decisions?
When they are clearly wrong and particularly where they effect basic operations of government or amount to an over reach by the judicial branch itself.
When, if ever, should a judge take popular opinion or the social views of the majority into consideration?
Never
Do you believe the meaning of the Constitution changes over time, absent changes through the amendment process of Article V?
No
What do you believe is the single most important quality a judge should possess?
Integrity and courage are hard to differentiate when a judge is tested. Their indistinguishable in their effect when they're absent. A judge wanting to be popular or to please some master behind the curtains somewhere is a toxic vice.
If you are an incumbent judge, describe a recent instance in which you acted to preserve your judicial independence. If you are an aspiring judge, how do you plan to remain independent if elected to the bench?
Well, I think I showed that pretty clearly and repeatedly during my 8 years on the bench. Google: "Justice Schenck does not pull punches." I believe I consistently showed my willingness to stand my ground and to support my colleagues who were honestly doing the same whether they agreed with me or not. I was ready to rule for the plaintiff or defendant in civil matters and the state or the defendant in criminal matters wherever the law called for it and regardless of who they were. I regularly stood alone where necessary or to dissent over, for example, the right of Texans to express the opinion that abortion is murder, that hospitals should not be ordered by courts to provide their facilities for "gender care," or for criminal defendants to have the right to be treated with dignity, face jeopardy once, or of minors to be sent to adult capital system only with proof the judge read and considered the relevant evidence.
ABOUT YOU
What, if any, church or organizations do you belong to?
Highland Park Methodist, Grace Church (Plano) and Birth Choice
I voted in these primaries and general elections:
2014 Republican Primary 2014 General Election 2016 Republican Primary 2016 General Election 2018 Republican Primary 2018 General Election 2020 Republican Primary 2020 General Election 2022 Republican Primary 2022 General Election
Have you ever been convicted of a felony? If so, please explain.
No
Have you ever been penalized for sexual misconduct in either civil or criminal court? If so, please explain.
No
Would you describe your judicial philosophy as originalist, living constitutionalist, or something else? Please explain.
Textualist, which makes me originalist. If one accepts the idea that the constitution is living, according to who is directing itself?
VALUES
Briefly describe your spiritual beliefs and values.
I am a Christian. I come from a family made up of multiple generations of pastors in the Methodist Church. I was confirmed in that church and remain an active member, though my wife and I began also to attend Grace Church in Plano during the pandemic. I believe that I have been save by grace, though neither I nor anyone else was deserving of it or of the cost in securing it. I do not think that any institution or form of government hostile to these ideas can survive. I readily acknowledge the wisdom of the framer's in the first amendment's assurance that no state religion would be imposed whilst simultaneously assuring the right to free exercise. But states and society's founded and operating without faith invariably fail.
What is your view of parental rights regarding the upbringing of children, specifically education and sexual "identity"?
This is an area where the state's role is (and should be) extremely limited and narrow--specifically to prevent imminent risk of serious injury. As reflected by my past legal work I don't believe the state has any right to appear in court to argue that children can be separated because of their exposure to religious beliefs. Likewise, as reflected by my opinions as a judge I believe the state has a heavy burden in terminating parents and hospitals shouldn't be "ordered" to provide "gender care"
I support "gender identity" as a specially protected class. Please explain.
Strongly Disagree
This is another area of politics (and bad politics at that) being rebranded and masqueraded as law; and, if accepted by judges, would result in a usurpation of the constitutional and democratic processes, breeding contempt for the judiciary and the rule of law in the process. The idea of a protected class
What do you believe to be true about the human condition?
We are naturally prone to err and to sin. We are, however, creatures of free will and capable of making our own choices and are ultimately accountable for them. One of those choices is to accept our own failings and to ask for forgiveness. The human predilection toward self interest and aggrandizement was understood by the framers and is why they set up a government with three branches in two sovereigns (state and federal) and a system of checks and balances among them.
EQUALITY
I agree with Critical Race Theory (CRT).
Strongly Disagree
I believe in the right to equal treatment under the law. Social engineering aimed at twisting that notion into a perpetual state of disparate treatment and grievance mining to distribute political power perverts that notion, undervalues the people it purports to aim to help, promotes discord and tribalism, and results in collapse if left to metastasize.
