A panel of statewide appeals court justices will soon decide whether Texas Attorney General Ken Paxton can — at least temporarily — enforce case reporting rules on attorneys for the state’s larger, mostly Democratic counties including Dallas.
A group of nine district and county attorneys sued Paxton’s office in May challenging new reporting requirements imposed on their offices that they say are unauthorized, unconstitutional and would drain department resources.
The 15th Court of Appeals heard arguments last week after the attorney general appealed a Travis County judge’s decision in June to temporarily block Paxton’s office from enforcing the rules.
Paxton, who is a Republican, adopted a new rule in March requiring district and county attorneys with populations of 400,000 or more to “submit initial, quarterly, and annual reports relating to criminal matters and the interests of the state.” That applies to about a dozen counties in the state, including some that are more red.
The rules also require district and county attorneys to report information on indictments against police officers and poll workers, how cases are resolved and internal communications about how prosecutors make decisions.
Failure to comply with the new rules could be treated as “official misconduct” and lead to the forfeiture of the elected attorney’s office. Paxton said at the time that the rules are meant to rein in “rogue” district attorneys and push them to more vigorously prosecute crimes.
Paxton’s comments echo Republicans’ general criticisms of Democratic prosecutors and judges, often blaming Democrats for crime in urban counties. The attorney general has been particularly critical of district and county attorneys for not pursuing election law violations to his standards, and he now has the power to prosecute those crimes himself.
Critics have accused the AG’s office of imposing the rules for political reasons, seeking to influence how the elected attorneys handle cases.
Arguments in the case hinge on whether a statute in the Texas Government Code gives Paxton the implied or expressed authority to make these rules.
Justices are also considering whether it violates the Texas Constitution’s separation of powers doctrine for the attorney general — part of the executive branch — to impose rules on district and county attorneys, which are in the judicial branch.
William Cole, principal deputy solicitor general with the AG's office, said the law gives Paxton both the implied and explicit authority to enforce the new rules, bringing order and predictability to what he said is a mostly case-by-case reporting process. The AG’s rules would be just as much of a lift as the state’s public information laws, Cole said, which require government agencies to submit case files to the AG to weigh whether the information they contain can be withheld from the public.
“We're operating in this case not pursuant to some sort of ethereal power, executive branch power to compel information, but pursuant to a statute the Legislature passed and recodified in 1985,” Cole said. “I don't think there's a separation of powers clause problem here on that point, with the mere fact of us taking advantage of the tools the Legislature has given us.”
Chief Justice Scott Brister questioned where it would end if the AG’s office continually amended the rules to rein in district attorneys with whom it disagreed.
But he also wondered whether the new rules are a fair response to elected attorneys like Dallas County District Attorney John Creuzot declining to prosecute minor marijuana-related charges.
“I am worried about an overreaction — some people would say it would be a normal reaction — to the fact that some prosecutors, as a policy, will not enforce some criminal laws. Just won't. Do you disagree with that?” Brister asked attorney Bradley Snead, representing the district and county attorneys.
Snead didn’t take any position on that. But he returned to the elected attorneys' argument that the rules would impose a substantial burden, with Dallas County claiming the requirements would cost the county more than $22 million over the next five years.
“This regulatory scheme, as we discussed, is causing real harm and invasive oversight, causing district and county attorneys to hand over case files and victim information,” Snead said. “If the legislature had intended for this single sentence to be a capacious grant of rulemaking authority, it would have done so.”
Toluwani Osibamowo is KERA’s law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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