A dispute over criminal case reporting rules that Texas Attorney General Ken Paxton imposed on a group of mostly Democratic district and county attorneys is back in front of the statewide appeals court that previously signaled it disagrees with the requirement.
Travis County District Judge Catherine Mauzy ruled May 7 that new rules issued by Paxton’s office requiring the attorneys to file periodic reports on cases are invalid and exceed the attorney general’s authority. The decision bars Paxton from enforcing the requirements against the counties that sued, which include Dallas, Harris, Travis, El Paso, Bexar, Fort Bend and Williamson counties.
Paxton appealed the ruling to the statewide 15th Court of Appeals a week later. That court previously upheld the same judge’s order granting a temporary injunction against Paxton in the case. Justice Scott K. Field found that based on state law, the Texas Legislature “did not expressly grant rulemaking authority to the Attorney General, nor can rulemaking power be implied where no such authority is expressly granted.”
KERA News reached out to the Attorney General’s Office and the elected attorneys for comment and will update this story with any response.
Paxton’s office adopted new rules last 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.” 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.
Not complying with the rules could be considered “official misconduct,” and an elected attorney could face removal from office. The rules apply to about a dozen counties in the state, including some that lean Republican.
Paxton, a Republican, said at the time that the rules are meant to rein in “rogue” district attorneys and push them to more vigorously prosecute crimes.
“In many major counties, the people responsible for safeguarding millions of Texans have instead endangered lives by refusing to prosecute criminals and allowing violent offenders to terrorize law-abiding Texans,” Paxton said in a news release announcing the requirements last March. “This rule will enable citizens to hold rogue DA's accountable.”
A group of nine district and county attorneys sued Paxton’s office last May over the rules. They alleged the requirements are unauthorized, unconstitutional and would drain department resources. The next month, a judge blocked the rules from taking effect, and the attorney general appealed to the 15th Court of Appeals.
“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,” an attorney for the plaintiffs told 15th Court of Appeals justices. “If the legislature had intended for this single sentence to be a capacious grant of rulemaking authority, it would have done so.”
A representative for the AG’s office argued then that the Texas Government Code gives Paxton the authority to enforce the rules, bringing order and predictability to a mostly case-by-case reporting process. The attorney said the rules wouldn’t be any more of a burden than complying with public information laws.
But Chief Justice Scott Brister said in a December opinion that while the code lets Paxton request information on specific cases, it doesn’t give him the authority to put blanket requirements on elected attorneys.
Critics accuse the AG’s office of imposing the rules for political reasons, seeking to influence how the elected attorneys handle cases. Paxton’s comments echo Republicans’ frequent criticisms of Democratic prosecutors and judges, blaming the Democratic leaders for crime in urban counties.
Gov. Greg Abbott made similar claims recently when he announced that making district attorneys eligible for impeachment and creating a statewide prosecutor role were part of his lawmaking priorities for public safety come next year’s legislative session.
Abbott and allies targeted Travis County District Attorney Jose Garza, who is also a plaintiff in the Paxton suit.
Toluwani Osibamowo is KERA’s law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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