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Texas court confirms the attorney general can’t unilaterally prosecute election cases

Texas Attorney General Ken Paxton recites the Pledge of Allegiance at a rally for former President Donald Trump in Conroe on Jan. 29.
Jordan Vonderhaar
The Texas Tribune
Texas Attorney General Ken Paxton recites the Pledge of Allegiance at a rally for former President Donald Trump in Conroe on Jan. 29.

Texas’ highest criminal court once again said the attorney general needs permission from local prosecutors to pursue election cases. Attorney General Ken Paxton had fought that decision.

Texas Attorney General Ken Paxton's last-ditch attempt to regain the power of his office to unilaterally prosecute election cases was rejected by the state’s highest criminal court Wednesday.

The Court of Criminal Appeals instead upheld its previous ruling that says that the attorney general must get permission from local county prosecutors to pursue cases on issues like voter fraud. Paxton had been fighting to overturn that ruling as the issue of prosecuting election fraud has become fraught in recent years. Paxton sought to overturn the results of the 2020 presidential election and has aggressively pursued individual cases of fraud, outraging some voting rights advocates who see the punishments as too harsh for people who made honest mistakes.

Last December, eight of the nine members on the all-GOP court struck down a law that previously allowed Paxton’s office to take on those cases without local consent. The court said the law violated the separation-of-powers clause in the Texas Constitution.

In the aftermath, Paxton, joined by Gov. Greg Abbott and Lt. Gov. Dan Patrick, led a political push to get the court to reconsider its decision, warning that it would allow cases of fraud to go unpunished. His office filed a motion asking the Court of Criminal Appeals to rehear the case, vacate its previous opinion and affirm an appellate court’s judgment, which was in his favor.

The court’s decision Wednesday came with no explanation, though one judge wrote a concurring opinion.

“I still agree with our original decision handed down in December, when we recognized that the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings—even in cases involving alleged violations of the Election Code,” Judge Scott Walker wrote.

Two judges dissented in the case.

Paxton blasted the decision in a tweet, saying it was time for the Legislature to “right this wrong.”

“The CCA’s shameful decision means local DAs with radical liberal views have the sole power to prosecute election fraud in TX—which they will never do,” Paxton wrote. “The timing is no accident—this is devastating for the integrity of our upcoming elections.”

The court’s decision arrived roughly a month before early voting begins across Texas and months after Paxton and other Texas Republicans pressured the court to reconsider its opinion. In those efforts, Paxton encouraged his supporters to join the blitz, which many did by inundating judges’ phones and inboxes.

The push extended to Conservative Republicans of Texas, a group run by Houston conservative activist Steve Hotze, which sent robocalls urging people to call the judges because “Democrats will steal the elections in November and turn Texas blue” if the decision stood.

Judge Michelle Slaughter, in her Wednesday dissent, noted that “hundreds, if not thousands, of individuals” tried to communicate with the court about the case. Slaughter wrote that judges are not allowed to consider such communications under the Code of Judicial Conduct, and she “certainly” did not, but that she supported a rehearing.

Judges on the Court of Criminal Appeals are selected in partisan elections but are not supposed to take politics into account in their decisions.

Paxton got involved in the case when Jefferson County’s district attorney declined to prosecute Sheriff Zena Stephens over campaign-finance allegations related to the 2016 election. The attorney general’s office obtained an indictment from Chambers County, next to Jefferson County.

In a statement Wednesday, Stephens’ lawyer Chad Dunn celebrated the decision.

“Despite unprecedented pressure on the judiciary by state and national officials, the long standing structure of the Texas Constitution remains. The Rule of Law prevailed,” he wrote. “Our constitution very clearly and deliberately placed the power to charge someone with a crime, in the hands of local elected district and county attorneys. Despite this, recent Texas attorneys general have tried to take this power for themselves, on matters related to elections, abortion and on prosecution against other individual rights. But our constitution reserves all powers not enumerated to the People, and thanks to the judiciary with this ruling, the People retain their rights.”

But the decision Wednesday still may not be the last word. Paxton’s suggestion to address the matter through the Legislature may materialize. State Rep. Briscoe Cain, R-Deer Park, has said he would file a bill that would let prosecutors in neighboring counties go after election cases. In his concurring opinion, Walker also suggested lawmakers could address it.

“I share the concerns that citizens have about election law violations. Frankly, I am deeply concerned as well. However, if citizens do not like that the Texas Constitution gave specific powers to the Attorney General and that these powers do not include the power to unilaterally prosecute crimes, the remedy is a constitutional amendment—something the legislature could propose and the citizens could vote to ratify,” he wrote. “The remedy is not for the courts to water down the Texas Constitution from the bench. To do so would be a violation of our judicial oath.”