87th LegislatureCriminal JusticeElections 2022IssuesJudicialElection Integrity Law at Risk After Court of Criminal Appeals Rules Only County, District Attorneys Can Prosecute Fraud

The appellate court, which has the final word in criminal cases, decided that Sheriff Zena Stephens cannot be prosecuted by the attorney general.
December 17, 2021
On Wednesday, the Texas Court of Criminal Appeals, which is composed entirely of Republican judges, ruled in an 8 to 1 decision that a state statute granting the Texas attorney general the authority to prosecute violations of election law is unconstitutional primarily on separation of powers grounds. Judge Kevin Yeary was the only dissenting jurist.

The court, which serves as the final arbiter of adult criminal matters in Texas, handed down its decision two days after the deadline to file for a place on the primary ballot. The only way the ruling could be reversed is in the unlikely event the court grants a rehearing.

Texas Attorney General Ken Paxton, who is facing several opponents from both political parties, lashed out at the court and suggested the decision calls into question whether misconduct in elections will be prosecuted.

“Now, thanks to the Texas Criminal Court of Appeals, Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas. This ruling could be devastating for future elections in Texas,” Paxton tweeted.

The ruling jeopardizes the effectiveness of the Election Integrity Protection Act of 2021, the GOP’s signature legislative achievement this year partially intended to respond to concerns of fraudulent activity in the 2020 presidential election.

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The law relies heavily on the attorney general’s involvement in pursuing potential fraud cases. Enlisting the cooperation of Democratic district and county attorneys for more aggressive election fraud prosecutions will be challenging for Paxton or a Republican successor.

Democrat Christian Menefee, the county attorney of Harris County, tweeted that the ruling was a “big win for local government and Texans who are tired of state officials exaggerating voter fraud claims to undermine elections.”

Though there are provisions in the act that call for civil penalties against entities that violate the law, the onus would be on local prosecutors to file charges against individuals suspected of fraud, illegal voting, or other violations.

At the center of the case is the Democratic sheriff of Jefferson County, Zena Stephens. Paxton charged Stephens in 2018 with one count of tampering with a government record and two counts of making or accepting a contribution in violation of the Texas Election Code.

She allegedly incorrectly filled out campaign finance documents and improperly accepted cash donations.

During an investigation in a different case, the Federal Bureau of Investigation had contacted the Texas Rangers after discovering Stephens may have committed a crime. The Jefferson County district attorney decided against prosecuting Stephens, instead kicking the case to Paxton’s office, according to the Court of Criminal Appeals’ ruling.

The statute in question is Texas Election Code 273.021, which delegates to the attorney general the authority to charge individuals with violations of election law.

The whole statute reads as follows: “(a) The attorney general may prosecute a criminal offense prescribed by the election laws of this state.

(b) The attorney general may appear before a grand jury in connection with an offense the attorney general is authorized to prosecute under Subsection (a).

(c) The authority to prosecute prescribed by this subchapter does not affect the authority derived from other law to prosecute the same offenses.”

Agreeing with Stephens’ argument that the law is unconstitutional, Judge Randy McDonald, the state district judge in Chambers County who is presiding over the case, dismissed the tampering with a government record charge. The First Court of Appeals reversed that decision last year, but the Court of Criminal Appeals ruling on Wednesday reinstated McDonald’s decision to throw out the charge.

Justice Peter Kelly, a Democrat, joined Chief Justice Sherry Radack, a Republican, in the First Court of Appeals ruling in 2020 that would have allowed the first charge against Stephens to go to trial. Democratic Justice Gordon Goodman dissented.

The Court of Criminal Appeals based much of Wednesday’s ruling on the rationale that each branch of government — legislative, executive, and judicial — should stay strictly in its own lane. The court reasoned that the attorney general is an executive officer, while district and county attorneys are part of the judicial branch.

Unlike the U.S. Constitution, the Texas Constitution contains a provision that explicitly requires each branch of government to avoid encroaching on the duties of another branch.

However, Yeary contended in his dissent, among other arguments, that the Texas Constitution contains language explicitly allowing the legislature to delegate responsibilities to the attorney general in addition to his constitutional role.

Correction: A previous version of this article misstated Justice Goodman’s first name.


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Hayden Sparks

Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden's favorite quotes is by Sam Houston: "Texas has yet to learn submission to any oppression, come from what source it may."