Texas Election Code 273.021 delegated to the attorney general the power to bring charges against those accused of violations of election law. With only one judge dissenting, the court decided in December that the statute is invalid because it violates the separation of powers.
The court, which is made up entirely of Republican judges, opined that the Texas Constitution does not give the Legislature the authority to transfer the power to prosecute criminal offenses to the attorney general, which in Texas is a position in the executive branch of government. The court reasoned that this authority belongs to district and county attorneys, which are positions in the judicial branch.
The decision resulted from a 2018 case in which Paxton charged Jefferson County Sheriff Zena Stephens, a Democrat, with tampering with a government record and accepting illegal campaign contributions.
In January, Paxton filed a motion asking the court to rehear the case. In fact, more than a dozen Republican state senators led by Sen. Paul Bettencourt (R-Houston) filed a brief backing Paxton and urging the court to reconsider.
After the court denied a rehearing on Wednesday, Paxton lashed out at the judges in a social media post.
“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. The timing is no accident — this is devastating for the integrity of our upcoming elections. Time for [the Texas Legislature] to right this wrong,” Paxton tweeted.
In a concurring opinion issued on Wednesday, Judge Scott Walker highlighted the fact that power could soon change hands at the attorney general’s office and the court “would be giving every future Attorney General the power to bring possibly fabricated criminal charges against every candidate running for public office in the State of Texas who disagrees with the Attorney General’s political ideals.”
Walker pointed to the political nature of Paxton’s office.
“While some individuals are likely to favor that kind of power when wielded by one who agrees with their political views, would these same people want an individual they disagree with to be able to use this power to prosecute for purely political reasons?” Walked asked. “I, for one, do not think so, and I thank God for the Separation of Powers Doctrine.”
Judges Michelle Slaughter and Kevin Yeary issued dissenting opinions. While Slaughter was one of the judges who joined the majority in striking down the statute, she contended that there is historical context that could change the outcome.
“Despite the many misleading and false statements made in several of the briefs filed in this case, I do support a rehearing. To be clear, my position is not based on anything raised by the parties or amici but is instead based upon my own in-depth analysis of Texas history and the law,” Slaughter wrote.
“Upon further consideration of the issues, I believe there may be a plausible way to construe Election Code Section 273.021 in a very narrow manner to find it constitutional in some circumstances, thereby foreclosing a facial challenge.”
Criticizing Paxton and others who fought for the rehearing, Slaughter also expressed displeasure that many uninvolved parties had sought to influence the outcome of the case.
“The AG and amici, through briefs and by other actions, have spurred hundreds, if not thousands, of individuals from across this state and other states to engage in attempts at impermissible ex parte communications with the Court,” she wrote.
“These parties ask (and in several cases demand), in the name of public policy, that we violate our oath to uphold and defend our Texas Constitution. But bowing to current public clamor and overruling the will of the people expressed in the Constitution is the antithesis of our job.”
Yeary, who was the only judge to disagree with the court’s decision in December, argued that the court’s position on the constitutionality of the law was wrong and that it was also incorrect in throwing out the indictment against Stephens.
Paxton is facing two opponents in the general election, Democrat Rochelle Garza and Libertarian Mark Ash. In a recent poll of likely voters sponsored by the Texas Hispanic Policy Foundation and several media outlets, Paxton received the support of 47 percent of those surveyed while Garza was favored by 42 percent. Ash received 3 percent and 8 percent said they were undecided. The survey had a margin of error of 2.9 percent. Election Day is Tuesday, November 8.
The Court of Criminal Appeals is the court of last resort for matters concerning criminal law in Texas. The Texas Supreme Court handles civil appeals and juvenile delinquency cases. Judges on the Court of Criminal Appeals and justices on the Supreme Court are elected statewide.
A copy of Judge Walker’s concurring opinion can be found below.
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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."