A recent decision by the Texas Court of Criminal Appeals that took the power to prosecute election fraud out of the state attorney general’s hands has become a major issue in the Republican primary election for one of the court’s seats.
In an 8-1 decision in December, the Court of Criminal Appeals—Texas’ highest court on criminal matters—said that a state law granting the attorney general the power to unilaterally prosecute election cases is unconstitutional, as they argued the attorney general is not given the express authority to do so by the Texas Constitution.
Under the Texas Constitution, criminal prosecution is specifically assigned to local district and county attorneys. The attorney general had argued that a provision in the Constitution granting him the authority to “perform such other duties as may be required by law” allowed him to exercise prosecutorial authority granted by statute. The Court of Criminal Appeals disagreed, holding that clause did not “expressly permit” the statutory grant of power and, therefore, the separation of powers provision of the Constitution prohibited it.
Attorney General Ken Paxton vocally disagreed with the ruling, saying, “Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas.” He later asked the court to reconsider the decision. The Republican Party of Texas, Lt. Gov. Dan Patrick, and the majority of Republican senators joined the calls for rehear the case, though no such decision has been made.
Of the court’s nine judges, three are up for re-election this cycle. Of those three, only Judge Scott Walker has an opponent in the Republican primary. Walker was among the eight judges that voted with the majority.
With the decision stripping the AG’s ability to prosecute election fraud coming just after the filing deadline, the issue has now become a major factor in the campaign against Walker, with numerous conservative organizations rallying to support his opponent Clint Morgan.
Morgan acknowledges the momentum the decision has brought to the campaign.
“A lot of Republicans tell me they’re upset about the opinion, and with Judge Walker for joining it,” Morgan told Texas Scorecard. “The result makes it harder to prosecute election fraud. The opinions are public. Voters can read the majority and the dissent. If voters think the dissent is right, and election integrity is an important issue to them, the Texas Constitution gives voters the power to weigh in by voting against any judge they think is making bad decisions.”
In the case of State Sen. Paul Bettencourt (R–Houston), who led an amicus brief filed by 14 state senators asking the court to rehear the case, the primary election is an opportunity to send a strong message.
“Most people don’t know anything about the Court of Criminal Appeals and their tremendously impactful decision taking away prosecutorial ability from the Attorney General’s Office statewide,” Bettencourt told Texas Scorecard. “Therefore, I felt like it’s important—not only to lead on an amicus brief and to try to get them to reconsider their decision—but in Clint Morgan’s case, also lead on trying to get a good conservative judge elected to that body.”
Walker did not respond to a request for comment on the issue.
Early voting continues through February 25. Election Day is March 1.