Senators Say No Separation of Powers Problem With AG Election Fraud Prosecutions - Texas Scorecard

A group of Texas’ Republican state senators, along with Lt. Gov. Dan Patrick, are joining a chorus of state leaders including Attorney Gen. Ken Paxton and the Republican Party of Texas in calling for the state’s highest criminal court to rehear a key case.

In an 8-1 decision in December, the Texas Court of Criminal Appeals said that a state law granting the attorney general the power to prosecute election fraud cases is unconstitutional. The court reasoned that because the AG is in the executive branch and local prosecutors—who ordinarily prosecute criminal cases—are in the judicial branch—it violated the separation of powers to allow the AG to prosecute cases as well.

The practical effects of gutting the AG’s authority to prosecute election fraud could be disastrous. “Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas,” said Paxton.

In their amicus brief, the senators argue that the court misinterpreted Texas’ constitutional structure.

“The [Texas] Supreme Court defined judicial power as the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision. This is not the role of a district attorney,” said the senators, citing Morrow v. Corbin, a 1933 decision.

They further point to Holmes v. Morales from 1996, in which the Texas Supreme Court held that “the district attorney’s office is not included in the meaning of ‘judiciary’ because the Texas Constitution invests no judicial power in that office.”

Fourteen of Texas’ 18 Republican state senators joined the brief. Only State Sens. Robert Nichols, Kelly Hancock, Joan Huffman, and Kel Seliger did not join in calling for the court to review its decision.

The senators are asking the court to reopen the case and grant a rehearing on the important constitutional issues involved.