A ruling from the Texas Court of Criminal Appeals on Wednesday took the power to prosecute election fraud out of the state attorney general’s hands, holding that under the Texas Constitution, district and county attorneys have exclusive authority to prosecute criminal cases.

The case arose after Attorney General Ken Paxton attempted to prosecute Zena Stephens, the sheriff of Jefferson County in southeast Texas, accusing her of campaign-finance violations. Paxton initiated the prosecution after local prosecutors turned down the case. Among other violations, Stephens was accused of accepting cash contributions in excess of $100, which is prohibited under the Election Code. Stephens appealed the indictment, arguing the AG lacked the constitutional authority to prosecute criminal cases.

In an 8-1 decision, 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 the AG is not given the express authority to do so by the Texas Constitution.

“The Texas Constitution contains [an] explicit separation of powers provision unlike the federal Constitution,” wrote Judge Jesse McClure on behalf of the court. “We have previously held that this textual difference between the United States and Texas constitutions suggests that Texas would ‘more aggressively enforce separation of powers between its governmental branches than would the federal government.’”

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 Paxton condemned the impact the decision could have on his ability to prosecute election-related fraud.

“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,” said Paxton after the decision. “This ruling could be devastating for future elections in Texas.”

The attorney general’s lack of prosecutorial authority could be remedied by the state Legislature, if they were to pass a constitutional amendment giving him the power to prosecute criminal cases. A constitutional amendment would need to be passed by two-thirds of both the House and Senate before being finally approved by voters.

As the Legislature is currently out of session, only Gov. Greg Abbott can call them back for a special session on items of his choosing.

Brandon Waltens

Brandon serves as the Managing Editor for Texas Scorecard. After managing successful campaigns for top conservative legislators and serving as a Chief of Staff in the Texas Capitol, Brandon moved outside the dome in order to shine a spotlight on conservative victories and establishment corruption in Austin. @bwaltens

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