AUSTIN — The state’s highest criminal court rejected a request Wednesday from Attorney General Ken Paxton to reconsider a “devastating” ruling that has hamstrung his office’s ability to investigate and prosecute election fraud.
The Texas Court of Criminal Appeals denial of Paxton’s motion for a rehearing of its December 2021 ruling could have far reaching consequences and possibly preclude the right-wing attorney general from investigating crimes related to abortion laws that liberal district attorneys refuse to prosecute, such as illegal abortions.
In December, the court handed down a ruling in a campaign finance case out of Jefferson County that undid a 1985 Texas law empowering his office to go after election fraud. At the time, Paxton said the ruling gave the sole power to prosecute election fraud to “Soros-funded district attorneys.”
On Wednesday, Paxton called the ruling “shameful.”
The court’s decision “means local DAs with radical liberal views have the sole power to prosecute election fraud in TX — which they will never do,” Paxton said on Twitter. “The timing is no accident — this is devastating for the integrity of our upcoming elections. Time for #txlege to right this wrong.”
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 #txlege to right this wrong. https://t.co/Hjtkn8SkNk— Attorney General Ken Paxton (@KenPaxtonTX) September 28, 2022
In a concurring opinion, Judge Scott Walker said granting the attorney general the power to unilaterally prosecute voter fraud violates the separation of powers outlined in the Texas Constitution and “usurps” the power of district and county attorneys.
“If we ruled that the legislature could give the Attorney General the unfettered power to prosecute all election cases, we 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 said in an opinion that quoted several of the founding fathers.
The ruling is consistent with what Texas courts have held for more than 50 years, said Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.
“All the attorney general has to do is get the local prosecutors’ consent to handle the matter, and then he’s good to go,” Edmonds said.
The decision has implications beyond voting. It also stands to derail efforts in the next legislative session to give Paxton’s office the power to prosecute abortion providers in counties where district attorneys have vowed they will not bring charges.
The Texas GOP has already begun fundraising on the ruling, sending out an email recognizing that next year’s Legislative session will be the first chance lawmakers will have to reverse the decision.
Such a move would now require an amendment to the state constitution, meaning two-thirds of the Legislature would need to sign off and a majority of Texas voters.
Grand Prairie Democratic Rep. Chris Turner, chair of the House Democratic Caucus, cheered the ruling.
“This means Paxton cannot go after women for seeking life-saving, reproductive health care or undermine our democracy by interfering in fair elections,” Turner said in a press release. “This ruling is a win for law and order, and for the people of Texas.”
Paxton has campaigned for months against the ruling, appearing on conservative media outlets to bash the court, which is made up of nine Republicans elected statewide. In the weeks following the ruling, judges were inundated with angry emails and phone calls.
“No one knows who they are,” he said during an interview with Steve Bannon last month at CPAC in Dallas. “If I asked any Republican out here, 99.9% couldn’t name one of them, which makes me very suspicious of the people that are on that court.”
Paxton then went on to suggest, without offering any evidence, that the billionaire philanthropist and Democratic donor George Soros “did this” and “without us knowing he had an impact on this court.”
A search of campaign finance reports found no donations from the Democratic mega-donor or any affiliated organizations to any of the nine judges on the all Republican court.
Walker, in his concurring opinion, acknowledged the unpopularity of the ruling among some conservatives.
“I am aware that some people feel strongly about this issue, including the current Attorney General’s supporters and other individuals throughout Texas,” Walker wrote in a section of his opinion that asked critics to consider what could happen when a new attorney general is seated in Austin.
“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?” Walker wrote.
Pressure on the court has also come from other Republican lawmakers. Lt. Gov. Dan Patrick and 14 Republican senators, including Paxton’s wife, Angela Paxton, filed briefs with the court supporting a reversal of the ruling. Other Republican leaders who submitted briefs included Matt Rinaldi, the chairman of the Republican Party of Texas, Congressman Louie Gohmert, Agriculture Commissioner Sid Miller and more than a dozen House Republicans.
Dallas County District Attorney John Creuzot along with district attorneys in Houston, San Antonio and Austin filed a brief supporting the court’s December ruling.
Judges Michelle Slaughter and Kevin Yeary filed dissenting opinions.
In Slaughter’s dissent, Slaughter said the numerous lawmakers’ and the attorney general’s challenges were “quite puzzling why the AG and various legislators argue in briefs to this Court against their own opinions and statutes.” She also chastised Paxton and those lawmakers for spurring the backlash from the public.
“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,” Slaughter’s dissent states. “But bowing to current public clamor and overruling the will of the people expressed in the Constitution is the antithesis of our job.”
But Slaughter’s dissent provides a roadmap to another possible challenge to their ruling.
She stated that any district attorney refusing to prosecute an election law violation has abandoned their duty and that in that absence, the attorney general could step in without violating the separation of powers.
“Therefore, in such narrow situations where the DA affirmatively or expressly chooses not to prosecute an ‘election law’ violation, it may be constitutionally permissible for the AG to do so under the statutory power assigned to him by the Legislature,” she wrote.
The 8-1 ruling from December relies on laws that date back to the Texas Constitution of 1876 and a post-Reconstruction provision intentionally limited the power of the attorney general.
The power to prosecute was given directly to local prosecutors, which in Texas are considered a part of the judicial branch of government, while the attorney general remains in the executive branch.
Because of this, Paxton’s office is only authorized to act in criminal cases when requested by a county prosecutor, the ruling states.
The ruling stems from a criminal campaign finance case against Jefferson County Sheriff Zena Stephens. During her 2016 run for sheriff, Stephens accepted donations from someone under investigation by the FBI for an unrelated matter.
The FBI turned over that information to the Texas Rangers, which conducted an investigation and found that Stephens accepted individual campaign contributions greater than $100, a violation of campaign finance law.
The Jefferson County District Attorney’s office declined to prosecute Stephens. However, Paxton took the Texas Rangers’ investigation to a grand jury, which indicted Stephens on three criminal counts.