The state’s highest criminal appellate court on Wednesday reaffirmed a previous ruling that found Attorney General Ken Paxton does not have unilateral authority to prosecute election crimes.
The Court of Criminal Appeals, composed of nine Republicans elected statewide, voted 7-2 that the attorney general must get permission from local county prosecutors to pursue cases on issues like voter fraud.
This week’s ruling affirms an 8-1 ruling by the same court in December, striking down a law that previously allowed Paxton’s office to take on those cases without local consent. The court ruled the law violated the separation-of-powers clause in the Texas Constitution.
Paxton had been fighting to overturn the December judgment, urging supporters to flood the court with phone calls and emails demanding a new decision.
Still, the court held firm in ruling that the attorney general can only get involved in criminal cases when invited by a local prosecutor.
The court’s decision Wednesday came with no additional explanation, though one judge wrote a concurring opinion.
“I still agree with our original decision handed down in December, when we recognized that the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings — even in cases involving alleged violations of the Election Code,” Judge Scott Walker wrote.
Walker wrote that the only potential remedy for expanding the attorney general’s prosecutorial powers is a “constitutional amendment — something the legislature could propose and the citizens could vote to ratify.”
“The remedy is not for the courts to water down the Texas Constitution from the bench. To do so would be a violation of our judicial oath,” wrote Walker.
In a tweet Wednesday, Paxton agreed with Walker that it is up to the Texas Legislature must “right this wrong” but called the decision “shameful.”
“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,” Paxton said. “The timing is no accident — this is devastating for the integrity of our upcoming elections.”
The Texas Public Policy Foundation (TPPF), an Austin-based conservative think tank, proposed two possible legislative reforms in the aftermath of the ruling.
One of the group’s recommendations is to establish an “Office of Election Integrity” to investigate election fraud and report its findings to the Legislature. The other suggestion is to create new regional districts with district attorneys and judges specifically assigned to handle election cases.
“The ability of our state’s election system to efficiently collect and accurately count every legal vote should never be in question. However, today that is unfortunately the case,” said TPPF CEO Greg Sindelar.
“If the courts won’t protect our elections by faithfully interpreting our state Constitution, then the Legislature must step in to clarify the rules, implement better checks and balances, and dedicate a standalone capability to investigate election fraud and ensure our system protects every vote.”
Judge Michelle Slaughter and Kevin Yeary filed dissenting opinions.
In Slaughter’s dissent, the judge argues if local district attorneys are not prosecuting election law, they would not be fulfilling their legal duty, and 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.
On the other side, Texas House Democratic Caucus Chair and state Rep. Chris Turner of Arlington applauded the court’s decision.
“This court ruling upholds the integrity of our state’s judicial system,” Turner said. “With this ruling, Ken Paxton cannot target Texans to further his political games. Instead, duly-elected district and county attorneys will remain in charge of prosecutions in their districts without partisan meddling from the attorney general.”
Turner also highlighted the ruling’s potential implications beyond voting. The court’s decision stands to make it more difficult in the next legislative session to expand Paxton’s office’s power to prosecute abortion providers in counties where district attorneys have vowed, they will not bring charges.
“Most importantly, 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. “This ruling is a win for law and order, and for the people of Texas.”
