The Criminal Court of Appeals has remanded the Attorney General’s indictment of a Jefferson County sheriff accused of pilfering campaign contributions.
“Because Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, we conclude that the statute is unconstitutional,” wrote Judge Jesse McClure in the December 15 opinion. “Therefore, we reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.”
After being elected in 2016, Zena Collins Stephens was indicted by a grand jury for allegedly tampering with a government record and accepting a cash contribution, according to media reports.
However, because it was the Office of Texas Attorney General Ken Paxton that presented the case, the indictment came under discretionary review.
“Nothing in Texas Election Code section 273.021 requires the Attorney General to initiate prosecution for an election code violation,” McClure stated in the landmark opinion. “A plain reading of the statute reveals that the Legislature drafted the statute using the words “may prosecute” and “may appear.” Under the ordinary meaning of words, ‘may’ is permissive while ‘shall’ is mandatory.”
In an 8-1 vote, the Criminal Court of Appeals ruled that neither Paxton nor any future Texas Attorney General can independently prosecute election law cases.
“This case establishes that the Texas Attorney General’s duties and responsibilities are confined to wording in the Texas Constitution,” said Dallas District Attorney John Creuzot. “He does not have the authority to exercise prosecutorial discretion, absent a request from a local prosecutor. No person, regardless of color, ethnicity or political affiliation, can be targeted by the Attorney General.”
Creuzot was one of seven Texas district attorneys who submitted an amicus brief supporting Sheriff Stephens to the Criminal Court of Appeals.
“It is my understanding that a motion for rehearing has been requested by the Attorney General,” he said. “As such, the case is technically not final. On the other hand, I understand the vote was 8-1. It is unlikely that the court would rehear the case.”
Stephens is the first African American woman ever elected as a sheriff in Texas.
“The opinion clarifies what the constitutional role is of the Attorney General to bring any criminal charge against a person,” Creuzot told The Dallas Express. “What will change now as a result of this opinion is that the Attorney General will stay in his lane as prescribed by the Texas Constitution. If the numbers are correct as to the race of those prosecuted, people of color will not be targeted by the Attorney General.”
Since 2015, the ACLU of Texas alleges that some 72% of the state’s Election Integrity Unit prosecutions were against Black and Hispanic people. At least 45% of all Election Integrity Unit prosecutions appear to have been brought against women of color, according to a press release.
“Those cases should be dismissed because the Attorney General exceeded his constitutional authority when he initiated prosecution,” Creuzot added.