The irony of Mr. Cheshire’s opinion is that if he got his way and the Court of Criminal Appeals incumbents were ousted, it would incentivize all incumbent judges to become activists — in other words, reactive to changes in public opinion on questions of policy, and fearful of backlash every time they hand down an opinion.
The current Court of Criminal Appeals judges are far from activist. Maintaining the constitutional separation of powers that has existed in Texas since 1836 is not judicial activism. Neither is deferring to the voters to make changes to our Constitution, rather than declaring the changes the court wishes to see.
The Texas attorney general is no the state’s chief law enforcement officer and never has been. Under Article 4, section 1, of the Texas Constitution, the attorney general’s authority is civil, not criminal. He is a member of the Executive branch of our government. His duties, as set forth in Article 4, section 22, are to “represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party … and give legal advice in writing to the Governor and other executive officers, when requested by them.” He has other powers related to regulation of private corporations and is required to “perform such other duties as may be required by law.”
No Texas Constitution since we separated from Mexico in 1836 has given the attorney general criminal law authority. Instead, the authority to prosecute crimes is given by the Constitution to district and county attorneys, who are officers serving in the Judicial branch of government, not the Executive branch.
Article 2, section 1, of the Texas Constitution provides “[t]he powers of the Government of State of Texas shall be divided into three distinct departments” — Legislative, Executive and Judicial. “[N]o person or collection of persons, being one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” The Constitution does not “expressly permit” the attorney general, who resides in the executive branch, to exercise powers attributed to the judicial branch of the government. Therefore, as the Court of Criminal Appeals properly concluded, it is a violation of the Constitution for the Legislature to attempt to give the attorney general the power to prosecute crimes.
The court’s decision is supported by 160 years of precedent, as outlined on a document accompanying this letter.
If the Legislature decides the Texas attorney general should have authority to prosecute crimes, it can pass a resolution proposing a constitutional amendment. If the voters agree, they can adopt the amendment.
There is nothing activist about a court applying the plain words of the Constitution, following 160 years of precedent, and leaving constitutional amendments to the people.