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Court affirms Texas AG needs permission of local prosecutors to go after election fraud

Attorney General Ken Paxton, a staunch defender of Donald Trump and his baseless claims of fraud in the 2020 election, called the court’s denial of his request to reconsider a prior decision “shameful.”

AUSTIN, Texas (CN) — The highest criminal appeals court in Texas denied a request Wednesday from the state’s Republican attorney general to reconsider a past finding he lacks the authority to prosecute election code violations. 

The Texas Court of Criminal Appeals did not provide a majority opinion denying the attorney general’s motion for rehearing, but Judge Scott Walker said in a concurring opinion that there would have been a negative impact on the fairness of elections if the court ruled in Ken Paxton’s favor.

“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 wrote.

Paxton took to Twitter to voice his displeasure with the court’s decision, calling it "shameful," and said state lawmakers should bestow him with the power he seeks.

“The timing is no accident—this is devastating for the integrity of our upcoming elections. Time for [the Texas Legislature] to right this wrong,” he tweeted.

In December of last year, the appeals court handed down its initial ruling finding that Paxton may not prosecute election fraud cases unless a county or district attorney permits him to do so. 

The underlying case that led to the determination was spurred when Paxton obtained a grand jury felony indictment for Jefferson Country Sheriff Zena Stephens, the state’s first Black female sheriff. Paxton attempted to prosecute Stephens for allegedly tampering with government records and accepting a cash campaign contribution of over $100. 

Ruling 8-1, the all-Republican court held that the Texas Legislature had unconstitutionally granted the attorney general the authority to prosecute such cases. Now, 10 months later, the court stands by its decision with seven of the nine judges ruling to deny Paxton's motion for rehearing and two judges dissenting. 

Walker explained in his concurring opinion that allowing the attorney general to wield such power would tip the balance of the separation of powers in the state.

“In Texas the prosecutors—the district and county attorneys—are instead part of the judicial branch, meaning the power to prosecute criminal cases belongs to the judicial branch,” the judge wrote. “The Texas Attorney General is part of the executive branch, and his primary duties are to ‘render legal advice in opinions to various political agencies and to represent the State in civil litigation.’”

Paxton has and continues to argue that he should be granted power to prosecute alleged election law violations that local prosecutors refuse to. The conservative firebrand found some support from Judge Michelle Slaughter. 

Slaughter, who sided with the majority last December, dissented this time over the denial for rehearing. She believes that the Texas Election Code could be “narrowly construed” to conclude that it is constitutional for the attorney general to prosecute election cases that local prosecutors refuse to.

“My suggested interpretation of [the election code]... adheres to the original intent of the [Texas] Constitution while also upholding the facial constitutionality of the statute in a way that does not interfere with, frustrate, or defeat the DAs’ ability to fulfill their constitutional duty,” she wrote.

Walker addressed Slaughter’s interpretation directly in his opinion and wrote plainly that if the people of Texas wish to see the attorney general be granted specific powers, then the best remedy would be an amendment to the state constitution.

Paxton has not only set his sights on prosecuting election crimes but has shown interest in going after people who violate the state's bans on abortion.

Liberal district attorneys in Texas have pledged not to enforce the state’s bans on the procedure, leading Republican lawmakers and anti-abortion activists to propose legislation that would allow the attorney general to pursue criminal charges against violators.

In an advisory opinion released after the U.S. Supreme Court's decision in Dobbs v. Jackson Whole Women's Health Organization overturning the federal right to abortion, Paxton announced that prosecutors may bring charges against anyone who violates a state law that predates the Supreme Court’s prior precedent in Roe v. Wade. That statute states that anyone who “furnishes” an abortion may be held criminally liable.

Texas abortion funds such as Fund Texas Choice, Lilith Fund and Jane’s Due Process have ceased offering financial aid and services to Texans seeking an abortion out of fears that they may be prosecuted under the state's pre-Roe laws. 

The groups filed a federal lawsuit arguing that the laws violate their First Amendment right to speech and association. During a preliminary injunction hearing Tuesday, Rosann Mariappuram, executive director of Jane’s Due Process, testified that the advisory and statements made by the attorney general had a direct impact on her organization's decision to cease providing funding and specific information about abortion care.

“We do not feel that it is safe for us to fund abortion in states where it is legal due to confusion over the law,” said Mariappuram.

During the hearing, attorneys representing the state argued that Paxton does not have the authority to prosecute abortion crimes and therefore the abortion funds fears are “self-imposed.” 

Paxton was supposed to appear before U.S. District Court Judge Robert Pitman on Tuesday to testify as to whether he intends on prosecuting the groups. However, he avoided being served a subpoena on Monday by fleeing from his home in McKinney, Texas. According to an affidavit, Paxton fled his home in a truck driven by his wife, state Senator Angela Paxton. 

On Twitter, the attorney general claimed that he left his home out of security concerns and that the process server “accosted” Paxton and “was neither honest nor upfront about his intentions.” 

Judge Pitman is in the process of considering the injunction to restrain the attorney general from bringing criminal charges against the abortion funds and is expected to release his ruling in the coming weeks.

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