Texas appeals court throws out indictment of groundbreaking Black sheriff

AUSTIN, Texas (CN) — The Texas Court of Criminal Appeals ordered dismissal Wednesday of a campaign finance and records tampering indictment spearheaded by Texas Attorney General Ken Paxton against the state’s first Black female sheriff.

Following her historic election in November 2016, Jefferson County Sheriff Zena Stephens was indicted in April 2018 by a grand jury on charges of felony government records tampering and two misdemeanor counts of accepting cash campaign contributions of more than $100.

Texas Attorney General Ken Paxton’s office had convened the grand jury after the FBI’s investigation of a Beaumont used car salesman revealed Stephens had accepted campaign donations of $1,000 and $5,000 from him in 2016, and the FBI referred the matter to the Texas Rangers.

While Texas law allowed the unusual choice of venue – though Stephens' alleged crime occurred in Jefferson County, she was indicted in neighboring Chambers County – the Texas Court of Criminal Appeals ruled Wednesday the prosecution had violated the separation of powers clause in the state constitution.

In an 8-1 ruling, the court determined the Legislature had unconstitutionally granted the attorney general independent authority to prosecute election law offenses in the Texas Election Code.

“The attorney general can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally,” Judge Jesse McClure wrote for the majority in a 22-page order.

McClure agreed with Stephens that because county and district attorneys are in the judicial branch, and the attorney general is in the executive branch, allowing Paxton to independently prosecute penal and election code violations interferes with the judicial branch.

The judge noted the Texas Constitution, ratified in 1876, specifically lays out the attorney general’s duties. It states the attorney general shall represent the state in civil litigation against private corporations, give legal advice in writing to the governor and other executive officers and “perform such other duties as may be required by law.”

An intermediate appellate court that upheld Stephens’ indictment misinterpreted the “other duties” clause as giving Paxton and his staff attorneys authority to prosecute election law cases without a deputization order or a request for assistance from local prosecutors, McClure wrote.

McClure found such an interpretation would lead to the absurd result that the Legislature could grant the Texas Water Development Board prosecutorial power, as the state constitution also permits the Legislature to assign the board “other duties.”

The Texas Court of Criminal Appeals reversed the decision of the intermediate court and remanded the case to the trial court to dismiss Stephens’ indictment.

Despite her legal troubles, Stephens was reelected in November 2020.

Her attorney, Russell Wilson II of Dallas, said she is elated by the court’s decision.

“She loves her job and the voters who reelected her also love her,” Wilson said in a phone call. “No one wants to have this cloud over their head. But she’ll get back to policing and law enforcement in Jefferson County, the same way she’s been able to do throughout this whole proceeding.”

Wilson believes Paxton knew from the beginning the case was a “huge overreach” and he did not have authority to prosecute Stephens.

“It was an unprecedented move to attempt to indict Ms. Stephens for a third-degree felony on amended campaign finance reports, which mind you generally would have fallen to the jurisdiction of the [Texas] Ethics Commission at best,” Wilson continued, noting Stephens’ felony charge carried a maximum sentence of 10 years in prison.

“Hats off to the court of criminal appeals for following Texas constitutional law,” he added. “It’s a victory for not only Zena Stephens but for all elected officials in the state of Texas. And a reminder that the language of the Texas Constitution must be followed even by the attorney general.”

Paxton blasted the ruling in a tweet referencing billionaire hedge fund manager George Soros, who in recent years has made large campaign contributions to district attorney candidates who support sweeping criminal justice system reforms.

"Now, thanks to the Texas Criminal Court of Appeals, Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas. This ruling could be devastating for future elections in Texas," the Republican attorney general tweeted.

In dissent, Judge Kevin Yeary wrote he disagrees with the majority that the statute at issue trampled on the separation of powers doctrine in the state constitution by giving the attorney general free rein to prosecute election law offenses.

“That the Legislature has generally authorized the AG to participate in criminal prosecutions, but only upon request, does not preclude it from otherwise explicitly authorizing more direct and specific AG exercises of prosecutorial power,” he wrote in an 18-page opinion.

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