Thursday, January 26, 2023 | Back issues
Courthouse News Service Courthouse News Service

Texas attorney general fights to regain power to prosecute election fraud

After being stripped of his ability to go after violators of election law without the blessing of local prosecutors, Texas Attorney General Ken Paxton is asking the state’s highest criminal appeals court to reconsider its decision.

AUSTIN, Texas (CN) — Republican Texas Attorney General Ken Paxton is asking for a rehearing from the state’s highest criminal appeals court after it ruled last month to strip him of his ability to prosecute election law violations. 

Paxton said in a statement that the court’s decision will empower campaigns to silence voters.

“This decision is not only wrong on legal grounds, but it has the effect of giving district and county attorneys virtually unlimited discretion to not bring election law prosecutions,” he said Monday.

On Dec. 15, the Texas Court of Criminal Appeals issued a 22-page ruling overturning a 1985 law that delegated prosecutorial powers to the attorney general’s office concerning election law violations. The Republican-controlled court ruled 8-1 that the law is unconstitutional because it improperly delegates powers typically reserved for local district and county attorneys. 

Writing for the court’s majority, Judge Jesse McClure specified that the law in question clearly violates the explicit separation of powers outlined in the Texas Constitution.  

“The attorney general lacks constitutional authority to independently prosecute a crime in a district or inferior court without the consent of the appropriate local county or district attorney by a deputization order,” wrote McClure. 

Under the court’s ruling, Paxton may only assist local officials prosecuting election fraud or campaign infractions if the local authority initially requests assistance. 

Paxton took to Twitter to voice his disdain for the court's decision the day it was issued.

"Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas," he tweeted, referring to progressive billionaire philanthropist George Soros. "This ruling could be devastating for future elections in Texas."

The attorney general filed a motion for rehearing that was processed by the court late Monday, arguing its ruling infringes on the Texas Legislature’s authority to delegate prosecutorial powers. Citing the Texas Constitution, Paxton argues state lawmakers have the ability to grant him authority "to perform whatever duties the Legislature sees fit."

Paxton also stressed that the Legislature can and should be trusted to delegate additional powers to the office of attorney general.

“The framers of the Texas Constitution trusted the Legislature to make those judgment calls with respect to all offices in which the Legislature may assign other ‘duties,’” the motion states. “This court should, too.”

The underlying case that led to the appeals court stripping Paxton of his ability to go after election fraud involves the state’s first Black female sheriff.

While conducting a separate investigation, the FBI discovered that Jefferson County Sheriff Zena Collins Stephens had made possible campaign finance violations. After an investigation from the Texas Rangers concluded, the evidence was presented to the Jefferson County District Attorney, who declined to prosecute Stephens but referred the case to Paxton's office.

The attorney general presented the case to a grand jury and Stephens was indicted on three counts, including felony government records tampering and two misdemeanor counts of accepting cash campaign contributions of more than $100.

Stephens argued in a pretrial habeas corpus petition that the law giving the attorney general authority to prosecute violations of state election law was unconstitutional. The trial court ruled against her and an intermediate appellate court affirmed. Finally, the sheriff appealed to the state’s highest criminal appeals court, which handed down the ruling dismissing her indictment that Paxton is now challenging.

In his motion for rehearing, Paxton is asking the court to vacate its Dec. 15 ruling and affirm the Texas First Court of Appeals' denial of Stephens' petition for a writ of habeas corpus.  

Paxton has made going after election fraud a key part of his job and campaign for a third term as attorney general of the nation's second-largest state. He formed an election integrity initiative within his office and has acted as a fierce defender of Texas' recently enacted voting restrictions.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...