Texas attorney general cannot unilaterally prosecute election cases, state's highest criminal court rules

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Texas’ highest court for criminal cases on Wednesday struck down a law that allows the attorney general to unilaterally prosecute election cases.

The state’s Court of Criminal Appeals issued an 8-1 opinion saying a provision of the law violates the separation of powers clause in the Texas Constitution, representing an intrusion by the executive branch into the judicial branch. The attorney general can only get involved in a case when asked to by a district or county attorney, the court said.

Attorney General Ken Paxton, a Republican who has been aggressive in trying to root out voter fraud, bashed the opinion from the all-GOP court. He said in a tweet that the ruling “could be devastating for future elections in Texas.”

At stake was a part of the election code that says the attorney general, the state’s top law enforcement officer, “may prosecute a criminal offense prescribed by the election laws of this state.”

The provision was thrown into jeopardy by a long-winding case involving Jefferson County Sheriff Zena Stephens. After the county district attorney declined to prosecute Stephens over campaign-finance allegations stemming from the 2016 election, Paxton's office stepped in and obtained an indictment from a grand jury in neighboring Chambers County.

In its opinion, the Court of Criminal Appeals overturned a lower-court ruling that said the election code provision “clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally whether those laws are inside or outside the Code.”

Rather, the Court of Criminal Appeals said, “the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally.”

In his tweet, Paxton said the ruling means “Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas.” That is a reference to George Soros, the Democratic megadonor who has become a force in local prosecutor elections.

Harris County Attorney Christian Menefee cheered the ruling. Harris County, the largest in Texas, was the epicenter of election-related litigation in the lead-up to the 2020 election in Texas.

“This is a big win for local government and Texans who are tired of state officials exaggerating voter fraud claims to undermine elections,” Menefee tweeted.

Reacting to the ruling, a Republican state representative, Briscoe Cain, said he would file a bill the next time the Legislature convenes that would let prosecutors in neighboring counties go after election cases.

"If the attorney general can’t, and a county won’t, then prosecutors from an adjacent county should be able to do it," the Deer Park lawmaker tweeted.