Texas Senate once again tries to give the attorney general authority to prosecute election crimes

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The Texas Senate voted 17-12 Wednesday to preliminarily approve a bill that would allow the attorney general to independently prosecute election crimes without waiting to be invited by a local district attorney, a long-standing priority for the office’s GOP incumbent, Ken Paxton.

A similar proposal stalled out just before the finish line during the regular session, with the House and Senate unable to agree on how quickly the attorney general should be allowed to take the case from local authorities.

This time around, both chambers are starting from the same spot on that issue, directing the attorney general to immediately step in and take over election fraud cases.

But a potential new line of disagreement has opened. In setting the agenda for the Legislature’s ongoing special session, Gov. Greg Abbott asked lawmakers to grant this authority to the attorney general with a constitutional amendment, after Texas’ highest criminal court ruled in 2021 that the state constitution bars the agency from unilaterally inserting itself into criminal cases.

A constitutional amendment requires a two-thirds vote from both chambers — including 12 House Democrats — and final signoff from voters to take effect.

In the House, Plano GOP Rep. Matt Shaheen took up that call, filing a joint resolution to accompany his bill. Sen. Bryan Hughes, the Mineola Republican carrying the Senate version of the bill, said during a hearing he does not believe a constitutional amendment is necessary.

Sen. Nathan Johnson, a Dallas Democrat who is running for attorney general, tried to get Hughes’ bill thrown out Wednesday on the grounds that it did not comply with the governor’s call. Johnson’s point of order was overruled by the Senate parliamentarian.

Hughes said the Legislature might eventually end up passing a constitutional amendment, but he believed his proposal was “a clean way to get this done.”

Abbott, a Republican who previously served on the Texas Supreme Court, did not respond to an inquiry about whether he would sign a bill if it were not a constitutional amendment.

In its 2021 ruling, the Court of Criminal Appeals found that the separation of powers clause of the Texas Constitution only allows the attorney general to step into a criminal prosecution — election-related or otherwise — at the invitation of the local district or county attorney.

Paxton and his political allies say the attorney general’s office should have the power to investigate and prosecute allegations of voter fraud because district attorneys in the state’s largest and bluest counties won’t properly pursue such cases. After the ruling, which was reaffirmed in 2022, Paxton called on the Legislature to “right this wrong,” arguing cases of fraud would otherwise go unpunished.

Evidence of widespread voter fraud is scant. While Paxton’s office has opened more than 300 investigations of suspected crimes by voters and election officials, they have successfully convicted only a handful. Voting rights experts say these investigations often ensnare people who made honest mistakes, rather than legitimate schemes to undermine Texas elections.

“We sure don’t want to intimidate voters,” Hughes said on the Senate floor Wednesday. “We want to intimidate cheaters.”

At a Senate State Affairs committee hearing last week, Sen. Bob Hall, an Edgewood Republican, asked Hughes if a constitutional amendment was necessary to avoid another court decision striking down the measure as unconstitutional.

Hughes pointed to a state statute that says the attorney general “shall perform other duties as may be required by law,” arguing his proposal would pass constitutional muster because it adds to those duties by mandating that the attorney general “shall” prosecute election fraud, rather than making it optional as in the law that was struck down in 2021.

“We hope that gives the Court of Criminal Appeals sufficient legal basis to see the constitutionality” of the new law, Hughes said.

Andrew Hendrickson, with the ACLU of Texas, said at the hearing he was skeptical that this would successfully sidestep the need for a constitutional amendment. While the court’s ruling is often understood to limit what the attorney general can do, it technically took aim at the Legislature for telling the attorney general he could prosecute election crimes in violation of the separation of power protections, Hendrickson said.

“It was the Legislature, by assigning a power that the constitution assigned to another branch of government without amending the constitution first, that creates the problem,” he said.

But the makeup of the Court of Criminal Appeals has changed significantly since those rulings in 2021 and 2022, after Paxton vowed political retribution against the judges who found against him. Last year, he helped unseat three longtime incumbents; two more have already said they won’t run for reelection in 2026.

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