The Republican majority Court of Criminal Appeals (CCA) in Texas issued a stunning decision in December that strikes down Chapter 273 of the election code in a 1951 statute. Section 273.021 allows the state's Attorney General to unilaterally prosecute election cases. The powerful Court disagrees.
Attorney General Ken Paxton has asked for a motion to rehear the case but says the Court can summarily dismiss it if they so decide. The Court is the most powerful in the state in criminal matters because of its bifurcated appellate court system.
The statute has been on the books for decades and is one of the reasons elections are so secure in the state. Subchapter B, section 273.021, states the following, captured below in a screenshot. It states that the Attorney General is authorized to "prosecute a criminal offense prescribed by the election laws of this state."
Election Code/Section 273.021
The court ruling references the three-year-old case involving Jefferson County Sheriff Zena Stephens and two of her opponents who were charged with campaign finance violations during the 2016 election. The Texas Tribune reports:
"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."
The Court of Criminal Appeals overturned a lower court ruling giving the Attorney General the ability to prosecute "criminal laws prescribed by election laws generally whether those laws are inside or outside the Code," wrote the Texas Tribune. However, the CCA ruled that the Attorney General must seek "the consent of the appropriate local county or district attorney" and cannot seek prosecution unilaterally.
The Court also states that "Stephens was charged with tampering with a governmental record in violation of section 37.10 of the Texas Penal Code." The Court states that there is a statutory conflict "between a general provision and a specific provision" that obviates the ability of the AG to broadly prosecute just any case because "the specific provision prevails...the specific provision in Penal Code section 37.10(i) prevails over the general provision in Chapter 273 of the Election Code." The Court explains:
"With the consent of the appropriate local county or district attorney, the Attorney General has concurrent jurisdiction with the consenting local prosecutor to prosecute an offense under this section that involves the state Medicaid program." Tex. Penal Code § 37.10(i) (emphasis added)"
"The Legislature did not grant the authority of the Attorney General to prosecute just
any tampering offense, only a small class of cases involving the state Medicaid program. And even in that subset of cases, the consent (through a deputization order) of the local district or county attorney is required. The Court of appeals below overlooked this express limitation on the Attorney General's prosecutorial authority under section 37.10. By holding that Election Code section 273.021 authorized the Attorney General to prosecute campaign finance violations under Penal Code section 37.10, the Court of appeals created a conflict between the two statutes: it allowed the Attorney General to prosecute a class of tampering violations that the statute does not contemplate the Attorney General prosecuting."
Furthermore, the Court concluded that "[s]ince none of the Attorney General's enumerated duties concern criminal or electoral matters, Election Code section 273.021 is unconstitutional." Townhall.com makes some important observations on the ruling, reminding the Court that it is the attorney general who "defends the laws and the constitution of the state of Texas.":
"The Court says that because county and district attorneys are created under an article called "Judicial Department," their role in prosecuting crimes is a judicial rather than an executive function. At the same time, because the Attorney General is created under the 'Executive Department' article, he cannot prosecute crimes because that'd be 'judicial' and thus an impermissible encroachment on a 'judicial' function by an executive."
"The Attorney General of Texas is the chief lawyer and legal officer for the state of Texas. According to the Texas Constitution, the attorney general defends the laws and the constitution of the state of Texas, represents the state in litigation, and approves public bond issues."
The case wipes "a century of precedent," says Townhall, and "thwarts the will of the People of Texas as expressed through the Legislature," as written in Sec. 273.021.
What Is The Potential Impact Of This Decision?
First, it is important to note that there has been a Soros-run movement afoot across the nation, including in the state of Texas, to install and fund progressive county and district attorneys in blue cities. The Soros push to advance criminal justice reform has profoundly affected the rise in crime in major cities. A December 2021 report from the New York Post states:
"George Soros has quietly orchestrated the dark money political equivalent of 'shock and awe,' on local attorney races through the country, shattering records, flipping races and essentially making a mockery of our entire campaign finance system," said Tom Anderson, director of the Government Integrity Project at the National Legal and Policy Center in Virginia. (Calls to Soros' camp went unreturned on Thursday)."
"Between 2015 and 2019, Soros and his affiliated political action committees spent more than $17 million on local DA races in support of left-wing candidates, according to the Capital Research Center, a non-profit that tracks lobbying and charitable giving. That number is expected to top $20 million in the last two years, according to estimates from the NLPC."
Thus, the installment of these progressive DAs may dramatically affect whether violations of election law are actually prosecuted. As a side note, for example, the installment of progressive DAs has significantly affected the prosecution of crimes in California and New York, resulting in cities filled with lawlessness and crime from which citizens have no recourse.
Attorney General Paxton joined the War Room on Tuesday to comment on the impact of the ruling, saying it will ensure that everyone knows "there's no downside in cheating.":
"This is like a backdoor way of doing exactly what Joe Biden [is] trying to do with H.R.1. On December 15th, two days after the filing deadline for anybody to run against anybody on the Court of Appeals, they came out and struck down a statute from 1951 that tells the attorney general to prosecute voter fraud."
"These other counties like Travis which is in Austin, San Antonio, and Houston—they have very liberal DAs who have been funded by George Soros, so they're not going to prosecute fraud. That is the only alternative. So we'll have all of these counties where everybody will know there's no downside in cheating; there's no downside to illegals voting as they come across the border. We won't be able to stop it."
Paxton also states that, while he has requested a motion to rehear the case if the Court dismisses it, "they are like the Supreme Court for criminal matters [in Texas]. There's nowhere else to appeal it." Only one judge, Judge Kevin Yeary, opposed the ruling.
Court of Criminal Appeals, Texas/Judges
He said the decision completely caught "him and his staff by surprise." Paxton hopes Governor Abbott will submit an Amicus Brief.
Paxton says the state legislature should also act swiftly. He says there needs to be a
"special session of the legislature before the next election and I think to pass both civil and criminal statutes giving me the authority," says Paxton, "Giving the authority to individuals to go sue with large penalties anything related to voter fraud. And second, I'd have the legislature passing another criminal statute, maybe more strong than the one they even have, and make the Criminal Court appeals come back and strike it down again."
Paxton says this is the most important case he has ever litigated because the Court chose to "ignore this provision in the constitution" and overrule longstanding precedent. Paxton continued by saying, "The result is, by this November, if we don't get this changed, I think it's very likely we lose."
The full interview with Paxton can be viewed below, starting at about the two-minute mark: