Court rejects AG Ken Paxton's bid to continue prosecuting election crimes

Sticking by its earlier ruling despite a political pressure campaign by Texas Attorney General Ken Paxton, the state's highest criminal court affirmed Wednesday that Paxton's agency does not have the power to unilaterally investigate and prosecute election crimes.

The Texas Court of Criminal Appeals rejected Paxton's request to reverse its December ruling, which struck down a 1985 state law that gave the attorney general's office the authority to pursue criminal violations of the Election Code.

That law, the all-Republican court determined in last year's 8-1 ruling, violated the Texas Constitution's separation of powers doctrine by granting Paxton's executive branch office the prosecution authority that is reserved for district and county attorneys, who are members of the judicial branch.

Paxton's motion to reconsider that ruling picked up support from a second judge Wednesday, but it fell short of the five judges needed to reverse last year's decision.

Judge Kevin Yeary, who dissented from the original decision, again concluded that other provisions of the Texas Constitution allow the Legislature to determine which elected officials can prosecute election crimes.

Judge Michelle Slaughter, part of the original majority, filed a nuanced dissent that said the case should be reconsidered because a narrow reading of the Election Code could support the law's constitutionality. If local prosecutors decline to pursue election cases, there can be no improper interference between government branches if Paxton's agency steps in, she wrote.

But Slaughter also criticized Paxton and other unnamed individuals for enlisting members of the public in a pressure campaign aimed at the court's nine elected judges. The result, she wrote, prompted "hundreds, if not thousands, of individuals from across this state and other states to engage in attempts at impermissible" communication with the court.

"These parties ask (and in several cases demand), in the name of public policy, that we violate our oath to uphold and defend our Texas Constitution. But bowing to current public clamor and overruling the will of the people expressed in the Constitution is the antithesis of our job," Slaughter wrote.

The court did not explain its decision Wednesday, but Judge Scott Walker's concurring opinion said the separation of powers doctrine provides a crucial check on the power of the political branches of government.

Those who want the attorney general to investigate and prosecute election fraud have a path to do so, Walker added — passing a new constitutional amendment supported by two-thirds of the Texas House and Senate and approved by Texas voters.

"The remedy is not for the courts to water down the Texas Constitution from the bench," he wrote.

Paxton calls ruling a 'shameful decision'

Paxton sharply criticized Wednesday's decision and called on the Legislature "to right this wrong."

"The CCA's shameful decision means local DAs with radical liberal views have the sole power to prosecute election fraud in TX — which they will never do. The timing is no accident — this is devastating for the integrity of our upcoming elections," Paxton said on Twitter.

After the original ruling, Paxton had appeared on conservative media outlets to ask viewers to pressure the court to reverse its decision.

"Call them out by name," Paxton told viewers of Lindell TV, an online forum by MyPillow CEO and prominent Donald Trump supporter Mike Lindell, in January. "There's eight of them that voted the wrong way. Call them, send mail, send email."

Legal experts have questioned the propriety of Paxton, the state's top lawyer, asking members of the public to pressure elected state judges into issuing a favorable ruling in a case he has pending before their court.

Texas rules governing lawyer conduct place strict limits on the contact attorneys can have with judges outside of court. Lawyers also are prohibited from soliciting others to speak to judges on their behalf about a case.

State Bar complaint

In response, Austin lawyer Michael Shirk filed a complaint with the State Bar of Texas arguing that Paxton's pressure campaign violated his duty as a lawyer, his oath to defend the Texas Constitution and a state law that requires attorneys to practice law honestly.

Shirk said he contacted the bar's Commission for Lawyer Discipline on Wednesday and was told that a representative would be available to discuss the status of his complaint next week.

The election law issue came to the appeals court in a case involving Zena Collins Stephens, who was elected sheriff of Jefferson County in 2016. An FBI investigation into somebody else found possible campaign finance violations by Stephens, but when the Jefferson County district attorney declined to prosecute, Paxton's agency picked up the case.

That led a grand jury to issue indictments charging Stephens with tampering with a government record by reporting a $5,000 campaign contribution as $50 or less and with unlawfully accepting two cash contributions in excess of $100.

Stephens responded by challenging the constitutionality of the law that allowed Paxton's agency to prosecute election law violations.

This article originally appeared on Austin American-Statesman: Court rejects Ken Paxton bid to continue prosecuting election crimes