Law And Order Judgments
I am a law-and-order judge. I am just as concerned about voter fraud as you are. Voter fraud should be prosecuted to the fullest extent of the law. In fact, my position as an elected judge depends on reliable elections. It is precisely because I am a law-and-order judge that I joined the Court’s majority opinion in State v. Stephens.
In 2021, I joined an 8-1 opinion in State v. Stephens, in which the Court of Criminal Appeals held unconstitutional, under the Texas Constitution, the Election Code provision that purported to give the Attorney General authority to unilaterally criminally prosecute Election Code violations.
As an uncompromising constitutional conservative and originalist, I joined that opinion because the Texas Constitution:
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has an express separation of powers provision;
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places the Attorney General in the Executive Dept. and the District Attorneys in the Judicial Branch;
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does not give any criminal law authority to the AG;
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provides that the District and County Attorneys “shall represent the State in all cases in the” trial courts, thereby giving DAs and county attorneys the exclusive authority to prosecute criminal cases.
After our opinion issued, the AG immediately requested rehearing, and there was tremendous public clamor and political pressure on the judges of the Court to change the Court's opinion.
Judges should never judicially amend the Texas Constitution and violate the will of the ratifying voters. Therefore, I wrote a 73-page side opinion publicly documenting why Texas history demanded the interpretation of the Texas Constitution that was applied in our original State v. Stephens opinion.
Texas Election Code § 273.021 provides that “The attorney general may prosecute a criminal offense prescribed by the election laws of this state.”
This provision is unconstitutional under the Texas Constitution. The Attorney General does not have the power to prosecute any criminal law; only the district and county attorneys do. To find otherwise would constitute a judicial amendment to the Texas Constitution and would make me an activist judge. It is every judge’s job to strictly interpret the Texas Constitution the way it was understood by the ratifying voters at that time.
What does our Texas Constitution Say?
“The Texas Constitution has always had an express separation of powers. That means that one branch of government cannot interfere with another branch’s exercise of its expressly assigned constitutional duties unless the Constitution itself allows for it.
The [Government’s] powers . . . shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. Tex. Const. Art. II, Sec. 1”
The Attorney General is assigned to the Executive Branch. District Attorneys are assigned to the Judicial Branch. Therefore, under separation of powers the Attorney General cannot conduct the duty that the Constitution assigns to the District Attorneys.
District Attorneys, as judicial branch officers, have the express constitutional duty to represent the State of Texas in ALL cases in the TRIAL COURTS.
Since 1836, District Attorneys have ALWAYS had the duty to represent the State of Texas in ALL criminal prosecutions. That duty has never changed.
The Attorney General, as an executive branch officer, has the express constitutional duty to represent the State of Texas in the TEXAS SUPREME COURT. He also has other enumerated duties that all involve CIVIL LAW matters.
Strict Interpretation of the Law
For OVER 160 YEARS, the Texas Supreme Court and the Court of Criminal Appeals have ALWAYS held that the District Attorneys (and County Attorneys) have the express and exclusive constitutional duty to prosecute ALL criminal cases.
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1859: It’s “the duty of the [DA] to . . . ‘conduct all prosecutions for crimes and offenses.’” State v. Southern Pacific R.R. Co., 24 Tex. 80, 117 (ultimately holding that it is the DA’s and not the AG’s duty to represent the State in the trial court).
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1868: The DA is “the officer appointed by the state authorities to conduct its causes [and is therefore] the one, and the only one, who can assume the power to dismiss a criminal cause.” State v. McClane, 31 Tex. 260, 261.
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1876: In a criminal prosecution, the State “speaks and acts through its appropriate [DA] . . . This power is embraced in the authority expressly conferred on him ‘to conduct all prosecutions for crimes and offenses cognizable in [the trial courts].” Davis v. State, 44 Tex. 523, 524.
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1882: “[U]nder all the constitutions of this state, none of which defined the duties of the attorney general or of district or county attorneys so specifically as does the present [Constitution], it will be seen that it was always contemplated that the district attorneys should represent the state in all cases in the district and inferior courts, except certain actions which were [expressly] designated” by the Constitution itself. State v. Moore, 57 Tex. 307 (ultimately holding that it was the right and duty of the county attorney to represent the State in cases at issue in the trial courts to the exclusion of the AG).
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1905: “The main purpose of section 21 of article 5 being manifestly to make it the duty of the county attorney or district attorney, as the case might be, to prosecute the pleas of the state, it may be gravely doubted whether it was within the power of the Legislature to deprive them of that function, by conferring it in whole or in part upon another officer.” Brady v. Brooks, 89 S.W. 1052 (Tex.)
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1918: The Constitution “lodges with the county [and district] attorneys the duty of representing the State in all cases in the district and inferior courts,” and gives the “duty as to suits and pleas in the Supreme Court . . . to the Attorney General.” Maud v. Terrell, 200 S.W. 375, 376 (Tex.) (concluding that “the powers thus conferred by the Constitution upon these officials are exclusive.”).
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1955: Recognizing that the Constitution gives to county attorneys and DAs the duty to represent the State in the trial courts. Garcia v. Laughlin, 285 S.W.2d 191, 195 (Tex.).
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1957: “It has always been the principal duty of the district and county attorneys to investigate and prosecute the violation of all criminal laws, including the election laws, and these duties cannot be taken away from them by the Legislature and given to others. If [] the Election Code should be construed as giving such powers exclusively to the Attorney General, then it would run afoul of [the Texas Constitution.]” Shepperd v. Alaniz, 303 S.W.2d 846 (Tex. Civ. App.—San Antonio 1957, no writ). Note: this is a court of appeals opinion but dealt directly with the Election Code provision at issue in State v. Stephens.
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1987: “[U]nder the separation of powers doctrine, the Legislature may not remove or abridge a district or county attorney’s exclusive prosecutorial function, unless authorized by an express constitutional provision.” Meshell v. State, 739 S.W.2d 246, 254-55 (Tex. Crim. App.).
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1994: “Under our state law, only county and district attorneys may represent the state in criminal prosecutions . . . The Attorney General, on the other hand, has no criminal prosecution authority. Rather, he is generally limited to representing the State in civil litigation.” State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim App.).
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2002: “The office of the attorney general of Texas has never had authority to initiate a criminal prosecution.” Saldano v. State, 70 S.W.3d 873, 878 (Tex. Crim. App.).
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2013: “[Th]e attorney general is, with a few exceptions in Texas trial courts, not authorized to represent the State in criminal cases.” Ex parte Lo, 424 S.W.3d 10, 30 n.2 (Tex. Crim. App.) (citing to various statutory provisions which limit the AG’s role in criminal cases only upon request by the DA for assistance).
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2020: “[T]he State correctly observes that the Attorney General cannot bring . . . a criminal prosecution without the participation of a district attorney.” In re Abbott, 601 S.W.3d 802, 812 (Tex.).
What Have the Courts Said?
The Legislature has enacted numerous statutes codifying the exclusive authority of the District and County Attorneys to prosecute criminal law violations.
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“Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom.” Tex. Code Crim Pro. Art. 2.01.
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For over 100 counties, the Texas Legislature has enacted statutes providing that the district and county attorneys have the right to control all criminal prosecutions in the trial courts of their counties. See Tex. Govt. Code Chapter 44.
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Under Govt. Code Chapter 43, there are 35 other statutes, many covering multiple counties, that provide that the DA represents the State in all criminal matters.
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Under Govt. Code Chapter 45, there are several statutes covering various counties that specify that the county attorney represents the State in all matters in the district court (which would include all criminal prosecutions).
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For a full list, please see Appendix A starting on Page 60 of my State v. Stephens Dissenting Opinion on Rehearing. You can access the opinion by clicking HERE.
For over 40 years, the Attorney General’s office has said that District and County Attorneys have the exclusive duty to prosecute criminal law violations and have discretion in what they prosecute.
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1981: “Texas law places the responsibility for representing the state in prosecutions of criminal cases in the district and inferior courts in the hands of county and district attorneys.” (citing Tex. Const. Art. V Sec. 21). “Our courts have held that officers who are responsible for representing the state in court may . . . be assisted . . . providing that such assistance is rendered in a subordinate capacity and the officer remains in control of the litigation.” AG Op. No. MW-340 (AG Mark White)
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1987: “[I]t has been held that: ‘It has always been the principal duty of the district and county attorneys to investigate and prosecute the violation of all criminal laws, including the election laws, and these duties cannot be taken away from them by the Legislature and given to others.” AG Op. JM-661 (AG Jim Mattox)
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2002: The Department of Agriculture has no “authority, express or implicit, to prosecute a criminal action or to investigate an alleged violation” because “the Texas Constitution places the authority to prosecute with county, district, and criminal district attorneys.” The opinion also noted that a “county or criminal district attorney may request the attorney general’s assistance in prosecution.” AG Op. JC-0539 (AG John Cornyn)
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2010 & 2012: “A district attorney’s prosecutorial determination regarding the initiation of criminal proceedings is within the prosecutor’s substantial discretion.” AG Op. GA-0765, GA-0967 (AG Greg Abbott)
What Have the Legislature
& Attorney General Said?
Does the Constitution’s catchall provision of “perform such other duties as may be required by law” allow the Legislature to take part of the DA’s constitutional duty away and give it to the AG?
In short... NO.
“Perform such other duties as may be required by law” does not allow for the Legislature to violate the Express Separation of Powers provision to take power from the DAs express Constitutional duty that they “shall represent the State in all cases in the” trial courts.
The meaning of this catchall phrase was established before the ratification of the 1876 Constitution.
The 1876 Constitution ratifying voters knew this because it had already been decided by the Texas Supreme Court in 1874. And back then, Supreme Court opinions were published in the newspapers and most literate people actually read the paper.
In 1874, Texas Supreme Court Chief Justice Oran Milo Roberts said that this catchall phrase of “perform such other duties. . .” means that Legislature can only assign duties that:
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are of the same character of the officer’s department (i.e. must be an executive department duty);
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properly pertain to the business of that particular office (i.e. must be part of the AG’s business); AND
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cannot interfere with a duty expressly assigned by the Constitution to an officer in a different department (i.e. cannot interfere with the DA’s express constitutional duty that it shall represent the State in all cases in the trial courts).
Kuechler v. Wright, 40 Tex. 600, 657-59 (1874).
The meaning of this catchall phrase did not change after the ratification of the 1876 Constitution. Then in 1882, only six years after the 1876 Constitution was ratified, The Texas Supreme Court again reiterated that the catchall phrase (“perform such other duties as may be required by law”) does not allow the Legislature to assign to the AG the ability to unilaterally prosecute criminal cases.
Justice John William Slayton, later Chief Justice, who served in the 1875 Constitutional Convention; participated in debates & helped draft 1876 Constitution stated:
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This catchall phrase does not “confer . . . power upon the legislature to give to the attorney general power to perform those acts which the constitution itself conferred upon [district and] county attorneys[.]”
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Instead, phrase was intended only “to give the legislature power to confer upon the attorney general such powers as might be deemed necessary in regard to matters which had not been expressly conferred by the constitution upon some other officer.”
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It “must be presumed that the constitution, in selecting the depositories of a given power . . . intended that the depository should exercise an exclusive power, with which the legislature could not interfere by appointing some other officer to the exercise of that power.”
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“Any other construction would lead to the doctrine that the constitution had empowered the legislature to alter the constitution itself, without an express grant of such power.” “[T]he power must be given in express terms, and it cannot be implied.”
State v. Moore, 57 Tex. 307 (1882).
Therefore, this catchall phrase does not save Tex. Elec. Code § 273.021
Summary of the Case
The Texas Constitution gives the Attorney General authority to represent the State in the trial courts only for matters involving or related to his expess and enumerated constitutional duties. Those currently involve ONLY civil matters. Specifically:
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“the charter rights of corporations,”
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the “prevent[ion of] any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage, not authorized by law,” and
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“judicial forfeiture of such [corporate] charters.”
None of these involve prosecuting criminal laws.
Only the District and County Attorneys have the express constitutional duty to represent the State of Texas in all criminal prosecutions, including criminally prosecuting Election Code violations.
If the voters want to give the Attorney General the authority to criminally prosecute Election Code violations, they will have to vote for a constitutional amendment.
The foregoing information and sources can be found in my State v. Stephens Dissenting Opinion on Rehearing which can be accessed by clicking HERE.
