Texas AG Paxton request Texas Court of Criminal Appeals reconsideration of ruling to prevent his office from prosecuting Texas election law violations in Jefferson County Sheriff’s Election Code indictment

Jefferson County Sheriff Zena Collins Stephens.

The Golden Hammer Staff Reports

Austin and Beaumont, January 4 – In one of the most significant Election Code violation prosecutions in recent years, Texas Attorney General Ken Paxton filed a Motion for Rehearing with the Texas Court of Criminal Appeals yesterday requesting it reconsider its recent decision to strip the Legislature of its power to assign the Office of the Attorney General (OAG) authority to prosecute criminal election law violations. The Legislature granted OAG that authority approximately 70 years ago, and the Texas Supreme Court has previously and consistently said that this was consistent with the Texas Constitution.

The Court of Criminal Appeals, the highest criminal appellate court in Texas, ruled on December 15, 2021, that the indictment and prosecution of Jefferson County Sheriff Zena Collins Stephens for campaign-finance violations, after an FBI investigation, was unconstitutional, because Paxton’s Office has no authority to prosecute criminal election code violations under the Texas Constitution.

Paxton explained, “The Court’s decision to suddenly remove our authority to prosecute election fraud can only empower dishonest campaigns to silence voters across the state.”

He said. “This decision is not only wrong on legal grounds, but it has the effect of giving district and county attorneys virtually unlimited discretion to not bring election law prosecutions. Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution.”

Paxton said, “Contrary to the Court’s decision, the Legislature’s assignment to OAG of the power to prosecute certain criminal law violations does not unconstitutionally erode the Texas Constitution’s separation of powers.”

The criminal appellate court disagreed and stated in its December 15 opinion:

“Zena Collins Stephens was elected to the position of sheriff of Jefferson County in 2016. While investigating someone else, the FBI uncovered information regarding potential campaign-finance violations concerning Stephens. The FBI then turned this information over to the Texas Rangers. The Rangers’ investigation concluded that Stephens received individual cash campaign contributions in excess of $100. The Rangers presented their findings to the Jefferson County District Attorney, who declined to prosecute, referring the Rangers to the Attorney General. The Rangers then presented the results of their investigation to the Attorney General, who presented the case to the grand jury in Chambers County, a county adjoining Jefferson County. See Tex. Elec. Code § 273.024. The Attorney General relied on Texas Election Code section 273.021 to prosecute a criminal offense ‘prescribed by the election laws of this state.’

“In April of 2018, the Chambers County grand jury indicted Stephens on three counts. In Count I, Stephens was charged with tampering with a government record in violation of Texas Penal Code section 37.10 ‘by reporting a $5,000.00 individual cash contribution in the political contributions of $50.00 or less section of said Report.'”

The Court of Criminal Appeals held that “the Attorney General, a member of the executive department, [may not engage in] the prosecution of election-law violations in district and inferior courts…,[b]ecause Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, [so] we conclude that the statute is unconstitutional.”

Judge Kevin Yeary dissented in the 8 to 1 decision of the Court of Criminal Appeals.

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