Texas Republicans Urge Court to Reconsider Decision That Stripped AG of Power to Prosecute Election Fraud

Texas Republicans Urge Court to Reconsider Decision That Stripped AG of Power to Prosecute Election Fraud
Poll workers help voters inside a polling location in Austin, Texas, on Oct. 13, 2020. (Sergio Flores/Getty Images)
Darlene McCormick Sanchez

At least 100 Texas Republican lawmakers and party leaders are urging the state's highest criminal court to revisit a decision that they say dealt a major blow to the state’s ability to prosecute election fraud and jeopardized election integrity laws.

A friend-of-the-court brief filed by 14 Republican state senators on Jan. 19 called on the state’s all-Republican Court of Criminal Appeals to reconsider a decision that stripped the attorney general of the ability to unilaterally prosecute election fraud.

“There is no question it’s a huge case,” state Sen. Paul Bettencourt, a Republican, told The Epoch Times. “I hope this gets their attention."

Other friend-of-the-court briefs filed this month include one by the Texas Republican Party and another signed by 85 U.S. and state House GOP lawmakers and prominent party leaders such as Texas Agriculture Commissioner Sid Miller and Texas gubernatorial candidate Don Huffines.

Matt Rinaldi, chairman of the Republican Party of Texas, called the court’s decision “incomprehensible.”

“If this decision is allowed to stand, it will cause irreparable damage to the integrity of elections in Texas,” Rinaldi told The Epoch Times in an email.

Bettencourt added that the justices ultimately listened to an attorney for the Democrats arguing the case.

“They found a weak spot,” he wrote.

 Texas Attorney General Ken Paxton (L) walks outside of the U.S. Supreme Court in Washington, on Nov. 1, 2021. (MANDEL NGAN/AFP via Getty Images)
Texas Attorney General Ken Paxton (L) walks outside of the U.S. Supreme Court in Washington, on Nov. 1, 2021. (MANDEL NGAN/AFP via Getty Images)

Harris County Attorney Christian Menefee, a Democrat, applauded the court’s decision in a tweet.

“This is a big win for local government and Texans who are tired of state officials exaggerating voter fraud claims to undermine elections,” Menefee wrote.

In December 2021, with little fanfare, the Criminal Appeals Court struck down the Texas attorney general’s authority to prosecute criminal election law violations granted by legislation some 70 years ago, saying the provision violated the separation of powers clause in the state's constitution.

The legal decision involved a case against Jefferson County Sheriff Zena Stephens. After the county district attorney declined to prosecute Stephens over campaign-finance allegations stemming from the 2016 election, Texas Attorney General Ken Paxton stepped in and obtained an indictment from a grand jury in neighboring Chambers County.

The Texas Court of Criminal Appeals opinion overturned a lower-court ruling that said the election code “clearly and unambiguously” gives the attorney general power to prosecute criminal laws prescribed by election laws. In light of the appellant ruling, the attorney general must now be asked to be involved in a case by a district or county attorney.

Bettencourt said he believes the court should revisit the issue, based on provisions in the Texas constitution that require legislators “to detect and punish fraud” in elections. The senators’ brief further states the state constitution gives the Legislature the power to assign duties to the attorney general.

“Poof, it’s gone,” Bettencourt said of the long-held law, adding that the attorney general is an important tool in prosecution. “They need to rethink what they have done.”

The Texas Supreme Court is the highest civil court in the state but doesn't have jurisdiction over most criminal cases, making the Texas Court of Criminal Appeals the highest criminal court in the state.

Paxton, a Republican who has been keen on rooting out voter fraud, wrote on Twitter that the ruling could be “devastating” for future elections in Texas and filed a motion this month seeking a rehearing with the Court of Criminal Appeals.

“The court’s decision to suddenly remove our authority to prosecute election fraud can only empower dishonest campaigns to silence voters across the state,” Paxton said in a statement. “Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant.”

State Rep. Steve Toth, who signed on to the Jan. 14 brief, said he doubts the court will revisit the issue even with overwhelming Republican support.

The Republican lawmaker called for an immediate fourth special session to draft new legislation to allow a neighboring district attorney to prosecute alleged election fraud, if the official in the county in question doesn’t, as a potential solution to the ruling.

“No one saw this coming,” Toth said in an interview. “The Texas Court of Criminal Appeals said it’s basically OK to cheat in Texas.”

State Rep. Cecil Bell, who signed the brief as well, agreed that the state Legislature must act if the court doesn’t.

“What it does, I think that is so problematic, is it means there are no checks and balances,” Bell, a Republican, said of the ruling in an interview. “If we learned nothing else about the election in 2020, people can be very blatant in what they do.”

Bell pointed to election issues in Harris County in 2020, which includes the Democratic stronghold of Houston. That county sent applications to vote by mail to nearly 377,000 registered voters 65 years of age or older, according to news reports. The county had planned to mail out unsolicited applications to all of its 2.4 million voters, although the effort was blocked by the Texas Supreme Court. Harris County also allowed for controversial drive-thru voting during the 2020 election.

The first phase of a Texas forensic audit, which focused on four of the state’s largest counties, found thousands of possible non-U.S. citizens and deceased persons registered to vote statewide. However, the state didn't find problems on a scale large enough to alter the election, according to the Texas Secretary of State’s Office. Overall, Donald Trump carried Texas with 52.1 percent of the vote to President Joe Biden's 46.5 percent.

The Texas Legislature approved legislation last year in an effort to stop drive-thru voting, mass distribution of unsolicited mail-in-ballot applications, and to require ID to vote by mail. The law also provided for election audits of select counties.

Darlene McCormick Sanchez reports for The Epoch Times from Texas. She writes on a variety of issues with a focus on Texas politics, election fraud, and the erosion of traditional values. She previously worked as an investigative reporter and covered crime, courts, and government for newspapers in Texas, Florida, and Connecticut. Her work on The Sinful Messiah series, which exposed Branch Davidians leader David Koresh, was named a Pulitzer Prize finalist for investigative reporting in the 1990s.