EX PARTE GEORGE v. << (2025)

OPINION

Before seeking an indictment for an alleged violation of the Texas Elections Code, must the prosecution wait for an authorizing referral from the Texas Ethics Commission or for any other exhaustion of the administrative process? Our answer is no.

BACKGROUND

This case concerns a charge of misrepresentation of identity under Section 255.005 of the Texas Elections Code, which provides that a person commits a Class A misdemeanor “if, with intent to injure a candidate or influence the result of an election, the person misrepresents the person's identity or, if acting or purporting to act as an agent, misrepresents the identity of the agent's principal, in political advertising or a campaign communication.”

Following a joint investigation with the Texas Rangers, the prosecution came to suspect that this statute was violated by a candidate for Fort Bend County Commissioner. The prosecution also came to suspect that KP George, the County Judge of Fort Bend County, had participated in the commission of the offense in a manner that exposed him to criminal liability.

The prosecution's investigative findings came on the heels of Ex parte Charette, Nos. PD-0522-21, PD-0523-21, PD-0524-21, & 2024 WL 4138710 (Tex. Crim. App. Sept. 11, 2024), which held that the “exhaustion of administrative remedies in the [Texas Ethics Commission] is a jurisdictional prerequisite to bringing of criminal charges against a political candidate for campaign-law violations.” Id. at *1.

The prosecution had doubts whether Charette applied in the case against George because the mandate in Charette had not yet issued, and the opinion was unclear as to whether it contemplated criminal charges based on a theory of party liability. But in a professed abundance of caution, the prosecution submitted a complaint to the Commission for review.

Despite the claimed desire for caution, the prosecution was facing the very imminent expiration of the applicable two-year statute of limitations. See Tex. Code Crim. Proc. art. 12.02(a)(1). So on the last day of the limitations period—just two days after it submitted the administrative complaint, and before the Commission had made any determinations in its own investigation—the prosecution proceeded with obtaining a true bill of indictment from the grand jury. The indictment alleged that George had falsely posed as Facebook user “Antonio Scalywag” in a campaign communication with the intent to injure a candidate or influence the result of an election.

Less than a week later, the Commission notified George that it had received the prosecution's complaint and that it had accepted jurisdiction over the allegations. The Commission also advised George that he was required to file a written response to the allegations within twenty-five business days, or else he would face a separate civil penalty.

Three days after receiving that notice, George filed a pretrial application for writ of habeas corpus in the county court. Relying extensively on Charette, he argued that the indictment must be dismissed because the Commission had exclusive jurisdiction and it had not conducted any hearings or made a final determination of referral.

Four days after George filed his application, and before he had ever filed an administrative response, the Commission issued an order referring George's case for criminal prosecution.

The habeas court heard arguments less than two weeks later. Relying again on Charette, George argued that the case must be dismissed because the Commission had exclusive jurisdiction at the time that the prosecution sought the indictment. And even though the Commission had since issued a referral order, George argued that he had been deprived of due process because the Commission never afforded him a hearing or an opportunity to exhaust his administrative remedies. George emphasized that, as of the time of the habeas court's hearing, his twenty-five day deadline for filing an administrative response had still not passed.

The prosecution responded that the referral had effectively mooted George's application for habeas relief. The prosecution also discouraged the habeas court from relying on Charette because a motion for rehearing had been filed in that case and the Court of Criminal Appeals had not yet ruled on it.

Without giving any particular reasoning, the habeas court signed an order denying George's application. George now appeals from that order.

ANALYSIS

Not long after George filed his notice of appeal in this case, the Court of Criminal Appeals granted rehearing in Charette. The Court did not simultaneously issue an opinion on rehearing; instead, it called for supplemental briefing.

George filed his brief in this case before any of the supplemental briefs in Charette had been filed. George acknowledged in his brief that Charette was no longer authoritative. Nevertheless, George argued that the holding in Charette was substantively correct and supported by both constitutional and statutory authorities.

George's brief proceeds in five points. First, as a threshold matter, George argues that his claim is cognizable in a pretrial habeas proceeding, insofar as the claim implicates the trial court's subject matter jurisdiction. Second, he argues that the Commission has exclusive jurisdiction to make an initial determination on a complaint under the Elections Code, and that the trial court does not have jurisdiction over an alleged violation until the entire administrative process has been exhausted. Third, he argues that the indictment in this case was void from its inception because, at the time that the indictment was returned, the Commission had not yet issued its order of criminal referral. Fourth, he argues that his rights to due process were violated when the Commission issued its order of criminal referral before he had even filed his administrative response. And fifth, he argues that his claim was not mooted by the referral because a controversy still exists until he has the opportunity to fully participate in the administrative process.

The prosecution filed a response brief, and several months later, the Court of Criminal Appeals issued its opinion on rehearing in Charette.

The Court began by holding that a claim is cognizable for purposes of a pretrial habeas proceeding “where the applicant presents a non-frivolous assertion that the prosecution would result in the judicial branch interjecting itself and interfering with the exercise of a power assigned by the Constitution and laws to another branch or department of government.” See Ex parte Charette, ––– S.W.3d ––––, ––––, 2025 WL 2405747, at *3 (Tex. Crim. App. 2025). That holding was consistent with the original opinion on submission. However, the remainder of the opinion on rehearing charted a different path.

The Court recognized that the Commission was created directly by constitutional amendment, and that it has been “tasked with assuring public confidence in the conduct of elections, including the campaigning and financial behavior of candidates and office holders.” Id. at *4. The Court likewise recognized that county and district attorneys have been authorized by the Texas Constitution and a variety of statutes “to pursue and preside over all manner of criminal cases, including but not limited to, various election law matters.” Id. Despite the general assumption that the branches of government operate separately within their respective spheres of magistry, the Court remarked that “nothing in either [constitutional] provision remotely suggests exclusivity at the expense of the other.” Id.

The Court then addressed the Commission's statutory delegation of power to “administer and enforce” the Election Code. Id. (referring without citation to Tex. Gov't Code § 571.061(a)(3)). The Court held that it could not construe this statutory authority as depriving prosecutors of their constitutional authority absent “clear textual evidence of contrary intention.” Id. The Court found no such textual evidence: “The text does not purport to authorize the [Commission] to initiate a criminal prosecution, compel such an initiation or forbid either the initiation or continuation of criminal prosecutions unless or until a civil proceeding has first terminated.” Id. at ––––, 2025 WL 2405747, at *5. The Court determined instead that the Commission merely has parallel enforcement powers. Id. (observing that parallel powers are common in other settings, and noting as one example that criminal proceedings for driving while intoxicated may proceed at the same time as license revocation proceedings with the Department of Public Safety).

Ultimately, the Court “reject[ed] the categorical claim that no prosecution can be brought to enforce criminal laws concerning the conduct of elections simply because their subject matter may overlap with civil jurisdiction conferred on the [Commission].” Id. at ––––, 2025 WL 2405747, at *3.

In the wake of the opinion on rehearing, the prosecution filed a letter brief in our court, arguing that Charette had effectively foreclosed George's requested relief. George did not file any response. We agree with the prosecution.

When, as here, the questions presented concern pure questions of law, we review the habeas court's ruling de novo, and we must affirm that ruling if it is correct under any applicable theory. See Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017).

George correctly argues that his claim is cognizable. See Charette, ––– S.W.3d at ––––, 2025 WL 2405747, at *3. But his remaining arguments are all foreclosed by Charette. The Commission does not have exclusive jurisdiction; rather, it has parallel enforcement powers. Id. at –––– – ––––, 2025 WL 2405747, at *4–5. Thus, the prosecution did not have to wait for an authorizing referral from the Commission before seeking an indictment, and the indictment here was not void from its inception for lacking such a referral. Id. at ––––, 2025 WL 2405747, at *6 (“We decline Appellant's invitation to read the referral provision as a necessary precondition to criminal enforcement.”). Likewise, any claimed deprivation of process in the administrative context would have no bearing on whether the prosecution could validly proceed in its own separate sphere of magistry.

For all of the foregoing reasons, we conclude that George failed to show that the trial court lacked jurisdiction. Thus, his pretrial application for writ of habeas corpus was properly denied.

CONCLUSION

The habeas court's order denying relief is affirmed.

Tracy Christopher, Chief Justice