The STATE of Texas v. Zena Collins STEPHENS, Appellee Ex parte Zena Collins Stephens, Appellant
Today, we consider the Attorney General's motion for rehearing in which he requests that this Court rehear Appellant Zena Collins Stephens's case, vacate our previous opinion, and affirm the judgment of the court of appeals that had ruled against Ms. Stephens. Our Court has chosen to deny the motion. I agree with that decision, and I still agree with our original decision handed down in December, when we recognized that the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings—even in cases involving alleged violations of the Election Code.
I. A Double-Edged Sword Cuts Both Ways
I am aware that some people feel strongly about this issue, including the current Attorney General's supporters and other individuals throughout Texas. To those concerned citizens, I want to mention one of the possible ramifications of a ruling that would have disagreed with the majority opinion in this case.
My concern is the negative impact such a ruling could have on the fairness of elections in the future. It is possible that, in the not-too-distant future, a new politician could be elected as the Attorney General of Texas. If we ruled that the legislature could give the Attorney General the unfettered power to prosecute all election cases, we would be giving every future Attorney General the power to bring possibly fabricated criminal charges against every candidate running for public office in the State of Texas who disagrees with the Attorney General's political ideals.
While some individuals are likely to favor that kind of power when wielded by one who agrees with their political views, would these same people want an individual they disagree with to be able to use this power to prosecute for purely political reasons?1 I, for one, do not think so, and I thank God for the Separation of Powers Doctrine.
II. The Separation of Powers Provides a Needed Check on Our Political Branches
Why are the powers separated? The framers of the current Texas constitution were determined to reverse many of the changes brought about during the Reconstruction era following the Civil War, when Texas was governed by the federal government. Texas was in turmoil during the first nine years of the Reconstruction era.2 The experience of Reconstruction “prompted provisions to decentralize the state government.”3 Among other things, the framers of the new constitution wanted to severely limit the powers of both the legislature and the governor.4 “To assure that the government would be responsive to public will, the [constitutional] convention precisely defined the rights, powers, and prerogatives of the various governmental departments and agencies[.]”5
The framers of the Texas Constitution believed it best to divide the powers of government into three distinct branches: legislative, executive, and judicial.6 These powers cannot be passed along or shared.7 And for good reason. As Senator John Cornyn explained when he was a justice on the Texas Supreme Court:
The founding fathers of this nation and this state plainly understood that the best way to control governmental power is to divide it. They knew that it was only by balancing the powers of one branch of government against the powers of the other two that any degree of freedom for the people could be preserved.8
The office of the Texas Attorney General falls under the umbrella of the executive branch. Therefore, the Attorney General's powers are limited to executive powers and duties. The legislative branch enacts the laws,9 the judicial branch interprets and applies the laws to matters in controversy,10 and the executive branch enforces the laws.11 In other states and in the federal government, the executive function of enforcing the law includes both law enforcement and prosecutors.12 But in Texas the prosecutors—the district and county attorneys—are instead part of the judicial branch,13 meaning the power to prosecute criminal cases belongs to the judicial branch.14 The Texas Attorney General is part of the executive branch, and his primary duties are to “render legal advice in opinions to various political agencies and to represent the State in civil litigation.”15 As a part of the executive department, the Attorney General cannot exercise a power—prosecuting crimes—that belongs to the judicial branch.
And the fact that the Attorney General does not have the authority to prosecute crimes, including Election Code offenses like voter fraud or campaign finance violations, does not mean that those crimes will invariably go unchecked. The duly-elected district and county attorneys certainly can and should prosecute those cases.
III. The Dissent's Arguments Fail
Judge Slaughter's dissenting opinion suggests that the Attorney General should, or at least may, prosecute election law cases when the district and county attorneys choose not to do so. I believe her dissent warrants a brief discussion. I generally agree with the majority of Judge Slaughter's opinion, specifically Parts I–V, and I appreciate her thorough summary and analysis of our Texas constitutions. However, I respectfully disagree with Part VI of her dissent.
In Part VI of her dissenting opinion, Judge Slaughter argues that she is raising a construction of § 273.021 of the Election Code that neither party has raised nor addressed in any briefing or arguments. She states that her construction has not been previously considered by this Court and “given the circumstances and the importance of the issues before us,” she “urge[s] the Court to grant rehearing[.]”16 It appears that Judge Slaughter is requesting that this Court grant the rehearing on its own motion. The Court does, on occasion, grant motions for rehearing on its own motion.17 However, due to the facts that neither the State's brief nor any of the amicus briefs even remotely present this argument, and because I believe the argument lacks merit, I see no reason why we should grant rehearing on our own motion.18
Judge Slaughter seems to suggest that § 273.021 of the Texas Election Code does not violate our Separation of Powers Doctrine because the statute assigns the “power” to prosecute election law violations to the Attorney General, but it does not assign a “duty” to the Attorney General to do so. Under the dissent's reasoning, the Separation of Powers Doctrine would only be violated if the legislature assigned the “duty” to prosecute election fraud cases to the Attorney General. This argument is unavailing and fails to present a proper ground on which to grant this motion for rehearing.
As the dissent notes, the Separation of Powers Doctrine states that no individual assigned to one department, or branch, of our government “shall exercise any power properly attached” to another department.19 This should answer the question. Our Constitution refers to the powers of the different branches of government. It does not refer to the duties of the different branches. The constitution's literal text should be our guiding light by which to interpret its various provisions.20 Judge Slaughter places import on an alleged distinction between powers and duties that is not warranted by the literal text of our Separation of Powers Doctrine.21 The text of the Separation of Powers Doctrine itself undermines the dissent's argument.
Additionally, as Judge Slaughter correctly points out, there are two ways to violate the Separation of Powers Doctrine. First, the Doctrine is violated when one branch of government assumes or is delegated power—to whatever degree—more properly attached to another branch.22 Second, the Doctrine is violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise the powers assigned it by the Constitution.23
The dissent contends that because the Attorney General is authorized to represent the State before the Texas Supreme Court and in other specified civil matters, the power to represent the State is properly assigned to both the judicial and executive branches. In so concluding, however, the dissent largely fails to discuss the specific power at issue in this case—the power to prosecute criminal law violations on the Attorney General's own whim and without a request for assistance from the district or county attorney. As stated in the Court's original majority opinion, “[a]lthough the duties of the county and district attorney are not enumerated in article V, section 21, our courts have long recognized that ․ their primary function is ‘to prosecute the pleas of the state in criminal cases.’ ”24 Accordingly, the power to represent the State in criminal law matters is more properly attached to the district and county attorneys located within the judicial branch—rather than the Attorney General located in the executive branch.25 This has already been litigated and presents no new argument warranting a grant of the State's motion for rehearing.
Regarding undue interference, the dissent contends that “where the [district attorney] affirmatively or expressly chooses not to prosecute an ‘election law’ violation, it may be constitutionally permissible for the [Attorney General] to do so under the statutory power assigned to him by the Legislature in Section 273.021 of the Election Code.”26 In concluding that this would not be an undue interference with the judicial branch, Judge Slaughter ignores the scope of prosecutorial power. Her dissent implies that a prosecutor's power begins and ends with charging and prosecuting a defendant for a crime. I respectfully disagree.
The power given to district and county attorneys includes the power not only to prosecute cases but also to decide which cases should not be prosecuted.27 When the district or county attorney chooses not to prosecute a case, they are permissibly exercising their prosecutorial discretion; it is their prerogative to file or not file charges. If the Attorney General files criminal charges when the prosecutor has specifically chosen not to, the Attorney General unduly interferes with—he usurps—the district or county attorneys’ exercise of their prosecutorial power. “[T]he Attorney General has no authority to independently prosecute criminal cases in trial courts.”28
Accordingly, the dissent's arguments for rehearing are unavailing. Because the dissent and the State have failed to provide new issues that would be proper for us to review, the motion for rehearing should be denied.
I share the concerns that citizens have about election law violations. Frankly, I am deeply concerned as well. However, if citizens do not like that the Texas Constitution gave specific powers to the Attorney General and that these powers do not include the power to unilaterally prosecute crimes, the remedy is a constitutional amendment—something the legislature could propose and the citizens could vote to ratify.29 The remedy is not for the courts to water down the Texas Constitution from the bench. To do so would be a violation of our judicial oath.
The Constitutions of the United States and Texas do not give appellate judges the power to create new law. The Separation of Powers Doctrine has reserved that power for the legislature. The duty of appellate judges is to interpret the law by determining the original intent of the legislature and constitutional framers. We deduce this intent by following our firmly grounded rules of statutory construction and constitutional interpretation. Consequently, a judge's role is to examine the literal text of the law and interpret it accordingly. Principled judges do not legislate from the bench and rewrite the Texas Constitution. Six years ago, when I campaigned for my position on this Court, I promised voters that I would not legislate from the bench and that I would uphold our Constitution. I certainly intend to keep that promise.
I concur with the decision to deny the motion for rehearing.
The people of Texas made the constitution, and they have a right to change it if it is found to work harshly and unjustly, but courts have no choice but to enforce and obey its mandates.
Swyane v. Chase, 30 S.W. 1049, 1053 (Tex. 1895).
The Constitution is the repository of the people's will. Its provisions are fixed as of the date[ ] of its adoption. These provisions are the same at all times thereafter. They are superior to all laws enacted thereunder. That many of the provisions of the Constitution are inconvenient and work hardships at times is well recognized. As citizens we might wish relief in many respects from its rigor, but as a court we must respect its mandates.
Ferguson v. Wilcox, 28 S.W.2d 526, 535 (Tex. 1930).
Our Stephens opinion should not have surprised anyone. Since 1836, the district and county attorneys have represented the State in all criminal prosecutions in the trial courts; the Texas Attorney General (hereinafter sometimes “AG”) has never undertaken that duty.1 From the birth of Texas until the present day, the AG's constitutional role in criminal prosecutions has always been limited to an advisory role or to giving assistance to the county or district attorney, and even then, only when requested.
When tasked with answering the direct constitutional question regarding the AG's authority to unilaterally initiate criminal prosecutions, neither the Texas Supreme Court nor this Court has ever held that the AG has that authority. In fact, for well over 100 years, both Texas high courts have consistently held that under our Constitution's separation-of-powers provision and the expressly-assigned duties of the AG and district and county attorneys, the Legislature is prohibited from assigning the duty of criminal prosecution in the trial courts to the AG.2
The analysis underlying these judicial decisions is based on a strict interpretation of our Texas Constitution. Under our current Constitution, the district and county attorneys are assigned the duty to represent the State in all matters before the trial courts, including all criminal prosecutions.3 In contrast, the AG is assigned the duty to represent the State in the Supreme Court and in other courts only for certain limited types of cases (all of which are currently civil law matters). Given the fact that the Constitution places the DAs and AG in separate governmental departments, the Legislature is prohibited, pursuant to the separation-of-powers provision, from assigning away any part of the DAs’ duty to the AG, unless such assignment involves the limited types of cases specifically enumerated within the AG's constitutional duties.4
In fact, even the AG's Office (through various AG opinions) and our own Legislature (through numerous statutes) have for decades declared that district and county attorneys have the exclusive duty to prosecute all criminal cases in the trial courts.5 Given these opinions and statutes, it is quite puzzling why the AG and various legislators argue in briefs to this Court against their own opinions and statutes.6
The AG and several amici also suggest that the legislative enactment of an Election Code provision somehow trumps our Texas Constitution. One amicus brief even claims that the AG “has had the authority to prosecute certain election-law violations” for 70 years. Another amicus brief takes it a step further and claims that “for seventy years[ ] Texans have given the Attorney General the authority to originate the prosecution of election law violations.” (emphasis added).
First, I am shocked that anyone would equate the government with “we the people.” The Legislature is not the same as “we the people.” Texans—and not the government—are the source of all inherent power.7 Through the adoption of the Texas Constitution, Texans delegated these political powers to the three departments of government and divided them among its officers. “It must be presumed that [Texans] in selecting the depositaries of a given power ․ intended that the [officer in which the power or duty was entrusted] should exercise an exclusive power, with which the legislature could not interfere by appointing some other officer to the exercise of the [same] power [or duty].”8 Thus, when Texans bestowed upon the district and county attorneys the duty to represent the State in all cases in the trial courts, only Texans can change that delegation of authority through a properly-proposed and adopted constitutional amendment. The Legislature cannot make that change and neither can the courts.9
Second, the AG's claim of 70 years of legislatively-granted authority for criminal prosecution of election law violations is misleading. It ignores the fact that in 1957, when first presented with the issue, a court of appeals held that the DA's constitutional authority to investigate and criminally prosecute election law violations was superior to the AG's claim of statutory authority under former Section 130 of the Texas Election Code, a predecessor to the statute at issue in this case.10 The court in Shepperd v. Alaniz declared:
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 Sec. 21 of Article 5 of the Constitution [the provision bestowing authority upon the district and county attorneys] and would be void.11
Thus, at least as far back as 1957, the AG's authority to exclusively or unilaterally prosecute Election Code violations was in serious doubt. And while the Dallas Court of Appeals later upheld the present-day statute over a separation-of-powers challenge, that decision did not come to pass until 2014—more than fifty years after Shepperd.12 In short, suggesting that the AG's exclusive authority in this regard has always been widely accepted and has never been called into question is highly inaccurate.
The AG and amici, through briefs and by other actions, have spurred hundreds, if not thousands, of individuals from across this state and other states to engage in attempts at impermissible ex parte communications with the Court.13 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.
No change in public opinion on questions of policy can ever be given weight in construing provisions of a Constitution, where the meaning is clear, for the adoption of the construction that might be deemed wise at one time and unwise at another would abrogate the judicial character of the court, and make it the reflex of the popular opinion or the passions of the day.
The popular will ․ must be found in the Constitution. It stands there as the expression of the will of the majority of our voting population. It is here the “inherent power” of the people speaks. When the writer [of a judicial opinion] desires to [discern] the popular will or the public sentiment in regard to organic law, his recourse is and will be to the provisions of the Constitution, and not to public clamor.
Keller, 87 S.W. at 676–77.
Despite the many misleading and false statements made in several of the briefs filed in this case, I do support a rehearing. To be clear, my position is not based on anything raised by the parties or amici but is instead based upon my own in-depth analysis of Texas history and the law. Upon further consideration of the issues, I believe there may be a plausible way to construe Election Code Section 273.021 in a very narrow manner to find it constitutional in some circumstances, thereby foreclosing a facial challenge. I address this position below after first establishing the foundation of my position.
Texans are well known for having tremendous state pride. That pride stems from our state's rich history of fighting for freedom and independence from governmental overreach. This independent spirit is woven into the fabric of the Texas Constitution. Therefore, to fully understand the meaning of our Constitution, we must first understand our history.
I. Texas History Leading up to the 1876 Constitution
Texas was a Mexican territory for many years. In 1824, Mexico joined Texas with Coahuila to form a new unified state of Coahuila y Tejas.14 Non-Mexican settlers did not identify themselves as Mexicans but instead as Texians.15 Concerned about losing control over Coahuila y Tejas to the Texians, Mexico began exerting more restrictions and control over the state, including banning further immigration from the United States.16
In 1833, General Antonio Lopez de Santa Anna staged a coup and became the new Mexican president.17 Santa Anna had initially been in favor of the Mexican Constitution of 1824,18 which was similar to the United States Constitution.19 But as president, he nullified the 1824 Constitution,20 enacted a more centralized Mexican government, and rejected Texas's desire for self-governance.21 Texas responded with the Convention of 1833 and sent 56 delegates to meet with Santa Anna.22 These delegates 23 sought a number of concessions, including making Texas its own Mexican state independent from Coahuila.24 While Santa Anna made some concessions,25 he refused to grant Texas statehood.26 In 1835, Texans began revolting against Mexico and battles ensued.27 In 1836, Texas delegates met at Washington-on-the-Brazos, where they drafted and adopted the Texas Declaration of Independence and wrote a Texas Constitution.28 More battles ensued, including the Battle at the Alamo and Battle of Goliad.29 Ultimately, in April 1836, Texas won the Battle of San Jacinto and captured Santa Anna, thereby ending the revolution and establishing the independent Republic of Texas.30
Texas remained an independent republic until 1846, when U.S. President James Polk annexed Texas to the United States.31 In response, Mexico initiated the U.S.-Mexican War. The war ended in 1848 with the Treaty of Guadalupe-Hidalgo in which Mexico recognized Texas as part of the United States.32 But when the Civil War broke out, independence-minded Texas seceded and fought with the confederacy,33 in part because of perceived federal overreach, excessive national control, and the belief that the federal government would further erode the perceived rights of the southern states.34
Following the end of the Civil War in 1865, Texas was in political turmoil.35 The federal government placed Texas and several other southern states that fought with the Confederacy under martial law and created military districts.36 It also ousted many elected and appointed officials and replaced them with leaders loyal to the Union.37 Before Texas could rejoin the United States, it had to ratify a new state constitution with certain required provisions.38 It was also required to elect U.S. senators and congressmen acceptable to the federal government.39
In 1866, Texans ratified a proposed constitution 40 and elected U.S. senators and congressmen.41 This document contained a separation-of-powers provision similar to the one that had appeared in some form in the Texas Constitution since 1836. It provided for the division of the powers of government into three distinct departments (legislative, executive, and judicial), and stated that “no person, or collection of persons, being of one of those departments, shall exercise any power, properly attached to either of the others, except in the instances herein expressly permitted.”42 The federal government, however, rejected the constitution for failure to include the required provisions 43 and refused to seat the Texas representatives.44 Thereafter, federal military leaders removed hundreds of local elected officials from across the state.45 Hundreds more were forced out of office when they refused to take the congressionally-enacted “Test Oath.”46
In 1868, a new Texas constitutional convention, led mostly by federally-backed Unionists, was held under Congressional Reconstruction rules and eventually resulted in the Constitution of 1869.47 This Constitution was different from any previous Texas Constitution. While it contained the same separation-of-powers provision as the previous Constitution, it provided for a strong, centralized, and more bureaucratic system of government.48 The executive department expanded from seven to eight officers with the addition of a “Superintendent of Public Instruction.”49 Most of the government's power was concentrated in the executive branch with the Governor serving as the “Chief Magistrate.”50
The Governor no longer had term limits and had extensive power to control the judiciary.51 The 1869 Constitution provided for just three Texas Supreme Court justices, all of whom were appointed by the Governor for nine-year terms, whereas the previous 1866 Constitution provided for five justices who were elected for ten-year terms.52 The 1869 Constitution also eliminated all of the locally-elected county courts, expanded the number of district courts, and allowed the Governor to appoint all district judges for eight-year terms.53
The creation of a strong, centralized government led by Unionists was the source of anger and resentment among the fiercely-independent Texans, who wanted a weaker, decentralized system of government where locally-elected officials had more control and were more accountable to their communities.54 Despite this sentiment, a ratification election went forward under federal supervision.55 Based on Congressional Reconstruction rules, many Democrats were deemed ineligible to vote.56 Many others, disheartened by federal control and military-supervised elections, refrained from voting.57 As a result, Unionist Republican Edmund Davis was elected Governor in a tight race,58 and the proposed Constitution passed.59 Congress accepted the election results.60 In 1870, Texas was readmitted into the Union and military rule in Texas ended.61
Governor Davis fully utilized his executive authority. He created a state police force; increased the number of district courts; appointed district judges and placed them in charge of directing police forces to maintain law and order; subordinated local school districts to a centralized state board of education; implemented martial law in areas of lawlessness; and increased taxes.62 Democrats initiated a call to action and labeled Davis’ administration “Tyranny, Taxes, and Corruption.”63
In 1874, after defeating the Republicans in statewide elections,64 Texas Democrats formed a new constitutional convention.65 Having lived under federal military control and then the 1869 Constitution with its strong centralized government, most Texans wanted a new direction.66 Thus, much of the focus of the new constitutional convention was on decentralizing the government, weakening the executive branch, returning power to locally-elected officials, reducing taxes, and making government less expensive.67 ,68 In 1876, Texas voters ratified our current Constitution (which over the years has undergone amendments).69
II. Roles of the AG and DA under Early Texas Constitutions
The Texas Office of the Attorney General (OAG) is unique in that it has never had the same broad authority or wide variety of duties as AG positions in other states.70 Instead of being constitutionally created, the Texas OAG was first created by executive ordinance in 1836.71 Under this ordinance, the AG was to be appointed by the Governor and his duties were to be defined by the Legislature.72 The AG's statutory duties were described in general terms and were shared with the other heads of department, i.e., the secretaries of state, war, navy, and the treasury.73
Thereafter, the OAG appeared in the Judicial Department of the 1845 Constitution.74 Under that Constitution, the AG was to be appointed by the Governor and his duties assigned by the Legislature.75 Those duties were primarily to represent the State in all proceedings in the Texas Supreme Court; to defend the State in the district courts against claims for payment; to counsel the district attorneys when requested to do so; and to perform any other duties prescribed by law.76 The AG became an elected position under the 1866 Constitution, but the office remained in the Judicial Department with duties assigned by the Legislature.77
The 1869 Constitution implemented by the Unionists sought to impose a strong, centralized government,78 and therefore the AG again became a gubernatorially-appointed position and was moved to the Executive Department.79 The AG's duties under the 1869 Constitution were to: (1) “represent the interests of the State in all suits or pleas in the Supreme Court;” (2) “instruct and direct the official action of the District Attorneys so as to secure all fines and forfeitures, all escheated estates, and all public moneys to be collected by suit;” (3) “when necessary, give legal advice in writing to all officers of the government;” and (4) “perform such other duties as may be required by law.”80 The catchall provision “perform such other duties as may be required by law” was also included within the duties of other executive officers.81
Unlike the Office of the Attorney General which was created by executive order, the office of the District Attorney was constitutionally created under the 1836 Republic of Texas Constitution. The DA's office was included in the Judicial Department, but the duties were to be prescribed by law.82 In the 1845 Constitution, the DA and AG were included in the same section of the Judicial Department which provided:
The governor shall nominate, and, by and with the advice and consent of two-thirds of the senate, appoint an attorney general, who shall hold his office for two years; and there shall be elected by joint vote of both houses of the legislature a district attorney for each district, who shall hold his office for two years; and the duties, salaries, and perquisites of the attorney general and district attorneys shall be prescribed by law.83
Despite the change in the constitutional provision governing the DAs, their duties as prescribed by law did not change. They still had the exclusive duty to represent the State in both civil and criminal cases in the trial courts while the AG exclusively represented the State in the Texas Supreme Court. See, e.g., State v. Johnson, 12 Tex. 231, 236 (1854) (citing Hartley's Digest of the Laws of Texas, Art. 616)84 (“It is prescribed by law that it shall be the duty of the District Attorney to attend all Terms of the District Court in his district, to conduct all prosecutions for crime and offenses cognizable in such Courts.”); see also State v. Allen, 32 Tex. 273 (1869) (involving a civil lawsuit filed and settled on behalf of the State by the DA in the district court but appealed to the Texas Supreme Court by the AG).85
In State v. Southern Pacific R.R. Co., 24 Tex. 80 (1859), the Texas Supreme Court provided a description of the respective roles of the AG and the DA under the 1845 Constitution. The Court was tasked with resolving whether the AG and the DA, who jointly initiated a civil suit to forfeit the charter of a railroad, had the authority to file such suit.86 In examining this question, the Court noted that despite being assigned to the Judicial Department, the AG and DA were both “executive officers” with separate duties. Id. at 116–17 (“The governor, attorney general, and district attorney, are all executive officers, each acting in their appropriate sphere.”). The Court also noted that the duties of the AG and DA were prescribed by statute and not by the Constitution. Id. at 117 (“The constitution, after providing for their appointment [by the Governor], prescribes, that the ‘duties ․ of the attorney general and district attorneys, shall be prescribed by law.’ ”). The statutory “duty of the attorney general, [is] to prosecute and defend all actions in the supreme court of the state, in which the state may be interested; and also to perform such other duties as may be prescribed by the constitution and laws of the state.’ ” Id. (quoting the applicable statute for the AG's duties).
By contrast, for the DA, the applicable statute prescribed that “it [is] the duty of the district attorney to attend all terms of the district court, ‘to conduct all prosecutions for crimes and offenses cognizable in such court, to prosecute and defend all other actions in which this state is interested, and to perform such other duties as may be prescribed by the constitution and laws of the state.’ ” Id. (quoting the applicable statute for the DA's duties) (emphasis omitted). The Court stated that while the AG and DA had joined forces to bring the lawsuit at issue, it was the DA's and not the AG's duty to represent the State in the district court. Id. at 119 (stating that while it was unnecessary for the Court to determine the respective roles of the AG and DA, “it seems to fall, more appropriately, within the province of the district attorney, to prosecute this, or any other suit for the state in district court”).
The Court also remarked on the “privilege” of discretion as to whether a case would be filed or prosecuted. It stated that this “privilege arises out of the very nature of an executive office, and is an incident to its duties.” Id. at 118. “Duty gives the command, and the power to act, and necessarily confers the right to determine the necessity or propriety of action.” Id. at 119. Regarding this discretion as it relates to the independent roles of the AG and DA, the Court observed that harmony, communication, and cooperation between these two executive officers is expected. Id. at 117. But it also acknowledged that there may be occasions where they disagree “as to the proper course to be pursued.” Id. While such disagreement would be an “inconvenience,” the Court remarked that because of each officer's independence from the other and their different statutory duties, such disagreement may sometimes “prevent suits from being brought occasionally, which might otherwise be brought.” Id. Thus, in 1859, just as it was in 1836, it was the DA's duty to initiate lawsuits or prosecutions on behalf of the State in the district courts. The AG could provide advice and assistance to the DA, but only if the DA asked for it. If the DA chose not to initiate litigation in a particular case and the AG disagreed with that decision, Southern Pacific R.R. Co. suggests that the AG had no authority to initiate the lawsuit over the DA's objection.
In the 1866 Constitution, both the DA and AG remained in the Judicial Department but were separated into different sections. The DA became an elected position with a term of four years, but his duties were still to be “prescribed by law” and did not change. Tex. Const. of 1866, art. IV, § 14; see, e.g., State v. McLane, 31 Tex. 260, 261 (1868) (noting that the district attorney 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”). Later that year, the Legislature assigned to the county attorneys the duty “to represent the state in all cases wherein she might be a party in the county court and before committing magistrates, in the absence of the district attorney.” State v. Currie, 35 Tex. 17, 19 (1872) (citing Section 38, Act of October 25, 1866).
The 1869 Constitution also did not change anything with respect to the duties of the DAs. They remained assigned to the Judicial Department and were still to be elected for four years with their duties to be “prescribed by law.” Tex. Const. of 1869, art. V, § 12. Over the course of the several constitutions, the DAs’ core duties never changed. See, e.g., Davis v. State, 44 Tex. 523, 524 (1876) (noting that in a criminal prosecution, the “State is a party litigant, and speaks and acts through its appropriate district attorney ․ This power is embraced in the authority expressly conferred on him ‘to conduct all prosecutions for crimes and offenses cognizable in such court.’ ”) (citing to statute applicable to DAs before the adoption of the 1876 Constitution); see also Moore, 57 Tex. at 316 (noting that “under all the constitutions of this state ․ it was always contemplated that the district attorneys should represent the state in all cases in the district and inferior courts”).
III. Roles of the AG and DA under the 1876 Constitution
The 1876 Constitution remains in force today and contains the provisions under consideration in this case (although subject to multiple amendments over the intervening decades). As discussed above, the focus of the 1876 Constitution was to decentralize the government and weaken the executive branch to place more control in the hands of local elected officials and prevent further governmental overreach. Along those lines, all statewide-elected officers, other than judges, were placed in the executive branch. This included the AG, whose duties under this Constitution were more restricted and more specifically enumerated. The AG was no longer allowed to “direct the official action of the District Attorneys,” and instead of specifying that he could provide legal advice to “all officers of the government,” he was limited to giving such advice only “to the governor and other executive officers.”
As for criminal prosecution in the trial courts, nothing in the 1876 Constitution could be construed as assigning that duty to the AG.87 See Saldano v. State, 70 S.W.3d 873, 878 (Tex. Crim. App. 2002) (“The office of the attorney general of Texas has never had authority to initiate a criminal prosecution.”).88 The AG's involvement in criminal law, assigned by statute, was limited solely to representing the State on appeal in the Court of Appeals, which eventually became this Court. Id. at 880. And even that involvement ended in 1923 with the creation of the office of the State Prosecuting Attorney, whose office now represents the State in this Court. Id.
The DAs and county attorneys, by comparison, remained in the judicial branch and their duty to represent the State in all district and inferior courts became an express constitutional duty rather than merely being “prescribed by law:”
The county attorneys shall represent the State in all cases in the District and inferior courts in their respective counties, but if any county shall be included in a district in which there shall be a district attorney, the respective duties of district attorneys and county attorneys shall in such counties be regulated by the Legislature.
Tex. Const. art. V, § 21. This language has remained unchanged since its adoption.
Regarding the language that the Legislature shall “regulate” the respective duties of the district and county attorneys, this merely means that the Legislature has the authority to determine which of these officers will represent the State in which courts and on what types of cases. For example, in many counties the county attorney represents the State in the trial courts for only civil law matters, while the district attorney or criminal district attorney represents the State in the trial courts for criminal law matters. See, e.g., Tex. Gov't Code § 43.180 (providing that the District Attorney for Harris County represents the State in criminal matters in the district and inferior courts of the county); Tex. Gov't Code § 45.201 (providing that the County Attorney for Harris County represents the State in civil matters). In other counties, the district attorneys represent the State in district courts while the county attorneys represent the State in the inferior courts such as the county courts of law and justice of the peace courts. See, e.g., Tex. Code Crim. Proc. art. 2.01 (“Each district attorney shall represent the State in all criminal cases in the district courts of his district ․”); Id. art. 2.02 (“The county attorney shall attend the terms of court in his county below the grade of district court ․”). The Legislature's power to “regulate” in this context does not allow it to take away any part of the constitutionally-assigned duty from these officers and give that duty to another officer in a different department of government. See, e.g., Ex parte Patterson, 58 S.W. 1011, 1012–13 (Tex. Crim. App. 1900) (“The power to regulate does not properly include the power to suppress or prohibit, for the very essence of regulation is the existence of something to be regulated. The power to regulate includes the power to restrain, so long as the restraint imposed is reasonable. The restraint must not so confine the exercise of [a right or duty] as to amount to a prohibition.”).
Further, the express separation-of-powers provision in the Texas Constitution ensures that the Legislature's power is kept in check so that the will of the people can prevail:
The powers of the Government of the State of Texas 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, § 1. This provision in some form has been included in every Texas Constitution since 1836. It means that the Legislative Department is prohibited from enlarging, restricting, or destroying the powers of another department unless the Constitution itself, in expressly-worded terms, gives the Legislature such power. Lytle v. Halff, 12 S.W. 610, 611 (Tex. 1889) (“The declaration is that the executive, legislative, and judicial departments shall exist,—this is the fiat of the people,—and neither one nor all of the departments so created can enlarge, restrict, or destroy the powers of any one of these, except as the power to do so may be expressly given by the constitution.”). Nothing in the Constitution provides the Legislature with the power to restrict or reassign the duty of the district and county attorneys to represent the State in any type of criminal prosecution, except in those instances falling within the AG's express constitutional duty to “take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage, not authorized by law.” Tex. Const. of 1876, art. IV, § 22. Moreover, when the people adopted the Constitution, they believed that the duty to represent the State in all criminal prosecutions would lie exclusively with the district and county attorneys. See, e.g., Moore, 57 Tex. 307.
Despite the 1876 Constitution being the first to expressly assign to the district and county attorneys the duty of representing the State in all cases in the trial courts, that duty has effectively remained the same throughout the entirety of Texas history and has never changed. This is highlighted in State v. Moore, written a mere six years after the ratification of our current Constitution. 57 Tex. 307 (1882). In Moore, the Texas Supreme Court examined the constitutional relationship between the duties of the AG and those of the district and county attorneys. The opinion was written by Justice John William Stayton, who would later become chief justice. Justice Stayton served in the 1875 Constitutional Convention.89 He participated in the debates and assisted in the document's drafting.90 Thus, his opinion in Moore is entitled to great deference regarding the original meaning and intent of the Framers and the understanding of the applicable provisions by the ratifying voters.
Moore arose out of an initial dispute regarding whether the Travis County Attorney, E.T. Moore, or the AG had the constitutional authority to initiate lawsuits against defaulting tax collectors. The comptroller of public accounts had turned over to the AG “certain accounts against ․ defaulting collectors.” Moore, 57 Tex. at 309–10. The AG then initiated civil lawsuits in Travis County district court against these collectors. Moore filed motions with the district court arguing that the suits had been filed “against his consent, and without his knowledge” and that “under the constitution and laws of the state, it was his duty and privilege to ․ prosecute and control these suits to the exclusion of all other officers or attorneys.” Id. at 310. The district court granted Moore's motion and “gave control to the county attorney to the exclusion of the attorney general.” Id.
After receiving final judgments on the lawsuits and collecting on them, Moore claimed commissions on these collections. Id. The AG filed suit on behalf of the State against Moore alleging that Moore had no right to retain the commissions. Id. at 309. The suit was ultimately appealed to the Texas Supreme Court. The Court addressed two issues: (1) the respective constitutional powers and duties of the AG in the executive department and the district and county attorneys in the judicial department; and (2) whether pursuant to this analysis, the statute at issue properly allowed the AG to litigate the matter regarding the county attorney retaining commissions in the district court. Because the first issue is the only one relevant to this opinion, my discussion of Moore is limited to that issue.
Justice Stayton, on behalf of the Court, started his analysis by recognizing:
While it is true that our government is departmental in character, and that the officers of the different departments are to a very large extent independent of and free from the control of the heads of other departments, yet in the very nature of things, in the details of business, occasions will and do arise, where officers of the executive department do and ought to exercise a power at least advisory over some officers, who, although classed in a different department, exercise powers in fact partaking more of the character of executive power than of judicial power; among these are the district and county attorneys, sheriffs and constables.
Id. at 310–11. The opinion then referred back to the language of State v. Southern Pac. R.R. Co., (see Section II above), and noted:
“In this state ․ direct control [of law officers by the executive] ․ is cut off by the independence of the law officers of the state ․ And, although absolute subjection does not exist, harmony between executive officers who are impelled by a common duty is to be expected generally, unless a difference of opinion should exist as to the proper course to be pursued. That is an inconvenience which is consequent upon maintaining the independence of inferior officers․ While our statutes seem designed to make a division of powers and duties between them (attorney general and district attorneys), in representing the interest of the state in the several courts, they evidently contemplate a correspondence for advice and information between them.”
Id. at 311 (quoting Southern Pac. R.R. Co., 24 Tex. at 117).
Building on the reference to Southern Pacific R.R., the Moore Court noted that “[f]rom the 11th day of May, 1846, until the present time, this relationship has, under the statutes of this state, been recognized, and it is not believed that the fact that, under the present constitution, [the AG and the DAs] have been placed in different departments, severs that relationship, their duties being of the same character[.]” Id.
Thus, when considering the 1876 Constitution's separation-of-powers provision along with the catchall phrase in the provision enumerating the duties of the AG (that he “shall perform such other duties as may be required by law”), the Court reasoned that “the legislature has the power to make the attorney general, as it has done, the adviser of district and county attorneys. He is the superior law officer of the state.” Id. at 311–12. Therefore, the Court acknowledged that under the statute at issue in the case, which obligated the AG to “institute or cause to be instituted” suit against any defaulting tax collector,91 “the attorney general would have the power to institute and prosecute a [civil] suit for the recovery of money due to the state, in any county of the state in which there might not be a county or district attorney.” Id. at 312 (emphasis added). The reason being that “otherwise occasions might arise in which no official representation could be had by the state.” Id. Additionally, the Court stated, “[U]nder the act we have no doubt that the attorney general might prosecute [such cases], in connection with the proper district or county attorney.” Id. But the Court also cautioned that “such action upon [the AG's] part ․ could not ․ deprive [the county and district attorneys] of their freedom and independence of action as to method of managing and conducting the case[.]” Id. Thus, in any county where there was a county or district attorney, the AG's role was limited to an advisory position “unless the legislature has the power to impose upon him the powers which the constitution expressly confers upon county and district attorneys.” Id. The Court then went on to analyze whether the legislature had such power.
To answer this question, the Court examined the constitutional language defining the respective duties of the attorney general and the county and district attorneys. See Tex. Const. arts. IV, § 22; V, § 21. It observed that because some of the duties expressly assigned to the AG required him to represent the State in the district and inferior courts, the Constitution did not intend “to confer upon county attorneys the power, or to impose upon them the duty, of representing the state in all suits in the district and inferior courts[.]” Moore, 57 Tex. at 313 (emphasis in original). But the Court also determined that the catchall phrase in Article IV, section 22, that the AG shall “perform such other duties as may be required by law,” did not “confer ․ power upon the legislature to give to the attorney general power to perform those acts which the constitution itself conferred upon county attorneys[.]” Id. at 314. Instead, the catchall 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.” Id. As the Court noted, the Constitution's phrase that the AG shall “ ‘perform such other duties as may be required by law,’ is general,” whereas the declaration that “ ‘the county [and district] attorneys shall represent the state in all cases in the district and inferior courts in their respective counties’ is specific, and under the well settled rule of construction, if there was a conflict, the latter [more specific] would have to prevail.” Id. at 315–16.
Thus, to the extent that the Constitution was ‘silent’ regarding some of the powers and duties the statute conferred upon the attorney general, such powers and duties could be constitutionally exercised by the AG and there could be “no objection to their exercise.”92 Id. at 314. But, with respect to powers that the Constitution had expressly assigned to another officer, the Court cautioned, “It must be presumed that the constitution, in selecting the depositaries of a given power, unless it be otherwise expressed, intended that the depositary should exercise an exclusive power, with which the legislature could not interfere by appointing some other officer to the exercise of the power.” Id. (emphasis added). “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.” Id.
While the Court recognized that the AG and the district and county attorneys all exercise executive powers and each could have been assigned to the Executive Department, the Constitution only assigned the AG there; instead, the DAs are constitutionally assigned to the Judicial Department. Id. at 314–15. But the Constitution expressly “grants to the [AG] certain powers, the exercise of which can only be had in the judicial department[.]” Id. at 315. Thus, those powers fall within the separation-of-powers clause's exception for “the instances herein expressly permitted.” Id. In sum, because the Constitution expressly grants to county and district attorneys the duty to “represent[ ] the State in all cases in the district and inferior courts,” which is “broad” and “comprehends alike cases civil and criminal,” the AG is limited to representing the State in the district and inferior courts only “so far as the constitution itself confers” such power upon him. Id.
The Court further addressed the Legislature's lack of authority to reassign constitutionally-assigned powers. It remarked that certainly the Constitution could be written to allow the Legislature to “withdraw power from the hands in which the constitution placed it” and give that power to another officer. Id. “[B]ut to enable the legislature to do so, the power must be given [by the Constitution] in express terms, and it cannot be implied.” Id. In other words, for the Legislature to have the power to reassign constitutionally-designated powers or duties, the voters would have to adopt a constitutional amendment that expressly allows the Legislature to do so; the Legislature cannot do it unilaterally because the Constitution does not give it that power. The Court concluded its analysis by noting that “under 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 designated” by the Constitution itself. Id. at 316. It ultimately held on this issue that “the [district] court did not err in holding that it was the right and the duty of the county attorney to represent the state in the several suits” against the defaulting tax collectors to the exclusion of the AG. Id.
IV. Power of the Legislature to assign “other duties” to the AG
The AG and amici claim that the constitutional catchall phrase contained within Article IV, section 22, that the AG shall “perform such other duties as may be required by law,” allows the Legislature to assign the duty to criminally prosecute “election law” violations to the AG. They also claim that the Legislature has assigned this role to the AG for 70 years and the Texas Supreme Court has upheld the Legislature's ability to do so. They are wrong on all counts.
A. In 1876, ratifying voters understood that “other duties” assigned by the Legislature must be: (1) of the same character as the officer's department (i.e., executive), (2) must properly pertain to the business of that particular office, and (3) cannot interfere with a duty expressly assigned by the Constitution to an officer in a different department.
No party or amicus disputes the position that the Constitution assigns the duty to prosecute criminal law violations to the DAs (and county attorneys). But they argue that the constitutional provision that the AG shall “perform such other duties as may be required by law” authorizes the Legislature to take some prosecutorial duties away from the DAs (and county attorneys) and give them to the AG. It does not, unless the prosecutorial duty is limited to the AG “tak[ing] such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage, not authorized by law.” Tex. Const. art. IV, § 22. Other than this one exception, the Legislature is prohibited by the Constitution from restricting the district and county attorneys’ constitutional duty to represent the State in all criminal prosecutions in the trial courts. Lytle, 12 S.W. at 611. All power belongs to the people, and it is their assignment of power and duties through the Texas Constitution that ultimately controls.93 Further, as recognized by the predecessor to this Court, the Court of Appeals, the Constitution is “a chart containing limitations upon power.” Holley v. State, 14 Tex. Ct. App. 505, 515 (1883). Thus:
[W]henever the Constitution declares how power may be exercised over any subject, then no power can be exercised over that [same] subject in any manner not clearly within the plain import of the language of the Constitution. Mere silence or failure to provide for some particular feature of the subject cannot be construed into a neglect or omission, or an ignoring of that feature. Nor do we think it can rightly be said that the Constitution is silent. It has spoken in words as plain as language could well make it․ [W]here the means for the exercise of a granted power [or assigned duty] are given [in the Constitution], no other or different means can be implied as being more effective or convenient. [And] when the Constitution defines the circumstances under which a right may be exercised ․ the specification is an implied prohibition against legislative interference.
Id. at 515–16. Accordingly, where the Constitution has given an express duty such as assigning to the district and county attorneys the duty to represent the State in all cases in the district and inferior courts, the provision that the AG shall “perform such other duties as may be required by law” does not give the Legislature power to carve out exceptions to the DAs expressly-assigned constitutional duty by assigning the exercise of a part of that duty to another officer unless the Constitution specifically and in plain words states that the Legislature has such power.
The 1876 ratifying voters already understood the respective roles of the AG and DAs. They knew that the DAs had always had the exclusive duty of criminal prosecution in the trial courts and that the AG represented the State in the Texas Supreme Court. But they also understood the meaning of the catchall phrase “perform such other duties as may be required by law.” That is because this catchall phrase was neither new to the 1876 Constitution, nor was it exclusively within the duties of the AG. That phrase, or something similar, was used within the constitutional provisions pertaining to several governmental officers in every Texas Constitution since 1845. See, e.g., Tex. Const. of 1845, art. V, § 16 (enumerating duties of the Secretary of State and concluding with “and shall perform such other duties as may be required of him by law.”). The ratifying voters also would have understood the meaning of this phrase based on court opinions interpreting it. One such opinion was Kuechler v. Wright, 40 Tex. 600 (1874).
In Kuechler, in a concurring opinion, Texas Supreme Court Chief Justice Oran Milo Roberts 94 noted that the 1869 Constitution assigned various duties to the Executive Department's Commissioner of the General Land Office, which included that he “perform such other duties as may be required by law.” 40 Tex. at 657–59 (Roberts, C.J., concurring). Chief Justice Roberts construed that phrase to mean that the Legislature could only assign duties that are of the same character as the officer's department (i.e., executive), must properly pertain to the business of that particular office, and cannot interfere with a duty expressly assigned by the Constitution to an officer in a different department. Id.
Nothing changed this catchall phrase's meaning or the people's understanding of it between the adoption of the 1869 Constitution and the 1876 Constitution. Accordingly, the phrase means exactly the same thing today. Thus, the only “other duties” that may be assigned by the Legislature to the AG are those which are: (1) executive duties; (2) fall within the types of duties associated with the AG's office; and (3) do not interfere with another officer's constitutionally-assigned duties.
While not stated as directly as in Kuechler, a similar interpretation of the catchall phrase was used in 1882 in Moore, discussed above, in which the Court specifically examined the duties of the AG under the 1876 Texas Constitution. As in Kuechler, the Moore Court found that the phrase “perform such other duties as may be required by law,” while broad enough to “confer all the power claimed,” was not intended to confer “power upon the legislature to give to the attorney general power to perform those acts which the constitution itself conferred upon county attorneys.” 57 Tex. at 314. The Moore Court further noted that when a statute “grants some powers and imposes some duties upon the attorney general in regard to matters upon which the constitution is silent ․ there can be no objection to their exercise.” Id. But, given that it was the express constitutional duty of the district and county attorneys to represent the State in all cases in the trial courts (except in those matters expressly constitutionally assigned to the AG), the Constitution was not silent in this respect. Thus, the catchall phrase could not be used as a basis to justify the AG's attempt to unilaterally take such action in the district court when doing so would conflict with the county attorney's exercise of his constitutionally-assigned duties. Id. at 314–15.
As both Kuechler and Moore demonstrate, the meaning of the “perform such other duties” clause was clear both before and after the voters adopted the 1876 Texas Constitution. The Legislature could assign to the AG other duties that pertained to that office so long as the Constitution was otherwise silent about them. But where the Constitution had already expressly assigned duties to a specific officer, the Legislature was not allowed to interfere with such constitutionally-assigned duties by assigning them to the AG. Therefore, under the express language of the Constitution, the AG has the duty to represent the State in the trial courts for matters involving or related to: “the charter rights of all private corporations,” 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 “judicial forfeiture of such charters.”95 But because the Constitution expressly assigns to the district and county attorneys the duty to represent the State in the trial court for all other matters, the Legislature cannot assign that duty to the AG if doing so would interfere with the district and county attorneys’ constitutional duty. Neither the Legislature nor the courts have any authority to override the Constitution and the will of the people on this.
B. Brady is inapplicable.
The AG and most of the amici rely on Brady v. Brooks, 89 S.W. 1052 (Tex. 1905), for the contrary proposition that the Legislature has the power through the general catchall phrase, “perform such other duties as may be required by law,” to assign any other duties to the AG that it wishes regardless of whether such duties are already constitutionally assigned, so long as doing so does not “destroy” another office. As discussed below, I find Brady to be lacking in proper constitutional analysis and question its precedential value. But even Brady expressly states that while the Legislature could assign certain civil litigation matters to the AG, it could not assign duties that would interfere with the district and county attorneys’ primary duty of criminal prosecution.
In Brady, then Chief Justice Ruben Gaines, writing for the Court, criticized State v. Moore (which solely involved civil law). Id. at 1054. The issue in Brady was whether the AG had the authority to initiate lawsuits in the district courts to recover certain taxes and penalties owed to the State of Texas. In the legislative session immediately preceding the cases, the Legislature passed the “Kennedy Bill” and the “Love Bill,” which required, upon request of the Comptroller, that the AG file lawsuits in Travis County to recover state taxes and penalties from railroads and certain other individuals and corporations engaging in specified occupations. Id. at 1053. Relying in part on State v. Moore, the Travis County district and county attorney noted that the Texas Supreme Court had already held that the Texas Constitution authorized them to prosecute these cases in the district court to the exclusion of the AG. Id. at 1053–54.
In his opinion, Chief Justice Gaines first characterized Moore’s holdings as follows: (1) “the county attorney was entitled to prosecute the suit [at issue] to the exclusion of the Attorney General; and” (2) “there was no law then in force which allowed the county attorney commissions in a case of that character.” Id. at 1054. But Gaines then went on to say that the holding in Moore regarding the county attorney's authority to prosecute the lawsuit to the exclusion of the AG was mere dictum and was therefore not “conclusive authority” on the issue. Id.
Gaines further stated that Chief Justice Stayton's opinion in Day Land & Cattle Co. v. State, 4 S.W. 865 (Tex. 1887), already “practically overruled” his opinion in Moore. Id. This statement in Brady is clearly wrong. In Day Land & Cattle Co., both the AG and the DA jointly filed a lawsuit in district court to cancel certain land grants to which the defendants claimed to be entitled but which appeared to be owned by the State. The Day Land & Cattle Co. Court, in dictum, stated that there was no statute that provided for such a lawsuit at the time it was filed, meaning there was no cause of action that authorized the AG or the DA to bring the lawsuit and there was no “implied power resulting from the general grants of power or imposition of duties.” Day Land & Cattle Co., 4 S.W. at 867. Therefore, “in a government in which the duties of all officers, as well as their powers, are defined by written law, no power ought to be exercised for which warrant is not there found.” Id. But then the Court noted that the Legislature ratified the action by the AG and DA by enacting a statute declaring “that nothing in this act shall ․ requir[e] ․ the attorney general to dismiss any suit [such as the one at issue in the case] now pending ․ nor to prevent him from bringing other suits for such purposes.” Id. (quoting the relevant statute). Looking to this aspect of Day Land & Cattle, the Brady Court opined that “if the Legislature had the power to ratify the act of the Attorney General in bringing and prosecuting that suit, it had the power to have conferred original authority upon that officer to do so.” Brady, 89 S.W. at 1055. The Brady Court, however, failed to consider the fact that both the AG and DA jointly brought the lawsuit, and thus neither the DA nor the AG raised a constitutional challenge to the other's authority to represent the State in the district court. Accordingly, Day Land & Cattle Co. had nothing to do with the Constitution's separation-of-powers provision as it pertained to the question of the Legislature's authority to confer duties or powers upon the AG that were already constitutionally assigned to the DAs.
The Brady opinion then reasoned, without providing any historical analysis of the language of the Constitution,96 that Article 5, Section 21 (stating that when there is both a county attorney and a DA within the same county, their “respective duties shall be regulated by the Legislature”) might mean “that the framers of the Constitution may have had in mind duties to be performed rather than a privilege to be conferred.” Id. It went on to say, “Might it not at the same time be considered, that the Legislature would have the power to relieve [the county and district attorney] in exceptional cases of a part of such duties, and to devolve them upon the Attorney General by virtue of section 22 of article 4.”97 Id. It further stated:
We attach no importance to the fact that the definition of the duties and powers of the Attorney General are placed in article 4, which is the article devoted to the executive department of the state government. The duties imposed upon him are both executive and judicial ․ in the sense, that he is to represent the state in some cases brought in the courts․ So article 5, the judiciary article, embraces the definition of the duties of the sheriffs and clerks of the courts whose powers and duties are executive. Section 22 of article 4 might appropriately have been placed in article 5, and we think it should be construed precisely as if it had been so placed.
Id. at 1056 (emphasis added). This statement by the Brady Court flies in the face of the express constitutional language, the historical context giving rise to the Constitution, the inclusion of an express separation-of-powers provision, and the people's delegation of officers to specific departments of the government. See Ginnochio v. State, 18 S.W. 82, 84–85 (Tex. App. 1891) (“This separation of the powers is not merely theoretical. They are practical and imperative, else the words employed are powerless, and the will of the people of the great sovereignty of Texas, expressed in their written constitution, is but an empty and meaningless fulmination․ It is the solemn duty of courts to uphold the constitution as it is written, permit no encroachments by one department upon another, and yield none of its own power and authority to any other department, nor assume any not confided to it.”). In fact, the Brady opinion does not even mention or reference the separation-of-powers provision in Article II, section 1, of the Texas Constitution. That fact alone demonstrates that the opinion's reasoning is seriously flawed.
Even so, the Brady Court noted that the “main function” of the county and district attorneys is “to prosecute the pleas of the state in criminal cases.” Brady, 89 S.W. at 1056. This statement makes clear that the Court's holding in Brady was limited to deciding the AG's authority to act on behalf of the State in bringing civil lawsuits where the Legislature had granted him that authority. This is because taking away the independence and duties of county and district attorneys in criminal matters and assigning them to the AG would violate the “important restriction upon that language [in article 5, section 21, describing the duties of the district and county attorneys]” that prohibits the Legislature from “tak[ing] away ․ much of their duties as practically to destroy their office.” Id. As noted by our original Stephens opinion, Brady applies the wrong standard in analyzing a separation-of-powers issue. See Stephens, 2021 WL 5917198, at *7. This is probably the case because the Brady Court conducted no real separation-of-powers analysis; but in any event, the opinion also suggested that the Legislature could not assign the powers of criminal prosecution to the AG.
Ultimately, while the actual Brady holding could be correct given the fact that the statute at issue involved duties that could potentially be construed to fall within the constitutionally-enumerated duties of the AG, the Brady Court's reasoning was wrong. Thus, I find the opinion's precedential value highly questionable. Moreover, Brady solely involved the Legislature's authority to assign civil-law representation to the AG where his constitutionally-assigned duties already included representing the State in the district and inferior courts for certain specified civil law matters. Accordingly, our Stephens opinion correctly found Brady inapplicable.
C. In 1957, a court of appeals stated that the Legislature had no power to take away the district attorney's constitutional duty to prosecute election law violations and give that duty to the AG.
Several amici claim that the AG has had the statutory authority to criminally prosecute election law violations for over 70 years, referring to a 1951 statute that is a predecessor to the statute at issue in this case. First, the number of years a statute has been on the books matters not if that statute violates the Constitution. Rochelle v. Lane, 148 S.W. 558, 560–61 (Tex. 1912) (stating that “the usurpation of power on the part of officials is not sanctified by its long continuance ․” because “the superiority of the Constitution must be sustained until the sovereign voters shall change it”). Second, this claim is inaccurate because in 1957, a court of appeals called into question the constitutionality of that statute, and the AG never appealed that decision.
In Shepperd v. Alaniz, the San Antonio Court of Appeals was presented with the question of whether former Section 130 of the Texas Election Code “has the effect of giving the Attorney General of Texas the exclusive power to investigate [a primary election in Webb County] ․ and to do the other things which are provided” in that statute. 303 S.W.2d at 847–48. In answering this question, the court had to consider “the respective duties of the District Attorney and County Attorney, on one hand, and the Attorney General, on the other, in the investigation of the conduct of elections and the prosecution of any election law violation that may be discovered.” Id. at 848. The court conducted a constitutional analysis and a review of opinions from the Texas Supreme Court, including Moore, 57 Tex. 307, and Brady, 89 S.W. 1052, discussed above. Based on this analysis, the court upheld an injunction against the Attorney General's election-law case filed in Travis County when the Webb County District Attorney had already initiated a prosecution for the same matter in Webb County. The court concluded that:
It has always been the principal duty of the district and county attorneys to investigate and prosecute the violation of all criminal law, including the election laws, and these duties cannot be taken away from them by the Legislature and given to others. If Section 130 of the Election Code should be construed as giving such powers exclusively to the Attorney General, then it would run afoul of Sec. 21 of Article 5 of the Constitution and would be void.
Id. at 850. Thus, while the court of appeals did not conclusively declare the statute unconstitutional, it stated that the statute would be unconstitutional if it were construed to confer upon the AG the “exclusive” power to initiate such prosecutions. Because the question of the AG's exclusive authority was the only one necessary to resolve the case, the court declined to address “whether or not the Attorney General may have concurrent power with the district and county attorneys to investigate and prosecute violations of the election law by reason of said Section 130[.]” Id.
Interestingly, just a few years after Shepperd was decided, in 1965, the Legislature enacted Texas Code of Criminal Procedure 2.01, titled “Duties of District Attorneys.” That statute provides in part that “[e]ach district attorney shall represent the State in all criminal cases in the district courts ․” Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722 (codified at Tex. Code Crim. Proc. art. 2.01) (emphasis added). Then, in 1985 the Legislature passed a statute declaring that the district attorney for the 49th Judicial District (Webb County) “represents the state in all criminal cases in Webb County” and “also represents the state in the 111th District Court in all criminal cases and in all other matters in which the state is a party.” Acts 1985, 69th Leg., ch. 480, § 1 (codified at Tex. Gov't Code § 43.128).98 These enactments appear to be a ratification by the Legislature of the court of appeals’ Shepperd decision by specifying that the district attorney represents the state in all criminal cases. There are no exceptions in these statutes made for election law crimes.
Accordingly, the argument that the AG has had exclusive statutory authority for 70 years to initiate criminal prosecutions in election law cases is disingenuous and fails to provide a complete picture. Moreover, as previously stated, just because a statute has been “on the books” for decades does not mean that it is constitutional.
D. No Texas Supreme Court or Court of Criminal Appeals decision has ever “concluded that the Attorney General's prosecutorial authority in election law cases was consistent with the Texas Constitution;” in fact, they have consistently held the opposite.
One amicus claims that the Texas Supreme Court and this Court have “previously concluded that the Attorney General's prosecutorial authority in election law cases was consistent with the Texas Constitution.”99 That is unquestionably false. There are absolutely no decisions from either this Court or the Texas Supreme Court that have reached such a holding, or even suggested that to be the case. In fact, a review of the cases already discussed in detail above, as well as the following cases, reveals that both courts have consistently recognized that only the district and county attorneys have the constitutional authority to prosecute criminal cases in the trial courts to the exclusion of the AG:
• In re Abbott, 601 S.W.3d 802, 812 (Tex. 2020) (“[T]he State correctly observes that the Attorney General cannot bring ․ a criminal prosecution without the participation of a district attorney.”)
• Ex parte Lo, 424 S.W.3d 10, 30 n.2 (Tex. Crim. App. 2013) (citing statutes authorizing the AG to represent the State in criminal cases in trial courts only with the consent or by the request of the local prosecutor and concluding that “the attorney general is, with a few exceptions in Texas trial courts, not authorized to represent the State in criminal cases”).
• Saldano v. State, 70 S.W.3d 873, 883 (Tex. Crim. App. 2002) (“The language and the history of the constitutional and statutory provisions that create and regulate the attorney general, the district attorneys, and the county attorneys are clear. They expressly give district attorneys and county attorneys general authority to represent the State in appeals of criminal cases. They express no authority for the attorney general to represent the State in criminal cases without the request of a district or county attorney.”).
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994) (citations omitted) (“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.”).
• Meshell v. State, 739 S.W.2d 246, 254–55 (Tex. Crim. App. 1987) (“An obvious corollary to a district or county attorney's duty to prosecute criminal cases is the utilization of his own discretion in the preparation of those cases for trial. Therefore, under 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.”).
• Garcia v. Laughlin, 285 S.W.2d 191, 195 (Tex. 1955) (recognizing that the Constitution gives to county attorneys and district attorneys the duty to represent the State in trial courts, and absent a specific legislative enactment, either may represent the State).
• Maud v. Terrell, 200 S.W. 375, 376 (Tex. 1918) (stating that 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,” and concluding that “the powers thus conferred by the Constitution upon these officials are exclusive”).
In support of their argument that this Court has recognized the AG's statutory authority under Election Code Section 273.021 to initiate criminal prosecutions of election law violations, the AG and some amici point to the fact that we refused discretionary review in Medrano v. State, 421 S.W.3d 869 (Tex. App.—Dallas 2014, pet. ref'd). In Medrano, the Fifth Court of Appeals in Dallas, relying on Brady, held that Section 273.021 does not violate the separation-of-powers doctrine because “the legislature did not remove the authority of county and district attorneys to prosecute election code violations; it merely provided that the AG could do so independently.” Id. at 879–80. Therefore, the court of appeals concluded, the statute “does not delegate a power to one branch that is more properly attached to another nor does it allow one branch to unduly interfere with another.” Id. at 880. This Court's refusal of review, however, does not mean that we agreed with the court of appeals’ opinion.
This Court is not an error-correcting court. As outlined in Rule 66.3 of the Texas Rules of Appellate Procedure, there are many reasons why the Court may choose to grant or refuse review. The Court's decision to refuse review is not a stamp of approval of the appellate court's decision. See, e.g., Gonzales v. State, 762 S.W.2d 583, 584 (Tex. Crim. App. 1988) (“[N]either our initial grant of the state's petition nor our action today in refusing that petition should be taken as approval of the reasoning or the decision of the Court of Appeals in this cause.”). Further, even if the lower court erred in a way contemplated by Rule 66.3, we may refuse to grant review for any number of reasons, including that the briefing may be inadequate either substantively or procedurally, or the case may simply not be the right one to resolve the legal issue.100 In short, by refusing to grant a petition for discretionary review, the Court reserves the right to consider the issues raised in another appeal on another day.
As shown by the many cases cited above, both this Court and the Texas Supreme Court have consistently held that the Texas Constitution does not authorize the Legislature to take away any part of the constitutionally-assigned duties of the county and district attorneys to criminally prosecute cases in the trial courts and give those duties to the AG, unless such duties can be construed to fall within the AG's specific duties as expressly enumerated in the Constitution.
V. Through statutes and AG Opinions, the Legislature and AG have declared for decades that the district and county attorneys have the exclusive duty to initiate criminal prosecutions.
Oddly, numerous members of the Texas Legislature have either filed or joined various amicus briefs that argue we should find Election Code Section 273.021 constitutional and allow the AG to unilaterally prosecute election law violations. This is perplexing not only because the Texas Constitution prohibits it and legal decisions spanning over 150 years have clarified that it is the express constitutional duty of the district and county attorneys to control criminal prosecutions in the trial courts, but it is especially odd because the Legislature itself has enacted dozens of statutes providing that DAs shall represent the State in all criminal cases in the district courts of his district. See, e.g., Tex. Code Crim. Proc. art. 2.01; see also Appendix A. Likewise, it is strange that the AG takes the position that Election Code Section 273.021 allows him to unilaterally prosecute election law violations when various AG opinions suggest otherwise.
A. The Legislature has enacted statutes that support DAs’ exclusive duty to prosecute criminal cases in the trial courts.
For over 100 counties, the Texas Legislature has enacted statutes that make it clear that the district and county attorneys have the right to control all criminal prosecutions in the trial courts of their counties. For 44 counties, the statutes provide that the DA has exclusive criminal law jurisdiction in his or her county. See Tex. Gov't Code Chapter 44 (Titled “Criminal District Attorneys”) and Appendix A. Under Chapter 43 of the Government Code, there are 35 other statutes, many covering multiple counties, that provide that the DA represents the state in all criminal matters in the trial courts of the specified judicial district. See Tex. Gov't Code Chapter 43 (Titled “District Attorneys”) and Appendix A. Further, under Chapter 45 of the Government Code, several statutes covering various counties specify that the county attorney is to represent the State in all matters before the district court. See Tex. Gov't. Code Chapter 45 (Titled “County Attorneys”) and Appendix A. Most of these statutes were first enacted in 1985, the same year Texas Election Code Section 273.021 was enacted.
It appears that the Legislature enacted Texas Election Code Section 273.021 in direct conflict with these other statutes. In fact, statutes in which the Legislature has expressly given exclusive criminal law jurisdiction to the DA may prevail over Election Code Section 273.021. That is because Section 273.021, even if construed as being the more specific statute (which courts may or may not find to be the case), uses permissive language by stating that the AG “may prosecute” election-law violations.101 Likewise, given the word “all” in the other statutes in Government Code Chapters 43 and 45, there is a question to be addressed as to whether these statutes would prevail over the Election Code provision. Thus, even if Election Code Section 273.021 were found to be constitutional, there is a legitimate question as to whether by the Legislature's own actions the AG would be prohibited from prosecuting criminal election law violations in over one hundred Texas counties based on the existence of conflicting statutes. In light of these statutes enacted by the Legislature assigning the exclusive duty of criminal prosecution in the trial courts to district and county attorneys in over 100 counties, it is puzzling why various legislators have taken a position in this case that appears to run contrary to their own legislation.
B. Over several decades, various AG opinions take the position that it is the constitutional duty of the district and county attorneys to represent the State in all criminal cases in the trial courts to the exclusion of others.
Over the years, every AG's opinion on the issues involved here appears to agree that: (1) the Constitution assigns to the district and county attorneys the authority and duty of representing the State in all criminal law prosecutions in the district and inferior courts; (2) DAs have broad discretion in every case on whether or not to prosecute and no one should interfere with this discretion; and (3) the AG may assist a DA in criminal prosecutions, but only upon request by the DA.
1. AG Opinion No. MW-340 (1981)
Attorney General Mark White was tasked with the following issue: Whether Texas Parks and Wildlife Commission may contract with a private attorney to prosecute shrimp and confiscation cases. After first identifying this as a request for a private attorney to prosecute criminal law violations, the AG conducted an analysis and answered the question in the negative. The decision was based on the following reasoning and authorities:
• “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, § 21).
• “Article 2.01 of the Code of Criminal Procedure provides that: Each district attorney shall represent the State in all criminal cases in the district courts of his district, except in cases where he has been, before his election, employed adversely.”
• “Article 2.02 of the Code of Criminal Procedure provides that: The county attorney shall attend to the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of a district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court.”
• Garcia v. Laughlin, 285 S.W.2d 191 (Tex. 1955); Maud v. Terrell, 200 S.W. 375 (Tex. 1918); Brady v. Brooks, 89 S.W. 1052 (Tex. 1905); State v. Moore, 57 Tex. 307 (1882); Shepperd v. Alaniz, 303 S.W.2d 846 (Tex. Civ. App.—San Antonio 1957, no writ); Attorney General Opinions MW-255 (1980); MW-24 (1979).
• “Because officers who are legally obligated to represent the state in the courts may not be stripped of their authority, See, e.g., Garcia v. Laughlin, supra, it is clear that the Parks and Wildlife Department may not hire private counsel to prosecute criminal cases without the involvement of the district or county attorney.”
• “Our courts have held that officers who are responsible for representing the state in court may, under some circumstances, be assisted in carrying out this obligation, provided such assistance is rendered in a subordinate capacity and the officer remains in control of the litigation.” (citing cases)
2. AG Opinion JM-661 (1987)
This opinion issued under Attorney General Jim Mattox addressed the issue of whether a Commissioner's Court could contract with private counsel to handle bond forfeitures. The opinion cited and quoted Article V, section 21, of the Texas Constitution and relevant Code of Criminal Procedure provisions to identify district and county attorneys as the proper officers to represent the State in all criminal proceedings in the trial courts. The opinion also noted, “[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.’ ” (quoting Shepperd, 303 S.W.2d at 850).
3. AG Opinion No. JC-0539 (2002)
This opinion, issued under Attorney General John Cornyn, involved issues pertaining to the criminal offense of selling horse meat for human consumption. One of the questions presented was whether the Texas Department of Agriculture could prosecute these crimes under a statute that requires the Department to “execute all applicable laws relating to agriculture.” The AG's office concluded that the Department had 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 AG opinion went on to state:
A county, district, or criminal district attorney represents the state in criminal actions in the lower courts, depending on the particular attorney's statutory authority. See Tex. Const. art. V, § 21; Tex. Gov't Code Ann. §§ 24.901, 24.910, 24.920, 26.045 (Vernon 1988 & Supp. 2002); Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002) (en banc) (stating that the duty of criminal prosecution in trial courts of records belongs to county attorney, district attorney, or criminal district attorney) ․ A county or criminal district attorney may request the attorney general's assistance in prosecution.
4. AG Opinion Nos. GA-0765 (2010); GA-0967 (2012)102
Both of these opinions issued under Attorney General Greg Abbott addressed a DA's discretion on whether or not to pursue a criminal prosecution. The opinion stated that “[a] prosecuting attorney ‘has great discretion in deciding whether, and which offenses, to prosecute.’ ” (quoting United States v. Molina, 530 F.3d 326, 332 (5th Cir. 2008)). Each opinion further notes, “Courts recognize that prosecutorial decisions are ill-suited to judicial review because such decisions include consideration of factors involved in initiating a criminal case such as, the strength of a case, the case's deterrent value, and the government's enforcement priorities. Accordingly, courts afford prosecutorial decisions substantial deference.” (internal citations omitted). Thus, the opinion concluded that “[a] district attorney's prosecutorial determination regarding the initiation of criminal proceedings is within the prosecutor's substantial discretion.”
5. AG Opinion No. KP-0118 (2016)
I have included this opinion by current Attorney General Ken Paxton because it appears he may be unaware of his own policies. This AG Opinion involved an Election Code issue which was, at the time, subject to pending litigation. The opinion refused to address that particular question noting that: “Declining to answer a question that is the subject of pending litigation is a long-standing policy of this agency. This policy is based on the fact that the ultimate determination of a law's applicability, meaning or constitutionality is left to the courts. Attorney general opinions, unlike those issued by the courts of law, are advisory in nature.” Given the fact that Attorney General Paxton has given his opinion on the pending Stephens case in dozens of public forums and media outlets and has not left the “law's applicability, meaning or constitutionality” to this Court, I hope to make him aware that he has violated his own policy.
Considering the dozens of statutes covering over 100 counties in which the Legislature has echoed the Texas Constitution's mandate that the district and county attorneys have the duty of representing the State in all criminal prosecutions in the trial courts and considering the several AG opinions that find the same, it is truly a mystery why the AG and various legislators argue so vigorously in this case against their own opinions and legislation.
VI. Notwithstanding the foregoing, the Court should grant the State's Motion for Rehearing.
As shown by the history and opinions above, our constitutional analysis on original submission of this case was correct in light of the arguments raised. That being said, “a statute is presumed to be constitutional, and every reasonable doubt as to the validity of an Act must be resolved in its favor.” Friedman v. Am. Sur. Co. of New York, 151 S.W.2d 570, 580 (Tex. 1941). If there is any doubt as to whether a law is constitutional, we should uphold it. Brown v. City of Galveston, 75 S.W. 488, 492 (Tex. 1903) (“If there be doubt as to the validity of the law, it is due the co-ordinate branch of the government that its action should be upheld and its decision accepted by the judicial department.”). If it is possible to construe a statute in a way that is constitutional, we must do so.103
I believe there is a reasonable way to construe Section 273.021 of the Texas Election Code such that under certain circumstances, the AG's prosecution of election law violations may be constitutional. Because this interpretation would mean that the statute does not always operate unconstitutionally, it calls into question the correctness of this Court's original holding that the statute is unconstitutional on its face. No party has raised this particular construction or addressed it in any briefing or arguments, and therefore, it has not previously been considered by this Court. However, given the circumstances and the importance of the issue before us, I urge the Court to grant rehearing and order briefing on this question.
A. Texas Election Code Section 273.021 is facially constitutional; but it may be unconstitutional as applied depending on the facts of each case.
Appellant launched a facial constitutional challenge to Election Code Section 273.021, arguing that it violates the separation-of-powers provision of the Texas Constitution. “[T]o prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). It is the “most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). Moreover, in a facial challenge, we “consider the statute only as it is written, rather than how it operates in practice.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). In contrast, an as-applied challenge “concedes the general constitutionality of the statute” and instead “asserts that the statute is unconstitutional as applied to [the claimant's] particular facts and circumstances.” Id. at 910.
Section 273.021 provides in relevant part that the AG “may prosecute a criminal offense prescribed by the election laws of this state․ The authority to prosecute ․ does not affect the authority derived from other law to prosecute the same offenses.” Tex. Elec. Code § 273.021 (emphasis added). Appellant argues that this statute impermissibly assigns prosecutorial power to the AG in the Executive Department when the Texas Constitution already expressly assigns that exclusive power to the district and county attorneys in the Judicial Department.
Appellant's challenge is raised under the separation-of-powers provision, which provides:
The powers of the Government of the State of Texas 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, § 1.
“[T]he separation-of-powers provision may be violated in one of two ways.” Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). A Type I separation-of-powers violation occurs “when one branch of government assumes or is delegated, to whatever degree, a power that is more ‘properly attached’ to another branch.” Id. (emphasis in original). A Type II violation occurs “when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.” Id. (emphasis in original). Here, there is no Type I separation-of-powers violation, and thus no facial constitutional violation. As I will explain further below, however, there may be an as-applied Type II separation-of-powers violation on a case-by-case basis.
1. There is no Type I separation-of-powers violation because the “power” conferred on the AG by the Legislature is the same power conferred on both the AG and the DAs by the Constitution—the power to represent the State in the courts.
Critically important to my constitutional analysis is recognizing that there is a distinction between a “power” and a “duty.” “Power” means the authority or ability to choose to act or not to act. See Black's Law Dictionary, 7th ed. By contrast, “[d]uty gives the command and the power to act.” Southern Pac. R.R. Co., 24 Tex. at 119. The Court recognized this distinction by noting in its opinion on original submission that the use of the word “may” in Election Code Section 273.021 assigns to the AG a “power” and not a “duty” to act. Stephens, 2021 WL 5917198, at *8; see also Tex. Gov't. Code § 311.016 (stating as part of the Code Construction Act that “ ‘[m]ay’ creates discretionary authority or grants permission or a power” while “ ‘[s]hall’ imposes a duty”).
The Texas Constitution's separation-of-powers provision refers only to “powers.” It requires that the “powers” of government be divided into three distinct governmental departments. See Tex. Const. art. II, § 1. It further provides that when a power is “properly attached” to a specific department, neither of the other two departments may exercise that power unless an expressly-enumerated exception permits it. See id. (prohibiting one department from exercising a “power more properly attached” to either of the others, “except in the instances herein expressly permitted”). The exception applies here because the “power” given by the Constitution to both the AG and the DAs stems from their expressly-assigned “duty” to represent the State in the courts. See id. art. IV, § 22, Art. V, § 21 (providing that AG's duties are that he “shall represent the State in all suits and pleas in the [Texas] Supreme Court” and he “shall ․ take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law;” by comparison, the DAs and county attorneys “shall represent the State in all cases in the District and inferior courts in their respective counties.”). Thus, the AG and the DA possess exactly the same type of “power”—that of representing the State in the courts. Because the Constitution “properly attache[s]” the power of representing the State in the courts to both the AG in the Executive Department and the DAs in the Judicial Department, neither the AG nor the DAs would exercise a “power properly attached” to another department when engaging in such representation.104
Accordingly, by enacting Election Code Section 273.021, the Legislature did not create a facially invalid statute that “delegate[s] ․ a power that is more ‘properly attached’ to another branch” because both branches share that same power. See Armadillo Bail Bonds, 802 S.W.2d at 239. Therefore, there is no Type I/facial separation-of-powers constitutional violation. But the question remains as to whether there may be an as-applied Type II violation.
2. The AG's exercise of power under Election Code Section 273.021 may constitute a Type II separation-of-powers violation rendering the statute unconstitutional on an as-applied basis.
As mentioned above, a Type II separation-of-powers violation occurs when “one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.” Id. at 239 (emphasis in original). This is a more flexible inquiry that looks to whether the core functions of one department are being invaded or interfered with by the actions of another. See State Bd. of Ins. v. Betts, 308 S.W.2d 846, 851–52 (Tex. 1958); see also Vandyke v. State, 538 S.W.3d 561, 571 (Tex. Crim. App. 2017) (noting that Type II separation-of-powers analysis “takes the middle ground between those who would seek rigid compartmentalization and those who would find no separation of powers violation until one branch completely disrupted another branch's ability to function”) (quotations and citations omitted).
While the Type II test refers solely to “powers,” the test necessarily includes constitutionally-assigned “duties” because such duties are meaningless without the “power” to carry them out. See Southern Pacific R.R. Co., 24 Tex. at 119. For this reason, an analysis that includes the term “duties” more closely adheres to the will of the people expressed in the Constitution.105 After all, the people have not only divided the powers of government, but they have assigned specific duties to certain officers.106 These assigned duties are the people's commands to act, which are accompanied by the power to carry out the duties. Id. Knowing this, we are obligated to ensure that the will of the people is fulfilled in how we interpret the Constitution. Ignoring the distinction between “powers” and “duties” would betray this obligation.107 Thus, properly understood, the Type II separation-of-powers test should focus on whether, by exercising his statutorily-granted powers under Election Code Section 273.021, the AG would unduly interfere with the DAs’ execution of their constitutionally-assigned duties.
The Texas Constitution mandates that the DAs are obligated to “represent the State in all cases in the District and inferior courts.” Tex. Const. art. V, § 21 (emphasis added). The AG, however, is only constitutionally-assigned to represent the State in the trial courts for a specific purpose: to “take such action ․ as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” Id. Art. IV, § 22. Thus, the AG's duty, under current law,108 does not include representing the State in the trial courts for criminal prosecution. Therefore, if the AG were to utilize the “power” under Section 273.021 to prosecute an election law violation that a DA also sought to prosecute, the AG would certainly “unduly interfere[ ] with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers[/duties].” Armadillo Bail Bonds, 802 S.W.2d at 239; see also discussion of Shepperd v. Alaniz, section IV.C. above.
But what if a DA were to refuse to prosecute an election law violation? If the AG chose to prosecute after the DA chose not to, in what sense would the AG's actions “unduly interfere[ ] with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers?” See Armadillo Bail Bonds, 802 S.W.2d at 239. The answer is simple: It would not. This is because, in such a case, the DA has abandoned his or her duty to represent the State, and the AG has: (1) the constitutional power to represent the State in the courts; and (2) the statutory authority to do so for election law violations. Therefore, in such narrow situations where the DA affirmatively or expressly chooses not to prosecute an “election law” violation, it may be constitutionally permissible for the AG to do so under the statutory power assigned to him by the Legislature in Section 273.021 of the Election Code.109 No Type II separation-of-powers violation would occur as a result. The DA's refusal to prosecute would raise a hypothetical situation similar to that posited in Moore, discussed above, wherein the Texas Supreme Court suggested that it may be constitutionally acceptable for the AG to rely on statutory authority to represent the State in the trial courts when “no official representation could [otherwise] be had by the state.” Moore, 57 Tex. at 312.110 Therefore, this Court should grant rehearing to examine whether Section 273.021 of the Election Code is facially constitutional under this interpretation, notwithstanding the likelihood that it is unconstitutional as applied in some instances.
B. The concurring opinion
While I appreciate Judge Walker's concurring opinion in which he agrees with Sections I–V of this opinion, I believe he misses the mark on three key aspects of my Section VI analysis.
First, the concurring opinion fails to recognize that under the plain language of the Constitution, the duties (and thus corresponding power needed to execute the duties) of the AG in the Executive Department and the DAs in the Judicial Department overlap. Because of this oversight, the opinion wrongly identifies the power at issue to be “the power to prosecute criminal law violations on the Attorney General's own whim and without a request for assistance from district or county attorneys.” Second, while the concurring opinion properly recognizes the need for checks and balances within the government to protect against tyranny, it fails to realize that my interpretation of Election Code Section 273.021 serves as an important check on the political bias to which it refers. Third, to the extent that the concurring opinion suggests my interpretation of the Constitution is judicial activism, it fails to recognize that I have faithfully adhered to the original intent of the 1876 ratifying voters.
1. The Texas Constitution provides for overlap of duties, and thus corresponding power, of the AG and those of the DAs.
The concurring opinion advocates for a strict interpretation of the Constitution's language but then fails to recognize that the AG's and DAs’ constitutionally-assigned duties—and thus the corresponding power to execute those duties—overlap. The opinion posits that the power at issue in this case is “the power to prosecute criminal law violations on the Attorney General's own whim and without a request for assistance from district or county attorneys.” It suggests that the AG has no “power” to represent the State in any type of criminal law case and asserts that “the power to prosecute criminal cases belongs to the judicial branch.” Conc. Op. at p. 5 (emphasis in original). These assertions are unfounded.
First, nothing in the constitutional provisions for the AG or the DAs assigns a general power to these officers. In fact, neither the word “power” nor the word “may” appears in either Article IV, Section 22 (defining the duties of the AG) or in Article V, Section 21 (defining the duties of the DAs). Instead, the Constitution assigns these officers duties by using the command “shall” followed by the specific action to be undertaken. Therefore, the only “power” attached to these officers by the Constitution is that which allows these officers to fulfill their specified obligations. For both the AG and the DAs, that power is the authority to represent the State of Texas in the courts. Such overlapping power is constrained by the wording of the duties.
For example, while the AG is authorized to represent the State in the trial courts, in carrying out this duty he may exercise his power only for the purpose of “tak[ing] such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” Tex. Const. Art. IV, § 22. The separation-of-powers provision prevents the Legislature from expanding the AG's “duty” of representing the State in the trial courts to include matters beyond this limited constitutional duty, because it is the district and county attorneys’ constitutional duty to represent the State for all other matters.111 But the separation-of-powers provision does not prevent the Legislature from giving the AG “power” to represent the State in the trial courts without a corresponding duty or obligation to use that power because the Constitution has already “properly attached” and thus “expressly permitted” this type of power (that of representing the State in the courts) to be exercised by the AG. Tex. Const., art. II, § 1.
Second, in failing to recognize that the Constitution itself overlaps the power of the AG and DAs, the concurring opinion wrongly concludes that the “power” at issue is “prosecutorial power,” which it claims the AG does not have. I disagree with this understanding of the provisions in the Constitution. The Constitution makes no distinction between civil laws and criminal laws in the duties of the AG. The Constitution assigns to the AG the duty to “take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” Id. Art. IV § 22 (emphasis added). We have made it clear that the phrase “take such action in the courts” means that the AG must represent the State in the trial courts, to the exclusion of the DAs, for matters that fall within this duty.112 Currently, there are no criminal laws that fall within this duty. But, the Legislature has full constitutional authority to enact statutes that criminalize action by private corporations (or individuals acting on their behalf) which constitute “exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” See id. If the Legislature were to enact such criminal statutes, it would be the AG's constitutional duty to prosecute those cases to the exclusion of the DAs. Thus, the AG would necessarily have the corresponding constitutional “power” of criminal prosecution to facilitate that duty. Accordingly, it is inaccurate to say that under the Constitution all criminal prosecution can only belong to the judicial branch.
Third, as part of its failure to recognize the distinction between powers and duties and that “prosecutorial power” is not the power at issue, the concurring opinion suggests that the Constitution itself confers “prosecutorial discretion” on the DAs. It asserts that because DAs have prosecutorial discretion, any action undertaken by the AG to prosecute a case that the DA refuses to prosecute amounts to a separation-of-powers violation. This argument also fails to strictly apply the plain language of the Constitution.
As it pertains to discretion, I again note the important distinction between a “power” and a “duty.” A general grant of power allows the grantee to choose to use the power or not; it gives that discretion. For example, the Constitution grants general powers to the Governor in some provisions and assigns duties in other provisions. Compare Art. IV, § 24 (“The Governor may, at any time, require information in writing from [the Executive Officers] ․”) and § 7 (“[The Governor] shall have the power to call forth the militia ․”), with § 9 (“The Governor shall, at the commencement of each session of the Legislature, and at the close of his term of office, give to the Legislature information, by message, of the condition of the State; and he shall recommend to the Legislature such measures as he may deem expedient.”). But where the Constitution assigns a duty, there is no discretion—it is a command to act.
Thus, in applying the strictest interpretation of the DAs’ constitutional mandate that they “shall represent the State in all cases,” there is no discretion for a DA to refuse to prosecute a valid criminal complaint. It is only the courts’ longstanding interpretation that allows for DAs to have such discretion.113 Therefore, if the DA exercises discretion and chooses not to fulfill his explicit constitutional command to prosecute an offense when presented with an election law complaint, the Legislature, under Election Code Section 273.021, may lawfully authorize the AG to use his constitutionally-assigned power to represent the State in that prosecution. And, because under these circumstances, the DA has abandoned his constitutional duty to represent the State, the AG, by choosing to represent the State for that election law violation under statutory authority, would not then “unduly interfere” with the DA's exercise of his express duty.
2. My interpretation of Election Code Section 273.021 serves as an important check on political bias.
The concurring opinion refers to the need for checks and balances within the government to protect against tyranny. I agree that checks and balances are crucial to our system of government. But what the opinion fails to realize is that my interpretation of Election Code Section 273.021 serves as an important check on the very political bias referred to in the concurring opinion.
The concurring opinion suggests that if the AG is allowed prosecute election law violations, then his political bias could influence his decision to prosecute members of the opposite political party. The concurrence fails to recognize that political bias can also be present in a partisan-elected DA. Such a DA could refuse to prosecute an election law violation because doing so benefits him or his political party. Or, what if a DA himself is involved in the election law violation? It is unlikely that he is going to prosecute himself.114
Under my interpretation of Election Code Section 273.021, in such situations where the DA refuses to prosecute on the basis of political bias or self-serving interests, the AG could step in to ensure that such violations are prosecuted. And, if the AG commits an election law violation, a DA is able to prosecute him. Under the concurring opinion's reasoning, only an AG can be prosecuted for election law violations while a DA could potentially escape prosecution. And, further, a DA could decline to prosecute an election law violation based on his own political biases or motivations and the AG would be powerless to intervene. How does that ensure a check or balance?
3. To the extent that the concurring opinion suggests my interpretation of the Constitution is judicial activism, it fails to recognize that I have faithfully adhered to the original intent of the 1876 ratifying voters.
As a constitutional conservative and originalist whose judicial philosophy is founded upon an interpretation of the Texas Constitution in a way that the ratifying voters of 1876 intended, I feel compelled to respond to the concurring opinion's suggestion that my interpretation is judicial activism. When an interpretation of the words or terms as we understand them today conflicts with the meaning and purpose intended in 1876, we have an obligation to construe the Texas Constitution in a way that supports the ratifying voter's understanding of how the constitutional provisions should operate. This is why I extensively address the history underlying the provisions at issue. It is also why I make a distinction between “powers” and “duties” under the Constitution. Such distinction is not only based on the language used in the Constitution,115 but it also gives full effect to the separation-of-powers provision as intended by the ratifying voters. See Section VI.A.1–2 above.
Moreover, the concurring opinion uses faulty reasoning in dismissing my position and fails to recognize our duty as judges. If a statute is capable of being reasonably interpreted in a way that renders it constitutional, then we are required to do so. See Ely, 582 S.W.2d at 419 (stating that this Court is “duty bound to construe statutes in such a way as to uphold their constitutionality”). Here, the Court oversteps its bounds by failing to adhere to this principle, thereby denying the Legislature the ability to fully exercise its authority in this area. See Smissen, 9 S.W. at 116 (stating that “[a] power clearly legislative in its character, not expressly denied to the Legislature, ought not to be held to be denied by implication, unless its exercise would interfere with, frustrate, or, to some extent, defeat, the exercise of a power expressly granted”). My suggested interpretation of Election Code Section 273.021 is a reasonable one that adheres to the original intent of the Constitution while also upholding the facial constitutionality of the statute in a way that does not interfere with, frustrate, or defeat the DAs’ ability to fulfill their constitutional duty. By refusing to at least seek briefing and consider this alternative interpretation, which was not previously raised or briefed by the parties, I believe we are shirking our duty to seek a reasonable construction of the statute that would uphold its constitutionality.
I believe that if we construe Section 273.021 of the Texas Election Code narrowly in the manner outlined above, then it is facially constitutional. I do not yet take a position on whether it is constitutional as applied in this case. That is because, even when narrowly construed, this Election Code provision may be severely limited by the various conflicting statutes identified above (and in Appendix A) such that the AG may be limited to prosecutions only in counties where there is no conflicting statutory authority.116 Given that I am raising this possible construction of the statute for the first time and no party has addressed it, I believe the Court should grant rehearing and request briefing. Because the Court does not, I respectfully dissent.
Appendix A: Statutes defining duties of DAs, criminal DAs, and county attorneys.
Appendix B: Constitutional provisions for each constitution involving the DA and AG.
Today, the Court denies the Attorney General's (AG) motion for rehearing. This leaves in place the Court's opinion on original submission deciding that Section 273.021 of the Texas Election Code,1 which authorizes the AG to prosecute election law offenses, violates the Texas Constitution—specifically, the Separation of Powers Clause found in Article II, Section 1.2 In my view, however, the Court's opinion on original submission is flawed for a number of reasons, and at least some of those reasons should compel the Court, at this time, even if it must do so only on its own motion, to reexamine and reconsider its opinion on original submission.
To be sure, the Court's original opinion is flawed for many reasons that I have already addressed. I wrote a dissenting opinion on original submission explaining several of the reasons why I disagreed with the Court. My views have not changed. I stick by that opinion. But, having now had even more time to consider the matters at issue in this case, as well as after having received and considered the many briefs that urge this Court to grant rehearing, a few other, new, and perhaps even more important issues have crystalized. Some of these are pointed to in the AG's motion itself and in the briefs filed by amicus curiae. But there are also others which I believe the Court ought to address, even on its own motion, because to fail to address them before the Court's judgment becomes final is to misuse the judicial power itself.
First, even assuming—for the sake of argument only—that the Court's opinion on original submission was correct to decide that the AG has no independent authority under our Texas Constitution to prosecute crimes, the Court's opinion was in error, on that account, to dispose of the case by ordering the dismissal of Stephens's indictment. In other words, the Court itself erred by ordering an improper remedy. Second, once it is resolved that dismissal of Stephens's indictment is an inappropriate response to her claims, it becomes ineluctably clear that Stephens does not even have standing to complain about who represents the State in the proceedings against her. Third, former Justice Boatright's amicus curiae argument, that prosecution of crimes is actually an executive department authority, delegated properly to county and district attorneys under the exception clause to the separation of powers provision in our constitution, presents a compelling vision for understanding the separation of powers issue in this case that should be considered by the Court. And fourth, I will address more briefly some other, still lingering concerns I have with the Court's opinion on original submission.
I. The Court's Disposition on Original Submission was Improper and is in Conflict with a Prior Decision of this Court
The Court seems to have concluded that the error committed by the AG—in presuming to represent the State on its own, without an invitation by locally elected prosecuting attorneys, and consequently (in the Court's view) in violation of the separation of powers clause found in our Texas Constitution—went to the very genesis of Stephens's prosecution. See State v. Stephens, Nos. PD-1032-20 & PD-1033-20, 2021 WL 5917198 at *17 (Tex. Crim. App. Dec. 15, 2021) (“[T]he Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally.”). It was perhaps for that reason that the Court ordered dismissal of Stephens's indictment. See id. at *11 (“We reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.”) (emphasis added). But I am now persuaded that the Court's disposition was incorrect, even assuming for the sake of argument that it was correct about everything else. And if the Court's disposition was incorrect, rehearing should be granted, at least so that a proper disposition may be ordered.
The constitutional provision that the Court's original opinion relied upon to demonstrate that the power to prosecute cannot exist in, and may not be assigned to, the AG independently because the constitution already assigns that duty elsewhere—to locally elected prosecuting attorneys—does not use the word, or even any form of the word, “prosecute.” It provides instead that locally elected attorneys shall “represent” the State in “cases.” See Tex. Const. art. V, § 21 (providing in part that “[t]he County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties”) (emphasis added).3 It speaks to representation of the State in cases, not necessarily to the initiation of cases, nor more specifically, at least in the criminal context, to the initiation of prosecutions. That may be because prosecutions are not always, or even necessarily, initiated only by elected attorneys.
There is no doubt that, in some situations, an elected or appointed attorney can initiate a prosecution on his own by filing a charging instrument in court. See, e.g., Tex. Code Crim. Proc. art. 21.20 (“An ‘information’ is a written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by law be so prosecuted.”); see also Tex. Code Crim. Proc. art. 1.141 (“A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.”). But in other cases, a prosecution may be initiated by the return of an indictment by a grand jury. See Tex. Code Crim. Proc. art. 21.01 (“An ‘indictment’ is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.”). A grand jury is not a wholly owned subsidiary of a prosecutor. See, e.g., Tex. Code Crim. Proc. art. 19.01 (providing that it is “[t]he district judge,” not any attorney, elected or otherwise, who must direct that prospective grand jurors be summoned and that their qualifications be tested).4 It has independent investigatory and charging authority.
In this state, a grand jury has its own statutory authorization to investigate the commission of any indictable crime, of which any of its members may have knowledge or of which any of them are informed. Tex. Code Crim. Proc. art. 2.09 (“The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.”). After a grand jury examines the evidence relating to such a matter, the grand jury must vote on whether to present an indictment. See Tex. Code Crim. Proc. art. 20.19 (“After all the testimony which is accessible to the grand jury shall have been given in respect to any criminal accusation, the vote shall be taken as to the presentment of an indictment, and if nine members concur in finding the bill, the foreman shall make a memorandum of the same with such data as will enable the attorney who represents the state to write the indictment.”). The attorney representing the State is not even permitted to be with the grand jury while it discusses the propriety of finding an indictment or while it is voting on an indictment. See Tex. Code Crim. Proc. art. 20.011(b) (“Only a grand juror may be in a grand jury room while the grand jury is deliberating.”); id. art. 20.03 (“The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same.”).
Following a grand jury's vote to return an indictment, it is indeed the duty of the “attorney representing the State” to “prepare” the indictment, but he does so only for and in aid of the grand jury; it is the foreman of the grand jury who must “sign [it] officially[.]” See Tex. Code Crim. Proc. art. 20.20 (“The attorney representing the State shall prepare all indictments which have been found, with as little delay as possible, and deliver them to the foreman, who shall sign the same officially, and said attorney shall endorse thereon the names of the witnesses upon whose testimony the same was found.”).5 Also, it then becomes the duty of the grand jury to actually file the indictment initiating the prosecution, not the duty of any attorney who represents the State. See Tex. Code Crim. Proc. art. 20.21 (stating in part that “[w]hen the indictment is ready to be presented, the grand jury shall through their foreman, deliver the indictment to the judge or clerk of the court”); id. art. 20.22(a) (stating in part that “[t]he fact of a presentment of indictment by a grand jury shall be entered in the record of the court, ․, noting briefly the style of the criminal action, the file number of the indictment, and the defendant's name”). It is best understood, therefore, that the return of an indictment is the independent act of a grand jury; it is not the act of any particular attorney who may—properly or improperly—act to represent the State at the moment it is returned. To my knowledge, the validity of a grand jury's indictment has never before been found to depend on who acts to represent the State at the time of its return.
The AG's role in some of the events that led to Stephens's indictment is undeniable; but now that an indictment has been returned by a grand jury, the AG's role should be considered, at least legally speaking, immaterial. Much of what the AG did consisted of bringing information about the alleged crime to the grand jury for its consideration. The same could have been done by “any other credible person.” See Tex. Code Crim. Proc. art. 2.09 (“The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.”) (emphasis added).
Moreover, precedent from this Court establishes that “[t]he return of an indictment establishes probable cause” to believe that the crime alleged therein was committed by the person alleged to have committed it—“as a matter of law.” Ex parte Plumb, 595 S.W.2d 544, 545 (Tex. Crim. App. 1980). In this case, an indictment was returned and filed by a grand jury, and no one has complained that the grand jury that returned the indictment was not an actual grand jury, or that it was not properly empaneled. No one has shown that, despite the return of the indictment, probable cause has not been established. No one has shown that the indictment is erroneous in either form or substance, in any way. No one has shown a violation of the right to a speedy trial or a violation of the statutory right to a speedy indictment. And no one has shown the existence of prosecutorial misconduct that prejudicially violated the defendant's right to counsel. Certainly, the Court did not say so in its opinion on original submission. And, even if the AG's apparent desire that Stephens be indicted, and his participation to some degree in the process that led to her indictment, were improper, the AG himself did not indict Stephens! So why does the Court believe that dismissal of Stephens's indictment is the appropriate disposition?
This Court has said before that a trial court may not ordinarily act on its own to dismiss a prosecution. Except in limited circumstances, the Court has only approved dismissals when they have come at the request of an attorney for the State, although trial court approval is required. See State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991) (“[E]xcept in certain circumstances, a court does not have the authority to dismiss a case unless the prosecutor requests a dismissal. We also hold that there is no inherent power to dismiss a prosecution, since dismissal of a case does not serve to enable our courts to effectively perform their judicial functions and to protect their dignity, independence and integrity. [citation and internal quotation marks omitted]. Last, we find no statutory or constitutional provision which would imply a court's authority to dismiss a case without the State's consent, in contravention of the settled common law. In sum, there is no general authority, written or unwritten, inherent or implied, which would permit a trial court to dismiss a case without the prosecutor's consent.”). The Court also pointed to some limited circumstances in which a trial court may dismiss a prosecution without a request from a prosecuting attorney: (1) when there is a defect of form or substance in a charging instrument; (2) when there has been a violation of the right to a speedy trial; (3) under Code of Criminal Procedure Article 32.01, when there has been a violation of the right to a speedy indictment (Tex. Code Crim. Proc. art. 32.01); or (4) when prosecutorial misconduct prejudicially violates a defendant's right to counsel, and excluding evidence will not cure the error. Johnson, 821 S.W.2d at 612 n.2. The Court emphasized that “[t]he power to dismiss in these circumstances is authorized by common law or statute and does not give rise to a general right to dismiss in contravention of the general rule[.]” Id.
Even assuming for the sake of argument that the AG should not have appeared on behalf of the State in the case against Stephens, that fact does not inexorably lead to the conclusion that she should not be prosecuted, especially in light of the fact that a grand jury returned an indictment against her. No attorney for the State has requested dismissal of Stephens's indictment. None of the limited circumstances identified in Johnson that would justify a dismissal without a request from an attorney representing the State are present here. If the Court considers its own precedent in Johnson to still be authoritative and correct, it should not simply order dismissal of Stephens's otherwise proper indictment. It would remand for Stephens to answer to the indictment, this time with the participation of a proper attorney representing the State. And, after a proper attorney undertakes to represent the State in this case, that attorney would then properly decide whether to proceed to trial on the grand jury's indictment, or instead move to dismiss it.
The Court should not shy from this conclusion out of concern that no prosecutor, other than the AG, has yet to show any interest in pursuing Stephens's prosecution. A prosecution without a proper attorney to represent the State is not a new thing under the Texas sun. Not long ago, this very Court wrote an opinion in a case addressing fees ordered to be paid to attorneys who had been appointed to represent the State because the Collin County Criminal District Attorney had recused his office from the case. State ex rel. Wice v. Fifth Judicial District Court of Appeals, 581 S.W.3d 189 (Tex. Crim. App. 2018). In that case, this Court observed that “the relevant statutes [of our state] envision that a trial court has the authority to appoint counsel for the defense and, in the case of a recused or disqualified prosecutor's office, attorneys pro tem for the state.” Id. at 195 (emphasis added).
Indeed, Article 2.07(a) of our Code of Criminal Procedure provides for the appointment of an attorney pro tem when no proper attorney appears to represent the State in a given case. Tex. Code Crim. Proc. art. 2.07(a). And even if the AG is not permitted independently, on his own initiative, to represent the State in post-indictment proceedings, whenever a locally elected prosecutor does not appear to pursue an indictment in Texas, the district court judge (who is clearly authorized to exercise the judicial power of this state) is empowered by statute to appoint an attorney pro tem to fulfill that duty. Id. And, included among those eligible persons who might be appointed an attorney pro tem by the court, at least according to our current statute, is an “assistant attorney general.” Id. (providing that “[w]henever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of the attorney's office, or in any instance where there is no attorney for the state, the judge of the court in which the attorney represents the state may appoint, from any county or district, an attorney for the state or may appoint an assistant attorney general to perform the duties of the office during the absence or disqualification of the attorney for the state.”).6
Assuming for the sake of argument that the Court's opinion on original submission was correct (though I remain convinced that it was not), that is what should happen here. The case should be remanded for Stephens to answer the grand jury's indictment, this time to be prosecuted by a proper attorney. The Court ought not to dismiss the indictment outright, especially when it has not been shown to have been returned in error, and when no proper representative of the State has requested dismissal. And it should certainly not do so without explaining why its decision to do so is consistent with the Court's own 1991 opinion in Johnson.7
II. Stephens Lacked Standing to Complain About Who Represented the State in the Proceedings Against Her.
Moreover, once we understand that dismissal of Stephens's indictment is an improper disposition in this case, it becomes easier to comprehend why she has no justiciable interest in the pursuit of her claim. Regardless of who represents the State in the proceedings against her, an indictment—returned by a presumptively valid and unchallenged grand jury—should remain pending. And Stephens should still have to answer to it. This means that Stephens's claims should simply be dismissed because she has no standing even to raise her complaint about the opposing party's legal representative.
(A). The Law of Standing
“Constitutional standing is a prerequisite for subject matter jurisdiction.” Texas Board of Chiropractic Examiners v. Texas Medical Association, 616 S.W.3d 558, 566 (Tex. 2021). In fact, “[s]tanding is a constitutional prerequisite to maintaining suit[.]” Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). “Without standing, the courts cannot proceed at all.” Abbott v. Mexican American Legislative Caucus, Texas House of Representatives, 647 S.W.3d 681, 693 (Tex. 2022) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Black's Law Dictionary defines standing as “[a] party's right to make a legal claim or seek judicial enforcement of a duty or right.” Black's Law Dictionary 1695 (11th ed. 2019). It further explains that “[t]o have standing in federal court, a plaintiff must show (1) that the challenged conduct has caused the plaintiff actual injury, and (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question.” Id.
The Texas Supreme Court has explained that the standing doctrine “requires a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.” Heckman v. Williamson County., 369 S.W.3d 137, 154 (Tex. 2012). It has also said that, to have standing, “a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, [and] not hypothetical.” Daimler Chrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex. 2008). A party will not lack standing, that court has said, “simply because he cannot prevail on the merits of his claim.” Id. He will lack standing, however, if “his claim of injury is too slight for a court to afford redress.” Id. (emphasis added).
In Fuller v. State, this Court observed that, “[i]n Texas, the law of standing has been developed mainly in the courts of civil jurisdiction.” 829 S.W.2d 191, 201 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 941 (1993), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). It explained the doctrine, as it applies in our courts, in this way: “[S]tanding is a constituent requirement of justiciability, the basic posture in which a controversy must appear to be cognizable by the courts.” Id. Indeed, it explained, “[i]t is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury.” Id. (quoting Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976)).
“For a person to maintain a court action,” the Court in Fuller explained, “he must show that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity.” Id. (quoting Housing Authority v. State ex rel. Velasquez, 539 S.W.2d 911, 913 (Tex. Civ. App.—Corpus Christi 1976, writ ref'd n.r.e.)). “One who has not suffered an invasion of a legal right[,]” according to the Court, “does not have standing to bring suit.” Id. at 202 (quoting Sherry Lane Nat. Bank v. Bank of Evergreen, 715 S.W.2d 148, 152 (Tex. App.—Dallas 1986, writ ref'd n.r.e.)). See also State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014) (“The ‘standing’ doctrine ensures that a person may claim only that his own rights have been violated; he cannot assert that he is entitled to benefit because the rights of another have been violated.”). And courts simply “lack the authority to answer abstract questions of law or to entertain litigation by persons who have not suffered actionable injury[.]” Id.
It is also the burden of “the party who invokes the courts’ jurisdiction” to “ ‘establish[ ] the[ ] elements’ of standing; it is not the duty of the other side, or of the courts, to negate them.” Abbott, 647 S.W.3d at 693 (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 561). And because standing impacts the court's jurisdiction over the subject matter of a lawsuit, it does not matter whether the parties raise it. It is a matter that courts should address on their own. See American K–9 Detection Services, LLC v. Freeman Eyeglasses, 556 S.W.3d 246, 260 (Tex. 2018) (“Subject matter jurisdiction is an issue that may be raised for the first time on appeal[,] it may not be waived by the parties, and it may—indeed, must—be raised by an appellate court on its own.”) (footnotes, internal quotation marks, and citations omitted). Court action to resolve a claim brought by a party who lacks standing is manifestly inconsistent with the judicial power. San Jacinto River Authority v. Medina, 627 S.W.3d 618, 631 (Tex. 2021) (Blacklock, J., dissenting) (“[t]he judicial power does not include the authority to answer an ‘abstract question of law without binding the parties.’ ”) (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)).
(B). Background Facts
Stephens's prosecution was formally initiated when she was indicted by the Chambers County grand jury for one count of tampering with a governmental record in violation of Texas Penal Code Section 37.10 (Tex. Penal Code § 37.10) and two counts of unlawfully making or accepting a contribution in violation of Texas Election Code Section 253.033(a) (Tex. Election Code § 253.033(a)).8 This Court's opinion on original submission accurately recounted the events that followed in the trial court:
Stephens filed a motion to quash the indictment, arguing the Attorney General did not have authority to prosecute a violation of the Penal Code, and an application for a pretrial writ of habeas corpus, challenging the constitutionality of Texas Election Code section 273.021. The trial court granted Stephens's motion to quash Count I, finding that the Attorney General lacked authority to prosecute an offense outside the Election Code. However, the trial court denied Stephens's motion to quash Counts II and III. The trial court also denied Stephens's pretrial habeas corpus writ without comment.
State v. Stephens, 2021 WL 5917198 at *1. Stephens and the State then both appealed the trial court's orders.
The State's appeal is not pertinent to the issue of Stephens's standing to bring the complaints that this Court addressed in its original opinion, so I will not linger on that event here. Stephens, however, appealed the denial of her application for a pretrial writ of habeas corpus on the ground that the legislative delegation of authority to prosecute election laws found in Election Code Section 273.021 violates the separation of powers provision in our Texas Constitution. Id., at *2. The First Court of Appeals in Houston then affirmed the trial court's decision to deny Stephens's application for pre-trial habeas relief. Id. See State v. Stephens, 608 S.W.3d 245, 256 (Tex. App.—Houston [1st Dist.] 2020).
After losing her complaint on habeas in the court of appeals, Stephens petitioned this Court for discretionary review arguing, among other things, that the grant of prosecutorial authority afforded by Election Code Section 273.021 violates the separation of powers requirement in the Texas Constitution. State v. Stephens, 2021 WL 5917198 at *1. On that ground, this Court's opinion on original submission reversed the decision of the First Court of Appeals and remanded this case to the trial court with instruction to dismiss the indictment. Id. at *11.
At oral argument in this case, I asked the parties about whether Stephens had standing to raise her complaint. Stephens's counsel, Mr. Chad Dunn, responded that she does, explaining that “[f]or the same reasons that Governor Perry had standing to raise separation of powers complaints in Ex parte Perry, this Court's decision from 2016.” He went on to say:
In fact, this Court explicitly said in that opinion that a writ of habeas corpus by a defendant was the manner in which a defendant raises the constitutionality of their prosecution, whether or not the prosecutor has jurisdiction to proceed on it. So, we stand on that case for the proposition that it is absolutely the defendant's right to raise it. And on the matter of harm, always an important component of standing, it's, there's no question that Zena Stephens suffered more than anyone else at this moment in this case by the Attorney General exercising authority that he doesn't have.
Oral Argument at 12:00. Assistant AG, Judd Stone, then replied:
I think, I think at minimum, for purposes of an as applied challenge, the attorney general is prosecuting her as he can prosecute her for a crime, so at least for purposes of an as applied challenge, and the undue interference test, uh, the undue interference office test, she would plainly have standing. I think it is a harder question as to whether or not she can bring facial claims as to all other possible defendants at any given time. I think that is a much more difficult question. I think her challenges fail on facial grounds on the merits as I have articulated before. But I think this Court has a hard question it has to answer as to whether she has the standing, uh, she has standing to make facial challenges to the attorney general's jurisdiction in a wide swath of cases in which she is not a party. She certainly has standing for purposes of the charges brought against her.
Oral Argument at 44:30.
Even though the question was raised at oral argument and the parties addressed the issue, the Court's original opinion was silent on the issue of standing. Also, none of the Court's side opinions, including (regrettably) my own, purported to address the matter at all.
At oral argument, counsel for Stephens answered my question about his client's standing to make her complaint about the AG by referring to this Court's opinion in Ex parte Perry “from 2016.” But Ex parte Perry did not even address standing in the sense that drove my concern. It addressed instead cognizability of a claim on pretrial habeas. See Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (“We first address whether the court of appeals was correct in holding that Governor Perry's separation of powers claim is not cognizable on pretrial habeas.”). And, although counsel for the AG did not directly invoke Perry, he seemed to have answered, similarly, that Stephens was permitted to complain about facial constitutional issues on pretrial habeas.9
But the real dilemma that motivated my oral argument inquiry was the fact that, at least ordinarily, a party in opposition in litigation has no legitimate interest in controlling who (that is, what lawyer) might represent the opposing party in the litigation. “I choose my lawyer, you choose yours,” is the regular order of the day. Cf. In re Robinson, 90 S.W.3d 921, 926 (Tex. App.—San Antonio 2002, no pet.) (conditionally granting mandamus relief to require the trial court to set aside an order disqualifying an opposing party's counsel where no conflict of interest was shown); see also Jones v. Lurie, 32 S.W.3d 737, 744 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (deciding that, where appellants had never been “represented by” counsel for the defendant, they had “no standing to complain of his representation” of the defendant); Glassell v. Ellis, 956 S.W.2d 676, 685 (Tex. App.—Texarkana 1997, pet. dism'd w.o.j.) (deciding that a defendant in a class action civil suit did not have standing to complain about the lawyer representing the parties that were seeking to recover from him and explaining that “it is the clients who make the complaint that their attorney has a conflict of interest”).
In this case, Stephens sought to have her opponent's counsel, the lawyer who appeared on behalf of the State against her—namely, the AG—removed on the ground that the AG was not constitutionally authorized to independently represent the State in proceedings against her. But Stephens had no legitimate interest in deciding which lawyer appeared in court to represent the State of Texas against her. She did not allege that the AG had a conflict of interest in her case. Nothing about who appeared on the State's behalf had any tendency to suggest that the indictment returned against her by the grand jury in Chambers County was invalid or otherwise rightly subject to dismissal. And nothing about the Court's determination on original submission—that the AG was precluded from independently representing the State in the proceedings against Stephens—should require the Court to dismiss her indictment.
Indeed, Stephens's position in this litigation will not be improved at all by removing one lawyer in opposition, only to have that lawyer replaced by another lawyer who would presumptively stand similarly in opposition to her interests. It is also hard to imagine that the delegation of the authority to represent the State to locally elected attorneys, in Article V of our constitution, Tex. Const. art. V, § 21, was established in order to furnish a right of a defendant against prosecution for crimes for which probable cause has been determined to exist “as a matter of law.” Plumb, 595 S.W.2d at 545.
In other words, Stephens asserts no concrete right that could be resolved by the courts in the litigation of her claim. See Heckman, 369 S.W.3d at 154. As far as she is concerned, who might properly represent the State is only an abstract question of law, with no bearing at all on whether a prosecution against her has been properly initiated or on whether it ought properly to continue. See San Jacinto River Authority 627 S.W.3d at 631 (Blacklock, J., dissenting); Fuller, 829 S.W.2d at 201.
So then, who would have a justiciable interest in pursuing the issue the Court purported to address on original submission in this case? Who would have had a stake in preventing the AG from unconstitutionally (in the Court's view) seeking to independently represent the State? The person or party who might have had standing to complain about the AG's attempt to represent the State independently is the District Attorney of Chambers County.
Brady v. Brooks, 99 Tex. 366, 89 S.W. 1052 (1905), which was discussed at length on original submission by both the Court's opinion and my dissent, was only invoked there to answer a different question. My dissent argued that the Texas Supreme Court's opinion in Brady supported the conclusion that the AG should be permitted to represent the State in the proceedings against Stephens. The Court, in its own opinion, disagreed. But the Court's opinion, and my own, made no reference to the standing issue.
Even so, Brady illustrates my point about Stephens's lack of standing. In that case, the AG had brought suit in the name of the State of Texas to recover taxes and penalties against the Higgins Oil & Fuel Company, a corporation. The local county attorney and district attorney sued in mandamus for the right to represent the State in that action. See Brady, 99 Tex. at 373, 89 S.W. at 1053 (stating that “the district attorney [for the Twenty-Sixth Judicial District] and the county attorney of Travis county appeared in court and filed a joint motion praying to be allowed to prosecute the suit and that the Attorney General be excluded from participation in such prosecution”). The suit was not, as in this case, instituted by the opposing party to the lawsuit—the Houston & Texas Central Railroad Company (the party from whom the State sought recovery through the AG's underlying lawsuit). Had the action been brought by the defendant railroad company, I believe the Texas Supreme Court would have had cause to question the railroad company's standing to complain about who might represent the State in the action against it.
Similarly, here, the right at stake comes down to: Who is entitled to represent the State in this action? If it were the local district attorney bringing the suit to take control of the prosecution of Stephens, then perhaps, consistent with the facts at play in Brady, he might have standing to complain about the AG's actions, which the district attorney might argue invaded his own constitutional authority. But, at least consistent with a proper understanding of an appropriate disposition in this case—remand for appearance of, or appointment of, a proper prosecutor—Stephens should not even be permitted maintain this suit. Whether or not the AG represents the State, someone should be permitted to do so, even if that representative only appears in order to file a motion to dismiss. It is not up to Stephens whether she is prosecuted. It is up to the State, represented—of course—by a proper attorney.
This is a substantial question. All courts must, in addition to being open to hearing the arguments of counsel, independently and carefully consider whether the party bringing suit has standing to maintain the claims she makes. Failing to do so could result in a court exercising its authority where, in reality, it has no subject matter jurisdiction over the question presented. And, by entering judgment under those circumstances, the court may itself violate the constitutional requirement of separated powers. Courts, after all, are not empowered to issue advisory opinions. Petetan v. State, 622 S.W.3d 321, 334 (Tex. Crim. App. 2021) (“Texas courts are not empowered to give advisory opinions.”).
At the very minimum, this Court ought to withdraw its original opinion and remand for the court of appeals to consider in the first instance whether Stephens ever had standing to raise her complaints about the AG's constitutional authority to independently represent the State in the case against her. Failing that, the Court should simply dismiss her appeal and order the dismissal of her habeas application on the ground that she lacks the requisite standing to complain about the AG representing the State in the case against her.
III. Former Justice Boatright's Amicus Arguments Should be Considered.
But if the Court should disagree with me about the impropriety of dismissal of the indictment as a remedy, and about Stephens's lack of standing to bring her complaint about the AG's independent representation of the State in these proceedings, the Court should then consider the substantial arguments made by Jason Boatright, a former Justice on Texas's Fifth Court of Appeals, and a former law clerk on this Court, in his amicus curiae brief on motion for rehearing. The Court's opinion on original submission assumed that the authority to “prosecute” is a “power properly attached” to the judicial department because the authority to “represent the state” is granted to locally elected attorneys within the part of the Texas Constitution labeled “Judicial Department.” See, e.g., Stephens, 2021 WL 5917198 at *8 (“Simply put, the ‘other duties’ clause may not transform the judicial duty of prosecutorial power into an executive duty.”). But the Court has never squarely addressed the difference, if there is any, between an authority, or a duty, and a power. The Court has also never addressed whether an authority or duty, granted within a particular article of the constitution that also creates a department of government, is necessarily a power “properly attached” only to that department of government created within the same article. The Court has, at best, only ever assumed the answers to these questions.
What is clear is that virtually everywhere else it is found or described, prosecutorial discretion is in fact, by its very nature, considered to be a core executive department function. See, e.g., Black's Law Dictionary 715 (11th ed. 2019) (defining “executive power” as “the power to see that the laws are duly executed and enforced”) (emphasis added). I alluded to this unaddressed (by the Majority) issue in my dissenting opinion on original submission, but the Court did not respond to it. Stephens, 2021 WL 5917198 at *16 n.7 (Yeary, J., dissenting) (“I regard representing the interests of the State in judicial proceedings to be more of an executive function than a judicial one.”).
Former Justice Boatright brings these issues into much clearer perspective. He rightly observes in his amicus curiae brief that Article V, Section 1, of our Texas Constitution vests the “judicial power” fully, completely, and only, in our courts.10 It does not purport to vest any of that “power” in ordinary lawyers, or even in any elected lawyers whose creation is established under the judicial department article of our constitution, who might thereafter represent the State in our courts.
Article V itself does provide for the election of county and district attorneys, and it requires that those elected attorneys “shall represent the State in all cases in the District and inferior courts in their respective counties.” Tex. Const. art. V, § 21. But the creation of county and district attorneys and the inclusion of the command that they “represent the state” in the district and inferior courts within the Article devoted to the judicial department of our state government should be more clearly understood only as the imposition of a duty, or the grant of an authority, to specific attorneys, to perform an executive function of the state in our state courts: representing the State to see that the laws are properly “executed and enforced.” It should not be understood to confer an exclusively judicial branch power.
That this is true should be clear from the conferral of, in that same article, the authority to regulate the duties of those locally elected attorneys—when their co-existence in the same jurisdiction must be addressed—to the legislative department, rather than to judges. Article V, Section 21, of our constitution provides in part that “if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature.” Tex. Const. art. V, § 21. This conferral in the constitution to the Legislature of the right to regulate the duties of locally elected attorneys should be considered similar to its conferral of the authority to “represent the state” to locally elected attorneys in the same section of Article V (and, for that matter, the conferral to the Legislature of the authority to regulate the AG's authorities by conferring “other duties,” as provided in Article IV. See Tex. Const. art. IV, § 22). Article V, Section 21, does not convert the Legislature into an actor who wields the judicial power of the state any more than does the conferral of the authority to “represent the state” in that same section transform locally elected attorneys into persons who wield that power.
Even if the complexity of the Texas Constitution and our own reflections on the history of our Great State require a conclusion that “prosecution” is not necessarily only an executive authority, the fact that it is considered to be such in every other sovereign benefiting from a separated power structure like our own suggests that the answer to the question may not be at all as clear as the Court suggested in its opinion on original submission. In fact, the Court might have been better off to conclude that prosecutorial authority should be considered a hybrid authority in Texas. Either way, the Court's definitive declaration that prosecution is an exclusively judicial power is not well supported.
If the view of the nature of the prosecutorial power advanced by former Justice Boatright is found to be correct, there should be no concern that it would open the State to an argument that locally elected prosecutors, created under Article V of our state constitution, should not maintain authority to represent the State in the district and inferior courts because of the article requiring separation of powers. The exception to the Separation of Powers Clause in our constitution would certainly permit locally elected attorneys, even though created within the judicial department of government, to exercise the executive authority to represent the State because the constitution expressly permits—indeed, requires—that. See Tex. Const. art. II, § 1 (“except in the instances herein expressly permitted”); see also Tex. Const. art. V, § 21 (“The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties[.]”). But regardless of whether prosecutorial discretion is judicial or executive in its nature, or a hybrid of the two, the Texas Constitution is not actually offended by its legislatively authorized exercise, on a limited basis, by the AG. See Stephens, 2021 WL 5917198 at *16 & n.7 (Yeary, J. dissenting).
Finally, I would be remiss if I did not also emphasize again here that Article V of our constitution does not even really speak to “prosecutorial power” in the way that the Court's opinion on original submission suggested it does. It only expressly confers upon locally elected attorneys, in Article V, Section 21, a duty or an authority to “represent the state,” not any unique authority to “prosecute.” Tex. Const., art. V, § 21. Our constitution, in Article IV (Executive Department), literally uses this exact same language—“represent the state”—in its express description of the duties of the AG. See Tex. Const. art. IV, § 22 (“The Attorney General shall represent the state ․”) (emphasis added). But instead of understanding the duplication of these exact, specific, and identical words to mean that “represent[ing] the state” is not specifically or exclusively a judicial power, the Court's opinion on original submission declares the matter settled with such great confidence that one might believe, in error, that the constitution actually says that “prosecution is a judicial power” and that “the AG may not prosecute crimes without an invitation from a locally elected prosecutor.” See Stephens, 2021 WL 5917198 at *9–10 (asserting that the AG lacks constitutional authority “to prosecute a crime ․ without the consent of” local prosecutors “by a deputization order”). Take my word for it—or do not and look it up for yourself—our constitution does not say those things.
Former Justice Boatright's amicus brief on rehearing makes a compelling case. It is probable that our courts have for too long presumed that authorities granted, or duties imposed, in articles of our constitution establishing departments of our government necessarily are “properly attached” only to the department created in the same article wherein those authorities or duties are conferred or imposed—and to no other. At least where such identical authorities are conferred in articles establishing other departments of government, we should seriously question any conclusion that those authorities represent “powers” that are exclusive only to one or the other department.
The authority to “represent the state” in the district and inferior courts is conferred only in a general sense to local prosecutors in Article V of our constitution. The authority to “represent the state” in the courts of our state is similarly conferred on the AG, in more specific ways, in Article IV of our constitution. “Represent[ing] the state” in court is therefore not exclusively an authority “properly attached” only to either the judicial or the executive departments of our government. This is true, even though the different elected officials created within the articles that establish both of those departments may at different times be called upon to exercise that same authority or duty in unique ways.
In the absence of more clear guidance in the Texas Constitution about the nature of the authorities or duties therein conferred, the courts should take a more measured position with regard to their understanding of them and exercise deference to the elected representatives of the people in the Legislative Department for the regulation of those authorities. This is especially true in this case because the constitution itself clearly and expressly affords the Legislative Department the authority to impose “such other duties as may be required by law” on the AG, who is one of the two types of elected officers upon whom the authority to “represent the state” is constitutionally conferred: (i.e., (1) locally elected attorneys, and (2) the AG). That is certainly a preferable course to the one chosen by the Court on original submission: simply to declare in an opinion, with very little, if any, textual support, that a subset of the duty to “represent the state” not even specifically or uniquely mentioned in Article V, Section 21—namely, “prosecution”—is actually only properly attached to a specific department of government—the judicial one.
IV. Final Thoughts
Finally, there remain four elements of the Court's analysis on original submission that I feel compelled to further discuss, some of which I may have already at least partially addressed in my dissenting opinion on original submission.
First: I previously wrote to complain about the Court's conclusion that the canon of construction known as ejusdem generis counsels in favor of reading “other duties” in Article IV, Section 22, of our constitution to be limited to executive branch duties. Tex. Const. art. IV, § 22. My objection was that I did not find the explicit list of AG duties provided in Article IV, Section 22, to be of the same sort to begin with, so as to justify the invocation of the ejusdem generis canon at all. I would, therefore, have found the ejusdem generis canon to simply be inapplicable. See Stephens, 2021 WL 5917198 at *16 (Yeary, J., dissenting) (“But in fact, it seems to me a mistake to suppose that ejusdem generis should have any application at all in construing Article IV, Section 22.”).
In its motion for rehearing, however, the AG has now argued that the Court should grant rehearing at least to identify what it did not on original submission—namely, exactly what principle of sameness might unify those duties that are explicitly listed in Article IV, Section 22. I agree with this criticism of the Court's opinion on original submission. The ejusdem generis canon provides that “[w]here general words follow an enumeration of two or more things, they [the general words] apply only to persons or things of the same general kind or class specifically mentioned [in the more specific enumerations].” Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts, at 199 (2012). But the Court's opinion on original submission does not appear anywhere to say—at least not explicitly—what principle of sameness animated its conclusions about the possible breadth of the “other duties” clause in Article IV, Section 22.
In fact, all the Court has so far said about the matter is that “[r]epresenting the state in a criminal prosecution for election law violations is not of the same character as representing the state in suits to prevent corporations from exercising authority not authorized by law.” See Stephens, 2021 WL 5917198 at *6 (emphasis added). If the Court were to provide a direct answer to the question of what principle of sameness unites the specifically enumerated duties in Art. IV, Section 22, I imagine the Court might say it is that they were all exclusively “civil” in nature. See id. at *9 (explaining that the AG “is limited to representing the State in civil litigation”) (quoting Saldano v. State, 70 S.W.3d 873, at 880 (Tex. Crim. App. 2002)).11 But I would not be so sure about that. I am convinced, therefore, that the Court should check its work before allowing its opinion to become final.12
One of the duties expressly imposed on the AG in Art. IV, Section 22, is to “take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” Tex. Const. art. IV, § 22 (emphasis added). Nothing about the obligation to “take” “proper and necessary” “action in the courts” “to prevent” corporations from doing things “not authorized by law” suggests to me that it excludes the possibility of undertaking criminal prosecutions to accomplish those ends. There is no question that “corporations” are included in the definition of “[p]erson[s]” who are capable of being prosecuted for criminal acts. See Tex. Penal Code § 1.07(38).13 There are also offenses that corporations specifically may be prosecuted for committing that might prevent corporations “from exercising any powers” or collecting fees “not authorized by law.” See, e.g., Tex. Tax Code § 171.363 (Willful and Fraudulent Acts).14 One way the AG might choose to “take such action in the courts ․ to prevent” private corporations from exercising such “powers[,]” or from “demanding or collecting” such unauthorized fees, is to prosecute corporations that do things that violate the law.15 It may well be that, contrary to the impression the Court has left with its opinion on original submission, the AG is indeed explicitly delegated authorities in Article IV, Section 22, that are broad enough to include potential criminal prosecutions, whether authorized explicitly by the Legislature or not. And if that is the case, then perhaps even the Court's understanding of a proper application of ejusdem generis should favor a conclusion that the “other duties” clause in Article IV, Section 22, may also permit legislative assignment of other, limited, prosecutorial duties.
Second: It appears that the Court's exclusive focus, in its opinion on original submission, relating to the constitutional authority of the AG to independently represent the State in this case, was on the following articles of our Texas Constitution: Article II, Section 1 (Separation of Powers); Article IV, Section 22 (Attorney General); and Article V, Section 21 (County and District Attorneys). But the Court's analysis wholly failed to consider whether any other provision in the constitution might authorize the Legislative Department to regulate which elected officials might be permitted to prosecute election law crimes. And there is at least one other constitutional provision that could potentially be construed to authorize the Legislature to empower the AG to prosecute Stephens, even independently.
Article VI of the Texas Constitution—entitled “Suffrage”—provides, in Section 4, that “the Legislature shall ․ make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box.” Tex. Const. art. VI, § 4 (emphasis added). That “Suffrage” was given its own article in our constitution, alone, suggests a singling out of that topic by those who adopted it. The integrity and inviolability of the vote, it seems, was a matter of special importance. After all, if the people cannot trust the election process in the state, they will not trust the government. And the laws that give structure and effect to the franchise are singularly and specifically addressed in Article VI, in a manner differently than other laws, including other crimes.
Does the primacy of a separate “Suffrage” provision in the constitution suggest that an entirely different approach to the matter ought to be taken from other, more general constitutional provisions—including determining how to, and who may, seek to “detect and punish” those who might corrupt the vote? There are seventeen unique articles in our constitution.16 Might Section 4 of Article VI properly control who decides who may appropriately prosecute election crimes, as opposed to all other types of crimes (as may be proscribed in Article V, Section 21)? Might the existence of this article suggest that the Legislature, as opposed to locally elected attorneys, may possess special powers in this realm, constitutionally speaking, to decide who should or who may seek to “detect and punish” those who would engage in voter fraud? This provision and its effect on the constitutionality of Election Code Section 273.021 is presently unknown, at least by the work of this Court so far; but the Court's opinion on original submission purports to declare Section 273.021(a) flatly to violate the constitution—all of it. The Court takes no account of the possibility that the statute might be authorized by some other provision of the c onstitution. Would the Court still consider Section 273.021(a) to violate the constitution should it be called upon to consider the authorizations embodied in Article VI, Section 4? Unless the Court grants rehearing to consider this issue, we may never know, and the proper functioning of our unique constitution may be thwarted indefinitely.
Third: Ordinarily, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all of its potential applications. Wagner v. State, 539 S.W.3d 298, 310 (Tex. Crim. App. 2018). The Court has also acknowledged that, when interpreting statutes, it has “a duty to employ, if possible, a reasonable narrowing construction in order to avoid a constitutional violation.” Ex parte Ingram, 533 S.W.3d 887, 895 (Tex. Crim. App. 2017). A duty.
Section 273.021(a) of our Election Code provides: “The attorney general may prosecute a criminal offense prescribed by the election laws of this state.” Tex. Election Code § 273.021(a) (emphasis added). The Court's opinion on original submission also accepted that nothing in Section 273.021(a) requires the AG to prosecute such crimes. See Stephens, 2021 WL 5917198 at *8 (“[N]othing in Texas Election Code section 273.021 requires the Attorney General to initiate prosecution for an election code violation.”). And that opinion also explicitly accepted that, upon invitation by a locally elected prosecutor, the AG may prosecute election law crimes consistent with our constitution. See Id. (“[T]he Attorney General can prosecute with the permission of the local prosecutor[.]”). The Court grounded this conclusion on language it observed in the Texas Government Code. Specifically, Section 402.028(a) of the Government Code permits prosecutions by the AG when requested by a locally elected prosecuting attorney. See Tex. Gov't Code § 402.028(a). (“At the request of a district attorney, criminal district attorney, or county attorney, the attorney general may provide assistance in the prosecution of all manner of criminal cases, including participation by an assistant attorney general as an assistant prosecutor when so appointed by the district attorney, criminal district attorney, or county attorney.”).
On original submission, however, the Court did not acknowledge that, at least in cases in which the AG is invited to prosecute by locally elected prosecutors, the merely permissive force of Section 273.021(a) of the Election Code would not operate unconstitutionally. In other words, the specific permissive authorization to prosecute election crimes found in Section 273.021(a) does not operate unconstitutionally in cases in which the AG is invited to prosecute by locally elected prosecuting attorneys. And, had the Court made that observation on original submission, while considering both its duty to construe statutes constitutionally where possible and its obligation not to declare a statute facially unconstitutional unless it can be said that the statute operates unconstitutionally in all of its applications, it ought to have found the statute not to be facially unconstitutional.
To be clear, I remain convinced that Section 273.021(a) should be read to constitutionally provide, at least, independent authority to the AG to prosecute election law crimes, even in the absence of an invitation by a local prosecutor. But even as the Court ultimately drew the conclusion that I was wrong about that, it should have still acknowledged potential constitutional applications of that law when the AG is invited to prosecute by locally elected attorneys. And that should have caused the Court to reject the conclusion that there was no possible constitutional application of the law.
Because there is at least one potential circumstance in which the permissive authorization provided for in Section 273.021(a) of the Election Code can be applied, Stephens's facial constitutional challenge to that law should have been rejected. At most, Stephens might have demonstrated a mere statutory violation in her case due to the potential absence of an invitation to prosecute by locally elected prosecutors under Government Code Section 402.028(a). But mere statutory violations are ordinarily not cognizable on habeas. Ex parte Carter, 521 S.W.3d 344, 349 (Tex. Crim. App. 2017) (explaining that “bare statutory violations” are not cognizable in habeas). And as-applied constitutional challenges are similarly not cognizable when brought in pre-trial habeas proceedings. Perry, 483 S.W.3d at 895 (“[W]e have stated that pretrial habeas cannot be used to advance an as-applied constitutional challenge to a statute.”). Thus, even considering the potential of Applicant's constitutional claim to stand on an as-applied foundation, it should have been rejected by the Court as not cognizable. And the Court should certainly not have declared Section 273.021(a) of the Election Code to be always, and in every circumstance, facially unconstitutional.
Fourth: Finally, I am concerned that the Court's opinion on original submission did not address or respond to my concern (stated in my dissenting opinion) that it had relied upon, as support for its conclusions, a claim the Court had made in Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002)—one that was demonstrably false, even at the time it was made. The Court's opinion began its discussion of the legal framework, within which this essentially text-of-the-constitution based issue arose, with an emphasis on language from one of its own past opinions, dressing it up along the way with a heading that suggested that its Saldano opinion represented no less than “Texas Constitutional History” itself. See Stephens, 2021 WL 5917198 at *2–3. The first quote it included from Saldano was the following: “ ‘[t]he office of the Attorney General of Texas has never had authority to institute a criminal prosecution.’ ” Id. at *3 (quoting Saldano, 70 S.W.3d at 880) (emphasis added). But this statement in Saldano was demonstrably wrong at the moment it was written.17
Had the Court been aware of Section 273.021(a) of our Election Code, and its authorization for the AG to prosecute “criminal offense[s] prescribed by the election laws of this state” when it was deciding Saldano, it should have at least mentioned it. But it did not. At that time, no one challenged the constitutionality of that section. And recognition of the existence of Section 273.021(a) would have revealed the falseness of the claim from Saldano that the Court substantially relied upon in its opinion on original submission in this case. Instead, the Court would have had to admit that the AG had in fact been delegated prosecution authority in at least one narrow set of circumstances: “criminal offense[s] prescribed by the election laws of this state[.]”18 The Court should not shy away from responding to this serious charge.19
For all of these reasons, and for the reasons previously stated in my dissenting opinion on original submission, I dissent to the Court's denial of rehearing in this case and to its refusal to grant rehearing, at least on its own motion, to reconsider all of these issues, but especially the demonstrably inappropriate remedy it imposed for the violation it found and whether Stephens even has standing to advance the claim that the AG may not properly represent the state in the proceedings against her.
1. Not that long ago, many Election Code cases were run out of the Public Integrity Unit in the Travis County district attorney's office. Prosecutions by the Public Integrity Unit in Travis County were criticized as they were against prominent individuals, such as Speaker Tom DeLay and Senator Kay Bailey Hutchison, who disagreed with the Travis County district attorney's office's political ideologies. See Morgan Smith, Witch Hunters?, The Texas Tribune (Sept. 22, 2010, https://www.texastribune.org/2010/09/22/why-a-county-da-prosecutes-state-federal-officials/).One man—the District Attorney of Travis County—was able to do that. Do we want a single person to hold even more power over elections across the entire State?
2. Carl H. Moneyhon, Reconstruction, Tex. State Hist. Ass'n Handbook of Texas (Jan. 19, 2021), https://www.tshaonline.org/handbook/entries/reconstruction.
3. Joe E. Ericson & Ernest Wallace, Constitution of 1876, Tex. State Hist. Ass'n Handbook of Texas (Mar. 23, 2021), https:/www.tshaonline.org/handbook/entries/constitution-of-1876.
6. Tex. Const. art. II, § 1.
8. Terrazas v. Ramirez, 829 S.W.2d 712, 731 (Tex. 1991) (Cornyn, J., concurring). Indeed, America's founding fathers were clear:• George Washington: “The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.” George Washington, Washington's Farewell Address 15 (Sept. 19, 1796).• John Adams: “It is by ballancing each of these Powers against the other two, that the Effort in humane Nature towards Tyranny, can alone be checked and restrained and any degree of Freedom preserved in the Constitution.” Letter from John Adams to Richard Henry Lee (Nov. 15, 1775).• Thomas Jefferson: “The concentrating [of] these [powers] in the same hands is precisely the definition of despotic government.” Thomas Jefferson, Notes on the State of Virginia 123 (Boston, Lilly and Wait, 1832) (1787).• James Madison: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47 (James Madison).• Alexander Hamilton: “For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ ” The Federalist No. 78 (Alexander Hamilton).
9. State v. Rhine, 297 S.W.3d 301, 305–06 (Tex. Crim. App. 2009); Gulf Ref. Co. v. City of Dallas, 10 S.W.2d 151, 158 (Tex. App.—Dallas 1928, writ dism'd w.o.j.).
10. See In re Allen, 366 S.W.3d 696, 708 (Tex. 2012) (noting that it is the judiciary's job to interpret statutes in a manner effectuating the legislature's intent); Gulf Ref. Co., 10 S.W.2d at 158.
11. Gulf Ref. Co., 10 S.W.2d at 158.
12. E.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive branch has exclusive authority and absolute discretion to decide whether to prosecute a case[.]”).
13. The constitutional duties of county and district attorneys, and the requirements for electing district attorneys, are laid out in Article V of the Texas Constitution. Tex. Const. art. V, §§ 21, 30. Article V is titled “Judicial Department” and prescribes the rules for the judicial branch. Accordingly, prosecutors are part of the judicial branch. Cf. Tex. Const. art. V, § 22 (describing the duties of the Attorney General in the article of the Texas Constitution titled “Executive Department”).
14. Meshell v. State, 739 S.W.2d 246, 254 (Tex. Crim. App. 1987) (the primary function of district and county attorneys is to prosecute cases).
15. Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) (emphasis added); Tex. Const. art. IV, § 22.
16. Dissenting op. of Slaughter, J., at 47.
17. E.g., Dowling v. State, 885 S.W.2d 103, 120 (Tex. Crim. App. 1992) (op. on reh'g); Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1990) (op. on reh'g); Peterson v. State, 645 S.W.2d 807, 807 (Tex. Crim. App. 1983) (op. on reh'g).
18. Cf. Petetan v. State, 622 S.W.3d 321, 324 (Tex. Crim. App. 2021) (granting rehearing on Court's own motion to address appellant's claims in light of new United States Supreme Court case law); Dowling v. State, 885 S.W.2d 103, 128 (Tex. Crim. App. 1992) (op. on reh'g) (granting rehearing on Court's own motion to clarify and modify original holding in light of new legislative history); Duncan v. State, 639 S.W.2d 314, 315 (Tex. Crim. App. 1982) (op. on reh'g) (granting rehearing on Court's own motion to address new United States Supreme Court case law).
19. Tex. Const. art. II, § 1.
20. See Johnson v. Tenth Jud. Dist. Ct. of Appeals at Waco, 280 S.W.3d 866, 872 (Tex. Crim. App. 2008) (“As with statutory construction, when we construe a provision of the Texas Constitution, we are principally guided by the language of the provision itself ․”); Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353, 355 (Tex. 2000) (“When we interpret our state constitution, we rely heavily on its literal text and must give effect to its plain language.”).
21. Tex. Const. art. II, § 1.
22. Jones v. State, 803 S.W.2d 712, 715 (Tex. Crim. App. 1991) (quoting Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990)).
23. Id. (quoting Armadillo Bail Bonds, 802 S.W.2d at 239).
24. Ex parte Stephens, ––– S.W.3d ––––, No. PD-1032-20, 2021 WL 5917198, at *4 (Tex. Crim. App. Dec. 15, 2021) (quoting Meshell v. State, 739 S.W.2d 246, 254 (Tex. Crim. App. 1987)).
25. See Tex. Const. art. II, § 1.
26. Dissenting op. of Slaughter, J., at 52.
27. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (“Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, ‘[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion.’ ”) (quoting State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992)) (emphasis added).
28. Stephens, 2021 WL 5917198, at *10.
29. Tex. Const. art. XVII, § 1(a).
1. See Bill Aleshire, The Texas Attorney General: Attorney or General?, 20 Rev. Litig. 187, 208 (2000) (citing Tex. Const. of 1845, art. IV, § 12 (amended 1850)) (stating that the office of the Attorney General was created in 1836); see also Act approved Dec. 13, 1836, 1st Cong., R.S. § 1, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1137 (Austin, Gammel Book Co. 1898) (defining the duty of the Attorney General to follow the instructions of the Governor); Act of May 11, 1846, 1st Leg., reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1512–15, 1601–04 (Austin, Gammel Book Co. 1898) (describing the duties of the AG and District Attorneys, respectively); Act of Aug. 26, 1856, 6th Leg., Adj. S., ch. 151, ch. 2, §§ 28–29, reprinted in 4 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1100–01 (Austin, Gammel Book Co. 1898) (laying out the duties of the AG and District Attorneys).
2. Infra Section IV.D. Note that there is a distinction between powers and duties. While the Legislature may be able to assign to the AG the power of criminal prosecution, it may not assign the duty to do so. And, even if the Legislature can constitutionally assign to the AG the power of criminal prosecution, the AG's actions in asserting that power may nevertheless violate the Texas Constitution on an as-applied basis.
3. Tex. Const., art. V, § 21 (providing that the district and county attorneys “shall represent the State in all cases in the District and inferior courts in their respective counties”).
4. Tex. Const., art. II, § 1.
5. See Section V.
6. I also find it puzzling that, whereas many of the amici are known to support strict adherence to the original intent of the Texas Constitution and limiting government powers to only those expressly enumerated in the Constitution, those same entities now demand that this Court overturn its decision in this case. These entities also urge this Court to judicially expand executive branch duties. But, as shown in more detail below, the Court's analysis on original submission faithfully adhered to the framers’ intent underlying the relevant constitutional provisions in light of the arguments raised. Although I ultimately believe that the Court overlooked a reasonable interpretation of the statute that would uphold its constitutionality, the Court's original opinion cannot be faulted for declining to adopt the position taken by the AG and amici, which would permit the Legislature to freely reassign specifically-enumerated constitutional duties in conflict with the plain meaning of the separation-of-powers provision.
7. Tex. Const. art. I, § 2 (“All political power is inherent in the people and all free governments are founded on their authority, and instituted for their benefit.”); Ex parte Francis, 165 S.W. 147, 173 (Tex. Crim. App. 1914) (“Where the people have decided to exercise their authority directly in making the laws or putting them in operation, they have reserved that right in the Constitution. This is a command by the people to the Legislature, and not a delegation of power to the people by the Legislature. The people reserved this power. The Legislature acts by command of the people in enacting these laws. The people reserve the right to put them in operation.”).
8. State v. Moore, 57 Tex. 307, 314 (1882).
9. “If the people want a change in the Constitution, there is a method provided in that instrument by which it can be accomplished. It cannot be done by the Legislature, nor by the courts.” Keller v. State, 87 S.W. 669, 677 (Tex. Crim. App. 1905).
10. See Shepperd v. Alaniz, 303 S.W.2d 846 (Tex. Civ. App.—San Antonio 1957, no writ). The statute at issue in Shepperd, former Election Code Section 130, provided, among other things, that “[t]he Attorney General of Texas is hereby authorized to appear before a grand jury and prosecute any violation of the election laws of this State by any candidate, election official, or any other person, in state-wide elections, or elections involving two (2) or more counties. He may institute and maintain such prosecution alone or in conjunction with the county or district attorney of the county where such prosecution is instituted.” Vernon's Revised Civil Statutes, Election Code Art. 9.02(2) (1952). The provisions in this section were later divided up into numerous different statutes that now essentially make up Chapter 273 of the Election Code, including the statute at issue in this case, Election Code Section 273.021. See Act of May 16, 1985, 69th Leg., R.S., Ch. 211, § 1, eff. Jan. 1, 1986 (recodifying Election Code).
11. Shepperd, 303 S.W.2d at 850.
12. See Medrano v. State, 421 S.W.3d 869 (Tex. App.—Dallas 2014, pet. ref'd).
13. Under the Code of Judicial Conduct, judges are not allowed to consider these type of ex parte communications, and I certainly have not.
14. John Gsanger, & Reilly Gsanger, The Seventh Amendment's Balance Between Community-based Justice and the Appellate Courts, 27 App. Advoc. 676, 681 (2015).
15. See Luz E. Herrera, & Pilar Margarita Hernández Escontrías, The Network for Justice: Pursuing A Latinx Civil Rights Agenda, 21 Harv. Latinx L. Rev. 165, 177 n.79 (2018); see also Daniel Rice, Territorial Annexation As A “Great Power,” 64 Duke L.J. 717, 739 n.148 (2015).
16. Texas History Timeline, Bullock Texas History State Museum (last visited July 15, 2022), https://www.thestoryoftexas.com/discover/texas-history-timeline.
17. Ruben R. Barrera & Dan A. Naranjo, Bridge Over Troubled Waters: Resolving the Rio Grande (Rio Bravo) Water Dispute, 47 St. Mary's L.J. 461, 468 (2016).
18. Ford W. Hall, An Account of the Adoption of the Common Law by Texas, 28 Tex. L. Rev. 801, 804 (1950).
19. Arvel (Rod) Ponton III, Sources of Liberty in the Texas Bill of Rights, 20 St. Mary's L.J. 93, 97 (1988).
20. Gsanger, supra note 18, at 681.
21. Barrow v. Boyles, 61 S.W.2d 783, 786 (Tex. 1933).
22. Giles v. Basore, 278 S.W.2d 830, 834 (Tex. 1955); see also Texas History Timeline, supra note 20.
23. One of these delegates was Stephen F. Austin, whom Santa Anna imprisoned for suspicion of inciting insurrection. He was later released. See Texas History Timeline, supra note 16; see also James C. Harrington & Anne More Burnham, Texas's New Habeas Corpus Procedure for Death-Row Inmates: Kafkaesque - and Probably Unconstitutional, 27 St. Mary's L.J. 69, 79 (1995).
24. Harrington, supra note 27, at 79.
25. Giles, 278 S.W.2d at 834.
26. Harrington, supra note 27, at 80.
27. Barrera, supra note 21, at 468.
28. Jason A. Gillmer, Shades of Gray: The Life and Times of A Free Family of Color on the Texas Frontier, 29 Law & Ineq. 33, 67 (2011).
29. Barrera, supra note 21, at 468.
31. Ralph H. Brock, “The Republic of Texas is No More”: An Answer to the Claim that Texas was Unconstitutionally Annexed to the United States, 28 Tex. Tech. L. Rev. 679, 692 (1997).
32. Barrera, supra note 21, at 469.
33. Brock, supra note 35, at 731 n.243.
34. Declaration of Causes: February 2, 1861, A Declaration of the Causes Which Impel the State of Texas to Secede from the Federal Union, Texas State Library & Archives Commission, https://www.tsl.texas.gov/ref/abouttx/secession/2feb1861.html (last visited July 15, 2022).
35. Brent M. Hanson, Judicial Hot Potato: An Analysis of Bifurcated Courts of Last Resort in Texas and Oklahoma, 12 Tenn. J.L. & Pol'y 161, 167–68 (2018) (footnotes omitted) (“After the Civil War, Texas began a tumultuous period of constitutional change in its judiciary. During Reconstruction, Texas was subject to federal military occupation and ousted all five supreme court justices on September 10, 1867. Between 1866 and 1876 Texas had three different constitutions.”).
36. Id.; Joseph A. Ranney, A Fool's Errand? Legal Legacies of Reconstruction in Two Southern States, 9 Tex. Wesleyan L. Rev. 1, 6 (2002).
37. Ranney, supra note 40, at 6 (“The Texas Supreme Court went through no less than four metamorphoses during Reconstruction. Shortly after the collapse of the Confederacy in the spring of 1865, President Andrew Johnson removed the court's Confederate-era justices along with all other state officials․ Texas's military commander, removed the Restoration Court members and replaced them with an appointed Military Court consisting of five new judges, all Unionists.”).
38. See Daniel v. Hutcheson, 22 S.W. 933, 935 (Tex. 1893); see also Eric Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union, 46 Am. J. Legal Hist. 119, 129, 144–45 (2004) (footnotes omitted) (“The readmission of the Southern states was attached to a number of significant conditions, including the ratification of the Fourteenth Amendment, and a requirement that the suffrage of all state citizens who had voting rights under the Reconstruction state constitutions—which provided for black suffrage—never be abridged. Three of the Southern states were given additional conditions: a requirement that blacks not be excluded from public office, and a requirement that the states not reduce any rights blacks might have to public education under their existing Reconstruction constitutions.”).
39. Daniel, 22 S.W. at 935.
41. One of these senators was Oran Milo Roberts, who was Chief Justice of the Texas Supreme Court. After Democrats returned to power following Texas’ rejection of the Reconstruction government, Roberts was again appointed to serve as Chief Justice of the Texas Supreme Court. See James R. Norvell, Oran M. Roberts and the Semicolon Court, 37 Tex. L. Rev. 279, 281, 286–87 (1959).
42. Tex. Const. of 1866, art. II, § 1.
43. TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 321 n.3 (Tex. App.—Austin 2002).
44. Norvell, supra note 45, at 281.
45. State v. El Paso Cnty., 618 S.W.3d 812, 830 (Tex. App.—El Paso 2020), mandamus dismissed (Nov. 20, 2020).
46. In re Griffin, 25 Tex.Supp. 623, 625 (1869). The Test Oath was a requirement for anyone holding any elected office wherein the official had to swear that he had never voluntarily taken up arms against the United States or given “aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto.” Ex parte Garland, 71 U.S. 333, 333 (1866).
47. Daniel, 22 S.W. at 935; see Ranney, supra note 40, at 6–7.
48. Ron Beal, Power of the Governor: Did the Court Unconstitutionally Tell the Governor to Shut Up?, 62 Baylor L. Rev. 72, 77 (2010).
49. Tex. Const. of 1869, art. IV, § 1.
50. Tex. Const. of 1869, art. IV, § 1.
51. Tex. Const. of 1869, art. IV, § 4, art. V, §§ 2, 6, 10, 11, 14.
52. Compare Tex. Const. of 1869, art. V, § 2, with Tex. Const. of 1866, art. IV, § 2.
53. Tex. Const. of 1869, art. V, §§ 6–7.
54. See S. S. McKay, “Constitution of 1869,” Handbook of Texas Online, Texas State Historical Association, https://www.tshaonline.org/handbook/entries/constitution-of-1869 (“Its centralizing tendencies, abandonment of state's rights, and specific restrictions on the use of state resources to support private corporations such as the railroads, however, prompted significant opposition throughout its existence.”).
55. See Peak v. Swindle, 4 S.W. 478, 479–80 (Tex. 1887).
56. See Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruction Texas, 4 Tex. a&m L. Rev. 95, 102 (2016) (“In 1869 the federal government sought to return control of Texas to an elected state government. An election—in which former Confederate soldiers were generally prohibited from voting for the new government—was held to fill the state government created by the 1868 Constitutional Convention.”); see also Texas Governor Edmund Jackson Davis Records: An Inventory of Governor Edmund Jackson Davis Records at the Texas State Archives, Texas Archival Resources Online, https://txarchives.org/tslac/finding_aids/40016.xml (last visited July 15, 2022) (“Troops stationed at the polls probably prevented many Democrats from voting: only about half of the registered white voters actually cast a ballot, and many polling places were either not opened, or ordered closed.”).
57. See Mikal Watts Brad, The Original Intent of the Education Article of the Texas Constitution, 21 St. Mary's L.J. 771, 820 (1990) (quoting W. Benton, Texas Politics—Constraints And Opportunities 18–19 (5th ed. 1984)) (“Considering the military supervision of elections and the disenfranchisement of so many Democrats, it would have been fruitless for the Democratic Party to have nominated a candidate.”).
58. Frassetto, supra note 60, at 101–02 (“In 1869, Radical Republican Edmund Davis was elected Governor of Texas ․ by [a margin of] less than 800 votes ․”).
59. See Peak, 4 S.W. at 480.
60. Id. at 479–80.
61. Daniel, 22 S.W. at 936.
62. Frassetto, supra note 60, at 102–10.
63. William J. Chriss, J.D., Ph.D., The Texas Constitutions, 2020 Advanced Civ. App. Prac. 13-III, 2020 WL 5607192.
64. Notably, after the 1873 election where Democrats swept the election, some Republicans alleged voter fraud. An ousted Republican sheriff arrested Joseph Rodriguez claiming he voted twice. The Harris County District Attorney initially served as the prosecutor, but after he resigned, the Travis County District Attorney stepped in. The Attorney General took no part in the prosecution. Ultimately, the Davis-appointed Texas Supreme Court declared that the entire election was unconstitutional, and Davis initially refused to leave office. Democrats threatened to immediately inaugurate the electorate victor, Richard Coke, as Governor. When U.S. President Ulysses Grant refused to intervene, Davis stepped down. See Curtis Bishop, “Coke-Davis Controversy,” Handbook of Texas Online, Texas State Historical Association, https://www.tshaonline.org/handbook/entries/coke-davis-controversy; see also Carl H. Moneyhon, “Ex Parte Rodriguez,” Handbook of Texas Online, Texas State Historical Association, https://www.tshaonline.org/handbook/entries/ex-parte-rodriguez.
65. Davenport v. Garcia, 834 S.W.2d 4, 16 (Tex. 1992).
66. El Paso Cnty., 618 S.W.3d at 830; Beal, supra note 52, at 77.
67. Beal, supra note 52, at 78 (footnote omitted) (“The Governor was also only provided a two-year term. This was due to the framers’ intent to weaken state government and their belief that long terms were conducive to tyranny.”); Ranney, supra note 36, at 29 (“The 1875 convention was dominated by delegates who were primarily interested in agricultural reform and reduced taxes; as a result, the 1876 constitution's defining characteristic was a vision of state government much narrower than that of the 1869 constitution. The 1876 constitution limited permissible rates of taxation at both the local and state level, reenacted a pre-war limit on state debt, imposed strict limits on municipal debt, prohibited state and local aid to private enterprise for the first time, and placed restrictions on the purposes for which state government could use tax revenues. The constitution also returned the supreme court to elective status, and reduced the terms of various officials.”).
68. This sentiment was included in the 1876 Constitution's Bill of Rights where it proclaimed: “Texas is a free and independent State, subject only to the Constitution of the United States; and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government unimpaired to all the States.” Tex. Const., art. I, § 1 (emphasis added). Compare this to the 1869 Constitution's Bill of Rights, which provided: “The Constitution of the United States, and the laws and treaties made, and to be made, in pursuance thereof, are acknowledged to be the supreme law; that this Constitution is framed in harmony with, and in subordination thereto; and that the fundamental principles embodied herein can only be changed, subject to the national authority.” Tex. Const. of 1869, art. I, § 1.
69. John Walker Mauer, State Constitutions in a Time of Crisis: The Case of the Texas Constitution of 1876, 68 Tex. L. Rev. 1615, 1624 (1990).
70. See generally Powers and Duties, National Association of Attorneys General, https://www.naag.org/issues/powers-and-duties/ (last visited July 15, 2022); see also Appendix B.
71. James G. Dickson, Jr., “Attorney General,” Handbook of Texas Online, Texas State Historical Association, https://www.tshaonline.org/handbook/entries/attorney-general.
72. Executive Ordinance, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1053 (Austin, Gammel Book Co. 1898).
73. Joint Resolution Defining the Duties of the Heads of Departments of the Government, approved December 13, 1836, 1 Laws of the Rep. of Tex., 1st Cong., 77, 77, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1137 (requiring the members of the president's cabinet to: “reside permanently at the seat of government”; “conform to and execute the instructions of the president, whether general or particular”; and “give respectively and collectively, such needful aid and counsel whenever required to do so by the chief magistrate of the republic ․”).
74. Tex. Const. of 1845, art. IV, § 12.
76. Act approved May 11, 1846, 1st Leg., reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1512–15 (Austin, Gammel Book Co. 1898). Specifically, the statute obligated the AG to: (1) “prosecute and defend all actions in the supreme court of the State, in which the State may be interested, and also to perform such other duties as may be prescribed by the constitution and laws of the State;” (2) “counsel and advise the several district attornies [sic] in the State, in the prosecution and defence [sic] of all actions in the district courts, wherein the State is interested, whenever requested by them to do so;” and (3) “appear and defend the interests of the State, in any suits now pending, or which may be hereafter instituted in the district court, by empresarios for the settlement of their claims.” Id. The statute imposed various other more minor duties on the AG as well, including: gathering information and reporting it to other specified governmental offices; transmitting to the proper district attorneys “all certified accounts, bonds or other demands which may have been delivered to [the AG] by the comptroller of public accounts for prosecution and suit;” upon proper request from the Governor or other specified officials, authoring “an opinion in writing, in all cases touching the public interest, or concerning the revenue or expenses of the State;” and preparation of forms for contracts for the state's use. Id.
77. Tex. Const. of 1866, art. IV, § 13.
78. See McKay, supra note 58.
79. Tex. Const. of 1869, art. IV, §§ 1, 23.
80. Tex. Const. of 1869, art. IV, § 23.
81. Tex. Const. of 1869, art. IV, §§ 17, 20, 21, 22.
82. Tex. Const. of 1836, art. IV, § 5 (“There shall be a district attorney appointed for each district, whose duties, salaries, perquisites, and terms of service shall be fixed by law.”).
83. Tex. Const. of 1845, art. IV, § 12.
84. See Act of May 13, 1846, 2 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1602 (Austin, Gammel Book Co. 1898) (describing statutory duties of district attorneys and stating, “That it shall be the duty of each district attorney to attend all terms of the district court in the district in which he may have been elected, to conduct all prosecutions for crimes and offences cognizable in such court, to prosecute and defend all other actions in which this State is interested, and to perform such other duties as may be prescribed by the Constitution and laws of the State.”).
85. In Allen, the Texas Comptroller of Public Accounts turned over to the DA an account in which the debtors owed the State $15,000. Allen, 32 Tex. at 274. Pursuant to his statutory duties, the DA filed a lawsuit in the district court to recover the money owed but ultimately settled with the debtors for $500. Id. On appeal to the Texas Supreme Court, the AG, pursuant to his statutory duty, represented the State. Id. He argued that pursuant to statute, the DA had no authority to the settle the account for less than the full amount. Id. at 274–75. The Court agreed and reversed. Id. at 275–76 (citing to the applicable statute that provided “that no admission made by the district attorney in any suit or action in which the state is a party, shall operate to prejudice the interest of the state”). While this case was decided in May 1869, it was still under the Constitution and laws of the 1845 Constitution because the 1869 Constitution was not operative until December of that year. See Clegg v. State, 42 Tex. 605, 607 (1875) (recognizing that “the Constitution must be held to have gone into effect from its adoption by the vote of the people, on the 3d of December, 1869”).
86. This opinion was written by Texas Supreme Court Justice Oran Milo Roberts. In 1844, Roberts was appointed to the position of district attorney by President Sam Houston. In 1846, he was appointed as a district judge. He served in the 1866 constitutional convention. In 1856, Roberts was elected to the Texas Supreme Court and also served as its chief justice. In 1865, because of his support and involvement in the Confederacy, Roberts was removed from office as part of the Congressional Reconstruction. In 1866, Roberts was named U.S. Senator, but Congress refused to seat him. After Democrats returned to power in Texas, in 1874, Roberts was first appointed and then elected to the Texas Supreme Court. He again served as its chief justice. In 1878, Roberts was elected and served two terms as the Governor. Ford Dixon, “Roberts, Oran Milo,” Handbook of Texas Online, Texas State Historical Association, https://www.tshaonline.org/handbook/entries/roberts-oran-milo (last visited July 15, 2022).
87. The only exception would be if the Legislature were to enact a statute that criminalized activity by a “private corporation [which] exercis[es] any power or demand[s] or collect[s] any species of taxes, tolls, freight or wharfage, not authorized by law.” Such a law would fall within the AG's constitutional duty to prosecute, but he would have no constitutional authority to prosecute any other criminal law violations in the trial courts. See Tex. Const. art. IV, § 22.
88. Judge Yeary's dissenting opinion on rehearing notes that when the Saldano case was decided, Texas Election Code § 273.021 had already been enacted and therefore “the Court would have had to admit that the AG had in fact been delegated prosecution authority in at least one narrow set of circumstances.” This statement, however, presumes that the Saldano Court believed § 273.021 was constitutional. Yet, the court of appeals in Shepperd had already noted decades earlier that “[i]t 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 Sec. 21 of Article 5 of the Constitution [the provision bestowing authority upon the district and county attorneys] and would be void.” Shepperd v. Alaniz, 303 S.W.2d 846, 850 (Tex. Civ. App. 1957). The Saldano Court also knew that the Texas Constitution's ratifying voters understood that it had always been the role of the DAs to prosecute criminal law offenses in the trial courts; it had never been the AG's duty. Moreover, the Saldano Court knew of the dozens of statutes wherein the Legislature had declared that the DAs had exclusive criminal prosecutorial authority or that the DA shall prosecute all criminal cases in the trial courts. See Part V-A and Appendix A, infra. Judge Yeary does not take any of that into account. But Judge Yeary does seem to agree with me that our Constitution leaves room for the Legislature to enact criminal law statutes that would fall within the AG's enumerated duties under the Constitution giving him authority to unilaterally prosecute such cases. To date, however, at least to my knowledge, no such statutes have yet been enacted, and to my knowledge the AG has never sought to criminally prosecute any corporation or person “as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” Tex. Const. art. IV § 22. Therefore, when the Saldano Court stated that “[t]he office of the attorney general of Texas has never had authority to initiate a criminal prosecution,” because § 273.021 had not yet officially been declared unconstitutional, it really should have said that the AG has never had the duty to initiate a criminal prosecution. But to call the Saldano Court's statement “demonstrably false” is an over-exaggeration, especially given the issues presented in that case and the state of the law at the time. Further, the argument I make for rehearing is one that has not yet been argued by any party, nor has it been fully considered. Thus, Judge Yeary's indignation regarding this Court's reliance on Saldano is misplaced.
89. Craig H. Roell, “Stayton, John William,” Handbook of Texas Online, Texas State Historical Association, https://www.tshaonline.org/handbook/entries/stayton-john-william (last visited July 15, 2022).
91. Specifically, the statute provided that the AG “shall, at least once a month, inspect the accounts in the offices of the state treasurer and comptroller of public accounts of all officers and of individuals charged with the collection or custody of funds belonging to the state, and proceed immediately to institute or cause to be instituted against any such officer or individual who is in default or arrears, (suit) for the recovery of funds in his hands; and he shall also institute immediately criminal proceedings against all officers or persons who have violated the laws by misapplying or retaining in his (their) hands funds belonging to the state.” Moore, 57 Tex. at 313–14 (quoting art. 2802a, R.S.).
92. The Court included some examples where the Legislature granted powers and assigned duties to the attorney general by statute that were constitutionally permissible because they did not infringe on the powers and duties expressly granted by the Constitution to other officers. These included: the “duty to examine the charters of contemplated railway corporations;” serving as a “member of the board to contract for public printing;” serving as a “member of the board to have land for new capital [sic] surveyed, sold and capital built ․ and many other powers and duties[.]” Moore, 57 Tex. at 314.
93. Our Stephens opinion applied the construction rule of ejusdem generis to conclude that the “other duties” assigned by the Legislature to the AG must be executive branch duties. State v. Stephens, NOs. PD-1032-20 & PD-1033-20, 2021 WL 5917198, at *16 (Tex. Crim. App. Dec. 15, 2021). I agree with that conclusion overall, but the Court should have also looked to the meaning of the phrase at the time Texans adopted the Constitution to ensure that the meaning we assign to the phrase is the meaning understood by the people who voted to ratify this constitutional language.
94. Supra note 89.
95. Tex. Const. art. IV, § 22.
96. Chief Justice Gaines, in the Court's opinion, did pay lip service to the Framers and the ratifying voters. But this was dicta and was provided without any historical consideration or analysis:Now it is not unreasonable to presume that when the framers of the Constitution came to formulate the section which defines the duties of county and district attorneys, if the objection had been urged that the powers conferred were too broad and would deprive the state of having suits of the greatest importance prosecuted by its Attorney General, the reply would have been that the power expressly given to the Legislature to impose upon the Attorney General duties in addition to those expressly defined was sufficient to enable that body to provide that that officer should represent the state in any class of cases where his services should be deemed requisite. So as to the voters who adopted the Constitution. If the same objection had been interposed by them to the Constitution as submitted for their ratification, namely, that section 21 of article 5 gave too much authority to the officers therein named, they would in all probability have been satisfied upon that matter, by having it pointed out to them, that section 22 of article 4 authorized the Legislature to restrict the powers given by section 21, by conferring them in part upon the Attorney General. The voters as a rule are unlearned in the law and as persons of that class would reasonably construe the Constitution upon which they vote, such ought to be the construction of the courts.Brady, 89 S.W. at 1056.
97. At the time of the opinion, Article IV, Section 22, provided:The Attorney General shall hold his office for two years and until his successor is duly qualified. He shall represent the state in all suits and pleas in the Supreme Court of the State in which the state may be a party, and shall especially inquire into the charter rights of all private corporations, and, from time to time, in the name of the state, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the governor and other executive officers, when requested by them, and perform such other duties as may be required by law.This provision was amended in 1972, but only to change the Attorney General's term of office from two years to four years. See Tex. S.J.R. 1, 62nd Leg., R.S. (1971).
98. That same year, 1985, the Legislature also passed the recodified Election Code provision at issue in this case. Given the fact that Section 273.021 of the Texas Election Code merely states that the “attorney general may prosecute a criminal offense prescribed by the election laws of this state,” this enactment is puzzling. See Tex. Elec. Code § 273.021(a) (emphasis added). Under the rules of construction, the mandatory language used for the district attorneys would likely prevail over the permissive language used for the attorney general.
99. Br. Amici Curiae of Steven Hotze, M.D. et al., at 4.
100. In fiscal year 2020, the Court granted only 8% of petitions for discretionary review. Annual Statistical Report for the Texas Judiciary, The State of Texas Office of Court Administration, at 44 (2021) https://www.txcourts.gov/media/1451853/fy-20-annual-statistical-report_final_mar10_2021.pdf.
101. See In re Dotson, 76 S.W.3d 393, 395 (Tex. Crim. App. 2002) (“One of our general rules of statutory construction is that a more specific statute or rule will prevail over a more general one.”); see also Tex. Gov't Code § 311.026(b) (stating that where conflict between general provision and special or local provision is irreconcilable, special or local provision prevails as exception to general provision, absent “manifest intent” to the contrary).
103. See also Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998) (citation omitted) (“Statutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with [the constitution]”); Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. 1979) (en banc) (statutes are “vested with a presumption of validity and this Court is duty bound to construe such statutes in such a way as to uphold their constitutionality”).
104. Neither Article IV, § 22, nor Article V, § 21, uses the word “power.” Other sections within Article IV and Article V specify what “power” is assigned. Most of the executive “power” is vested in the Governor, and sections within Article IV refer to the Governor's “power.” See Tex. Const. art. IV, §§ 7, 11. Most of the other executive “power” is assigned through specific duties and not by a general grant of “power.” All of the judicial “power” is vested in the courts. Tex. Const. art. V, § 1. Therefore, neither the AG nor the district or county attorneys exercise judicial “power.”
105. See Ex parte Anderson, 81 S.W. 973, 975 (Tex. Crim. App. 1904) (The Constitution “expresses the will of the people; that all power is in the people; that the Legislature, courts, and executive, and all the machinery put into operation by virtue of the Constitution are but the creatures of that instrument, or the people speaking through that instrument, and these must be obedient to its commands.”).
106. See State v. Brooks, 42 Tex. 62, 69 (Tex. 1874) (providing that the Constitution is “the paramount law of the State” which identifies “the officers who are to run the machinery of the State Government” and that “their duties [are] prescribed [therein]”).
107. See Moore, 57 Tex. at 310 (noting that our government is “departmental in character, and that the officers of the different departments are to a very large extent independent of and free from the control of the heads of other departments.”).
108. Currently there are no statutes criminalizing actions that fall within the AG's constitutional duty to “take action ․ to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” Tex. Const. art. IV, § 22. As noted above, however, if the Legislature were to enact such statutes, I believe it would fall within the AG's core duties to prosecute such offenses directly in the trial courts.
109. One may question how the AG might know of a DA's express abandonment of an “election law” prosecution. I am sure there will be many election law violations and a DA's abandonment of prosecutions for which the AG is unaware. But there may be violations that are brought to the AG's attention and the Election Code also provides that the AG may investigate election law violations. If an AG investigation uncovers election law violations that he brings to the local DA and the DA then refuses to prosecute, under this possible construction of Section 273.021 of the Election Code, the AG could then initiate prosecution himself.
110. In Moore, the Court noted that the DA had discretion on whether to bring lawsuits or not. Based on this discretion and the DA's independence, the Court suggested that if the DA chose not to file a particular lawsuit and the AG disagreed with that decision, the AG could not interfere with that discretion. 57 Tex. at 312. But there is an important distinction between Moore and this case. In Moore, the statute at issue assigned a duty for the AG to act in a way that violated the separation-of-powers provision. Thus, the statute was facially unconstitutional. Here, Section 273.021 assigns a power to the AG, giving him authority to act but no corresponding duty which commands him to act. As such, Section 273.021 is not facially unconstitutional. On an as-applied basis, if the AG exercises his authority under Section 273.021 when the DA chooses not to prosecute, then the AG's action does not “interfere with, frustrate, or, to some extent, defeat” the DA's exercise of the power that comes with his duty. Smissen, 9 S.W. at 116.
111. It is again important to recognize the difference between a duty and a power. The Legislature may properly assign to the AG the “power” to represent the State in the courts for matters that fall outside his constitutionally-assigned duties because the Constitution itself already gives the AG that power as part of his duties. But the Legislature cannot command the AG to take action to use that power and the AG cannot use that power if doing so would interfere with another officer's (e.g., a DA's) ability to fulfill his or her constitutionally-assigned duties.
112. See State v. Int'l & G.N. Ry. Co., 35 S.W. 1067, 1068 (Tex. 1896) (“We are of the opinion that the conferring upon the attorney general of the specific authority to ‘take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power ․ not authorized by law’ evidences an intent to make such authority exclusive in such officer, and must be held as an exception to the general authority conferred upon the county attorney to ‘represent the state in all cases in the district and inferior courts in their respective counties.’ ”).
113. See Wallace v. State, 170 S.W.2d 762, 764 (Tex. Crim. App. 1943) (recognizing the common law power of prosecutors to dismiss a criminal action); see also Moore, 57 Tex. at 312 (discussing the district and county attorneys’ “freedom and independence of action as to method of managing and conducting [a] case”).
114. Code of Criminal Procedure Article 2.08(b) provides that “[a] judge of a court in which a district or county attorney represents the State shall declare the district or county attorney disqualified ․ on a showing that the attorney is the subject of a criminal investigation by a law enforcement agency if that investigation is based on credible evidence of criminal misconduct that is within the attorney's authority to prosecute.” Article 2.07 then provides that where the district or county attorney has been disqualified, the judge of a court “may appoint” an attorney pro tem. Thus, DAs who may be involved in election law violations can be prosecuted by an attorney pro tem, but such prosecution depends on whether a judge exercises his or her discretion in finding “credible evidence” to disqualify and then discretion as to whether to appoint an attorney pro tem to prosecute. Therefore, political bias could still come into play to protect a DA from being prosecuted for an election law violation.
115. “Shall” gives a command or duty and comes with the power to execute the duty. “May” gives power and authority to act without an obligation to do so. The Constitution uses the word “power” when it is intended to assign power. See e.g., Tex. Const., art. III, § 1 (“The Legislative power of this State shall be vested in a Senate and House of Representatives ․”); art. IV, § 7 (“[The Governor] shall have power to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions.”); art. V, § 1 (“The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law․”).
116. It should be noted that this case arose from alleged election law violations that took place in Jefferson County. Section 44.223 of the Texas Government Code provides that: “The criminal district attorney of Jefferson County shall attend each term and session of the district courts in Jefferson County and each term and session of the inferior courts of the county, except municipal courts, held for the transaction of criminal business, and shall exclusively represent the state in all matters before those courts. He shall represent Jefferson County in any court in which the county has pending business.” I believe this statute creates a possible conflict in the law that we must address in determining whether Section 273.021 of the Texas Election Code is unconstitutional or otherwise conflicts with controlling statutory authority as applied to this particular case.
1. Section 273.021(a) provides that “[t]he [AG] may prosecute a criminal offense prescribed by the election laws of this state.” Tex. Election Code § 273.021(a) (emphasis added).
2. Tex. Const. art. II, § 1 (“The powers of the Government of the State of Texas 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.”) (emphasis added).
3. See Majority Opinion on Original Submission, State v. Stephens, Nos. PD-1032-20 & PD-1033-20, 2021 WL 5917198, at *6 (arguing that “the Constitution already grants this authority to county and district attorneys” and that, “[b]ecause this is already the specific duty of the county and district attorneys, the court of appeals erred by misconstruing the ‘other duties’ clause to encompass judicial branch duties.”).
4. Stephens was indicted in April of 2018. All text references to provisions in Chapters 19 and 20 of the Code of Criminal Procedure are to those provisions as they appeared at the time of the indictment. Both Chapters 19 and 20 have since been recodified, but the changes were not intended to be substantive. See Acts 2019, 86th Leg., ch. 469 (HB 4173), §§ 1.03, 1.04, 3.01 & 4.01, eff. Jan. 1, 2021.
5. Regardless of whether the AG may properly represent the State independently in post-indictment proceedings against Stephens, the chapter of our Code addressing the authority of the grand jury defines “attorney representing the State” to include “the Attorney General[.]” Tex. Code Crim. Proc. art. 20.03. Stephens has not challenged the constitutionality of that provision.
6. Article 2.07 was amended in 2019 to provide that either a State's attorney from another jurisdiction or an assistant attorney general may be appointed as attorney pro tem. Acts 2019, 86th Leg., ch. 580 (SB 341), § 1, eff. Sept. 1, 2019. Prior to the amendment, the trial court could appoint “any competent attorney” to serve as attorney pro tem for an absent State's attorney. See Wice, 581 S.W.3d at 192 (“The [former] statute provides for the appointment of either private attorneys or prosecutors from other jurisdictions within the state to take over for the recused or disqualified District or County Attorney.”). But the 2019 amendment to Article 2.07 applies to any appointment of an attorney pro tem occurring after its effective date of September 1, 2019. Acts 2019, 86th Leg., ch. 580 (SB 341), § 5, eff. Sept. 1, 2019. So, if this case were to be remanded for Stephens to answer to the indictment, it is conceivable that an assistant attorney general could be appointed to prosecute the case, should local prosecutors refuse to get involved.
7. Cf. United States v. Morrison, 449 U.S. 361, 365 (1981) (reversing a court of appeals’ judgement that dismissed an indictment as a remedy for the actions of two Drug Enforcement agents that presumptively violated a defendant's Sixth Amendment right to counsel, and explaining that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though [such a constitutional] violation may have been deliberate”); United States v. Blue, 384 U.S. 251, 255, (1966) (“So drastic a step [as dismissal of indictment] might advance marginally some of the ends served ․, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.”).
8. The court of appeals got this fact wrong in its opinion, claiming instead that “[t]he Attorney General ․ indicted ․ Stephens[.]” State v. Stephens, 608 S.W.3d 245, 248 (Tex. App.—Houston [1st Dist.] 2020). This Court's opinion on original submission, however, correctly observed that “the Chambers County grand jury indicted Stephens[.]” Stephens v. State, Nos. PD-1032-20 & PD-1033-20, 2021 WL 5917198 at *1 (Tex. Crim. App. Dec. 15, 2021). This fact is important to the framing of the issue because failing to be precise obscures the, at least, plausible difference between initiating a prosecution and representing the State in post-indictment proceedings against an accused.
9. The question in this case is not the facial constitutionality of the statute under which the defendant was being prosecuted, but instead the constitutionality of the statute affording the AG the independent authority to represent the State in the proceedings against her. The latter is a question that I contend she has no legitimate interest in challenging, though others, including the trial court and the locally elected district attorney, might.
10. Specifically, in pertinent part, Article V, Section 1, provides:“The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.”Tex. Const. art. V, § 1.
11. County Attorneys and District Attorneys, created in Article V, also sometimes exercise the authority to represent the state in “civil” cases as well. So, drawing a “civil” versus “criminal” distinction seems like flawed logic. May the Legislature take away ALL of the County and District Attorneys’ authority to represent the State in “civil” cases, but not also divert some limited authorities in “criminal” cases to the AG?
12. They certainly are not expressly civil-only in nature. The word “civil” does not even appear anywhere in that article. Tex. Const. art. IV, § 22.
13. Moreover, because Section 1.07 of the Penal Code falls under Title 1 of that Code, its provisions “apply to offenses defined by other laws, unless the statute defining the offense provides otherwise[.]” Tex. Penal Code § 1.03(b). Presumably that means that Section 1.07(38)’s definition of “person” to include corporations could have wide application to offenses defined beyond the Penal Code itself.
14. This statute provides in part that a “taxable entity” may commit certain offenses. Our tax code also defines “taxable entity” to include “corporations.” Tex. Tax Code § 171.0002(a).
15. I gather that Judge Slaughter, at least, agrees with this proposition. See Dissenting Opinion of Judge Slaughter, at 52 n.108 (“[I]f the Legislature were to enact such statutes, I believe it would fall within the AG's core duties to prosecute such offenses directly in the trial courts.”).
16. Article I. Bill of Rights;Article II. The Powers of Government;Article III. Legislative Department;Article IV. Executive Department;Article V. Judicial Department;Article VI. Suffrage;Article VII. Education;Article VIII. Taxation and Revenue;Article IX. Counties;Article X. Railroads;Article XI. Municipal Corporations;Article XII. Private Corporations;Article XIII. Spanish and Mexican Land Titles;Article XIV. Public Lands and Land Office;Article XV. Impeachment;Article XVI. General Provisions; andArticle XVII. Mode of Amending the Constitution of This State
17. See Stephens, 2021 WL 5917198 at *17 (Yeary, J., dissenting) (pointing out that Section 273.021(a) of the Election Code was in existence long before Saldano was decided). Section 273.021(a), at that time as it does today, purported to authorize the AG unilaterally to prosecute election law crimes. Indeed, a statutory predecessor to Section 273.021(a) has authorized the AG unilaterally to prosecute election law violations since 1952. See Acts 1951, 52nd Leg., ch. 492 (HB 6), § 130(2), p. 1152, eff. Jan. 1, 1952 (“The Attorney General of Texas is hereby authorized to appear before a grand jury and prosecute any violation of the election laws of this State by any candidate, election official, or any other person, in state-wide elections, or elections involving two (2) or more counties. He may institute and maintain such prosecution alone or in conjunction with the county or district attorney of the county where such prosecution is instituted.”).
18. For her part, Judge Slaughter believes that I have misread Saldano. Dissenting Opinion of Judge Slaughter, at 20 n.88. She apparently believes that, when Saldano observed that “[t]he office of attorney general of Texas has never had authority to institute a criminal prosecution[,]” 70 S.W.3d at 878, it only meant that it understood that the Texas Constitution simply would not tolerate any such grant of authority. Such a reading of this passage, however, is quite implausible in light of the dictum that appears shortly after it, in which this Court observed: “The Constitution ․ authorizes the legislature to give the attorney general duties which, presumably, could include criminal prosecution.” Id. at 880. The directives of the Texas Constitution must not have been so clear to the Court after all, given this later dictum (not to mention this Court's present debate regarding the proper application of the “except in the instances herein expressly permitted” clause of Article II, Section 1, in combination with the “perform such other duties as may be required by law” clause of Article IV, Section 22).
19. The text of the constitution and laws of this state ought to matter more to the Court than statements the Court has made in decisions that have come before, especially when those decisions and statements are shown to be demonstrably incorrect from their inception. See Gamble v. United States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J. concurring) (quoting The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (capitalization omitted)) (“By applying demonstrably erroneous precedent instead of the relevant law's text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises ‘force’ and ‘will,’ two attributes the People did not give it.”).