Skip to content
National Association of Attorneys General
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • Center for Consumer Protection
      • Center for Supreme Court Advocacy
      • Center for Tobacco & Public Health
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • CLE Credit
    • NAAG Trainings
    • Online Learning
    • NAMFCU Trainings
    • NAAG Faculty
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • Who is my Attorney General?
    • Attorneys General Office 101
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
    • Careers in Medicaid Fraud Control Units
  • About NAAG
    • NAAG Staff
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • About NAMFCU
    • About the Medicaid Fraud Control Units
    • Reporting Fraud and Abuse
    • MFCU Member Hub
    • Careers with a MFCU
  • Contact Us
National Association of Attorneys General
  • Find My AG
  • Consumer Complaints
  • Member Benefits
  • Contact Us
Log In
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • Center for Consumer Protection
      • Center for Supreme Court Advocacy
      • Center for Tobacco & Public Health
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • CLE Credit
    • NAAG Trainings
    • Online Learning
    • NAMFCU Trainings
    • NAAG Faculty
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • Who is my Attorney General?
    • Attorneys General Office 101
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
    • Careers in Medicaid Fraud Control Units
  • About NAAG
    • NAAG Staff
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • About NAMFCU
    • About the Medicaid Fraud Control Units
    • Reporting Fraud and Abuse
    • MFCU Member Hub
    • Careers with a MFCU
  • Contact Us

Texas Court of Criminal Appeals Rules that Attorney General May Not Prosecute Election Law Violations

Home / Powers and Duties / Texas Court of Criminal Appeals Rules that Attorney General May Not Prosecute Election Law Violations
April 14, 2022 Powers and Duties
Share this

  • Emily Myers
    Antitrust Counsel and Chief Editor
    National Association of Attorneys General

The Texas Court of Criminal Appeals recently ruled, on separation of powers grounds, that the attorney general of Texas does not have authority to prosecute violations of Texas’ election laws, and that a statute purporting to give the attorney general that power is unconstitutional. Texas v. Stephens, No. PD-1033-20 (Tex. Crim. App. Dec. 15, 2021).

While investigating someone else, the FBI uncovered potential campaign-finance violations by the elected sheriff of Jefferson County, Texas. The FBI provided this information to the Texas Rangers. Upon further investigation, they concluded that the sheriff had received potentially illegal campaign contributions and gave the information to the county district attorney. The district attorney declined to prosecute and referred the Rangers to the Texas attorney general. The attorney general presented the case to a grand jury, relying on Texas Election Code §273.021, which provides, “The attorney general may prosecute a criminal offense prescribed by the election laws of this state.”

The sheriff was indicted and filed a motion to quash, arguing that the attorney general did not have authority to prosecute a violation of the Texas Penal Code. Although the trial court dismissed part of the indictment, the court of appeals held that the statute “clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally whether those laws are inside or outside the Code.” The court of appeals reasoned that the Texas Constitution authorizes the attorney general to act on behalf of the state against corporations and that corporations, like elections and elected offices, are wholly creatures of state action. Thus, the attorney general was authorized to prosecute election law violations. The sheriff appealed on the grounds that the statutory grant of prosecutorial authority violates the separation of powers doctrine in the Texas Constitution.

The Court of Criminal Appeals began by reviewing Texas’ constitutional and statutory provisions regarding the attorney general. According to the court, the attorney general has never had authority to institute a criminal prosecution. The attorney general did have authority to handle appeals of criminal cases in Texas until the 1876 constitution (still in effect today) removed that authority completely, unless a county or district attorney requests assistance.

The Texas constitution provides for three separate branches of government: legislative, executive and judicial. The constitution also “prohibits the exercise [by one branch] of any power ‘properly attached to either of the others,’” unless that power is grounded in a constitutional provision. Because the Texas constitution makes this separation explicit, it is likely that Texas would “more aggressively enforce separation of powers between its governmental branches than would the federal government.” The Texas constitution places the office of attorney general in the executive branch and the district and county attorneys in the judicial branch.

The attorney general argued that, under Art. IV of the Texas constitution, the legislature may act to give the attorney general the power to “perform such other duties as may be required by law,“ and section 273.021 is the legislature’s exercise of that authority. The Court of Criminal Appeals observed that there is no explicit constitutional authority for the attorney general to prosecute criminal cases and rejected the lower appellate court’s analogy to the regulation of corporations, which is a specified power of the attorney general. The court also noted that the Texas constitution granted the prosecutorial authority to county and district attorneys, and held that the “other duties” mentioned in Art. IV did not encompass the judicial branch duties of the county and district attorneys. The court also accepted the sheriff’s argument that many parts of Texas government, including the Water Development Board and county clerks, may be assigned “other duties” by the legislature, so reliance on “’other duties’ would render meaningless the separation of powers.” The court held that the attorney general’s “other duties” must be executive branch duties. “Simply put, the “other duties” clause may not transform the judicial duty of prosecutorial power into an executive duty. Such an interpretation would exempt the attorney general from the explicit separation-of-powers limitation.”

The Court of Criminal Appeals next discussed the constitutionality of the statute. Because the Texas constitution explicitly separates the duties of the three branches, the court held, “Absent a request from the district attorney, and without the district attorney’s supervisory authority, the Attorney General violates the separation of powers provision by assuming a power that is more “properly attached” to a member of the judicial branch of government. [citations omitted] Since none of the Attorney General’s enumerated duties concern criminal or electoral matters, Election Code section 273.021 is unconstitutional.” The Court of Criminal Appeals reversed the appellate court decision and remanded the case to the trial court for dismissal. The attorney general filed a motion for rehearing which is pending before the court.

Related Posts

Related Posts

powers and duties, attorney general powers

Recent Attorney General Powers and Duties Cases—In Brief | Late 2024

powers and duties, attorney general powers

Recent Attorney General Powers and Duties Cases — In Brief | Early 2025

Connect with NAAG and the Attorney General Community

Create a NAAG account to subscribe to our newsletters or mailing lists.

Create Account
Subscribe
Marble columns and the top of a federal building

scroll to filters

White Logo for the National Association of Attorneys General

1850 M Street NW
12th floor
Washington, DC 20036

TEL 202-326-6000
EMAIL 

Youtube
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • Center for Consumer Protection
      • Center for Supreme Court Advocacy
      • Center for Tobacco & Public Health
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • CLE Credit
    • NAAG Trainings
    • Online Learning
    • NAMFCU Trainings
    • NAAG Faculty
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • Who is my Attorney General?
    • Attorneys General Office 101
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
    • Careers in Medicaid Fraud Control Units
  • About NAAG
    • NAAG Staff
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • About NAMFCU
    • About the Medicaid Fraud Control Units
    • Reporting Fraud and Abuse
    • MFCU Member Hub
    • Careers with a MFCU
  • Contact Us
  • Find My AG
  • Consumer Complaints
  • Member Benefits
  • Contact Us
  • Accessibility Statement
  • Privacy & Cookies Notice
  • Sitemap
  • Member Login

About the National Association of Attorneys General

As the nonpartisan national forum for America's state and territory attorneys general and their staff, NAAG provides collaboration, insight, and expertise to empower and champion America's attorneys general.
Learn More

© 2025 Copyright National Association of Attorneys General

Website by Yoko Co

Internal Feedback / Report an Error

Request an Update / Report an Error

The change you are requesting will be linked to this page. The URL for the page will be included in a hidden field when the form is submitted.
Please enter your change or describe your request. Be sure to reference where the error appears on the page and what needs to be done specifically.
Upload any files that need to be linked to this page. PDF only. Submit another request if you have more than five files to upload.
Drop files here or
Accepted file types: pdf, docx, xls, Max. file size: 128 MB, Max. files: 5.

    Who is requesting this change?(Required)

    Scroll To Top

    Insert/edit link

    Enter the destination URL

    Or link to existing content

      No search term specified. Showing recent items. Search or use up and down arrow keys to select an item.
        To provide you more clarity about how we collect, store and use personal information, and your rights to control that information, we have updated our privacy policy, which also explains how we use cookies. You consent to our cookies if you continue to use our website.I Agree