Becky Lay Republican Column
Here’s a question for you Bandera readers: when can an attorney general in the state of Texas not prosecute a crime? If you answered “when it involves election violations in the state of Texas” you would be correct. Well, correct according to a December 15, 2021 ruling by the Texas Court of Criminal Appeals(CCA) in Stephens v Texas. But not according to Attorney General Ken Paxton, the 87th Texas Legislature, Texas Election Code 273.021,and the 1951 Texas General Laws 1097,1152, and fourteen state senators filing an amicus brief. Oh, and me. But, hey, eight judges, one dissented, banged their gavels and that’s that, right? Texas now has to live with the Attorney General (AG) turning a blind eye to election laws when broken and hope the attorney of each city will always do the right thing and not overlook them for matters deemed more pressing? Nah, we are a Constitutional Republic, not to mention feisty Texans, and We the People can make some noise. The Texas Constitution grants the Legislature the duty to designate responsibilities to both district attorneys and the attorney general of Texas. It also states that the attorney general (AG) has to “perform such other duties as required by law.”(Article IV; 22 no less) The Texas Legislature has long deemed election violations as part to those duties. In 1951 the 52nd Texas Legislature took up the specific issue of the Texas AG and election prosecution. Then Governor Allan Shivers expressed his concern to the legislature in session that “the election machines of this State is seriously in need of strengthening and for this reason I wholeheartedly support the revision and recodification of our election laws.” House Bill 6 passed and the authority to prosecute election law violations, under the separation of powers principles, was given to the attorney general of Texas. Furthermore, the 87th Legislature revised election laws in the state in response to public concern about election integrity and included the attorney general as “enforcement centerpiece” in the Election Integrity Protection Act of 2021. So why then, with all this clearly showing that election violations are in the prosecutorial purview of the AG did the judges rule differently? Good question. The bad answer is that the justices decided that election code, legislative action, and 120 years of precedence were silly. Well, they may not have used that exact word…. Judge Jesse McClure did write that the clause granting “other duties does not expressly permit voter irregularity prosecution” and thus allowing it to continue violated the separation of powers provision in the Texas Constitution. AG Paxton has filed a motion to rehear, but to date, the justices have not responded. Hopefully, the supportive amicus briefs filed by 14 state senators, including Bandera’s own Dawn Buckingham, as well as another by elected officials across the state will help sway them to take another look. It might help if others in high position would also file a brief-here’s looking at you Gov. Abbott. Paxton has also stated that Texans calling or emailing the eight judges might also sway them to rehear. I would also add reaching out to the lone dissenter, Judge Kevin Yeary, to thank him for his stalwart dedication to the law. Remind the justices that their decision is putting the Election Integrity Act of 2021 in peril as it relies heavily on the AG being allowed to investigate election irregularities and prosecute voter violations. Yes, the local district attorneys can prosecute, but there are a myriad of reasons why they sometimes do not: lack of manpower, lack of political will, failure to listen to constituents, the list goes on. By allowing the AG to take up these cases not acted on by a local DA, Texans can be assured that votes are being upheld and lets those with nefarious motives understand that prosecution will happen. Furthermore, this erodes the power of the legislative body as they grant the powers to the attorney general per the Texas Constitution. In 1996 ,Holmes v Morales, the court concluded that chapter 273 of the Texas Election Code does not violate the separation of powers doctrine. Thus, it’s pretty clear the Texas CCA needs to rehear the case and vacate their judgement. Our voter integrity hangs in the balance. And speaking of voter integrity… all of those justices will be up for election at some point. We would do well to remember that in the ballot box. And that’s just one gal’s opinion. Becky Lay is the Chairman of the Bandera County Republican Party Election Integrity Committee.