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Can The Texas Attorney General Prosecute Me For A Possible Crime?

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Can The Texas Attorney General Prosecute Me For A Possible Crime?


Back in high school, you probably learned about the “separation of powers” when studying American government. This is the idea that there are three independent and co-equal branches of the federal government–executive, legislative, and judicial–and each has separate powers that cannot be usurped by the other two. The Texas state government follows a similar principle.

In fact, the Texas Constitution is more explicit about separation of powers than even its federal counterpart. The state Constitution delegates specific powers and responsibilities to each branch of the government. For example, criminal prosecutions are the responsibility of the judicial branch, which includes local district and county attorneys. Although there is an elected state Attorney General, that office is responsible for representing the state in certain legal matters, including appeals, but not prosecuting criminal cases.

Court of Criminal Appeals Invalidates Statute Granting Election Code Enforcement Power to Attorney General

The Texas Court of Criminal Appeals (CCA) recently clarified this separation of powers in a case, State v. Stephens, where the legislature purported to authorize the Attorney General to prosecute certain violations of state election laws. The defendant in this case was serving as an elected sheriff of a Texas county. During an unrelated investigation, the FBI discovered potential evidence of the defendant violating campaign finance laws. The FBI turned this evidence over to the Texas Rangers, which concluded there were grounds to refer the matter to the local district attorney.

The district attorney, however, declined to prosecute. The matter was then referred to the Attorney General, who decided to present the case to a grand jury. The grand jury subsequently returned an indictment.

The defendant then filed a petition for a writ of habeas corpus–basically, a judicial order declaring the prosecution unlawful–arguing that the state law permitting the Attorney General to prosecute election law violations in the first place violated the state Constitution’s separation of powers. The trial court rejected this claim but did dismiss one part of the indictment that alleged crimes outside of the Election Code.

The Court of Criminal Appeals (CCA) eventually determined the defendant was right–it was unconstitutional for the legislature to allow the Attorney General to prosecute Election Code violations. The reasoning was fairly simple. The Attorney General is a member of the executive branch. As discussed above, the prosecution of crimes is exclusively the responsibility of the judicial branch.

The state Constitution does provide that the legislature may assign “other duties” to the Attorney General. But the CCA said those must still be “executive branch duties.” That does ot include any “specific grant of authority to the Attorney General concerning the prosecution of criminal proceedings.” As such, the CCA said the indictment against the defendant must be dismissed.

Speak with Texas Criminal Defense Attorney Keith B. French Today

Even prosecutors need to follow the law when prosecuting someone else. An experienced Pearland criminal defense lawyer can help ensure that the rules are followed and your rights are properly respected by the courts. Contact the offices of Keith B. French Law, PLLC, today to schedule a free consultation.


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