Justice Scott Walker has found himself in a tough fight for re-election in the March primary after he recently voted in favor of a Texas Court of Criminal Appeals ruling that removed authority from the state Attorney General to prosecute election violations.
Walker, a Republican, is a judge for Place 5 in the Texas Court of Criminal Appeals. He was among eight justices to vote in favor of the ruling, a decision that outraged Texas Attorney General Ken Paxton.
"Now, thanks to the Texas Criminal Court of Appeals, Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas," Paxton tweeted after the decision in December. "This ruling could be devastating for future elections in Texas."
In two combined cases, Stephens v State and Ex Party Stephens, the Court of Criminal Appeals overturned a statute dating back to 1951 giving the Attorney General the authority to prosecute election-related criminal cases. Paxton asked the court to reverse that decision.
“The Court’s decision to suddenly remove our authority to prosecute election fraud can only empower dishonest campaigns to silence voters across the state,” Paxton said in a statement. “This decision is not only wrong on legal grounds, but it has the effect of giving district and county attorneys virtually unlimited discretion to not bring election law prosecutions. Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution.”
Under the Texas Constitution, criminal prosecution is assigned to the district and county attorneys, and they are identified as being part of the judicial branch under Article V. The Attorney General is part of the executive branch under Article IV.
The Court ruled that, because criminal prosecution was a "judicial function," it violated the separation of powers under Article II to allow the Attorney General, in the executive branch, to prosecute criminal cases. It further ruled that the language in Article IV saying the Attorney General could "perform such other duties as may be required by law" was not an express exception to the separation of powers guarantee in Article II, according to the court document.
The practical effect of the ruling is that it concentrates authority in the local district and county attorneys to prosecute election fraud cases.
Opponents, like Paxton, are concerned that district and county attorneys increasingly refuse to prosecute election fraud.
According to The Golden Hammer, Clint Morgan has made the issue central to his campaign to unseat Scott Walter, whose term expires at the end of this year.