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Texas Republicans pressure court to reverse decision blocking attorney general from prosecuting election cases

Attorney General Ken Paxton
Mark Felix for The Texas Tribune
The Texas Court of Criminal Appeals issued an 8-1 opinion last month that struck down Attorney General Ken Paxton’s power to go after election cases without the permission of local prosecutors.

Texas' highest criminal court is facing intense pressure from fellow Republican elected officials to revisit a recent ruling that gutted the attorney general's ability to unilaterally prosecute election cases.

In recent days, the state's top GOP leaders — including Gov. Greg Abbott and Lt. Gov. Dan Patrick — have weighed in on the matter and sided with those imploring the Court of Criminal Appeals to reconsider the decision. The all-GOP court issued an 8-1 opinion last month that struck down the attorney general's power to go after election cases without the permission of local prosecutors, saying it violates the separation-of-powers clause in the Texas Constitution.

Attorney General Ken Paxton has been vocal in his criticism of the decision and has filed a motion for rehearing. And in recent interviews with conservative media, he has called on supporters to pressure the court to reverse the ruling.

"Call them out by name," Paxton said in an interview with Mike Lindell, the My Pillow CEO and prominent Donald Trump supporter. "I mean, you can look them up. There's eight of them that voted the wrong way. Call them, send mail, send email."

Comments like those from Paxton were cited in a Wednesday story by the Austin American-Statesman that raised ethical issues about the pressure campaign. The newspaper said such comments put "Paxton in an ethical gray area, if not in outright violation of the state's rules of conduct for lawyers."

The Court of Criminal Appeals has yet to address the GOP pleas for reconsideration — and it may never do so.

Randall Kelso, a professor at South Texas College of Law, said courts like the Court of Criminal Appeals tend to be reluctant to reverse to their decisions unless at least one of three conditions are met: There is a change in the facts at the core of the case, the ruling proves to be "unworkable in practice" or judges are persuaded that the decision was "substantially wrong." Kelso said he did not see how the first two conditions apply to the current situation, and as for proving that the ruling was "substantially wrong," he added, there is usually a "pretty high burden."

"Just because the various Texas lawmakers are petitioning, I wouldn't predict they'd just cave to them and say, 'We've gotta change our minds,'" Kelso said. "It'd be unusual to do it unless" any of those conditions are met.

The controversy comes at a time when Texas Republicans are doing all they can to show they are committed to securing elections, even as there continues to be no evidence of widespread malfeasance. And it comes after legislators passed a hard-fought bill last year to tighten voting rules in Texas that expands the attorney general's purview over elections.

Abbott's office pointed to that law Tuesday as it indicated support for reinstating the authority that the court stripped.

"Texas’ highest law enforcement officer has constitutional authority to enforce that election-integrity law," Abbott spokesperson Renae Eze said in a statement. "The Court of Criminal Appeals needs to uphold Texas law and the Attorney General’s responsibility to defend it."

Earlier Tuesday, Patrick and 14 state senators filed an amicus brief supporting the push to convince the court to reconsider the ruling.

"If the court's decision stands, certain rogue county and district attorneys will be allowed to turn a blind eye to election fraud, and they will have the final say on whether election fraud is prosecuted at all," Patrick said in a statement. "To me, this is completely unacceptable."

Dozens of other Republican state lawmakers, candidates and activists have weighed in, telling the court to grant the motion for rehearing. They even include one of Paxton's challengers in the March primary, U.S. Rep. Louie Gohmert of Tyler.

At the same time, the little-known judges on the court are receiving a deluge of calls and emails. Houston conservative activist Steve Hotze has used his group, Conservative Republicans of Texas, to send out a robocall urging people to call the judges, telling them that if the ruling stands, "Democrats will steal the elections in November and turn Texas blue." The robocall was first reported by the Houston Chronicle.

The court's general counsel told the newspaper that one email was referred to the Texas Department of Public Safety, which is responsible for probing threats against state employees. The general counsel, Sian Schilhab, did not immediately respond to a request for comment Wednesday.

The court is made up of a presiding judge and eight other judges who all serve six-year terms and appear on the ballot in staggered election years. Three of them are up for reelection in the March primary, and one of those three, Scott Walker, faces a challenger in Clint Morgan, a former Harris County prosecutor. Morgan's endorsers include Hotze's Conservative Republicans of Texas.

Paxton is facing his own hotly contested primary, which includes Gohmert, Land Commissioner George P. Bush and former state Supreme Court Justice Eva Guzman. During a recent campaign stop in Round Rock, Bush criticized Paxton over the ruling from the Court of Criminal Appeals, saying Texas needs an attorney general who can "confront county DAs that aren't doing their jobs."

"We've sadly seen Ken Paxton's last remaining authority in criminal law, which is voter fraud ... was stripped," Bush said, adding that the decision was "not by liberal activist judges" but by an all-Republican court. "[Paxton's office] has run amok because of the lack of accountability at the top of the chain of command."

From The Texas Tribune

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