An Election Code provision granting the Office of Attorney General the ability to prosecute criminal election fraud cases is unconstitutional, the Court of Criminal Appeals ruled in an 8-1 decision. The case arises from an alleged campaign finance violation by the Jefferson Co. sheriff, a case the Jefferson Co. district attorney declined to prosecute.

Section 273.021, Election Code provides that the “attorney general may prosecute a criminal offense prescribed by the election laws of this state.” The Court ruled that power properly resides with county and district attorneys, who are part of the Judicial Branch, and not the attorney general, which is part of the Executive Branch.

“Absent the consent and deputization order of a local prosecutor or the request of a district or county attorney for assistance, the Attorney General has no authority to independently prosecute criminal cases in trial courts,” wrote Judge Jesse McClure for the majority (PDF). “Any attempt to overlap the Attorney General’s constitutional duties with county and district attorneys’ constitutional duties in the sense of a Venn diagram of sorts is unconstitutional.”

Atty. Gen. Ken Paxton (R) criticized the decision.

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