July 17, 2020

Texas Courts of Appeals

State v. Stephens and Ex parte Stephens

No. 01-19-00209-CR and No. 01-19-00243-CR        7/9/20


  1. Does Election Code §273.021 grant the Attorney General the authority to prosecute violations of election laws found outside the Election Code?
  2. Does Penal Code §37.10—tampering with governmental record—qualify as an “election law” under Election Code §273.021(a)?
  3. Does §273.021 of the Election Code violate the separation of powers doctrine in the Texas Constitution?


  1. Yes. Election Code §273.021(a) clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally, whether those laws are inside or outside of the Election Code. The phrase “election laws” is not synonymous with “Election Code,” and if the Legislature intended to limit the Attorney General’s prosecutorial authority to laws found only in the Election Code, it could have done so.
  2. Yes. The definition of “governmental record” in Penal Code §37.01(a) explicitly refers to election matters because the definition of “government record” includes “an official ballot or other election record.” A campaign finance report that has been presented to the county, as mandated by election law, is a “governmental record” for purposes of prosecution under Penal Code §37.10. Thus, the Attorney General has authority to indict and prosecute an allegation of presentment of a false report.
  3. No. Section 273.021 gives the Attorney General concurrent jurisdiction with county and district attorneys. It does not take away prosecutors’ ability to prosecute election law violations. Giving the Attorney General concurrent authority to prosecute a limited class of criminal cases does not delegate a power to the Attorney General more properly attached to another branch, nor does it unduly interfere with the duties of the district and county attorneys such that they “cannot effectively exercise [their] constitutionally assigned powers.” Read Opinion.

Dissenting (Goodman, J.):

“Because §273.021 violates the separation-of-powers mandate, I respectfully dissent. Neither the language nor the history of Art. IV, §22 of the Texas Constitution supports the majority’s holding that the Legislature may authorize the Attorney General to prosecute election-law violations.” Read Opinion.


This is yet another opinion upholding the Attorney General’s authority to prosecute election law violations while failing to resolve a larger issue that keeps cropping up at the Legislature. As with the Medrano case on which it relies, the majority here finds that when a local judicial branch prosecutor refers an election law investigation to the Attorney General (as it did in this case), that executive branch office’s power to prosecute a criminal case does not violate the state constitution’s separation of powers clause. However, the Election Code provisions at issue do not require that type of consent from a local prosecutor—in fact, they purport to empower the Attorney General to not just independently investigate and prosecute election laws, but even to order local prosecutors to prosecute certain cases at his direction. The dissent finds this to be a fatally unconstitutional flaw, but the majority opinion dismisses this concern because no conflict is presented by the facts of this case. However, that is exactly the type of legislation debated last session in regard to human trafficking and abortion law prosecutions, and it may arise again next January in that same context or in regard to who may prosecute use-of-force cases against peace officers. But for now, it must fall to another court to finally settle the issue of what the Legislature can or cannot empower the Attorney General to prosecute under the state constitution.

Ex parte Dehnert

No. 01-20-00344-CR through 00353-CR                   7/14/20


Is Penal Code §43.26—prohibiting the possession of child pornography—facially overbroad and a violation of the First Amendment?


No. The Court rejected the defendant’s argument that the statute was overbroad because it did not require the depiction of a crime, i.e., that the child be below the age of consent. Instead, the Court indicated the legislative intent behind Penal Code §43.26 was that public order and decency would be best served by prohibiting pornography involving all minors, even those of 17-year-old minors who can legally consent to sex. Additionally, the Court noted that the statute’s exemptions and “proper purposes” provisions made it less likely that the statute, as written, was substantially overbroad. Finally, the Court found that this case did not involve an issue of a prior restraint on free speech. Read Opinion.


These challenges to the State’s child pornography laws were brought by one of the State’s preeminent First Amendment lawyers. The court of appeals sets out a thorough analysis of this difficult area of law and affirmed the trial court under existing precedent. Keep watching. This. Case. Could. Go. All. The. Way. To Washington.

Dahl v. State

No. 01-19-00864-CR              7/14/20


For the offense of speeding, does a jury charge instruction that exceeding a posted speed limit “is prima facie evidence that a driver’s speed was not reasonable and prudent” violate a defendant’s due process by assigning the burden of proof to the defendant?


No. The jury charge did not lower the State’s burden of proof or shift that burden to the defendant. When viewed as a whole, the charge made plain that the defendant’s speed relative to the posted limit was merely a relevant fact for the jury to consider in deciding whether the State carried its burden to prove beyond a reasonable doubt that his speed was not reasonable and prudent under the circumstances. It did not direct the jury to find that the defendant’s speed was not reasonable and prudent based on this evidence, nor did the charge direct the jury to find the defendant guilty based on this evidence. Read Opinion.


And now, a little love for all you prosecutors out there who every now and then go to war over a speeding ticket. Thank you for all you do.