Texas Courts of Appeals
Riley v. State
No. 13-23-00359-CR 3/16/26
Issue:
Did appointment of prosecutors from the Texas Attorney General’s Office to prosecute the defendant for unlawful interception of his ex-wife’s voicemails (Penal Code §16.02(b)(1)) violate the separation of powers doctrine?
Holding:
No. The Court distinguished the defendant’s reliance on State v. Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2021) because in this case, the elected district attorney sought to recuse herself and consented to the Attorney General’s Office’s appointment as district attorney pro tem to make all decisions in the defendant’s case. “Here, the Attorney General used the elected district attorney’s constitutional authority, as conferred upon [the office] by the trial court’s appointment, to lawfully initiate criminal proceedings. … As such, the Attorney General is not executing judicial branch authority in its own right. … Moreover, [the defendant] has cited no authority for the proposition that a trial court lacks subject matter jurisdiction over a criminal case when the Attorney General initiates criminal proceedings pursuant to a lawful appointment, and we have found none.” Read opinion.
Commentary:
This opinion underscores the difference between situations where: 1) a local elected prosecutor (a judicial-branch department) wants assistance from the Attorney General’s Office (OAG) (an executive-branch department), and then voluntarily delegates the prosecutor’s constitutional power to prosecute to the OAG (who then operates under the prosecutor’s judicial-branch authority); and, on the other end of the spectrum, 2) the OAG attempts to initiate its own prosecution without the local elected prosecutor’s consent (e.g., if the OAG disagrees with the prosecutor’s charging decisions), which improperly usurps the prosecutor’s constitutional authority.
If you encounter a scenario where your office wants the OAG to step in as the prosecuting authority, cite this opinion if the defense balks. If, on the other hand, the OAG is trying to unilaterally start its own prosecution in your jurisdiction and you do not consent, cite Stephens, which remains legally viable.
Attorney General Opinion Requests
No. RQ-0637 3/18/26
Issue:
Is an amusement machine considered a gambling device under the Penal Code when the machine offers both chance-based and skill-based game modes? Read opinion request.
Requested by:
Senator Bob Hall, Chair of the Senate Committee on Administration
Announcement
Starting this fall, TDCAA’s Board of Directors will be recognizing “Rising Star” prosecutors in each of TDCAA’s eight regions. To learn more about this new association award, visit https://www.tdcaa.com/rising-star-awards/.