TDCAA Legislative Update: 88th Regular Session, Week 7.1 (Addendum)

February 27, 2023

Some interesting stuff happened on Friday that we were not able to include in our previous weekly update, so allow us address that now rather than wait until next Friday. If you dig constitutional law, this is going to be the update for you!

Post-Dobbs opinions start to roll in

First, we want to make sure you know about some cases coming out of Austin related to the Dobbs opinion by SCOTUS that overturned Roe v. Wade and returned the abortion issue to the states last year.

As you may recall, the impact of that decision on the criminal offenses surrounding abortion left more questions than answers in Texas. Specifically, there is uncertainty about whether pre-Roe crimes are now in effect, and if so, how to resolve the irreconcilable conflicts that may exist between those laws drafted a century ago and the more recent criminal and civil sanctions passed last session before the Dobbs opinion came down. (For a refresher, see this June 2022 update.) But last Friday, two different court opinions were issued in this area that you should be aware of.

First, in Fund Texas Choice v. Paxton, 1:22-CV-859-RP (Feb. 24, 2023), a federal district judge in the Western District of Texas partially granted the plaintiffs’ motion for a preliminary injunction against the enforcement of pre-Roe abortion crimes against those who might speak about, fund, or otherwise facilitate out-of-state abortions. Without getting too deep into the weeds on this case at this time, the trial court made the following findings:

  • The crimes and sanctions enacted by Texas’s “trigger law” (HB 1280, 87RS) do not regulate or apply to abortions performed outside of Texas; and
  • Texas’s pre-Roe laws might have applied to abortions performed outside of Texas, but they have been repealed by implication and are unenforceable (citing McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), the case we mentioned in our June 2022 update).

The upshot of all this is that the Attorney General—who declined to represent the local county and district attorneys sued in this case—has been dismissed from this litigation and now the court will move on to the question of whether this ruling should be expanded from the five local prosecutors who were initially sued to include all county and district attorneys in Texas. We will keep you posted as that litigations evolves.

On the same day that the Fund Texas Choice opinion was issued, the Texas Supreme Court (SCOTX) also issued an opinion in two related lawsuits and held that it was not defamatory for a pro-life advocate to call abortion providers “murderers” or “criminal enterprises.” This unanimous opinion rested on basic First Amendment analysis, but a related issue raised by the parties was whether Texas’s 1925-era pre-Roe abortion crimes were restored by the Dobbs opinion. The Court did not need to decide that issue to resolve the case, but in a concurring opinion, Justice Devine urged the Court to rule that the pre-Roe crimes are still good law. However, his concurrence garnered the support of only one other justice; the other seven declined to sign on. As a result, while you may see this concurrence touted as evidence that SCOTX believes the pre-Roe laws are now in effect, that question has not been conclusively answered by SCOTX. (For a summary of these Dickson cases, see HERE; you can also read the Court’s opinion by Justice Bland HERE and the concurrence HERE.)

So, where does that leave us? One federal district court ruling that pre-Roe laws are void, and one Texas Supreme Court opinion that declined to decide the issue (despite two justices urging them to do so.) To date, we are unaware of any legislation filed this session to cure potential conflicts between the old and new abortion enforcement laws. The 88th Legislature could resolve these ambiguities once and for all, but unless a bill is filed and passed in the next three months, it appears the legislature will punt that issue to the state and federal courts to fix it instead. As we said back in June of 2022, “There remain many unanswered questions about the enforcement of HB 1280 and other laws that will have to be hashed out by the courts.” It looks like that process has now begun, but it could take several more years of litigation to get definitive answers. So … good luck with that!

Separation of Powers under attack

Not only did both of those court opinions drop on Friday of last week, but two new bills were filed to address prosecutor accountability in the context of election law enforcement.

On Friday, we told you about a legislative two-step to allow the governor and state senate to remove troublesome prosecutors, with one of those steps being a constitutional amendment (aka “the DeSantis Option”). But now we have a new legislative two-step to tell you about that is almost certainly an attempt to get around last year’s Stephens opinion in a way that its proponents think would not require amending the state constitution. Here’s the skinny.

For starters, recall what the Stephens opinion from the Court of Criminal Appeals (CCA) said: While the attorney general can investigate election-related crimes (just like any other crime), the legislature cannot grant the AG original prosecution jurisdiction because that violates the Texas Constitution’s Separation of Powers Clause. (Summaries of the original opinion can be found HERE, and our summary of the denial of rehearing is available HERE.) This limitation on the AG makes some folks scratch their heads in wonder because they don’t realize that the Texas constitution puts local prosecutors in the judicial department of state government rather than the executive department. (This difference is why we first wrote Texas Prosecution 101 almost 20 years ago and have been sharing it with all who ask ever since.) This placement of prosecutors in the judicial branch was done by the constitution’s drafters—and adopted by Texas voters—for the specific purpose of insulating local prosecutors from control of the executive branch in Austin and limiting the power that certain statewide officials could wield. If you know anything about our state constitution, you know that this was just a variation on the entire theme of that document—and if you read Judge Slaughter’s painstakingly thorough historical research in her concurring and dissenting opinion on rehearing in the Stephens case, you can be left with little doubt that the AG’s claims to the contrary are a misreading of both state history and state law.

But who cares about facts, eh? Fast-forward to the current state of election fraud politics in which complaints from a certain segment of the body politic that local prosecutors are refusing to prosecute legitimate cases of voter fraud mean that someone else must be a “backstop” for that (unsubstantiated) refusal. The result of that narrative has been numerous bills being filed to task the AG with that election fraud prosecution job again or otherwise involve that office in the prosecution process, including:

  • HB 125 by Slaton (R-Royce City)
  • HB 678 by K. Bell (R-Forney)
  • HJR 98 by Tinderholt (R-Arlington)
  • HJR 110 by Isaac (R-Dripping Springs)
  • SB 1195 by Hughes (R-Mineola)

That last bill is the one we want to draw your attention to. Senate Bill 1195 was filed Friday to grant the AG original prosecution authority not just in election fraud cases, but also abortion crimes, human trafficking crimes, and miscellaneous official misconduct-type crimes. (There are some other surprises in there as well; read the bill for yourself.) What did not accompany the bill was an SJR (senate joint resolution) to amend the constitution in a manner permitting such prosecutions by the AG. And in truth, most observers doubt any such measure could get to the voters for approval because it would require 100 votes in the House, and there aren’t 100 votes in the House for such a power grab. But the AG and/or his advocates apparently think they have hit on another way around the traditional constitutional understanding of prosecution in Texas that was confirmed by the Stephens opinion.

Concurrent with SB 1195 was the filing of SB 1196 by Hughes, which purports to grant to SCOTX the power to overrule the CCA regarding the constitutionality of state statutes. (Another similar bill was also filed this week as SB 1092 by Parker (R-Flower Mound)). It appears that the working theory behind these bills is that granting SCOTX a veto over CCA rulings doesn’t require a constitutional amendment because Article 5 of the state constitution generally makes the powers of each court subject to other constitutional provisions or laws passed by the legislature. Once these changes by SB 1195 and SB 1196 are enacted, the AG can run another election fraud (or abortion or human trafficking) prosecution appeal up the flagpole and when the CCA doesn’t salute, the AG can ask SCOTX to overrule its sister court. Of course, no one knows how the state’s top civil court would rule on criminal constitutional issues, but trust us, that won’t prevent this type of forum-shopping from being attempted.

Fortunately for those who like the rule of law, this scheme is likely based on a (mis-) reading of the constitution very similar to the one that got the AG in hot constitutional water in Stephens to begin with. It is true that Article 5, Sec. 3(a) of the state constitution says that the state supreme court’s “appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law.” We assume proponents of this forum-shopping theory will try to argue that the exception in 3(a) (“and as otherwise provided in this Constitution or by law”) swallows the preceding rule (“except in criminal law matters”) that currently limits SCOTX’s authority, even though that exception is a further limitation on that court’s authority, not an expansion of it. But then, this is similar to the failed argument the AG made in Stephens—namely, that Article 4, Section 22’s grant of authority to the AG to “perform such other duties as may be required by law” meant that the legislature could trump other constitutional provisions merely by passing statutes that gave the AG additional duties, even if they were already assigned to other officers under the constitution. That didn’t pass the plain reading test, the grammar test, or the historical analysis test in the Stephens opinion(s), and it almost certain won’t pass muster this time around either—after all, “all cases except in criminal law matters” seems pretty simple and to the point when it comes to what SCOTX can address. But don’t be surprised if advocates of expansive centralized prosecutorial authority go to that well once again.

All we know for certain is that the Separation of Powers concept is rarely popular with the people whose powers are being separated. Therefore, prepare yourselves to answer questions about these and related bills this session, and educate your legislators about this issue as needed.

Quotes of the Addendum

“Forum shopping has long been a problem in civil litigation. Clever lawyers use procedural rules to file in courts deemed most likely to be sympathetic to their claims. But what Mr. Paxton and other plaintiffs are doing is something far more nefarious—they’re engaging in a novel and specific form of judge shopping, seeking out the specific judge whom they wish to hear their case, presumably because of how they expect that judge to rule. … Litigants of all political and substantive stripes have taken advantage of this loophole [in federal procedure] …. But Mr. Paxton has made the loophole into an art form.”
            —Steve Vladeck, a UT School of Law professor specializing in federal court procedures, in a guest essay in the New York Times published February 5, 2023, entitled “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters.”

“I’m not the criminal law expert in the room. My colleague, Presiding Judge Keller, is here, but the understanding I have of the criminal law is that the Texas constitution does not allow you to do [pre-trial preventive detention] and so we would need an amendment to be able to do that.”
            —Nathan Hecht, Chief Justice of the Texas Supreme Court, appropriately deferring to the Presiding Judge of the CCA when being asked about criminal law matters during a recent Senate Finance Committee hearing.