Texas Stamp


PD-1032-20 & PD-1033-20 02/10/2021

1. “Whether, if the Attorney General has the authority to prosecute this case under § 273.021, the statute’s grant of prosecutorial authority violates the separation of powers requirement in the Texas Constitution.”

2. “Whether the Attorney General has the authority to prosecute ‘election law’ cases outside of the Election Code, and if so, whether Penal Code § 37.10 is an ‘election law’ within the meaning of Election Code § 273.021.”

3. “Whether campaign finance reports are ‘election records’ within the meaning of Penal Code § 37.10.”

Stephens was elected Jefferson County sheriff. After potential campaign-finance violations came to light, the Jefferson County DA referred investigators to the Attorney General. The AG obtained an indictment against Stephens that included Election Code violations and one count of tampering with a governmental record (Penal Code § 37.10) for presenting a knowingly false governmental record—a campaign finance report that reported a $5,000 political contribution as $50 or less. Under § 37.01, “governmental record” includes “an official ballot or other election record.”

In a motion to quash, Stephens argued a penal code offense was outside Tex. Election Code § 273.021(c)’s delegation of power to the AG, which provides, “The attorney general may prosecute a criminal offense prescribed by the election laws of this state.” In a pretrial habeas writ, Stephens argued the Election Code provision was unconstitutional because the duty to prosecute belongs to District and County Attorneys as part of the judicial branch, rather than the executive, resulting in a separation-of-powers violation. The trial court granted the motion to quash concerning the tampering count but denied the writ. Both parties appealed.

The court of appeals ruled in the AG’s favor on all issues. It held, over a dissent, that § 273.021(c) does not violate separation of powers. It noted that the AG’s constitutional grant of authority includes “represent[ing] the State… in the Supreme Court of the State…and perform[ing] such other duties as may be required by law.” It determined that permitting concurrent jurisdiction with county and district attorneys wouldn’t unduly interfere with their constitutionally assigned powers. It also held that the plain language of §  273.021(c) is not limited to Election Code offenses. It observed that other Election Code statutes also indicate there are election laws outside that code. Finally, it held that § 37.10 is an election law because one of the definitions of “governmental record” explicitly refers to election matters.

Stephens argues the court of appeals erred in interpreting the “other duties as required by law” clause with far greater breadth than any of the preceding, more limited, clauses in the AG’s grant of authority. She also contends that these other duties must still be executive branch duties, otherwise the legislature could entirely exempt the AG from the Constitution’s separation of powers limitation. She observes that § 37.10 creates a narrow carve-out for AG authority to prosecute Medicaid cases with a DA’s consent and that the court of appeals has created a statutory conflict with this more limited and later-enacted provision within the record-tampering statute. Stephens urges that “election laws” be restricted to laws that specifically govern elections, not generally applicable laws like record-tampering that might cover some aspect of elections. Under the court of appeals’s logic, she contends, tampering would also be an “agricultural law,” a “water law” or “business law.” She also argues that the record filed here cannot constitute an “election record” because the rules of statutory construction should limit the phrase “other election record” to those similar in kind to the specifically named record (official ballot), which would only include materials related to voting.

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