Court of Criminal Appeals Limits Greg Abbott's Authority

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Reports on Monday indicate that the Texas Court of Criminal Appeals took a swipe at Greg Abbott in an opinion denying the relief he sought.  

On Monday, The Texas Observer reported that Texas Attorney General Greg Abbott attempted to reinstate a law that the Court of Criminal Appeals (CCA) previously had ruled unconstitutional.

The article gives a good background:

“It went like this. In October, the court threw out a 2005 statute banning sexting between adults and minors because the language was too broad. It could criminalize constitutionally-protected speech, the court said, and besides, everything about such exchanges that could be illegal already was: harassment, obscenity, sharing pornography and soliciting sex. The 2005 law made sexually explicit online contact with minors for sexual gratification a third-degree felony punishable by up to 10 years in prison, but the court overturned it 9-0.”

To see why the court unanimously rejected Abbott's position, read below the jump. Abbott asked for a rehearing.  The court declined, and in its opinion, questioned Abbott's motivation in asking for the rehearing.

Abbott's request for a rehearing rested on three grounds; the CCA saw fit to drop the case on only one.

That ground was that the CCA had not given the Attorney General's office notice before holding that a law was unconstitutional Section 402.010 of the Texas Government Code (the “Code”).  That section of the Code provides, in pertinent part:

“(a) In an action in which a party to the litigation files a petition, motion, or other pleading challenging the constitutionality of a statute of this state, the court shall, if the attorney general is not a party to or counsel involved in the litigation, serve notice of the constitutional question and a copy of the petition, motion, or other pleading that raises the challenge on the attorney general either by certified or registered mail or electronically to an e-mail address designated by the attorney general for the purposes of this section. Notice under this section must identify the statute in question, state the basis for the challenge, and specify the petition, motion, or other pleading that raises the challenge.

(b) A court may not enter a final judgment holding a statute of this state unconstitutional before the 45 day after the date the notice required by Subsection (a) is served on the attorney general.”

Abbott's office argued that the final judgment rendering the law at issue unconstitutional was void because his office was not provided the required notice.  Rather than take the bait, however, the CCA decided that not only was its previous judgment concerning unconstitutionality still valid, the law that Abbott's office sought to use to reinstate the law itself violated the separation-of-powers doctrine of the state constitution.

The CCA cited the Texas Constitutional, Article II, Section 1 and its explicit separation of powers, going on to reason why that section is so important:

This division ensures that power granted one branch may be exercised by only that branch, to the exclusion of the others. “The separation of powers doctrine therefore requires that 'any attempt by one department of government to interfere with the powers of another is null and void.'” Id. (quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App. 1974)). Our state's express provision “reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats to liberty is the accumulation of excessive power in a single branch of government.” Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990); see also Langever v. Miller, 76 S.W.2d 1025, 1035 (Tex. 1934)(“So important is this division of governmental power that it was provided for in the first section of the first article of the Constitution of the Republic of Texas, and alone it constituted article 2 of each succeeding Constitution.”).

The court went on to reason that asking a court to refrain from entering a judgment (in short, doing its job) for a substantial period of time until it had notified another branch of government that was not itself a party to the action, was a violation of the separation of powers.

The CCA then went on in multiple footnotes to explicitly circumscribe the power of the Attorney General's office (“Thus, the attorney general is, with a few exceptions in Texas trial courts, not authorized to represent the State in criminal cases.”), and to openly wonder the motivation of the office in bringing the motion (“Pursuant to this unusual provision, the legislature would have this Court exercise a function that is not only non-judicial but would operate solely for the apparent benefit of the attorney general. And to what extent the attorney general would benefit from receiving such a notice is elusive, given that the attorney general has no authority to appear in criminal cases before this Court.”).  

The case is Ex Parte John Christopher Lo, No. PD-1560-12

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