This article was originally published by the Texas Tribune.
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Ken Paxton (left) selfies it up with fellow partisan Vice President Mike Pence.
As he begins his second term, Texas Attorney General Ken Paxton is looking to expand the prosecutorial power of his office, asking the Legislature for more resources and expanded jurisdiction to go after crimes related to abortion and voter fraud.
The Republican attorney general’s office has asked lawmakers for millions more in funding to prosecute election fraud and human trafficking crimes. The agency has also requested expanded jurisdiction over abortion-related crimes, which are currently the purview of local officials.
Paxton’s office, which didn’t return multiple requests for comment for this story, says additional resources — and the additional grants of authority — are necessary to ensure laws are uniformly, and firmly, enforced across the state. But in Texas, most criminal enforcement falls to local prosecutors unless they seek the state’s help. And many of those prosecutors say there’s no need for the state to take over work they’re already handling.
Critics also point to the contested areas where two of Paxton’s major requests focus — abortion and election fraud — as evidence that he’s motivated by politics, not law.
“It’s sort of taking the attorney general’s office to a place it’s really never been before,” said state Rep. Trey Martinez Fischer, D-San Antonio. “I’ve always known the office to be the people’s lawyer — the law firm for the state of Texas that represents our public interests. It almost seems now that we have an attorney general who’s trying to expand the scope of his agency to actually target and investigate people.”
No specific legislation has been filed yet, but some lawmakers are open to portions of Paxton's request. A Senate committee recommende
d in a report late last year that the Legislature pass a bill granting Paxton's office broader authority to prosecute abortion-related crimes in the state — likening such legislation to an abortion version of the state’s contentious 2017 anti-“sanctuary cities” law.
After some counties “declared themselves sanctuaries for illegal immigration,” David Hacker, a lawyer with the attorney general’s office, told lawmakers last year, the Legislature “stepped in and enacted SB 4, leading to uniform law enforcement policy on immigration throughout the state.”
Giving the attorney general similar statewide heft to prosecute abortion-related crimes would “prevent these ‘safe havens’ from forming,” he said.
On a Wednesday in February 2018, lawmakers and stakeholders gathered in the Senate chamber for a State Affairs Committee hearing
on expanding the attorney general’s jurisdiction to prosecute certain crimes. Paxton’s office has asked lawmakers for an additional $2.8 million and 13 full-time employees to prosecute human traffickers; at this meeting, the office was asking lawmakers to expand the state’s authority to go after such crimes.
After about an hour, senators turned to the abortion question, and the temperature in the room began to rise. Before he became attorney general, Paxton was one of the most conservative members of the Texas Legislature, where he championed anti-abortion legislation. Now, his staff members were asking senators to expand his office’s ability to prosecute such cases, claiming they needed to fill a void left by local prosecutors who were unwilling or unable to take lawbreakers to trial.
“Because of the politically charged nature of this issue ... not every district attorney is going to want to enforce the pro-life laws of this state. They may not even share the views of those laws,” said David Hacker, a lawyer with the attorney general’s office. “These problems lead to inconsistent enforcement throughout the state and could lead to the creation of ‘safe havens’ where the laws are not being enforced in a particular way.”
"Five out of the eight offices agreed to not enforce the law that you passed," Brantley Starr, deputy first assistant attorney general, added a few minutes later. He was apparently referring to an agreement, made as part of ongoing litigation over a 2017 state abortion law, in which five district attorneys in the eight Texas counties that house abortion facilities said they would not enforce the challenged portions of the law.
“The DAs were essentially saying, ‘We believe this is unconstitutional,’” Starr said.
Those in the room began to titter. State Sen. Jane Nelson, R-Flower Mound, said she was “stunned.” Sen. Brian Birdwell, a Granbury Republican who spent years serving in the military, asked the attorney general’s office staff if failing to enforce a state law, “violating their oath,” could constitute a “conspiracy” on the part of the local prosecutors.
“I would generally concur ... in what we call local control,” Birdwell said. “But I do not countenance local insubordination.”
“We will be working on how to fix this issue,” concluded Chairwoman Joan Huffman, R-Houston.
But the claims Starr and Hacker had made — about inconsistent enforcement and rogue local officials putting their politics above their prosecutions — were misleading, according to the district attorneys whose actions were at issue.
The agreement Starr had referred to, in which five district attorneys said they would not prosecute the challenged portions of the law, applied only until a final decision was reached in the litigation, court documents show. It was “perfunctory,” not political, said Travis County District Attorney Margaret Moore.
After the hearing, several district attorneys sent letters to the committee members clarifying what one called a “false narrative.”
“These comments and this language are, at best, misleading and incomplete,” El Paso District Attorney Jaime Esparza wrote in a March 7 letter. “More accurately, the use of that language in the remarks and testimony by Mr. Hacker and Mr. Starr is ill-advised, unfounded, and simply reflects the calculated narrative constructed by the Attorney General’s Office to support that Office’s agenda to expand its criminal jurisdiction, this time on the unsubstantiated premise that local prosecutors are either not equipped for the job or, for political reasons, will fail or refuse to enforce certain criminal laws.”
Despite district attorneys’ efforts to correct the record, the recommendation to broaden the agency’s enforcement power appeared in the committee’s December report, with the attorney general’s office testimony included unchallenged.
“Some local prosecutors have little interest in enforcing these [abortion] laws,” the report said, drawing the comparison, as the attorney general’s office had, to “sanctuary cities.”
A “there there”?
District attorneys have said they will enforce the law. But they’ve also said there is little abortion-related crime for anyone to prosecute.
Moore, whose district includes a cluster of abortion providers, said she is not aware of a single abortion-related complaint that could be investigated or prosecuted.
And advocates said Paxton’s play for prosecutorial power is purely political.
“There is no there there,” said Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes. “There’s nothing for them to prosecute. This is just another example of the state wanting to insert themselves into this nonexistent issue — again, a solution that’s in search of a problem that doesn’t exist.”
The attorney general’s office did not provide examples of abortion-related crimes that district attorneys had elected not to pursue, either at the committee hearing or in response to requests from The Texas Tribune.
Joe Pojman, the executive director of the anti-abortion group Texas Alliance for Life, said his organization investigates safety and other violations at abortion clinics through regular public information requests and conversations with protesters who stand outside clinics. He acknowledged that “it’s very difficult for us to know the scope of the problem” but suggested the attorney general’s office might have access to information that’s kept from the public.
“We do agree … that the Legislature should make a slight change to current law to allow concurrent prosecution between local authorities and DAs and the attorney general of Texas,” Pojman said. “We think there may be a problem because it might be the case that abortion laws are not properly being enforced uniformly across the state.”
Critics point out that even as the attorney general seeks to expand his reach in certain areas of criminal law, the agency appears resigned to its statutory limitations in other areas.
Some have suggested, for example, that the state’s public information laws would be stronger if the attorney general sought explicit authority to enforce violations.
And KXAN-TV reported last week
that hundreds of people, including survivors of abuse, have written to Paxton asking that his agency investigate sex abuse within the Catholic church. The agency has said it does not have the power to initiate such a probe, but offered its help Friday to local prosecutors pursuing the crimes.
“The cornerstone of our democracy”
Paxton made prosecuting election fraud a hallmark of his first term. As he starts his second, he’s asking lawmakers for more resources with which to do it.
Historically, the agency has not had a devoted line item in its budget for the election fraud unit although the office had reshuffled resources to assign staff to the issue. In 2017, according to agency testimony
, one assistant attorney general was assigned to election fraud cases part time, along with two part-time investigators; by September 2018, there were four assistant attorneys general, six investigators, one legal assistant, one program specialist and one administrative assistant involved.
But the agency needs increased resources to keep up with the workload, officials said in budget requests and in public testimony.
“We’re seeing increased demand on the Office of Attorney General to investigate and prosecute voter fraud,” First Assistant Attorney General Jeff Mateer told senators at a finance committee hearing last month. He added that the office had 59 pending prosecutions and a backlog of 80 investigations — “but we’re very limited” in resources, he said.
The agency has asked for an additional $2 million and 10 full-time employees to prosecute election fraud-related crimes. That’s necessary, Mateer said, “to ensure that the cornerstone of our democracy … is protected.”
Over the past several months, Paxton has been vocal about the agency’s election integrity efforts, touting as victories a handful of convictions for individuals who cast ballots illegally.
Critics say the agency is making examples of individuals — some of whom said in court they didn’t realize they were ineligible to vote — to score political points. Rosa Maria Ortega, a Dallas-area woman who said she thought that, as a legal permanent resident, she was permitted to vote, was sentenced in 2017 to eight years in jail. Paxton said at the time her case “shows how serious Texas is about keeping its elections secure.”
“This is 100 percent political posturing. Paxton is playing politics rather than doing his job as attorney general,” said Thomas Buser-Clancy, a staff attorney with the American Civil Liberties Union of Texas. “The real ‘rule of law’ concerns here are virtually nonexistent and certainly don’t require the increased funding and increased person power.”
The funding Paxton asked for did not appear in the Texas Senate’s initial budget proposal, released last month. And the request has been cast in a different light in recent days as a state-released list of voters flagged for citizenship checks has proved deeply flawed.
On a Friday afternoon last month, the Texas secretary of state’s office made waves when it announced that tens of thousands of individuals on the voter rolls had identified themselves as noncitizens when applying for driver’s licenses or IDs. (Election officials have confirmed that many on the list are naturalized citizens who did not vote illegally.) Less than an hour later, Paxton sent out a statement of his own, pledging that his office “stands ready to investigate and prosecute crimes against the democratic process.” In the past year alone, he boasted, his office has prosecuted 33 defendants for election fraud violations.
It was the secretary of state’s list, but voter fraud has been Paxton’s issue for years. Almost exactly a year ago, in February 2018, he wrote to lawmakers asking them to review the voter rolls for noncitizens. And he made it an issue during his re-election campaign last year.
In the days since that announcement, major errors in the state’s data have surfaced, including the erroneous inclusion of thousands of voters whose citizenship was never in question. Civil rights group have cautioned counties against acting on the list, threatening and filing lawsuits. And some advocates point to the timing of the voter rolls announcement as suspect.
Buser-Clancy said the list’s release date was a “fairly transparent” attempt to push for increased funding. And Martinez Fischer said, “When it comes to legislative priorities, I do not believe in coincidence.”
“There seems to be an awful lot of focus and attention on wanting to disenfranchise voters,” he added. “Things certainly happen for a reason.”