Stephens, Zena Collins

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1032-20

THE STATE OF TEXAS

v.

ZENA COLLINS STEPHENS, Appellee

NO. PD-1033-20

EX PARTE ZENA COLLINS STEPHENS

ON APPELLEE’S PETITIONS FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

CHAMBERS COUNTY

MCCLURE, J., delivered the opinion of the Court in which KELLER, P.J.,

and HERVEY, RICHARDSON, NEWELL, KEEL, WALKER, and SLAUGHTER JJ.,

joined. YEARY, J., filed a dissenting opinion.

OPINION

Zena Collins Stephens appeals both the court of appeals’ denial of a pretrial writ of

habeas corpus and its reversal of the district court’s decision to quash Count I of the

indictment. She presents the following question: May the Texas Legislature delegate to the

STEPHENS ― 2

Attorney General, a member of the executive department, the prosecution of election-law

violations in district and inferior courts? No. Because Texas Election Code section 273.021

delegates to the Attorney General a power more properly assigned to the judicial

department, we conclude that the statute is unconstitutional. Therefore, we reverse the

decision of the court of appeals and remand the case to the trial court to dismiss the

indictment.

PROCEDURAL BACKGROUND

Zena Collins Stephens was elected to the position of sheriff of Jefferson County in

2016. While investigating someone else, the FBI uncovered information regarding

potential campaign-finance violations concerning Stephens. The FBI then turned this

information over to the Texas Rangers. The Rangers’ investigation concluded that

Stephens received individual cash campaign contributions in excess of $100. The Rangers

presented their findings to the Jefferson County District Attorney, who declined to

prosecute, referring the Rangers to the Attorney General. The Rangers then presented the

results of their investigation to the Attorney General, who presented the case to the grand

jury in Chambers County, a county adjoining Jefferson County. See Tex. Elec. Code §

273.024. The Attorney General relied on Texas Election Code section 273.021 to prosecute

a criminal offense “prescribed by the election laws of this state.”

In April of 2018, the Chambers County grand jury indicted Stephens on three

counts. In Count I, Stephens was charged with tampering with a government record in

violation of Texas Penal Code section 37.10 “by reporting a $5,000.00 individual cash

contribution in the political contributions of $50.00 or less section of said Report.” In

STEPHENS ― 3

Counts II and III, Stephens was charged with unlawfully making or accepting a

contribution in violation of Texas Election Code section 253.033(a) by accepting cash

contributions in excess of $100 from two different individuals.

Stephens filed a motion to quash the indictment, arguing the Attorney General did

not have authority to prosecute a violation of the Penal Code, and an application for a

pretrial writ of habeas corpus, challenging the constitutionality of Texas Election Code

section 273.021. The trial court granted Stephens’s motion to quash Count I, finding that

the Attorney General lacked authority to prosecute an offense outside the Election Code.

However, the trial court denied Stephens’s motion to quash Counts II and III. The trial

court also denied Stephens’s pretrial habeas corpus writ without comment.

Both Stephens and the Attorney General appealed. The State argued that the trial

court erred in two ways: (1) by quashing the tampering count (Count I), because Election

Code section 273.021(a) authorizes the Attorney General to prosecute violations of election

laws, and (2) by concluding that the Attorney General’s prosecutorial authority was limited

to election laws found within the Election Code.

Stephens appealed the denial of her application for a pretrial writ for Counts II and

III on the ground that Election Code section 273.021’s delegation of authority to prosecute

election laws to the Attorney General violates the separation of powers doctrine in the

Texas Constitution. Stephens argues that the offices of county and district attorneys are in

the judicial branch of government and the Attorney General is in the executive branch. See

Tex. Const. art. V, § 21; id. art IV, § 22. According to Stephens, the judicial branch has

STEPHENS ― 4

exclusive jurisdiction in the trial courts and allowing the Attorney General to prosecute

penal code violations unduly interferes with the functioning of that branch.

In a divided opinion, the First Court of Appeals agreed with the State and found that

Election Code section 273.021(a) “clearly and unambiguously gives the Attorney General

power to prosecute criminal laws prescribed by election laws generally whether those laws

are inside or outside the Code.” State v. Stephens, 608 S.W.3d 245, 251 (Tex. App.—

Houston [1st Dist.] 2020). The court of appeals further held that “[t]he phrase ‘election

laws’ is not synonymous with ‘Election Code,’ and if the Legislature intended to limit the

Attorney General’s prosecutorial authority to laws found only in the Election Code, it could

have done so.” Id. at 251–52.

The court of appeals reversed the district court’s decision to quash Count I, holding

that section 273.021 of the Election Code gives the Attorney General power to prosecute

election law violations both inside and outside the Election Code. Id. at 252. The court of

appeals affirmed the trial court’s denial of Stephens’s pre-trial habeas application, focusing

on the last clause of the section of the Constitution describing the authority of the Attorney

General: “perform such other duties as may be required by law.” Id. at 255–56; Tex. Const.

art. IV, § 22. The court relied on the doctrine of ejusdem generis (“of the same kind”) by

applying the following logic: 1) the Constitution authorizes the Attorney General to

represent the State, advise the State, and act on behalf of the State against corporations; 2)

corporations, like elections and elected offices, are wholly creatures of state action; 3)

therefore, the Attorney General has authority to prosecute election law violations.

Stephens, 608 S.W.3d at 255. The court of appeals also found that Election Code Chapter

STEPHENS ― 5

273 gives the Attorney General concurrent jurisdiction with county and district attorneys

and does not take away their ability to prosecute election law violations. Id.

In his dissent, Justice Goodman writes that the Attorney General’s prosecution of

Stephens violates the Constitution’s separation of powers mandate. Id. at 261. Specifically,

Justice Goodman disagrees that the Legislature can authorize the Attorney General, a

member of the executive department, to prosecute election-law violations because that is a

power more properly assigned to the judicial department. Id. at 259.

Stephens petitioned this Court for discretionary review to determine: (1) if the

Attorney General has the authority to prosecute this case under Election Code section

273.021, whether such 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 Tex.

Penal Code section 37.10 is an “election law” within the meaning of the Election Code;

and (3) whether campaign finance reports are “election records” within the meaning of

Tex. Penal Code section 37.10. By declaring Texas Election Code section 273.021

unconstitutional, we need not address Stephens’s second and third grounds.

TEXAS CONSTITUTIONAL HISTORY

In Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002), this Court reviewed the

history of the powers of the Attorney General and noted that “[t]he office of the Attorney

General of Texas has never had authority to institute a criminal prosecution. Before 1876

it had constitutional authority to represent the State in appeals of criminal cases, and it had

STEPHENS ― 6

statutory authority to do so until 1923.” 1 Id. at 878. The 1876 Texas Constitution

completely eliminated the specific constitutional authority of the Attorney General to

represent the State in appeals of criminal cases in a deliberate response to the “despotic

control of the reconstruction governor.” Id. at 877, 880. Since then, it has had no authority

to represent the State in a criminal case in any court, except when a county or

district attorney requests it to assist. Id. at 880.

OUR CURRENT CONSTITUTION & SEPARATION OF POWERS

The Constitution of 1876, which our state still operates under, expressly divides the

powers of government into three distinct departments—legislative, executive, and

judicial—and prohibits the exercise of any power “properly attached to either of the

others,” unless that power is grounded in a constitutional provision. Tex. Const. art. II, §

1; see also Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App. 1974). “This separation

of powers 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). It has the incidental effect of “promoting effective

government by assigning functions to the branches that are best suited to discharge

them.” Id.

1

Relevant to our jurisdiction in this matter, the 1876 Texas Constitution took away the Supreme Court’s

jurisdiction in criminal cases, thereby creating the Court of Appeals (after 1891 the Court of Criminal

Appeals). Tex. Const. art. V, §§ 1, 5.

STEPHENS ― 7

The Texas Constitution contains this explicit separation of powers provision unlike

the federal Constitution which contains no express separation of powers provision. Instead,

separation of powers is implied through the federal constitution’s structure, dividing

government into three branches, and through vesting into each branch its particular power,

legislative, executive, or judicial. U.S. Const., Arts. I, § 1, II, § 1, III, § 1. We have

previously held that this textual difference between the United States and Texas

constitutions suggests that Texas would “more aggressively enforce separation of

powers between its governmental branches than would the federal government.” See State

v. Rhine, 297 S.W.3d 301, 309 (Tex. Crim. App. 2009).

The 1876 Texas Constitution provides that the office of the Attorney General is in

the executive branch. Id. at 879. The constitutional duties of the office are as follows:

The Attorney General shall represent the State in all suits and pleas in the

Supreme Court of the State in which the State may be a party, and shall

especially inquire into the charter rights of all private corporations, and from

time to time, in the name of the State, take such action in the courts as may

be proper and necessary to prevent any private corporation from exercising

any power or demanding or collecting any species of taxes, tolls, freight or

wharfage not authorized by law. He shall, whenever sufficient cause exists,

seek a judicial forfeiture of such charters, unless otherwise expressly directed

by law, and give legal advice in writing to the Governor and other executive

officers, when requested by them, and perform such other duties as may be

required by law.

Tex. Const. art. IV, § 22.

The offices of county and district attorney, on the other hand, are in the judicial

branch of government. Tex. Const. art. V, § 21. The constitutional duties of the county and

district attorneys are as follows:

STEPHENS ― 8

The County Attorneys shall represent the State in all cases in the District and

inferior courts in their respective counties; but if any county shall be included

in a district in which there shall be a District Attorney, the respective duties

of District Attorneys and County Attorneys shall in such counties be

regulated by the Legislature.”

Tex. Const. art. V, § 21.

Although the duties of the county and district attorney are not enumerated in article

V, section 21, our courts have long recognized that, along with various civil duties, their

primary function is “to prosecute the pleas of the state in criminal cases.” Meshell v. State,

739 S.W.2d 246, 254 (Tex. Crim. App. 1987); see also Saldano, 70 S.W.3d at 877 (holding

that the express provision conferring on the county and district attorneys the authority to

represent the State in “the District and inferior courts,” Tex. Const. art. V, § 21, mandates

a vertical separation of powers between the Attorney General and the district attorneys in

matters of criminal prosecution); see also Baker v. Wade, 743 F.2d 236, 242 n. 28 (5th Cir.

1984) (county and district attorneys have been bestowed with the “exclusive responsibility

and control of criminal prosecutions”).

The separation of powers doctrine requires that “any attempt by one department of

government to interfere with the powers of another is null and void.” Meshell, 739 S.W.2d

at 252. Although one department has occasionally exercised a power that would otherwise

seem to fit within the power of another department, courts have approved those actions

only when authorized by an express provision of the constitution. Id. “Exceptions to the

constitutionally mandated separation of powers are never to be implied in the least; they

must be ‘expressly permitted’ by the Constitution itself.” Fin. Comm’n of Tex v. Norwood,

418 S.W.3d 566, 570 (Tex. 2014) (quoting Tex. Const. art. II, § 1).

STEPHENS ― 9

The separation of powers provision may be violated in one of two ways. First, it is

violated when one branch of government assumes, or is delegated, to whatever degree, a

power that is more “properly attached” to another branch. Armadillo Bail Bonds, 802

S.W.2d at 239. Second, it is violated when one branch unduly interferes with another

branch so that the other branch cannot effectively exercise its constitutionally assigned

powers. Id. at 239 (citing Rose v. State, 752 S.W.2d 529, 535 (Tex. Crim. App. 1987)).

Relying on this history, Stephens claims that the Attorney General’s authority to

prosecute an election law offense under Texas Election Code section 273.021 is

unconstitutional because the Texas Constitution prohibits the legislature from granting

independent criminal prosecution power to the Attorney General in district and inferior

courts.

STANDARD OF REVIEW

We review de novo a challenge to the constitutionality of a statute. Salinas v. State,

464 S.W.3d 363, 366 (Tex. Crim. App. 2015). We afford great deference to the Legislature

and presume that the statute is constitutional and that the Legislature has not acted

unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d 10, 14–15 (Tex. Crim. App. 2013).

The party challenging the statute normally bears the burden of establishing its

unconstitutionality. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978).

ANALYSIS OF TEXAS ELECTION CODE § 273.021

1. “Other duties” must be executive branch duties.

The Attorney General argues that the Texas Constitution provides legislative authority

to empower the Attorney General with “other duties” and that the Legislature, by enacting

STEPHENS ― 10

Election Code section 273.021, has conferred upon the Attorney General the authority to

prosecute this case. 2

Section 273.021 of the Texas Election Code was enacted in 1985 and is titled

“Prosecution by Attorney General Authorized.” Act of May 13, 1985, 69th Leg., R.S., ch.

211, § 1, 1985 Tex. Gen. Laws 1054. The statute, in its entirety is as follows:

(a) The attorney general may prosecute a criminal offense prescribed by the

election laws of this state.

(b) The attorney general may appear before a grand jury in connection with

an offense the attorney general is authorized to prosecute under Subsection

(a).

(c) The authority to prosecute prescribed by this subchapter does not affect

the authority derived from other law to prosecute the same offenses.

Tex. Elec. Code § 273.021.

The court below, in agreement with the Attorney General, concluded that, by

enacting section 273.021, the Legislature properly authorized the Attorney General, a

member of the executive department, to represent the State in district and inferior courts to

prosecute election-law violations. Against this, Stephens argues that the lower court

broadened the Attorney General’s power in a manner violative of the separation of powers

requirement in the Texas Constitution. We agree with Stephens.

2

It is worth noting here that, in addition to the implied versus explicit separation of powers

provision distinction between the federal and Texas constitutions, the Texas constitution constrains

government power in another distinctive way: It lacks a Necessary and Proper Clause or

“Sweeping Clause,” often invoked to expand Congress’s powers beyond those specifically

enumerated. See U.S. CONST. art. I, § 8, cl. 18 (“To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing Powers, and all other Powers vested by this

Constitution in the Government of the United States, or in any Department or Officer thereof.”)

STEPHENS ― 11

As applied to this case, the Texas Constitution contains no provision that expressly

permits the Attorney General to prosecute election law violations in district courts.

However, the court of appeals interprets the constitutional clause “perform such other

duties as may be required by law,” Tex. Const. art. IV, § 22, to provide the requisite express

permission for statewide prosecutorial power. Stephens, 608 S.W.3d at 255. For this, the

court of appeals relied upon the rule of construction known as ejusdem generis. Id.

The ejusdem generis rule is that, when interpreting general words that follow an

enumeration of specific things, the meaning of those general words should be confined to

things of the same kind. Black’s Law Dictionary (11th ed. 2019); Lefevers v. State, 20

S.W.3d 707, 711 (Tex. Crim. App. 2000); Perez v. State, 11 S.W.3d 218, 221 (Tex. Crim.

App. 2000).

As previously discussed, the enumerated duties of the Attorney General, as specified

by the Constitution, are limited to inquiring into charter rights of private corporations, suing

in state court to prevent private corporations from exercising powers not authorized by law,

seeking judicial forfeiture of charters, and providing legal advice to the governor and other

executive officers. Tex. Const. art. IV, § 22.

Notably absent from these enumerations is a specific grant of authority to the

Attorney General concerning the prosecution of criminal proceedings. Undeterred by this

omission, the court of appeals applied an expansive interpretation of the ejusdem generis

doctrine, holding that, because the Attorney General may act on behalf of the State against

corporations, and because corporations, like elections and elected officials, are wholly

STEPHENS ― 12

creatures of state actions, it follows that the Attorney General has authority to prosecute

election law violations.

This is a misapplication of the ejusdem generis doctrine. The court of appeals

disregarded the doctrine’s fundamental point: that “the principle of ejusdem generis warns

against the expansive interpretation of broad language that immediately follows narrow

and specific terms, and counsels us to construe the broad in light of the narrow.” Marks v.

St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010) (emphasis added); see also

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012)

(“Where general words follow an enumeration of two or more things, they apply only to

persons or things of the same general kind or class specifically mentioned.”). Representing

the state in a criminal prosecution for election law violations is not of the same character

as representing the state in suits to prevent corporations from exercising authority not

authorized by law.

Further, the Constitution already grants this authority to county and district

attorneys. See Tex. Const. art. V, § 21. Because this is already the specific duty of county

and district attorneys, the court of appeals erred by misconstruing the “other duties” clause

to encompass judicial branch duties.

To elucidate the absurd results that such an interpretation of “other duties” would

render, Stephens notes that the Constitution also permits the Legislature:

• to assign the secretary of state and the Texas Water Development Board “other

duties,” Tex. Const. art. III § 49-c & id. art. IV § 21;

• to assign notaries public “such duties as . . . may be prescribed by law,” id. art. IV

§ 26; and,

• to assign duties to county clerks and sheriffs, id. art. V, §§ 20 & 23.

STEPHENS ― 13

If we were to adopt the reasoning of the court below, then the Legislature could grant

the Water Development Board with prosecutorial authority. Perhaps this example is

extreme, but it certainly emphasizes how relying on “other duties” would render

meaningless the separation of powers. Since the “other duties” clause says nothing about

the governmental branch from which those duties may derive, this silence must be

interpreted to mean that the Attorney General’s “other duties” must be executive branch

duties.

The Attorney General relies on the Texas Supreme Court’s opinion in Brady v. Brooks,

89 S.W. 1052 (Tex. 1905), to support his argument that the constitutional grant of authority

to district and county attorneys does not prevent the legislature from empowering the

Attorney General to represent the State in district court. In Brady, the Attorney General,

under the authority of two separative legislative acts (the “Love Tax Bill” and the

“Kennedy Bill”), brought suit in district court to recover taxes, penalties, and forfeitures

from a railroad company and an oil and fuel company. 89 S.W. at 1053. The county and

district attorneys filed motions to be permitted to bring the suits without the participation

of the Attorney General. Id. They cited section 21 of article V of the Texas Constitution,

which grants the authority to represent the State in all cases to the county and district

attorneys. Id. The Supreme Court of Texas ultimately refused the county and district

attorneys’ writs. Id. at 1057. It held that that article V, section 21 of the Texas Constitution

does not preclude the Legislature, pursuant to the authority of the attorney general to

STEPHENS ― 14

“perform such other duties as may be required by law,” from empowering the attorney

general to represent the State in district court. Id.; Tex. Const. art. IV, § 22.

We find Brady distinguishable from the facts of the instant case for three reasons. First,

Brady involved a civil matter, namely, suits to recover tax money. That dispute was of the

same class and character as the cases that fall within the express constitutional authority of

the attorney general to sue corporations:

The attorney general shall represent the state in all suits and pleas in the

supreme court of the state in which the state may be a party, and shall

especially inquire into the charter rights of all private corporations, and, from

time to time, in the name of the state, take such action in the courts as may

be proper and necessary to prevent any private corporation from exercising

any power, or demanding or collecting any species of taxes, tolls, freight or

wharfage not authorized by law.

Tex. Const. art. IV, § 22.

The present case involves the criminal prosecution of an individual. Even the

Supreme Court in Brady recognized that the Texas Constitution, in the judiciary article,

grants the authority to represent the State in criminal matters to county and district

attorneys. 89 S.W. at 1053, 1056. Further, the Supreme Court “gravely doubted” whether

“it was within the power of the legislature to deprive them of that function.” Id. at 1056–

57 (holding that “the main function” county and district attorneys “are called upon to

perform [is], namely, to prosecute the pleas of the state in criminal cases”). Therefore, any

reliance on Brady for the proposition that the AG has independent authority to prosecute

criminal cases is erroneous.

Second, Brady appears to misstate the standard of review as to when one branch of

government may exercise powers of another branch. In Brady, the Texas Supreme Court

STEPHENS ― 15

held that the “other duties” clause 3 does not encompass every duty, no matter where it lies

in the Texas Constitution, but instead, opined that the line is crossed if the Legislature

“t[ook] away from the county attorneys as much of their duties as to practically destroy

their office.” 89 S.W. at 1056. This is an incorrect standard to apply when analyzing a

separation of powers violation. The standard for whether this is a violation of the separation

of powers is not whether a legislative grant of authority to the attorney general would

“destroy” the county or district attorney’s office. Instead, as discussed supra, the

Constitution provides that an official of one branch of government may only exercise

functions of another branch if “expressly permitted” by the Constitution itself. The explicit

separation of powers provision does not say that another branch can abridge a duty from

another branch so long as he does not “destroy” that branch.

Third, the Brady Court erroneously held that the “other duties” clause somehow

authorizes the Legislature to extend the constitutionally granted duties of the judicial

branch to the AG in the executive branch. As discussed above, article V, section 21 of the

Texas Constitution provides that county and district attorneys are judicial officers who

“shall” represent the state in “all cases” in the district courts. Likewise, article IV, section

3

It is worth mentioning in passing that the Brady court appears to misstate the language in the

“other duties” clause. The Supreme Court held: “The words, ‘he [the attorney general] shall . . .

perform such other duties as may be defined by law,’ are as broad as those employed in section

21 of article 5; and if unrestricted would empower the Legislature to authorize him and to make

it his duty to represent the state in any case in any court.” 89 S.W. at 1055–56. However, the

correct language in the clause is “he shall . . . perform such other duties as may be required by

law.” Whether the distinction between the words “defined” and “required” was dispositive in

Brady does not impact Brady’s inapplicability to this case.

STEPHENS ― 16

22 of the Texas Constitution provides that the attorney general is an executive officer with

certain enumerated duties and to whom the legislature may assign “other duties.” However,

the “other duties” clause does not permit the Legislature to assign to the attorney general

any duty without regard to the branch of government to which it attaches. Simply put, the

“other duties” clause may not transform the judicial duty of prosecutorial power into an

executive duty. Such an interpretation would exempt the attorney general from the explicit

separation-of-powers limitation. Therefore, we find that Brady is distinguishable. 4

2. Concurrent Jurisdiction

a) The Attorney General is not “required by law” to prosecute election law violations.

Art. IV, section 22 of the Texas Constitution states that the Attorney General shall

perform such other duties “as may be required by law.” But nothing in Texas Election

Code section 273.021 requires the Attorney General to initiate prosecution for an election

code violation. A plain reading of the statute reveals that the Legislature drafted the statute

using the words “may prosecute” and “may appear.” Under the ordinary meaning of words,

“may” is permissive while “shall” is mandatory. See Black’s Law Dictionary (11th ed.

2019). This is also true under the Code Construction Act—“may” creates discretionary

authority or grants permission or a power while “shall” imposes a duty. Tex. Gov’t Code

4

The dissent takes umbrage with this Court’s refusal in 2014 to resolve these identical grounds in

Medrano v. State, 421 S.W.3d 869, 878–80 (Tex. App.—Dallas 2014, pet. ref’d). In Medrano, the

Fifth Court of Appeals relied on Brady and held that the same statute presented in the instant PDR

did not violate separation of powers. However, we note that Medrano did not adequately brief this

issue, and therefore, presented nothing for review. See Tex. R. App. P. 68.4(h), 68.6; see also Lucio

v. State, 351 S.W.3d 878, 898 (Tex. Crim. App. 2011) (holding that this Court is under no

obligation to make Appellant’s arguments for her).

STEPHENS ― 17

§ 311.016. Therefore, nothing in this statute “requires” the Attorney General to prosecute

election cases. Based on a plain reading of this statute, combined with the plain meaning

of “as required by law” in the Texas Constitution, the Attorney General can prosecute with

the permission of the local prosecutor but cannot initiate prosecution unilaterally.

b) The Texas Constitution requires county and district attorney consent.

The above notwithstanding, the court of appeals held that the Attorney General should

be allowed to initiate criminal prosecutions because “some duties imposed upon the

Attorney General are both executive and judicial” in nature. Citing our opinion in Saldano

v. State as controlling authority, the court below bases the concept of permissible

overlapping executive and judicial duties of the Attorney General on our comment that the

legislature’s ability to assign other duties to the Attorney General, “presumably, could

include criminal prosecution.” Saldano, 70 S.W.3d at 880.

Relying on this passing comment is problematic for three reasons. First, this remark is

dictum, which is not controlling authority. See Wilson v. State, 448 S.W.3d 418, 422 (Tex.

Crim. App. 2014); Tong v. State, 25 S.W.3d 707, 711 (Tex. Crim. App. 2000) (noting that

a conclusion not necessary to the holding of a case is dicta); State v. Brabson, 976 S.W.2d

182, 186 (Tex. Crim. App. 1998) (referring to dicta as “unnecessary to [the Court’s]

ultimate disposition of” the case).

Second, it is taken out of context. This passing remark was made during the following

discussion of the history of the constitutional authority and history of the Attorney General:

The same [1876] Constitution took away the Supreme Court’s jurisdiction of

criminal cases, thereby eliminating the specific constitutional authority of the

attorney general to represent the State in appeals of criminal cases.

STEPHENS ― 18

The Constitution gives the county attorneys and district attorneys authority

to represent the State in criminal cases. It authorizes the legislature to give

the attorney general duties which, presumably, could include criminal

prosecution.

From 1876 to 1923, the attorney general had one, statewide responsibility in

criminal cases: to represent the State in the Court of Appeals and its

successor, the Court of Criminal Appeals. That responsibility was taken

away by a legislative act in 1923 that created a special office to represent the

State before the Court of Criminal Appeals.

Saldano, 70 S.W.3d at 880 (citations omitted; emphasis added).

We resolutely concluded at the end of this discussion that the Attorney General has

no independent criminal prosecution authority: “The attorney general . . . has no criminal

prosecution authority. Rather, he is limited to representing the State in civil litigation.” Id.

at 880.

Third, we further limited the statement “presumably, could include criminal

prosecution” by stating that the authority of the Attorney General is limited to assisting the

district or county attorney upon request. Id. at 880. Such a request is a prerequisite for

Attorney General participation in county and district criminal prosecutions. Concurrent

jurisdiction certainly may exist, but the Attorney General lacks constitutional authority to

independently prosecute a crime in a district or inferior court without the consent of the

appropriate local county or district attorney by a deputization order.

By requiring deputization, the Legislature made clear its intent to limit the Attorney

General’s authority to assistance “upon request”:

• “Each district attorney shall represent the State in all criminal cases in the district

courts of his district and in appeals therefrom, except in cases where he has been,

before his election, employed adversely.” Tex. Code Crim. Proc. art. 2.01.

STEPHENS ― 19

• A district attorney may employ, hire, or retain any assistant prosecuting attorneys,

or any other personnel, that he deems necessary for the proper operation and

administration of his office. Tex. Gov’t Code § 41.102.

• These assistant prosecuting attorneys, whether they be permanent or temporary

members of his staff, are bound to the same prescribed duty “to see that justice is

done.” Tex. Code Crim. Proc. art. 2.01. They must be licensed to practice law in

this State and serve at the will of the district attorney. Tex. Gov’t Code §§ 41.103,

41.105 (emphasis added).

In addition, the Legislature has expressly permitted the Attorney General to assist, upon

request of the local prosecutor, in the prosecution of the following types of cases:

• Thefts involving the state Medicaid program, Tex. Penal Code § 31.03(j);

• False statements involving mortgage loans, Tex. Penal Code § 32.32;

• Offenses under Chapter 35A, Health Care Fraud, Tex. Penal Code § 35A.02(f);

• Insurance fraud, Tex. Penal Code § 35.04; and

• Offenses under Chapter 39, Abuse of Office. Tex. Penal Code § 39.015.

Absent the consent and deputization order of a local prosecutor or the request of a

district or county attorney for assistance, the Attorney General has no authority to

independently prosecute criminal cases in trial courts. See Saldano, 70 S.W.3d at 880–81.

Therefore, while there are some permissible overlapping duties, the Constitution

specifically separates the powers of the branches. Any attempt to overlap the Attorney

General’s constitutional duties with county and district attorneys’ constitutional duties in

the sense of a Venn diagram of sorts is unconstitutional. Practically speaking, any overlap

is necessarily invitational, consensual, and by request: a county or district attorney must

request the assistance of the Attorney General. Under the current Constitution, overlap in

STEPHENS ― 20

the constitutional duties of the Attorney General and those of county and district attorneys

occurs, if at all, on a case-by-case basis.

Therefore, Justice Goodman’s dissent rightly characterized as a “non-sequitur” the

court of appeals’ conclusion, because even though “. . . the Constitution expressly gives

the Attorney General duties that are both executive and judicial in function despite his

status as an officer of the executive department, it does not follow that the Legislature may

give him any additional judicial duty it desires.” Stephens, 608 S.W.3d at 260. Absent a

request from the district attorney, and without the district attorney’s supervisory authority,

the Attorney General violates the separation of powers provision by assuming a power that

is more “properly attached” to a member of the judicial branch of government. See State

ex rel. Hill v. Pirtle, 887 S.W.2d 921, 928 (Tex. Crim. App. 1994). Since none of the

Attorney General’s enumerated duties concern criminal or electoral matters, Election Code

section 273.021 is unconstitutional.

c) The court of appeals holding creates a statutory conflict.

Closer consideration of the statute that the State alleges Stephens violated in Count

I further highlights the limitation on the Attorney General’s prosecutorial authority.

Stephens was charged with tampering with a governmental record in violation of section

37.10 of the Texas Penal Code. In this same statute, subsection (i) reads: “With the consent

of the appropriate local county or district attorney, the Attorney General has concurrent

jurisdiction with the consenting local prosecutor to prosecute an offense under this section

that involves the state Medicaid program.” Tex. Penal Code § 37.10(i) (emphasis added).

STEPHENS ― 21

The Legislature did not grant the authority of the Attorney General to prosecute just

any tampering offense, only a small class of cases involving the state Medicaid program.

And even in that subset of cases, the consent (through a deputization order) of the local

district or county attorney is required. The court of appeals below overlooked this express

limitation on the Attorney General’s prosecutorial authority under section 37.10. By

holding that Election Code section 273.021 authorized the Attorney General to prosecute

campaign finance violations under Penal Code section 37.10, the court of appeals created

a conflict between the two statutes: it allowed the Attorney General to prosecute a class of

tampering violations that the statute does not contemplate the Attorney General

prosecuting.

Two rules of statutory construction prohibit this conclusion. First, the

“general versus the specific” canon of statutory construction stands for the proposition that

“[i]f there is a conflict between a general provision and a specific provision,

the specific provision prevails” as an exception to the general provision. See Scalia &

Garner, Reading Law, at 183. Penal Code section 37.10(i) applies specifically to “an

offense under this section,” including the offense alleged in Count I of the indictment in

this case. Election Code section 273.021 applies more generally to “election laws” and is

in a different code. Therefore, we harmonize these two statutes and conclude that the

specific provision in Penal Code section 37.10(i) prevails over the general provision in

Chapter 273 of the Election Code.

Second, when statutes are in conflict, the more specific and later enacted statute

controls. See Clapp v. State, 639 S.W.2d 949, 952 (Tex. Crim. App. 1982). Subsection

STEPHENS ― 22

37.10(i) of the Penal Code was enacted by the legislature in 2003. Act of May 30, 2003,

78th Leg. R.S., ch. 257, § 16, 2003 Tex. Gen. Laws 1169. Contrast this with the Election

Code section 273.021, which was last amended in 1997. Act of May 26, 1997, 75th Leg.

R.S., ch. 864, § 255, 1997 Tex. Gen. Laws 2780. Therefore, subsection 37.10(i) is the more

recent enactment. Therefore, the Attorney General may prosecute only Medicaid fraud, and

not election law related cases under Penal Code section 37.10.

CONCLUSION

We hold that the grant of prosecutorial authority in section 273.021 of the Texas

Election Code violates article II, section 1 of the Texas Constitution, the Separation of

Powers Clause. We reverse the decision of the court of appeals and remand the case to the

trial court to dismiss the indictment.

DELIVERED: December 15, 2021

PUBLISH