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Can the CCA withstand political pressure?

Sure hope so.

Best mugshot ever

Texas Court of Criminal Appeals judges’ phone lines and email inboxes have been flooded for more than a week by callers angry about a ruling last month that stripped Attorney General Ken Paxton of the authority to prosecute election fraud cases without cooperation of the local district attorney or county attorney.

At least some of the calls were spurred by an automated phone message from Houston activist Dr. Steven Hotze that were sent to tens of thousands of Republicans statewide by his political action committee, Conservative Republicans of Texas. The pre-recorded message, a copy of which was obtained by Hearst Newspapers, included the phone number to the all-Republican court and urged them to call the judges.

“Leave a message that you want the court to restore Paxton’s right to prosecute voter fraud in Texas,” Hotze said. “If this decision isn’t reversed, then the Democrats will steal the elections in November and turn Texas blue.”

The group is also funding radio and TV ads on the subject, said Jared Woodfill, a spokesman and attorney for Hotze.

“It’s Dr. Hotze’s position that the electorate should be able to reach out to the officials they elect,” Woodfill said.

The court’s general counsel Sian Schilhab on Monday said the unusual flood of communications included one email was referred to the Texas Department of Public Safety, which investigates threats against state employees.

Paxton has requested a rehearing of the case, and Hotze and more than two dozen Texas Republican Congressmen, state senators and representatives are supporting him in friend-of-the-court briefs.

[…]

Paxton has publicly blasted the court’s Republican judges for the decision. He and other Republicans have also suggested Democratic district attorneys will not be vigilant against election fraud.

“Now, thanks to the Texas Criminal Court of Appeals, Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas,” Paxton wrote on Twitter at the time of the decision, referring to the Democratic mega-donor. “This ruling could be devastating for future elections in Texas.”

Other Republicans statewide have made similar comments in pushing for reconsideration.

“The Attorney General’s Office must be able to defend election integrity in our great state,” wrote Sen. Paul Bettencourt, one of 14 state senators who signed onto a friend-of-the-court briefin a statement last week. “We cannot allow our elections to be manipulated.”

See here and here for the background. The Statesman story about this has the most precious sentence I think I’ve ever read, which is that Paxton’s urging people to call the justices’ office and demand that they change their ruling puts him “in an ethical gray area, if not in outright violation of the state’s rules of conduct for lawyers.” Oh heavens to Betsy, not an “ethical gray area”! Not our dear, super-upright Ken Paxton!

I guess I appreciate the fact that no one here is trying to hide their motives, that this is all very clearly about politics and giving Ken Paxton the unfettered power to attack political opponents (primarily Democrats, though you never-Trump Republicans better not sleep too easily either) in whatever fashion he sees fit. They do this by attacking the political motives of district attorneys, because accusing enemies of doing the things you want to do is how it’s done. There’s no way to remove the politics from the process of investigating and prosecuting politicians for alleged crimes, but one can at least be as professional and dispassionate about it as possible. If we had an Attorney General who could be trusted to act in such a fashion, then the likes of Sen. Bettencourt might be able to shepherd a constitutional amendment through the Lege to clarify that point of law that the CCA cited. He’d need to get some Democrats on board to clear the 2/3 majority requirement in each chamber for this, which will never and could never happen as long as the AG is Ken Paxton, or anyone who wants to emulate Ken Paxton. There is a way forward if we really want the AG to have this power, but you sure can’t get there from here.

As for the big question I asked in the title of this post, there’s this.

Randall Kelso, a professor at South Texas College of Law, said courts like the Court of Criminal Appeals tend to be reluctant to reverse to their decisions unless at least one of three conditions are met: There is a change in the facts at the core of the case, the ruling proves to be “unworkable in practice” or judges are persuaded that the decision was “substantially wrong.” Kelso said he did not see how the first two conditions apply to the current situation, and as for proving that the ruling was “substantially wrong,” he added, there is usually a “pretty high burden.”

“Just because the various Texas lawmakers are petitioning, I wouldn’t predict they’d just cave to them and say, ‘We’ve gotta change our minds,'” Kelso said. “It’d be unusual to do it unless” any of those conditions are met.

I sure hope so. If nothing else, I hope their ego kicks in to the point of them muttering “Those idiots don’t get to tell me how to do my job” for however long it takes. It may be our best hope.

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2 Comments

  1. C.L. says:

    How not to make friends with TCCA and/or SCOTX: Urge your followers, who you’ve expressed your outrage to because TCCA did not rule in your favor (8-1, BTW), to flood their email and voicemail inboxes with ignorant, angry diatribe.

    Brilliant plan, Ken.

  2. Mainstream says:

    1. This has become a campaign issue in the one contested GOP primary for a court of criminal appeals position.
    2. These email deluges are nothing new in politics, or even in efforts to pressure the courts to change. I recall our state supreme court did change several decisions after getting pressure like this, and I can remember Dr. Hotze asking residents to call the court and organizing petition campaigns on hot button issues as far back as the 1990s.