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.
“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 recommended 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.”
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.”
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.
“Texas Attorney General Ken Paxton is seeking more power this session to prosecute voter fraud and abortion-related crimes” was first published at https://www.texastribune.org/2019/02/04/Texas-ken-paxton-prosecute-abortion-voter-fraud/ by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.