The Texan Podcast - Interview: Judge Michelle Slaughter on Attorney General’s Constitutional Power in Criminal Cases

Episode Date: September 28, 2023

Want to support reporting on Texas politics that doesn’t include the spin? Subscribe at https://thetexan.news/subscribe/ Judge Michelle Slaughter of the Texas Court of Criminal Appeals joined The Texan’s reporter Matt Stringer to discuss the court’s 2021 decision that held that a state statute allowing the Texas attorney general to prosecute violations of election law was unconstitutional. The decision has seen renewed interest, with Attorney General Ken Paxton criticizing it during a recent interview on the Tucker Carlson Show. Slaughter, who joined the court’s 8 to 1 opinion, dissented when the Court of Criminal Appeals later denied a request to reconsider the matter. “Despite the many misleading and false statements made in several of the briefs filed in this case, I do support a rehearing. To be clear, my position is not based on anything raised by the parties or amici but is instead based upon my own in-depth analysis of Texas history and the law,” Slaughter wrote in her 73-page dissent. In her interview with The Texan, Slaughter explained the details of the case that was before the state’s top court for criminal cases and her reasoning for joining the majority in the decision. “It is a judge’s job to apply the law, to apply it strictly as it’s written in its plain language and what that language meant at the time it was written and enacted,” said Slaughter. She discussed how the court reached its conclusion by pointing to the separation of powers between the executive and judicial branches of government, with the Office of the Attorney General under the former and district attorneys under the latter. “With our express separation of powers provision, it does not allow the legislature to take a duty that is expressly constitutionally assigned to an officer in one department and give that duty to an officer in a different department,” said Slaughter. Slaughter also explained her unique nuance in her dissenting opinion, contending that the no party had argued the difference between facial constitutionality and constitutional as applied, a distinction that might provide a way for the attorney general to prosecute criminal cases when a district attorney expressly declines to fulfill constitutional duties.

Hi there, this is Matt Stringer, reporter with The Texan. Today I sat down with Judge Michelle Slaughter, who is serving her first term on Place 8 of the Texas Court of Criminal Appeals and was first elected in 2018. We discussed her background leading up to her election to the court and her position on a landmark state separation of powers ruling that has been the subject of widespread attention, including from the recently reinstated Attorney General Ken Paxton, who notably criticized the opinion and the judges on the court on Tucker Carlson and other media appearances after the Texas Senate voted to acquit him.

Thank you so much for listening and we hope you enjoy. Judge Slaughter, welcome to the Texan. We're honored and excited to have you join us for the first time at our headquarters in downtown Austin and consequently joining us for the first time on the Texan News Podcast. Well, thank you, Matt. It's a pleasure to be here. We'll jump right into it. We're going to have a conversation today covering a little bit of your background, your legal expertise, how you came to be in this position on the court.

But we're also going to have a primary topic discussing a landmark case that has been the topic of many news stories and in the conversations as of especially as of late. But before we get there, could you kind of walk us through where are you from and describe your legal background? Interestingly, I did labor and employment, complex commercial litigation, bankruptcy, and had my own law practice that was very successful. But there were a couple of judges in Galveston who I felt were doing a bad job. And I was upset to see bad judges on the bench and knew that I had to do something about it other than complain. And so at that point, I decided I'm going to stop complaining and run. So I actually ran against

one of those judges. And he was a 12-year incumbent Democrat judge. And thankfully, I beat him. We had a four-person primary, and then I ultimately prevailed in the runoff and went on to take over this bench that was the least effective, least efficient, had the highest backlog in Galveston County. And I worked very hard to transform that court. And within the first two years, I actually transformed it into the most efficient, most effective district court in Galveston County with the lowest backlog. When there was an opening on the Court of Criminal Appeals in 2018, when Judge Alcala retired, I decided to step up and run

statewide for this position. And we had a three-person Republican primary, and I was blessed to win it outright and not have a runoff. And then I went on to the general election in 2018 and received more than 4.7 million votes, which a friend who is a political consultant, former executive director of the Texas GOP, informed me that I actually got more votes than Governor Abbott, more votes than Senator Cruz, and in fact, more votes than any other contested candidate for that 2018 general election, which in the nation. So that was pretty incredible and, you know, just very humbling. And I was very honored to have had that many votes. And I know it was because of the grassroots effort that of the hardworking people who really supported me and wanted to see me on

that bench. Speaking of your victory on the Court of Criminal Appeals, there's been a bit of conversation about what exactly that court is. Can you kind of describe to us why Texas and one other state have kind of a unique situation in our court systems in having a divided court of final appeals? Yeah, so Texas and Oklahoma are the only two courts in the nation, or the only two states in the nation, excuse me, that have a split Supreme Court, where we have the Texas Supreme Court, which is the court of last resort for civil cases, where the court I'm on, the court of criminal appeals, is the court of last resort for criminal cases. And we're actually one of the busiest appellate courts in the nation on the court of criminal appeals. We wind up handling

actually about three times the number of filings that the Texas Supreme Court handles. And they're very busy. I'm not taking anything away from them. They're very hardworking and very busy. But that's just to show how very busy we are. And we issue more than double the number of opinions that the Texas Supreme Court issues. I want to get to our primary topic of discussion for today. And that's one of the recent, I guess you would describe it as a landmark ruling as far as Texas constitutional law goes, but it's been in the headlines lately. And this is not really a court that ordinarily makes headlines like you would see with the

U.S. Supreme Court, but this ruling in particular affected the constitutional and statutory powers of the Texas Attorney General's office. And we've seen post the acquittal trial of Texas Attorney General Ken Paxson, he's been mentioning this particular ruling that affected the powers of his court. And essentially, y'all found in a nutshell that a statutory power giving the Attorney General limited prosecution powers violated the separation of powers clause in the Texas Constitution. Now, this case originated from a criminal case that the Texas Attorney General's office brought against a county sheriff. Could you walk us through some of the basic details of how this case started and made its way up to your

court? Sure. The case arose in Jefferson County, Texas, originally, where the sheriff there, Zena Stevens, had, while the FBI was investigating some other people of some different issues, they came across a potential issue with Zena Stevens' campaign finance reports. In particular, there was a situation where Sheriff Stevens had accepted a $5,000 cash contribution, which is not allowed, but it was reported on her campaign finance report. It was reported in the $100 or less cash contribution. So it was reported, but not allowed. The FBI then reported that to the local district attorney. The local district attorney determined that he was not going to pursue that. You know, it was a matter for the Texas Ethics Commission or whatever, and that he wasn't going to prosecute her on that. He would let Texas Ethics Commission do

something with it if they wanted to. So at that point, then, the Attorney General's Office decided that they would take it. So the Attorney General's office, under a provision in the election code, it is section 273.021 of the in front of a grand jury and received indictments against Zena Stevens for one of them being tampering with a government instrument. And Zena Stevens challenged that in a pretrial writ of habeas corpus that went to the Court of Appeals, which upheld her prosecution by the AG, it then came to us on appeal. And on appeal, she argued essentially that this election code provision that the AG was relying on to prosecute her was unconstitutional under the Texas Constitution. Specifically, the separation of powers provision, because the Attorney General has specific enumerated powers in the executive branch, and the district attorneys have a specific

enumerated power in the judicial branch. They're in separate branches. And with our express separation of powers provision, it does not allow the legislature to take a duty that is expressly constitutionally assigned to an officer in one department and give that duty to an officer in a different department. So we did determine that that statute was unconstitutional. So you had an eight-to-one opinion, I believe, in that with Judge Ury. I believe it was in the dissent, disagreeing. After the opinion was handed down, the Attorney General's office asked the court to reconsider the case. Correct.

Could you kind of elaborate for us what was unique about your stance in the final ruling? Absolutely. First of all, my judicial philosophy is one of being a constitutional conservative and an originalist. And so when I set out to write my opinion, I wanted to make sure that the public understands where this came from and why this came out the way it did. And I will tell you, no judge likes 100% of the decisions they have to make. And in fact, if you find a judge that likes 100% of the decisions that they wind up making, they're an activist judge. Because if you're doing what the law tells you to do, if you're applying the law strictly, especially if you're taking an originalist standpoint like I do, then you wind up reaching decisions that you don't like, but that the law

mandates. And that was the case here. But I wanted to articulate that. And so I actually, I wrote a 73-page opinion. Going all the way back to 1824. Correct. Correct. I took us back to when Texas was part of Mexico to explain the progression of our constitutions. I explained the different government setups, the different constitutions that we were under in Texas and how they evolved and why they evolved and the meaning of these different phrases and these different provisions as they were interpreted, as they were understood by the ratifying voters. So that's important because if you're applying the law, if you truly believe that the Constitution is as frozen in time as it's written,

it's supposed to be interpreted as it's written at the time that it's written, which I do, then you have to understand what did the ratifying voters understand this to mean? And what did they intend? How did they intend this to be applied? And so my opinion goes through that and explains that and walks you through Texas history and how it came to be. But my unique stance was, so I started off, you know, writing this side opinion to set forth this explanation regarding Texas history. And in the process, I discovered a unique nuance, if you will, in that no party argued a facial constitutionality versus, you know, constitutional as applied. So there's a distinction. It's a little bit complex, but essentially a provision or a statute in this case can be constitutional on its face. So when you just read it, that it can be constitutional in

some applications, but when applied to a certain set of circumstances, it can then be unconstitutional as applied. through my analysis, the historical analysis that I discovered this issue, and then said that we should rehear the case because it may be constitutional on its face, but may be unconstitutional as applied here. I wanted to kind of ask you about something that you observed in your opinion, where you distinguished between powers assigned under the Texas Constitution and duties. For the benefit of our listeners and our viewers, the entire case came down around the duties prescribed to the attorney general as an officer under the executive branch of government and the limitation on the legislature to give cross-branch authorities under our explicit separation of powers. So if you could really quickly explain a little bit about

the explicit separation of powers that we have in Texas versus implied, and then maybe illuminate why the distinguish on powers versus duties that are imposed under the Texas Constitution and how you came to this ruling. Sure. So our Texas Constitution does have an express explicit separation of powers, assigned to a particular officer in one branch of government cannot be taken over or given to an officer in a different branch of government. And so that the branches have to be separated. Now, there is sometimes some overlap and there's some a little bit of gray areas, but the Constitution has to expressly allow for it to happen. And in this case, you've got, I do discuss powers versus duties. So you have the, say, the executive power. And in fact, the Attorney General and the District Attorneys both have some executive power, but they're assigned to different branches of government. And I explain why that is, in my opinion, why the ratifying voters and those who wrote our Constitution, our 1876 Constitution,

why they divided that power. And I would certainly encourage all those listening to read that opinion. I know it's long. I know it's maybe complicated, but it really sets forth why our framers or our Texas Constitution did what they did and why the ratifying voters ratified it. But anyway, so there's powers, but then there's also duties. So a power is the ability to do something, having the authority to do something. In this case, represent the state in court. Correct. So the attorney general has the power to, and actually the duty to represent the state of Texas in the Texas Supreme Court. And that's an express constitutional duty that the attorney general has. So he has the power and authority to appear in court and the duty to represent the state of Texas and the Texas Supreme Court. And then there's also other express

enumerated duties that for the attorney general's office, all of which are civil duties. And so for those specific enumerated duties, the express duties that he has, he can also represent the state of Texas in the trial courts for those civil duties. Now, the district attorney, on the other hand, has an express duty and then the power to carry out that duty. And that is to represent the state of Texas in all cases in the district and inferior courts. So it's the trial courts. And so it's to represent the state of Texas in all cases. So here you've got the express duty to represent the state of Texas in all trial courts. That means criminal prosecutions.

And you've got the attorney general with the duty to represent the state of Texas, the Texas Supreme Court, and then the trial courts for the specific enumerated civil duties that he has. And so those, so there's some overlap there, but you've got, so they can both appear in the trial courts, but the AG is limited in what he can do in the trial courts, whereas the district attorney has the authority for everything else. And that, again, is because of the express constitutional provision. The statutes that assigned prosecutorial powers to the attorney general's office had been on the books for a long time. Right. had been on the books for a long time. Can you kind of explain to us why that necessarily didn't matter in the eyes of the court? And was it true that those statutes had never really come under

any kind of scrutiny over the years? Sure. So, yes, there was a 1951 statute that was the predecessor to the statute that was at issue in the Stevens case that purported to give the attorney general the ability to prosecute election law violations. That statute actually was once challenged, and the Fourth Court of Appeals, San Antonio Court of Appeals, took that up in a case called Shepard v. Alains. And in that case, the San Antonio Court of Appeals actually said that the DAs have the authority to bring the criminal cases. The Attorney General does not. And if the, and that statute, if it were to be construed to allow the attorney general to independently prosecute criminal cases, that would make that provision void under the Texas Constitution. There'd also been a number of attorney general opinions on the issue over, I believe you cited a number of them. Correct. And if I recall correctly, there was a period of time between the court's initial opinion and the request to rehear the case.

And the ruling had made a lot of attention in the media headlines. The attorney general had campaigned rather rigorously publicly against the ruling, calling for it to be reheard, that sort of thing. And I wanted to mention that because against him in the impeachment court, but has used the opportunity, the media platform, to once again highlight this decision. Most notably, his interview on Tucker Carlson, where he spoke directly on this opinion and the court's reasoning behind it and made some statements that I want to read off. And if you can speak to them from a legal perspective, particularly as it relates to this opinion, I'd love for you to weigh in if you can.

In particular, Attorney General Paxton told Tucker Carlson, quote, the Supreme Court is the final say on civil matters in Texas. So they were able to strike down one area of law for us, referring to the Court of Criminal Appeals in this case. And he said, if they're right, the Supreme Court, which handles civil matters, should tell me that, no, I shouldn't be allowed to be in civil cases either because I'm in the executive branch. And if that's right, no AG in the country should be allowed to go to court, end quote. Does this opinion by the majority in this case have any bearing on attorney generals in other states? Absolutely not. This is a provision analyzed under the Texas Constitution. Every state has their own constitution. And Texas likes to do things differently. And so our Attorney General has never had the

constitutional authority to conduct criminal prosecution. He's always had the duty to represent the state of Texas in the Texas Supreme Court and had other enumerated duties that generally involved civil matters. For a very short period of time, the attorney general had the ability to appear in the Court of Appeals to appeal criminal matters, represent the state of Texas in criminal appellate proceedings. And the Court of Appeals was the predecessor to the Court of Criminal Appeals. So for a very short time, he had that ability.

But then we had a constitutional amendment creating the state prosecuting attorney's office. And then that took away that authority from him yet again. So he's never had the ability to, in trial courts, conduct criminal prosecutions. But this has no bearing on how he can do, how other attorneys general can do things in other states. Or in civil matters.

Or in civil matters, because he has, you know, we're only criminals. So we're only dealing with a criminal. Any question on the civil would be in front of the Texas Supreme Court. But this has no bearing on that because the attorney general under the Texas Constitution has expressly enumerated duties that also involve civil issues wherein he can appear in the trial courts for those civil issues. And there's also a catch-all provision at the end that he can be assigned other duties by the legislature, but they just have to fall within his general duties as attorney general. And in fact, in my opinion, I discuss how when the 1876 Constitution was ratified by

the voters, they knew what that catch-all provision meant. The assigned such other duties as conducted such duties may be applied by or as may be assigned by law, something to that effect. I can't remember the exact phrasing offhand. But it's a catch-all phrase, which basically says that the attorney general can have duties that the legislature assigns him. Well, that exact same phrase was used in constitutions before the 1876 Constitution and had also been interpreted in other Supreme Court opinions as to what that meant. And it meant that it had to be a duty that fell within that branch of government. So it

had to be an executive type of duty, had to fall within the duties of that officer. So again, had to be like under the AG's duties and could not be a duty that had been expressly assigned to another officer under the Texas Constitution. Here you've got the duty to prosecute, which is assigned to the DAs by the constitutional provisions that they shall represent the state of Texas in all cases in the district and inferior courts. So that's the distinction there. I believe there is a narrow circumstance, as it is today, that the Attorney General's Office can prosecute criminal matters, but only under the consent of a local prosecutor. Can you explain

that? Sure, yes. There's a specific statutory provision in the Code of Criminal Procedure that allows for the district attorney to ask for help from the AG's office. And this could be maybe an area of specialization that perhaps it's a smaller district attorney's office. They don't have that type of specialization to handle that type of criminal prosecution, or maybe they're overwhelmed with a huge case, they need the attorney general's assistance. So they can make, the DA can make a request to the attorney general's office to have assistant attorney general, attorneys general to come and help with that. But when they come in to help, they are then deputized as an assistant district attorney working under the authority and supervision of that district attorney.

So they're able to, so the AG's office can send their people to come prosecute, but it has to be as a part of the DA's team. So they have to be deputized as an assistant district attorney and operate under the authority and supervision of the district attorney and not the AG's team. So they have to be deputized as an assistant district attorney and operate under the authority and supervision of the district attorney and not the AG's office. Some people are saying that they would like to see the attorney general's office serve as more of a check and balance as when there's a local prosecutor that refuses to bring those particular cases. But in this instance, you kind of have a policy preference of that sounds like a good idea versus what are the confines of the Constitution? It is a judge's job to apply the law, to apply it strictly as it's written, it's plain language, and what that language meant at the time it was written and

enacted or in the Constitution ratified by the voters. So that's what we have to do. We have to apply it. It is not our job to make the law. If the law needs to change, then that's a job for the legislature and perhaps a constitutional amendment approved by the voters. But to your point regarding, it goes back to our discussion about powers and duties, is you talk about, and I talk about this in my opinion, is if the DA abandons that duty, then- Refuses to prosecute a case. Correct.

And expressly, explicitly says, I'm not going to prosecute this case. I think that leaves room, potentially, for the Attorney General's Office to step in and take that case because the DA has abandoned his constitutional duty. And so under that statute, if it were to be examined in the way I propose in my opinion on rehearing, that perhaps the attorney general could utilize that statute, which gives him power, but not the duty to conduct these prosecutions. He can then utilize that power to take that case and prosecute it. But if there's a conflicting statute in place, then there may be a problem there with the constitutional, you know, being constitutional as applied. So I'm almost envisioning a Venn diagram kind of situation. Yes, yes. And it is kind of that way. But it would be a very, very small overlap, you know, if there is one. And I'm not saying there is one because it hasn't been posed to us. And I'm just letting you know what I have put forth as a possibility in my dissenting opinion on rehearing is that there may be this very small, narrow area where that statute could be held to be constitutional on its face,

because the statute says that the attorney general may prosecute these election law violations. So that is giving him the power or authority, but it's not telling him he shall prosecute these cases. So it doesn't give him that duty. So that's where, you know, there's kind of a nuance there in regards to the powers and duties and potentially being constitutional on its face. But again, if the DA doesn't abandon his duty, then, and the Attorney General tried to utilize that statute to come in and take that duty from that assigned constitutional duty from the DA's office and that violates separation of powers. As the primary election cycle gets near and you're coming towards the end of your first term,

could you tell us what election plans you have at this time? Sure. I am running for reelection in 2024. And I have been going across the state actually trying to explain this exact this case and my position on rehearing. So I've been trying to make my way and get out as much as I can to explain this position because I know it's an unpopular one. Like I said, there's not a judge who is doing their job the right way is not going to like every decision they reach. You know, it just doesn't happen that way. Because if you're doing your job the right way, you're going to disagree with the outcome on a number of cases. But it's not your job to change the law as a judge. It has to be up to the legislature and up to the voters. And we have our role to play. They have their role to

play. And we have to stay in our lane. And so a strict interpretation of the Constitution is my lane. An originalist examination analysis of the Texas Constitution, that is my lane. And that's where I will stay. And that's what I will do in my next term when reelected. And some of our conversations you mentioned after the initial ruling that we just talked about in the State v. Stevens case, the court received a lot of reactions from people. A lot of angry reactions, I believe, is sort of how you characterized it. As you're traveling around the state now, getting ready for reelection, et cetera, giving your presentation, explaining to the voters how you reached this decision and the history of the Texas Constitution. What kind of reactions are you seeing? Once people, once I walk people through it

and I explain it, I show them through Texas history and show them, you know, my, through an originalist position, why things happened the way they did, why we reached the decision we made. Once I walk people through that, they understand. And I've been every single group I've spoken to, and they've been very conservative groups. Every single one has come, people come up to me and they thank me. They said it was very interesting and very educational and informational, and they had no idea. I had one lady come up to me and say, I was one of those who was very angry about this opinion,

but now I understand and I support you on this. I had a president of a tea party down in South Texas come up to me and very upset and worked up and said, we didn't know any of this. We didn't hear any of this. We didn't, we didn't hear any of this when your opinion came out. And, and, you know, y'all being, y'all being the core, y'all were vilified. And, and he said, and that's wrong. He said, you need to record this presentation and put it on Rumble so that we can share it with our various groups. And so I may just do that.

And I think he had a great idea with that. And because I do want to, I want people to understand, I want, you know, it has as a very strong conservative and someone who holds those values very dear. It's upsetting to, for me to be lumped in with Soros-funded DAs or be called a rhino or a liberal or suggest that I'm going to switch the Democrat Party. There's no way. You're out campaigning, hitting the grassroots ground a lot, seeing ordinary voters, conservative activists, that sort of thing. What kind of reaction do you get from the legal community? The legal community has been very supportive. In fact, the legal community overwhelmingly seems to agree with our majority opinion.

And in fact, I don't think I've come across a single person in the legal community who disagreed with it. I mean, I'm sure there probably are some out there. I've just have not encountered any. All of the people in legal community I've encountered have been supportive and thought the opinion was spot on. What advice would you give to a voter who wants to look more into not only this particular case that we discussed, but the nature of some of these overriding constitutional principles, separation of powers doctrine, structure and history of the Texas Constitution. What approach would you recommend that they give

to learn more about these issues, especially as they head into election cycle where judges like yourself are going to be on the ballot? Sure. So there's, you know, I have to refer to my opinion again, only because, you know, I think it lays out this particular case for them, but also the citations. I use a lot of citations. I cite to a lot of all my sources that I utilized for this. And because they're cited, people can look them up and read it for themselves so they can read the source material themselves. And I would absolutely encourage that. I know people don't have all the time in the world to do this, but perhaps they just look at a couple of these and, you know, look at a couple of the sources I cite to or just, you know, read my opinion. And they can, you know, certainly fact check me on issues if they'd like. But the way they do that is they can Google Texas Court of Criminal Appeals, go to our website, go to the cases, and there's a section for hand downs called hand downs. And, and they

can click on the hand downs. And then this my particular opinion was, let's see, I believe it was September 28 of 2022, as I believe the the date. So if you go to the hand down for September 28th of 2022, State v. Stevens, you can see all the opinions, the opinion on rehearing. Judge Walker had a concurring opinion. I had a dissenting opinion. Judge Sheery had also another dissenting opinion on that date. And they can pull them up. They can read them. You know, everything we do is public. We are a court. We are, you know, out there in the public. We're certainly no secret. You know, everything we do is public. We are a court. We are, you know, out there in the public. We're certainly no secret. You know, we were constitutionally created in 1891, and we're all nine of us statewide elected. And I have fought, I fought for transparency, more transparency

as a trial judge. I've been fighting for transparency, more transparency of the courts on this court because I believe in being transparent. I fight against sealing documents, for instance, you know, I say we should redact it and not seal it. And so I push for that. I'm an advocate for transparency. And I encourage people to examine what we're doing. I encourage people to get in there and read our opinions. Every Wednesday, we have a handout of our decisions. It's all publicly available. And I would love for people to be more interested in our court. We've just been ignored.

So we're not a secret. We're just ignored. So I'd love to have more people take a look at what it is that we do. Well, and we're hoping to help bring a little bit more attention to the court by having you on, joining us for the first time on the Texan podcast. We'll also be following up on this with the story itself, covering some of the more finer print details of the court opinion in this case and some of the things being said on both sides of the issue. Judge, thank you so much for coming in, joining us today.

It's been a very illuminating conversation. Hopefully I didn't bore your listeners. I appreciate you having me. It's been a pleasure. It's been fun, and it's been a challenge getting prepared for it. Sure. I'm hoping I've managed to prevail. Thank you.

Thank you for your time. Absolutely.