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Date: 09-06-2020
Case Style:
Jesse Tyrone Baily v. The State of Texas
Case Number: 01-19-00209-CR
Judge: Peter Kelly
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Sara Reyes
Richard Villarreal
Stacey Soule
Defendant's Attorney:
Call 888-853-4800 if you need a Criminal Defense Attorney in Texas.
Description:
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This case arises from an investigation into Stephens’s campaign for Jefferson
County Sheriff, a position to which she was elected in 2016. The Federal Bureau of
Investigation discovered information regarding potential campaign-finance
violations concerning Stephens and turned the information over to the Texas
Rangers. The Texas Rangers presented the results of their investigation to the
District Attorney of Jefferson County. The District Attorney advised the Texas
Rangers to contact the Texas Attorney General instead. The Attorney General’s
Office chose to prosecute the case and presented evidence to a grand jury in
Chambers County, which adjoins Jefferson County.
In April 2018, the Chambers County grand jury indicted Stephens on three
counts: one count of tampering with a governmental record in violation of the Texas
Penal Code, which is a state jail felony; and two counts of accepting a cash
contribution exceeding $100 in violation of the Texas Election Code, which are
misdemeanors. TEX. PENAL CODE § 37.10; TEX. ELEC. CODE § 253.033.
With respect to the first count, the indictment specifically alleged that
Stephens
With Intent to defraud or harm another, namely: the
Jefferson County [Cl]erk or Jefferson County or the
citizens of Jefferson County. . . did present or use a record
or document, namely: a Candidate/Officeholder campaign
Finance Report, by reporting a $5,000.00 individual cash
contribution in the political contributions of $50 or less
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section of said Report, with knowledge of Its falsity and
with Intent that it be taken as a genuine governmental
record.
The remaining two counts alleged acceptance of $1,000 in cash and $5,000 in cash,
respectively, from a single contributor in violation of Texas Election Code section
253.033(a).
Stephens moved to quash the indictment arguing that the Attorney General
did not have authority to prosecute a violation of the Penal Code. In her motion to
quash the indictment, Stephens argued that the Attorney General’s ability to
prosecute a criminal offense “prescribed by the election laws” of Texas did not give
the Attorney General power to prosecute offenses outside the Texas Election Code,
such as count I of the indictment. See TEX. ELEC. CODE § 273.021(c) (“The attorney
general may prosecute a criminal offense prescribed by the election laws of this
state.”).
She filed an application for a pretrial writ of habeas corpus, challenging the
constitutionality of the Election Code statute giving the Attorney General
prosecutorial authority. In her habeas petition, Stephens alleged that section
273.021(c) was unconstitutional because the Texas Constitution mandates
separation of powers, and the statute delegates a duty belonging to the judiciary to
the executive branch. She also argued that venue was improper in Chambers County.
Specifically, she claimed that the Election Code provides that an offense may be
5
prosecuted in the county in which the offense occurred or an adjoining county, but
venue for the violation of the Penal Code is the county where the offense was
committed. See TEX. ELEC. CODE § 273.024; TEX. CODE CRIM. PROC. art. 13.18.
Since the felony charge of tampering with a governmental record is in the Texas
Penal Code rather than the Election Code, she alleged that Chambers County was
not the proper venue for prosecution because the indictment alleged that the offense
occurred in Jefferson County.
Following a hearing, the trial court granted Stephens’s motion to quash as to
count I of the indictment but denied it as to counts II and III. The trial court also
denied Stephens’s petition for a pretrial writ of habeas corpus.
The State appeals the order quashing count I of the indictment, and Stephens
appeals the denial of the pretrial habeas petition.
Validity of the Indictment
On appeal, the State argues that the trial court erred in quashing count I of the
indictment because the Election Code authorizes the Attorney General to prosecute
violations of elections laws. The State contends that the trial court erroneously
concluded that the Attorney General’s prosecutorial authority was limited to election
laws found within the Election Code. We agree.
6
A. Standard of Review
Both a trial court’s decision on a motion to quash an indictment and issues of
statutory construction are questions of law that are reviewed de novo. State v.
Rousseau, 396 S.W.3d 550, 555 n.6. (Tex. Crim. App. 2013) (motion to quash); Sims
v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019) (statutory construction).
This appeal presents an issue of statutory construction. When interpreting a
statute, we seek to effectuate the “collective” intent or purpose of the legislators who
enacted the legislation. Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App.
2019); Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014). We read the
statute as a whole and give effect to the plain meaning of the statute’s language,
unless the statute is ambiguous, or the plain meaning leads to absurd results that the
legislature could not possibly have intended. Liverman v. State, 470 S.W.3d 831,
836 (Tex. Crim. App. 2015); see also Boykin v. State, 818 S.W.2d 782, 785 (Tex.
Crim. App. 1991) (“[I]f the meaning of the statutory text, when read using the
established canons of construction relating to such text, should have been plain to
the legislators who voted on it, we ordinarily give effect to that plain meaning.”). To
determine plain meaning, we read words and phrases in context and construe them
according to the rules of grammar and usage. Wagner v. State, 539 S.W.3d 298, 306
(Tex. Crim. App. 2018); Yazdchi, 428 S.W.3d at 837. We presume that every word
in a statute has been used for a purpose and that each word, clause, and sentence
7
should be given effect if reasonably possible. Wagner, 539 S.W.3d at 306; Liverman,
470 S.W.3d at 836.
If a statute’s language is ambiguous, or if application of the statute’s plain
meaning would lead to an absurd result that the Legislature could not possibly have
intended, then a court may consider extratextual factors. Boykin, 818 S.W.2d at 785–
86. A statute is ambiguous when it “may be understood by reasonably well-informed
persons in two or more different senses.” Bryant v. State, 391 S.W.3d 86, 92 (Tex.
Crim. App. 2012); see also Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App.
2013) (stating a statute is ambiguous when the language it employs is “reasonably
susceptible to more than one understanding.”). On the other hand, a statute is
unambiguous when it reasonably permits no more than one understanding. See State
v. Neeley, 239 S.W.3d 780, 783 (Tex. Crim. App. 2007).
B. Applicable Law
Texas election law requires candidates for public office to file a campaignfinance report at least twice a year, and the report must include a variety of
information, including “the total amount or a specific listing of the political
contributions of $50 or less accepted.” TEX. ELEC. CODE § 254.031(a)(5) (requiring
a listing of contributions $50 or less); see id. §§ 254.063 (requiring January and July
reports), 254.064 (stating additional reports may be required), 254.066 (stating
reports are filed with the authority with whom the candidate’s campaign treasurer
8
appointment is required to be filed). A candidate “may not knowingly accept from a
contributor in a reporting period political contributions in cash that in the aggregate
exceed $100.” Id. § 253.033(a).
Section 37.10(a)(2) of the Texas Penal Code makes it an offense to make,
present, or use any “record, document, or thing with knowledge of its falsity and
with intent that it be taken as a genuine governmental record.” TEX. PENAL CODE
§ 37.10(a)(2). “Governmental record” is defined in the Penal Code to include
“anything belonging to, received by, or kept by government for information,
including a court record” and “an official ballot or other election record”. Id.
§ 37.01(2)(A), (E).
Section 273.021 of the Election Code gives the Attorney General some
prosecutorial authority, stating:
(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 prosecuted under Subsection (a).
TEX. ELEC. CODE § 273.021(a–b). Venue for prosecutions brought by the Attorney
General under this provision of the Election Code is “the county in which the offense
was committed or an adjoining county.” Id. § 273.024.
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C. Authority of the Attorney General
The parties dispute the Attorney General’s authority to prosecute election
laws, as stated in section 273.021 of the Election Code. The trial court held that the
Attorney General did not have jurisdiction to prosecute count I of the indictment
against Stephens, which alleged tampering with a government record under the Penal
Code. On appeal, the State argues that section 273.021 unambiguously gives the
Attorney General jurisdiction to prosecute violations of election laws, whether the
law is inside or outside of the Election Code. We agree.
Section 273.021(a) of the Election Code clearly and unambiguously gives the
Attorney General power to prosecute criminal laws prescribed by election laws
generally, whether those laws are inside or outside of the Code. When a statute is
unambiguous, the court should not add to or subtract from it. Ex parte Vela, 460
S.W.3d 610, 612 (Tex. Crim. App. 2015). The 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.
This interpretation is confirmed by other provisions of the Election Code.
When interpreting a statute, courts look “not only at the single, discrete provision at
issue but at other provisions within the whole statutory scheme.” State v. Schunior,
506 S.W.3d 29, 37 (Tex. Crim. App. 2016). Other sections of the Election Code
10
acknowledge the existence of election laws both outside and inside the Code. For
example, section 31.003 directs the Secretary of State to maintain uniformity “of this
code and of the election laws outside this code.” TEX. ELEC. CODE § 31.003.
Similarly, section 31.004 directs the Secretary of State to assist election authorities
“with regard to the application, operation, and interpretation of this code and of the
election laws outside this code.” Id. § 31.004. The Legislature specifically
referenced election laws outside of the Code, supporting that if the Legislature
wished to limit section 273.021 to only those laws within the Election Code, it could
have done so. We hold that section 273.021 authorizes the Attorney General to
prosecute election laws found outside of the Election Code.
D. Campaign Finance Reports are Election Records
We next determine whether the Penal Code provision under which Stephens
was indicted qualifies as an “election law” under section 273.021(a). See TEX. ELEC.
CODE § 273.021(a) (giving the Attorney General power to prosecute a criminal
offense prescribed by “the election laws of this state”). The State argues that because
the Legislature explicitly included “election record” within the definition of
“governmental record” in the Penal Code, section 37.10 of the Penal Code is an
election law when used with respect to election records, such as a campaign-finance
report. See TEX. CODE CRIM. PROC. art. § 37.01(2)(E) (defining “governmental
record”); id. § 37.10(a)(2) (stating it is a crime to present a document with intent that
11
it be taken as a genuine governmental record). Stephens relies on Lightbourn v.
County of El Paso, 118 F.3d 421 (5th Cir. 1997), and argues that election laws only
encompass laws that specifically govern elections.
In Lightbourn, the Fifth Circuit concluded that the Americans with
Disabilities Act, 42 U.S.C. §§ 12131–12134, was not an election law. Lightbourn,
118 F.3d at 430. The court reasoned that the ADA is a generally applicable law with
no specific provisions related to elections or voting. Id. Therefore, the Secretary of
State had no duty to take steps to ensure local election officials complied with the
ADA. Id.
Unlike the statute in Lightbourn, the Penal Code explicitly refers to election
matters. In 2003, the Legislature specifically amended the definition of
“governmental record” in section 37.01(a) of the Penal Code to include “an official
ballot or other election record.” Act of May 31, 2003, 78th Leg., R.S., ch. 393, § 21,
2003 Tex. Gen. Laws 1633, 1639–40.
“Government record” is defined in the Penal Code to include “anything
belonging to, received by, or kept by government for information, including a court
record” and “an official ballot or other election record.” TEX. PENAL CODE
§ 37.01(2)(A), (C). The indictment alleges that Stephens presented a false campaign
finance report to Jefferson County. Stephens was required to submit the report
pursuant to section 254.063 of the Election Code. TEX. ELEC. CODE § 254.063.
12
“Government,” as defined in the Penal Code, includes Jefferson County. TEX. PENAL
CODE § 1.07(24) (“Government” means the state, a county, municipality, or political
subdivision of the state, or any branch or agency of the same). Section 37.10 does
not define when a document becomes a governmental record, but courts have held
that documents received by the government are “government records.” See State v.
Vasilas, 187 S.W.3d 486, 491 (Tex. Crim. App. 2006) (finding that a petition for
expunction was not a governmental record when the defendant prepared it, but that
for purposes of section 37.10 it became one once the court received it and the
defendant used it in seeking to obtain the expunction); Pokladnik v. State, 876
S.W.2d 525, 527 (Tex. App.—Dallas 1994, no pet.) (holding false statement on
affidavit for foreclosure submitted on State Department of Highways and Public
Transportation form was not a governmental record until filed with the Department
of Public Safety); Constructors Unlimited, Inc., v. State, 717 S.W.2d 169, 174 (Tex.
App.—Houston [1st Dist.] 1986, no pet.) (holding forms submitted to a
governmental entity were not governmental records at the time false entries were
made because the forms did not belong to the government, had not been received by
the government, and were not kept by the government for information). A campaignfinance report that has been presented to the county, as mandated by election law, is
a “governmental record” for purposes of prosecution under section 37.10 of the
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Penal Code, and we hold that the Attorney General has authority to indict and
prosecute an allegation of presentment of a false report.
We sustain the State’s issue on appeal. Accordingly, we reverse the trial
court’s order quashing count I of the indictment.
Stephens’s Application for Pretrial Writ of Habeas Corpus
Stephens appeals the denial of her application for a pretrial writ of habeas
corpus. On appeal, she argues that her petition should have been granted because
section 273.021 of the Election Code’s delegation of authority to prosecute election
laws to the Attorney General violates the Texas Constitution. Specifically, she
argues that the section violates the separation of powers doctrine in the Texas
Constitution. See TEX. CONST. art. II, § 1. She also argues that venue was improper
in Jefferson County. Having decided 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, we now review whether the statute is an unconstitutional
delegation of power.
A. Standard of Review
Pretrial habeas, followed by an interlocutory appeal, is an extraordinary
remedy. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). It is reserved
“for situations in which the protection of the applicant’s substantive rights or the
14
conservation of judicial resources would be better served by interlocutory review.”
Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).
The Court of Criminal Appeals has limited the use of pretrial habeas
applications to issues that would result in the applicant’s immediate release and has
“held that an applicant may use pretrial writs to assert his or her constitutional
protections with respect to double jeopardy and bail,” to challenge the facial
constitutionality of the statute under which she is prosecuted, or to allege that the
offense charged is barred by the statute of limitations. Ex parte Estrada, 573 S.W.3d
884, 891–92 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (quoting Ex parte
Weise, 55 S.W.3d at 619–20). Additionally, pretrial habeas is generally unavailable
when the resolution of the claim may be aided by the development of a record at
trial. Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017)
A trial court’s ruling on a habeas petition is reviewed for an abuse of
discretion. Ex parte Montano, 451 S.W.3d 874, 877 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d). We view the evidence in the light most favorable to the trial court’s
ruling. Sandifer v. State, 233 S.W.3d 1, 2, (Tex. App.—Houston [1st Dist.] 2007, no
pet.). We review legal questions raised by the petition de novo. Id.
B. Separation of Powers
On appeal, Stephens contends that the district court abused its discretion in
denying her application for a writ of habeas corpus because the statute giving
15
authority to the Attorney General to prosecute violations of election laws violates
the separation of powers doctrine of the Texas Constitution. See TEX. CONST. art. II,
§ 1. Stephens argues that the authority to prosecute crime belongs exclusively to
district and county attorneys, who are members of the judicial branch. See TEX.
CONST. art. V, § 21. She contends that the Legislature cannot grant the authority to
prosecute to the Attorney General, who is part of the executive branch. See id. art.
IV, § 22.
As an initial matter, Stephens cannot raise this argument regarding the
Attorney General’s constitutional authority to prosecute crime with respect to counts
II and III because she did not raise that argument in the trial court. See TEX. R. APP.
P. 33.1(a). In her pretrial habeas petition, she challenged only the authority of the
Attorney General to “bring the criminal allegations set forth in . . . Count I.” With
respect to counts II and III, Stephens did not make a timely objection or motion to
the trial court stating her grounds for relief. See id.
Facial constitutional challenges “are cognizable on pretrial habeas regardless
of whether the particular constitutional right at issue would be effectively
undermined if not vindicated prior to trial.” Ex parte Perry, 483 S.W.3d 884, 896
(Tex. Crim. App. 2016). The Texas Constitution expressly guarantees the separation
of powers between the branches of government. TEX. CONST. art. II, § 1. To
demonstrate a separation of powers violation, Stephens must show that either (1) one
16
branch of government has assumed or been delegated a power more properly
attached to another branch, or (2) one branch of government is unduly interfering
with another branch so that the other branch cannot effectively exercise its
constitutionally assigned powers. Jones v. State, 803 S.W.2d 712, 715 (Tex. Crim.
App. 1991).
Stephens argues that giving authority to the Attorney General to prosecute
election laws unduly interferes with the functioning of the judicial branch. The
offices of county and district attorneys are in the judicial branch of government. See
TEX. CONST. art. V, § 21. While their powers are not enumerated, courts have
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) (internal quotation and citation removed); see also
Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002). The Attorney
General’s duties are prescribed by article IV, section 22 of the Texas Constitution
which states:
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
17
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 “other duties” clause of this section provides
legislative authority to empower the Attorney General with other duties. See
Medrano v. State, 421 S.W.3d 869, 878–79 (Tex. App.—Dallas 2014, pet. ref’d).
Stephens argues that these provisions mean that the authority to represent the State
in trial courts belongs exclusively in the judicial branch and allowing the Attorney
General to prosecute election law violations unduly interferes with the functioning
of that branch. We disagree.
Under the doctrine of ejusdem generis, “‘when words of a general nature are
used in connection with the designation of particular objects or classes of persons or
things, the meaning of the general words will be restricted to the particular
designation.’” State v. Fidelity & Deposit Co. of Md., 223 S.W.3d 309, 312 (Tex.
2007) (quoting Hilco Elec. Coop. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81
(Tex. 2003). The Texas Constitution gives the Attorney General the power to
represent the State, to provide legal advice when asked by the Governor or other
executive officers, and to take action against corporations and their charters. In
general, these duties relate to State created entities. The last clause of the
Constitution describing the authority of the Attorney General, gives him power “to
perform other duties as may be required by law.” TEX. CONST. art. IV, § 22. Using
18
the doctrine of ejusdem generis, this clause provides the exception required to allow
the Attorney General to represent the State in criminal prosecutions of election laws,
as proscribed by the Legislature. See Saldano, 70 S.W.3d at 880 (“[The Texas
Constitution] authorizes the legislature to give the attorney general duties which,
presumably, could include criminal prosecution.”); Medrano, 421 S.W.3d at 879.
This is in keeping with the constitutional delegation of power, which allows the
Attorney General to represent the State, to advise the State, and to act on behalf of
the State against corporations. Corporations, like elections and elected offices, are
wholly creatures of state action. It follows that the Attorney General has authority to
prosecute election law violations.
Stephens has not demonstrated that section 273 of the Election Code delegates
to the executive branch a power more properly given to the judicial branch nor has
she demonstrated that doing so unduly interferes with the functioning of county and
district attorneys. Courts have recognized that some duties of county and district
attorneys are more accurately characterized as executive and some duties imposed
upon the Attorney General are both executive and judicial. See id. at 879 (citing
Meshell, 739 S.W.2d at 253 n.9 and Brady v. Brooks, 89 S.W. 1052, 1056 (Tex.
1905)). Section 273 gives the Attorney General concurrent jurisdiction with county
and district attorneys. It does not take away their ability to prosecute election law
violations. It is not the case that the Legislature has delegated away the county and
19
district attorneys’ responsibilities. “Absent the consent of a local prosecutor or the
request of a district or county attorney for assistance, the attorney general has very
limited authority to represent the state in criminal cases in trial courts.” Ex parte Lo,
424 S.W.3d 10, 30 n.2 (Tex. Crim. App. 2013) (op. on reh’g). Giving the Attorney
General concurrent authority to prosecute a limited class of criminal cases does not
delegate a power to the Attorney General more properly attached to another branch
nor does it unduly interfere with the duties of the district and county attorneys such
that they “cannot effectively exercise [their] constitutionally assigned powers.”
Jones, 803 S.W.2d at 715 (quoting Armadillo Bail Bonds v. State, 802 S.W.2d 237
(Tex. Crim. App. 1990) (emphasis in original).
The trial court did not abuse its discretion in denying Stephens’s pretrial
habeas because the statutory delegation to the Attorney General does not violate the
Texas Constitution.
C. Venue
On appeal, Stephens also argues that the district court abused its discretion in
denying her pretrial application for writ of habeas corpus because venue is improper
in Chambers County.
Venue is distinct from jurisdiction. Ex parte Watson, 601 S.W.2d 350, 351
(Tex. Crim. App. 1980). Jurisdiction concerns the power of the court to hear and
determine the case. Id. Venue concerns the geographic location where a case may be
20
tried. See Soliz v. State, 97 S.W.3d 137, 141 (Tex. Crim. App. 2003). Regarding the
criminal jurisdiction of district courts, article V, section 8 of the Texas Constitution
provides only that “those courts shall have original jurisdiction in criminal cases of
the grade of felony,” and of all misdemeanors involving official misconduct.” TEX.
CONST. art. V, § 8. Improper venue, therefore, does not deprive the court of
jurisdiction and may not be raised in habeas proceedings. Ex parte Watson, 601
S.W.2d at 352. Likewise, venue is the sort of claim that may be aided by the
development of a record at trial. Ex parte Ingram, 533 S.W.3d at 892.
On this record, we cannot conclude that the district court abused its discretion
in denying Stephens’s pretrial application for writ of habeas corpus.
Outcome: We reverse the trial court’s order quashing count I of the indictment. We
affirm the trial court’s order denying Stephens’s pretrial application for writ of
habeas corpus. We remand this case to the trial court.
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