Wednesday, March 19, 2014

CCA to Greg Abbott: Shut up and go away

After Attorney General Greg Abbott asked the Court of Criminal Appeals to grant re-hearing on their 9-0 decision to invalidate Texas online solicitation of a minor statute as unconstitutional, the CCA today in another unanimous ruling not only told him "no" but expressly limited his authority, striking down a 2011 statute on which he based his post hoc intervention. Rather than reinvent the wheel, here's how Chuck Lindell at the Austin Statesman described this latest development:
The state’s highest criminal court Wednesday declined Attorney General Greg Abbott’s request to reconsider an October ruling that invalidated a law banning sexually explicit cyberchats between adults and minors — and acted instead to limit the power of Abbott’s office.

Abbott had argued that the court’s ruling on the “sexting law” was invalid because his office hadn’t been notified, as required by state law, that the statute had been challenged as unconstitutional. The oversight deprived his office of an opportunity to defend the sexting law, Abbott argued.

But in a unanimous, unsigned opinion released Wednesday, the court threw out the notification law, saying it violated the separation of powers between the legislative and judicial branches of government as required by the Texas Constitution.

The Legislature exerted “undue interference” on courts when it enacted the law in 2011, the opinion said.

According to the notification law, when a court finds a statute unconstitutional, it cannot enter a final judgment until the attorney general is notified and 45 days have passed.

Entering final judgments, however, is a core judicial function that “falls within that realm of judicial proceedings so vital to the efficient functioning of a court as to be beyond legislative power,” the Court of Criminal Appeals ruled.
The 2011 law insisted that the AG be provided notice whenever the constitutionality of a law was challenged. A footnote to the main opinion striking down the notification provision held that the "directive to notify the attorney general of every constitutional challenge to a state statute made by a party imposes a duty that is wholly unrelated to the Court's judicial powers and functions. Pursuant to this unusual provision, the legislature would have this Court exercise a function that is not only non-judicial but would operate solely for the apparent benefit of the attorney general. And to what extent the attorney general would benefit from receiving such a notice is elusive, given that the attorney general has no authority to appear in criminal cases before this Court."

Ouch! That's gonna leave a mark.

Rubbing salt in the wound, Presiding Judge Sharon Keller offered a concurrence pointing out that the AG's office has web access and should have known about the case as it was happening just like every other attorney in the state. Wrote Keller, "the notification statute applies not just to this Court, but to all courts. I do not know what burden the statute would place on trial courts and courts of appeals, but, during the last fiscal year, this Court disposed of well over nine thousand matters. Many of the pleadings before our Court claim that a statute violates the constitution. I agree with the Court that subsection (a), which requires courts to serve the Attorney General with notice and a copy of the relevant pleadings in all of these cases, also violates the Texas Constitution because it imposes a duty that falls outside of any judicial function of this Court."

MORE: From Mark Bennett, who argued the case before the CCA. In the comments to Mark's post, Alex Bunin from the Harris County Public Defender's Office noted wryly, "The State needs to stop filing stuff before something else they like gets struck down."

See related Grits posts:


doran said...

Marbury vs. Madison, on the State level.

Tom Moran said...

In the early 1990s, I represented the real party in interest in Collins v. Kegans, a mandamus at the crim apps. The AG claimed that because no notice was given to him under a predecessor statute in the civil practice & remedies code Judge Kegans did not have the authority to declare a statute unconstitutional.
The Court of Criminal Appeals had no problem dismissing that claim in a foot note. Or, as I argued, Johnny Holmes represented the state in criminal cases in Harris County and if he needed help, he knew the AG's phone number.

Anonymous said...

You know the problem with political jokes?......they sometimes get elected....