“The AG has no power under the Texas Constitution to represent the state in criminal prosecutions without the consent of the DA or county attorney. The Court of Criminal Appeals got it right.”
The office of the “Attorney General” is mentioned 44 times in the Texas Constitution. Most pertain to bonds. Here is a description of duties:
Art IV. Sec. 22. ATTORNEY GENERAL. “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 in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law. (Feb. 15, 1876. Amended Nov. 3, 1936, Nov. 2, 1954, Nov. 7, 1972, and Nov. 2, 1999.) (Temporary transition provisions for Sec. 22: see Appendix, Note 1.)”
“Consent” is mentioned 41 times and none of them pertain to county of district attorneys giving consent.
The Texas Supreme Court ruled against Paxton, citing the Separation of Powers clause:
ARTICLE II THE POWERS OF GOVERNMENT Sec. 1. SEPARATION OF POWERS OF GOVERNMENT AMONG THREE DEPARTMENTS.
“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are Legislative to one,* those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. (Feb. 15, 1876.)”
The office of the attorney general represents the state. It defends the state constitution. The state constitution provides many specifics on voting and voter rights. If these rights are violated by voter fraud, it seems to me the attorney general is obligated to act.
However, the Texas Supreme Court claims that the law (and possibly the state constitution) does not give the attorney general authority to prosecute crimes unless requested to do so by local authorities.
The problem is that even in Texas the lawless left is using the selective enforcement of the law to essentially override the legislature. Illegal abortion, theft, voter fraud, etc. may be permitted by the defacto non-enforcement by local DAs and CAs.
I have not been able to find a copy of the Texas Supreme Court ruling to read their opinions, but I question this outcome. How can there be laws that don’t get enforced and there is no remedy?
There is nothing in the constitution that empowers the attorney general to prosecute a crime. It authorizes him to represent the State in the Supreme Court and in some other proceedings. It does not give him general authority to do whatever he wants as long as he thinks he is enforcing the law.
By contrast, Art. V, s. 21 of the constitution expressly authorizes county attorneys (where there is no criminal district attorney) or district attorneys (where empowered by the legislature) the power to prosecute crimes. The Supreme Court has no criminal jurisdiction--criminal jurisdiction was taken away from the Texas Supreme Court in the constitution of 1876, and with it the Attorney General's power to represent the state in criminal prosecutions. Stripping the AG of the power to prosecute crimes was a deliberate decision, in response to what the framers of the 1876 Constitution viewed as the abuses of the AG under the Reconstruction government.
He isn't the only lawyer who represents the state, and his position as the state's lawyer does not mean he can do whatever he wants on the state's behalf on his own initiative. I am a lawyer and I represents a number of clients. I cannot file a lawsuit on behalf of any of them without their specific authorization. Likewise, the AG needs constitutional and legal authority to act for the state.
The case was in the Texas Court of Criminal Appeals, not the Texas Supreme Court. The opinion is here: https://casetext.com/case/state-v-stephens-121462/.
Another useful case is Saldano v. State, from 2002: https://casetext.com/case/saldano-v-state-1#p877.
How can there be laws that don’t get enforced and there is no remedy?
There is a remedy for criminal violation of the law: Prosecution by the DA or county attorney. If they refuse to do so, then you can petition to have them removed for incompetence or misconduct by a district judge. You can also elect a new one once their term is over.
We don't give additional powers to government officials beyond what the constitution grants just because "there must be a remedy." That's how progressives read constitutions, not conservatives.
Also, the exercise of prosecutorial discretion is an important check against government overreach. We really don't want to take that away by allowing just any government official to prosecute a crime if the DA decides not to.