Critics argue a Texas court ruling jeopardizes election integrity

Under the ruling, in a Houston-area case that is set to be reheard, prosecutors must seek permission from the Texas Ethics Commission before indicting politicians and lobbyists who run afoul of campaign finance and ethics laws.

By Natalie Weber, Houston Public MediaFebruary 3, 2025 10:00 am, ,

From Houston Public Media:

Just northwest of Houston, in Brenham – a town known for Blue Bell ice cream – a politician was accused of ethics violations.

Prosecutors brought charges against Robbie Gail Charette, a candidate for a judicial seat in Washington County, for errors related to financial paperwork and political ads. But her attorney, Lewis Thomas, argued her case should have been first reviewed by the Texas Ethics Commission.

“It violates Ms. Charette’s due process. She didn’t have the opportunity – neither the notice or the opportunity – to resolve these complaints administratively prior to indictment,” Thomas said during oral arguments in front of the Texas Court of Criminal Appeals.

Texas’ highest criminal court agreed and threw out her case in September – potentially setting a precedent that the commission has sole authority to enforce certain laws related to campaign finance, political advertising and lobbyists.

In practice, this means prosecutors must go to the commission before filing charges in these cases – at least for now. The Charette case is set to be reheard by an appellate court.

Supporters say the ruling as it stands will curb the actions of rogue district attorneys. But critics argue that the ruling erodes election integrity by making it more difficult for prosecutors to go after politicians and lobbyists who act unethically.

“This from a time perspective, limits criminal prosecutors’ power,” said David Kwok, an associate professor at the University of Houston Law Center. “But if these really are serious issues, we might imagine that the TEC might be prompt about their process.”

Just after the Charette opinion was issued, the ethics commission passed an emergency rule allowing commissioners to bypass comprehensive reviews of ethics complaints. Instead, they can quickly rule on whether to allow prosecution.

“I think it’s pretty seamless, and that’s the reason we did the rule to keep it very efficient where there’s no delay and no impediment to any lawful prosecution,” Commission Chair Randall Erben said.

J.R. Johnson, executive director of the Texas Ethics Commission, said commissioners don’t expect the ruling to significantly impact their workload – and that they have the capacity to quickly process complaints.

“We are confident that we will not be an undue impediment to the enforcement of criminal violations of these ethics laws,” he said.

Implications in Fort Bend County

The Charette ruling has already been invoked in at least one criminal case.

In September, Fort Bend County Judge KP George was accused of working with a staffer to create fake racist attacks against his own campaign.

But Fort Bend County District Attorney Brian Middleton, out of concern the Charette ruling would apply here, pushed off indicting George until the day the statute of limitations was set to expire, waiting on the ethics commission to respond.

Middleton said this is how the ruling can tie district attorneys’ hands.

“When we’re working on short timelines, it’s important that we have what’s guaranteed by the Texas Constitution, which is the full discretion with criminal prosecution,” he said.

When the district attorney’s office didn’t hear back in time from the ethics commission, prosecutors moved forward with criminal charges against George.

They eventually received a referral from the ethics commission and re-indicted George.

His attorney, Chad Dick, argued that George’s due process rights had been violated and that the case should be thrown out.

A district court judge sided with prosecutors. George and his attorney are now bringing the matter before the Fourteenth Court of Appeals.

Natalie Weber / Houston Public Media

Fort Bend County Judge KP George exits a courtroom with his attorney, Chad Dick, after a hearing.

Dick said he thinks the Charette ruling protects the rights of the accused. And he said ethics complaints can be used as a “political cudgel” to take down one’s opponent in an election.

“To be quite honest, I think it’s a good thing that the Texas Ethics Commission looks through everything first and then determines whether or not a criminal referral should be sent,” he said in an interview with Houston Public Media.

Impacts could be far-reaching

Andrew Cates, an attorney who’s represented clients in front of the ethics commission, said he’s heard mixed opinions from colleagues.

“It seems kind of split, honestly, between those that are really worried about it and those that are basically (saying), ‘It doesn’t matter,'” he said.

Still, he said the impacts of the case could be far-reaching if it’s used as a basis in future rulings to transfer more power to state agencies.

“It could be expanded to all state agency enforcement matters, not just the ethics commission,” Cates said.

Jackie Doyer, the legal policy director for the Honest Elections Project, a right-leaning think tank and advocacy organization, wrote an op-ed last year calling for reforms to limit the impact of the ruling.

She said investigating crimes involves specialized knowledge – and that the Charette ruling takes that authority away from prosecutors.

“You have a lack of expertise that’s going to be impacting what happens with those cases,” she said.

In December, the Texas Republican Party passed a resolution criticizing the Texas Ethics Commission for overreach, which included concerns about the Charette ruling.

State lawmakers could intervene with legislation that clarifies the commission does not have sole authority over ethics law violations.

State Sen. Paul Bettencourt, a Houston Republican, said he began looking into the Charette opinion after Houston Public Media brought it to his attention.

His staff is starting to draft a bill to limit the impact of the ruling.

“It’s not really contemplated that every criminal investigation in Texas somehow goes through that body in Austin,” he said. “That would be incredibly cumbersome and unwieldy.”

Case to be revisited

State prosecuting attorney Stacey Soule filed a motion for the Charette case to be reheard. That motion was granted in January.

“This decision grants wrongdoers a temporary ‘King’s X,’ potentially leading to the public unknowingly electing candidates who have violated election laws,” she said in a statement responding to written questions from Houston Public Media.

“Such delays in prosecuting Title 15 Election Code offenses create opportunities for corruption and jeopardize the integrity of free and fair elections,” Soule added.

When the Charette case is reheard, it will be reviewed by a court that has three new justices who were elected in November.

Texas Attorney General Ken Paxton backed these new judges during last year’s primary election.

He sought to oust Republican judges who ruled against him in another case, which took away his power to prosecute election crimes without permission from local district attorneys.

The new judges replace Judge Michelle Slaughter, who authored the Charette ruling; along with Judge Barbara Hervey, who joined her; and Presiding Judge Sharon Keller, who authored the dissent in the Charette case.

Cates, the ethics law attorney, said it remains to be seen how the new judges will rule – and how the Charette opinion could eventually be applied.

“We’ll have to wait and see,” he said. “I think a lot of it’s going to play out in court over time.”

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