The Texas Court of Criminal Appeals recently highlighted “the attorney general’s limited role in criminal cases” while striking down a state law that required the court to notify the A.G. and delay final judgment in cases that challenge the constitutionality of state laws.

The 2011 law violates the Texas Constitution’s separation of powers provision because the notice requirement is outside the CCA’s judicial function and because delaying the court in issuing a final judgment is a “constitutionally intolerable imposition,” according to the March 19 Opinion on State’s Motion for Rehearing in Ex Parte John Christopher Lo. The Harris County District Attorney’s Office filed the motion for rehearing.

“While the constitutionality of a state statute is frequently challenged by a party and is therefore among the legal issues facing this court, the attorney general is typically not authorized to represent the state in any proceeding before this court,” said the opinion. “The state prosecuting attorney has primary authority to represent the state in all proceedings before this court.”

Jerry Strickland, a spokesman for the Texas Office of the Attorney General, did not immediately provide comment.

The A.G.’s office attempted to intervene in the case in November 2013 during the appeal to the CCA.

Although they’re unlikely allies, State Prosecuting Attorney Lisa McMinn and Lo’s criminal defense lawyer, Mark Bennett, agreed that the A.G. didn’t have authority to intervene.

“My office has the authority to represent the state before the Court of Criminal Appeals, but the attorney general does not, unless the local prosecutor has asked him to represent the state on behalf of the local prosecutor,” said McMinn, whose office represents many D.A.’s offices before the CCA.

McMinn noted that her office didn’t work on this case, other than to file an amicus brief on the issue of the A.G.’s intervention. Like other major metropolitan D.A.’s offices, the Harris County D.A.’s Office has an appellate section that represented the state at the CCA in this case.

Bennett, a lawyer at Bennett & Bennett in Houston, said it may be “the first and last time in my career” that he would agree with the state prosecuting attorney’s argument in a case.

“I think the court is right. Separation of powers is a big thing in the Texas Constitution,” said Bennett, adding that the opinion strikes down the notice requirement for all courts in Texas.

“The separation of powers principle applies equally to trial courts as well as the Court of Criminal Appeals,” said Bennett. “I think that statute is dead as to all courts, that the attorney general has no authority to insist that someone give the notice when someone is challenging a statute.”

Separation of Powers

Previously, the CCA struck down Texas Penal Code §33.021(b)(1) regarding sexually explicit communications with minors, finding in the Oct. 30, 2013, opinion in Ex Parte John Christopher Lo that it was “overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse.”

The March 19 per curiam opinion addresses the state’s argument in a motion for rehearing that the CCA “erred” in the earlier opinion by failing to notify the A.G. that a state law faced a constitutional challenge, as required by Texas Government Code §402.010.

The law applies to actions in which a party challenges a state law’s constitutionality. It requires a court to serve notice of the constitutional question and a copy of a pleading to the A.G. and says courts can’t enter final judgment until 45 days after sending the notice.

Both requirements “violate the separation-of-powers doctrine of our state constitution,” said the opinion, explaining that “the 45-day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment.”

The requirement for the CCA to send notices to the A.G. “purports to burden this court with undertaking a useless and nonjudicial act” and “unduly interferes with and infringes upon our constitutionally assigned powers.”

In a concurring opinion, Presiding Judge Sharon Keller wrote that the statute applied 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 9,000 matters. Many of the pleadings before our court claim that a statute violates the Constitution,” she wrote.

Harris County Assistant D.A. Jessica Akins, who represented the state in the case, couldn’t immediately be reached for comment.