Interview: Judge Michelle Slaughter on Attorney General’s Constitutional Power in Criminal Cases

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Judge Michelle Slaughter of the Texas Court of Criminal Appeals joined The Texan’s reporter Matt Stringer to discuss the court’s 2021 decision that held that a state statute allowing the Texas attorney general to prosecute violations of election law was unconstitutional.

The decision has seen renewed interest, with Attorney General Ken Paxton criticizing it during a recent interview on the Tucker Carlson Show.

Slaughter, who joined the court’s 8 to 1 opinion, dissented when the Court of Criminal Appeals later denied a request to reconsider the matter.

“Despite the many misleading and false statements made in several of the briefs filed in this case, I do support a rehearing. To be clear, my position is not based on anything raised by the parties or amici but is instead based upon my own in-depth analysis of Texas history and the law,” Slaughter wrote in her 73-page dissent.

In her interview with The Texan, Slaughter explained the details of the case that was before the state’s top court for criminal cases and her reasoning for joining the majority in the decision. 

“It is a judge’s job to apply the law, to apply it strictly as it’s written in its plain language and what that language meant at the time it was written and enacted,” said Slaughter. 

She discussed how the court reached its conclusion by pointing to the separation of powers between the executive and judicial branches of government, with the Office of the Attorney General under the former and district attorneys under the latter. 

“With our express separation of powers provision, it does not allow the legislature to take a duty that is expressly constitutionally assigned to an officer in one department and give that duty to an officer in a different department,” said Slaughter. 

Slaughter also explained her unique nuance in her dissenting opinion, contending that the no party had argued the difference between facial constitutionality and constitutional as applied, a distinction that might provide a way for the attorney general to prosecute criminal cases when a district attorney expressly declines to fulfill constitutional duties.