PD-0522-21 01/12/2022
1. “Did the special prosecutor lack standing or authority to prosecute alleged misdemeanor violations of the Election Code and Government Code without the referral from the TEC required by Texas Government Code § 571.171?”
2. “Was Appellant deprived of due process when the District Attorney’s office leapfrogged the TEC procedure, which was a prerequisite to prosecution?”
Charette, a candidate for county court-at-law judge, was indicted on four alleged violations of the Texas Election Code and Texas Government Code. She filed a pretrial writ/motion to quash in all four indictments. Charette claimed the prosecutions could not proceed because the prosecutor did not comply with the process the Government Code sets forth for initiation of and referral for prosecution by the Texas Ethics Commission (TEC), Tex. Gov’t Code § 571.171. Section 571.171 says the TEC or its executive director may, under certain circumstances, “refer matters to the appropriate prosecuting attorney for criminal prosecution.” That did not occur in this case. Charette claimed this deprived the prosecutor of authority and violated her due process rights. The trial court disagreed.
The court of appeals affirmed. It based its decision on the threshold matter of cognizability. The court concluded that Charette’s claims were not cognizable because there was no showing that “a denial of any alleged civil due process rights afforded by a TEC investigation deprives the district court . . . of jurisdiction over her indictments.”
Charette reiterates her claim that a prosecution must begin with the process outlined in the Government Code that results in a referral. Not only does it say the TEC “shall administer and enforce” statutes including those she is charged with, Tex. Gov’t Code § 571.061(a), there are multiple reviews/hearings and an appeal provided for prior to referral. Id. at § 571.124-133. Leapfrogging this process not only violated a Legislative grant of prosecutorial authority, it possibly impacted her ability to defend herself because she could have addressed and cured potential violations following administrative review.
