Appeals Court Limits Abbott’s Power, Offers Bonus Burn

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Texas Attorney General Greg Abbott
Patrick Michels
Texas Attorney General Greg Abbott

Last week, I think we can all agree, was pretty rough on Greg Abbott. After weeks of Wendy Davis pushing the fair pay issue, it finally went down like a vending machine: slow, then fast, then with treats for everyone. But Davis and the media weren’t the only ones giving Abbott a hard time. On Wednesday, the Texas Court of Criminal Appeals got into the act, issuing a response directed at Abbott that could also legally be considered a burn.

It went like this. In October, the court threw out a 2005 statute banning sexting between adults and minors because the language was too broad. It could criminalize constitutionally-protected speech, the court said, and besides, everything about such exchanges that could be illegal already was: harassment, obscenity, sharing pornography and soliciting sex. The 2005 law made sexually explicit online contact with minors for sexual gratification a third-degree felony punishable by up to 10 years in prison, but the court overturned it 9-0.

Greg Abbott was displeased. He asked for a rehearing, citing a 2011 law that requires the court to notify the attorney general’s office and give it 45 days to respond whenever the constitutionality of a Texas law was challenged.

But instead of reconsidering its ruling on sexting, the court threw out the notification requirement on Wednesday. Not our job, they said. Tipping off Abbott’s office is “not only non-judicial but would operate solely for the apparent benefit of the attorney general,” reads a footnote to the unanimous opinion. “And to what extent the attorney general would benefit from receiving such notice is elusive, given that the attorney general has no authority to appear in criminal cases before this court.”

Damn.

In a concurrence, the presiding judge, Sharon Keller, called the requirement a violation of the separation of powers. Moreover, “during the last fiscal year, this Court disposed of well over nine thousand matters,” many of which addressed constitutionality, Keller wrote. If the Attorney General wants to know about them, the list is “available on its website.”

Emily DePrang is a staff writer at The Texas Observer where she covers criminal justice and public health. Her work has appeared in The Atlantic and Salon.com, and she’s a former nonfiction editor of the Sonora Review. She’s holds an MFA in Creative Nonfiction from the University of Arizona and a B.A. from the University of Texas at Austin. In 2013, she was a National Health Journalism Fellow; in 2012 she won the Sigma Delta Chi award for public service in magazine journalism.

  • Jeff

    Just what is “Creative Nonfiction” and is it being used in this story?

  • 1bimbo

    i’m going to try to wrap my head around this. abbott is trying to protect children from creepy adults, the texas court of appeals didn’t back him up, and TexOB is gloating over this? hmm

    • not_Bridget

      Let me put it simply: Abbott was trying to make something illegal that is already illegal.

      Otherwise known as: Banging it out to the cheap seats in a (primary) election year.

      • 1bimbo

        while you’re shuffling around in legal weeds, as a mother i’m looking at the intent of the law to protect children, doesn’t look good when media bragging in a headline about a court procedure technicality as a ‘bonus burn’ against abbott who TexOB doesn’t support as a candidate for governor

        • not_Bridget

          Bimbos can be mothers, too! At least you aren’t against contraception, sex education & abortion….

          • 1bimbo

            abstinence, limited public schools sex ed and pro-life… why do you ask?

          • Bob Martin

            And you are, of course, behind Mr. Abbott enforcing your lack of care and concern for education, health and freedom from unfair encarceration in the name of your family values, or more to the point, lack thereof.

          • 1bimbo

            private-run healthcare, school choice and lock up criminals… are we playing dueling ideologies! indeed, we are a perfect example of a divided america

  • Bob Martin

    Oh my gods, of course! There are not enough statutes against cell phones and nefarious behavior! (never mind that Rick Perry !Vetoed! a law to ban cellphones on the road) And voila! everywhere you look are people texting behind the wheel!