Texas Attorney General Greg Abbott
Patrick Michels

Appeals Court Limits Abbott’s Power, Offers Bonus Burn


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.”


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.”