Court of Criminal Appeals, on Rehearing, Withdraws 2024 Opinion and Holds Ethics Commission Referral Is Not a Precondition to Election-Law Prosecution

The decision

On August 20, 2025, the Court of Criminal Appeals of Texas, ruling on the State’s motion for rehearing, withdrew its September 11, 2024 opinion in Ex parte Charette and affirmed the judgment of the Fourteenth Court of Appeals, which had upheld a trial court’s denial of pretrial habeas relief to Robbie Gail Charette, a former candidate for a Washington County judicial office. The court reaffirmed that Charette’s pretrial habeas application was cognizable. On the merits, it held that neither the Texas Constitution nor Chapter 571 of the Government Code categorically bars a criminal prosecution for election-law offenses brought without a referral from the Texas Ethics Commission or exhaustion of the Commission’s civil process. The opinion states: “On reconsideration, we find no such categorical bar expressed in the Constitution or the statutes implemented pursuant to it.”

The court also found no basis in the record to conclude that this particular prosecution would interfere with any authority assigned to the Commission. It concluded: “Accordingly, we withdraw our prior opinion reversing the court of appeals and affirm its judgment.”

Background

According to the opinion, Charette ran as a Republican candidate for Judge of the Washington County Court at Law in 2018. After allegations of misconduct during her primary campaign, a Washington County grand jury indicted her on four counts: knowingly misrepresenting the true source of campaign communications; falsely representing in campaign communications, with knowledge of the falsity, that she held a public office she did not hold; failing to timely file her personal financial statement; and failing to maintain proper records of political expenditures.

Charette filed a pretrial writ of habeas corpus in the district court, urging that the indictment be quashed as void because, in her view, exclusive authority to investigate and initiate prosecution was vested in the Texas Ethics Commission. She contended that Article III, Section 24a of the Texas Constitution and Government Code Chapter 571 confined enforcement to a sworn complaint to the Commission followed by an administrative review process, and that the provision allowing the Commission to refer matters for criminal prosecution only on the vote of six of its eight members indicated exclusive authority. Alternatively, she argued that her rights to due process and due course of law had been irreparably violated.

The trial court denied relief. The Fourteenth Court of Appeals affirmed, finding that the district court properly maintained jurisdiction over misdemeanors involving “official misconduct,” including alleged misconduct of political candidates.

In its original opinion of September 11, 2024, the Court of Criminal Appeals held that the claims were cognizable on pretrial habeas and, on the merits, concluded that Chapter 571 was a pervasive regulatory scheme giving the Commission exclusive jurisdiction. It reversed the court of appeals and ordered dismissal of the indictments. The court granted the State’s motion for rehearing on January 15, 2025.

The court’s reasoning

Cognizability

The opinion, by Presiding Judge Schenck, began with whether the pretrial habeas application was cognizable, noting that jurisdictional questions must be resolved as a threshold matter even when entangled with the merits. The court stated that habeas review is available where the prosecution itself would be barred, including facial attacks on the statute creating the offense and claims that would “deprive the trial court of the power to proceed.”

The court noted that while Charette acknowledged the authority of district and county attorneys to initiate a prosecution such as this, she contended that proceeding before exhaustion of the Commission’s process, or without a referral, interferes with the Commission’s operations and therefore with the legislative department. Citing Ex parte Perry and the U.S. Supreme Court’s decision in Trump v. United States, the court stated that certain as-applied claims may be raised before trial because the right at issue would be effectively undermined if not vindicated prior to trial. It concluded that where an applicant presents a non-frivolous assertion that a prosecution would result in the judicial branch interfering with a power assigned to another branch or department of government, “a pretrial writ is a proper vehicle to review the claim.” The court stated: “The case before us requires consideration of precisely these questions and is thus cognizable.”

No categorical constitutional bar

Turning to the merits, the court stated that it assumes the Legislature intends its laws to be enforced and is aware of the constitutional design under which district and county attorneys are empowered to pursue criminal enforcement. Where the Legislature has authorized both criminal and civil enforcement, the court assumes both may proceed absent very clear indications otherwise in the statute or the Constitution. It wrote: “We reject the categorical claim that no prosecution can be brought to enforce criminal laws concerning the conduct of elections simply because their subject matter may overlap with civil jurisdiction conferred on the TEC.”

The court described the Commission as an agency created by constitutional amendment and placed within the legislative department, while county and district attorneys and district courts are authorized by Article V of the Texas Constitution to pursue and preside over criminal cases, including election-law matters. It stated: “The Texas Constitution creates both the TEC and the offices of the county and district attorneys. Nothing in either provision remotely suggests exclusivity at the expense of the other.”

The statutory text

Reading Sections 571.171 and 571.172 of the Government Code, the court found the delegations unambiguous. Section 571.172 authorizes cease-and-desist and compliance orders; Section 571.171 authorizes the Commission to “initiate civil enforcement actions and refer matters to the appropriate prosecuting attorney for criminal prosecution.” The court stated that the text does not purport to authorize the Commission to initiate a criminal prosecution, compel such an initiation, or forbid the initiation or continuation of a prosecution until a civil proceeding has terminated. Construing the sections to bar prosecution, it said, would read language into the text, impinge on the state’s constitutional framework, and could lead to absurd results.

The referral provision

The court concluded that the authorization to refer matters for prosecution does not make referral a prerequisite: “Standing alone, the authorization to refer a matter for prosecution is scant evidence that such a referral is a necessary pre-condition to a prosecution.” By contrast, it noted, the Legislature has expressly restricted parallel criminal and administrative proceedings in other contexts, such as the Juvenile Justice Code and employment-discrimination statutes, and “knows how to do so.” The court wrote: “For all of these reasons, we decline Appellant’s invitation to read the referral provision as a necessary precondition to criminal enforcement.”

Motion to dismiss

The State also brought to the court’s attention recently enacted Government Code Section 23.002, which provides that, unless expressly provided otherwise, the exhaustion of civil, including administrative, remedies is not a prerequisite to a trial court’s subject-matter jurisdiction over a criminal action, and urged that its retroactive application mooted the controversy. Charette responded that the retroactive application raised constitutional questions. The court did not resolve those questions, stating that “we see no need to opine on the constitutional questions Appellant raises in view of our disposition above.”

The opinion concludes: “While we find Appellant’s application for a pretrial writ of habeas corpus to be cognizable, she has failed to demonstrate her entitlement to relief.”

Separate opinions

Judge Richardson, joined by Judge Newell, filed a concurring opinion. He wrote: “I respectfully concur only in the result because the Legislature has since amended the statutes relevant to the controversy and applied them retroactively.” Judge Richardson wrote that the majority withdraws that decision “even though the TEC’s mission to prevent partisan ‘lawfare’ by political opponents remains the same.” He stated that the Legislature had amended the Government Code by enacting Section 23.002 and made it retroactive, and that because this does not violate the constitutional prohibition against ex post facto regulations, he concurred only in the result.

Judge McClure concurred and Judge Walker dissented, each without a written opinion.

Status

The court withdrew its prior opinion and affirmed the judgment of the Fourteenth Court of Appeals, leaving in place the trial court’s denial of pretrial habeas relief. The opinion does not address the further course of the criminal cases in the trial court. The decision was reported by Texas Scorecard the day after it issued.