Smoke, Mirrors, and Elephants

Gov. Greg Abbott on Wednesday told the Texas Education Agency "to investigate any criminal activity" related to "the availability of pornography" in public schools. https://t.co/DEX3jyEVt3

— Texas Tribune (@TexasTribune) November 10, 2021

Gov. Greg Abbott told the Texas Education Agency on Wednesday "to investigate any criminal activity" related to "the availability of pornography" in public schools, saying that the agency should "refer any instance being provided to minors under the age of 18 for prosecution to the fullest extent of the law."

Abbott's request comes two days after he asked the agency, along with the Texas State Library and Archives Commission and the State Board of Education, to develop statewide standards preventing "obscene content in Texas public schools."

While those standards are developed, Abbott wrote to the TEA in his letter Wednesday, "more immediate action is needed to protect Texas students" against that inappropriate content, which he said is "a clear violation" of state law.

TEA officials could not be immediately reached. It was immediately unclear whether TEA has the ability to investigate criminal activity.

Actually, it's quite clear.  TEA has no law enforcement authority at all.  It might bring an action in state court to, say, take over a failing school district (this has happened recently), but it has to bring the action as the party with standing under state law.  It can't take over the school district by fiat.  Nor can it, by fiat, charge any school with violations of criminal law.  That power is reserved to the district attorneys.  Let me just quote from the Texas Attorney General's website:

Under Texas law, the county or district attorney has primary jurisdiction to prosecute most criminal offenses. The Office of the Attorney General assists local prosecutors at their request. The law also authorizes this agency to proffer assistance to local prosecutors. Most OAG prosecutions are undertaken on referrals.

Chapter 1, section 1.09, of the Penal Code provides that, “with the consent of the appropriate local county or district attorney, the Attorney General has concurrent jurisdiction with that consenting local prosecutor” to prosecute certain offenses, including:

Misuse of state property or funds

Abuse of office

Offenses against juvenile offenders in state correctional facilities

There's nothing on that page that mentions providing pornography to minors, a crime under Texas law.  Even if there were, the Texas AG functions rather like the FBI when the matter is a violation of state law:  both agencies act in an advisory capacity, not with original authority.

Abbott knows this.  He was a Texas Supreme Court Justice.  He's well aware TEA has no criminal enforcement division, just as he knows the Texas Association of School Boards has no authority over school boards.  He doesn't care.  He's playing to the peanut gallery.  He won't ask the 250 or so Texas District Attorneys to enforce this law against the schools.  He knows better.  He has no direct authority over them, and his involvement would destroy any criminal case brought under this statute.  This is an empty gesture.

Shape without form, shade without colour,

    Paralysed force, gesture without motion;

No wonder the majority of Texans say the state is going in the wrong direction.  But Abbott is playing on that, not suffering from it.  Democracy is not a self-correcting system.

School districts pretty much ignored his previous letter, because they all uniformly already do what Abbott asked TEA to make the schools do.  Hey, presto, victory!

The TEA will make conciliatory noises, but ignore this one, too.