State appeals court referees Paxton case
AUSTIN — No one knows when Texas Attorney General Ken Paxton will face trial on securities fraud charges. Or where the trial will be held. Or who will be the judge.
The case is tied up in state courts nearly two years after a grand jury in Paxton’s home county indicted the high-ranking Republican, accusing him of encouraging colleagues and friends to invest in a North Texas tech startup without telling them he would earn a recruiting commission.
Special prosecutors late last week asked the Texas Court of Criminal Appeals to weigh in, potentially delaying the case further as the justices untangle who has jurisdiction to settle a fight over whether to remove the Tarrant County state district judge overseeing the case.
“It illustrates what will
happen when you have vigorous counsel on both sides who have considerable resources and a case involving a number of difficult issues,” said George Dix, a professor of law at the University of Texas at Austin.
Here’s a breakdown of the case against Paxton and its status:
The basics
Paxton, 54, faces two first-degree felony criminal charges of securities fraud and one third-degree charge of failing to register with the state as an investment adviser. Paxton, who began his political career in the state House of Representatives in 2003, contends he is the victim of a political witch hunt. He has fought the charges since his indictment eight months after assuming the attorney general’s office in 2015. He raised $329,000 for his defense team, and has spent the last two years in court, challenging everything from the integrity of the grand jury to where the trial should be held.
In that time, he twice convinced a federal court to dismiss similar civil charges against him by the Securities and Exchange Commission.
If found guilty in criminal court, he could face up to 99 years in prison and thousands of dollars in fines.
While Paxton fought his case, campaign contributors and allies took on his accusers and prosecutors, filing a lawsuit to stop officials in Paxton’s home of Collin County from paying three Houston lawyers assigned to prosecute the case.
The fight over paying the prosecutors, who last submitted a $200,000 invoice in January, remains in flux as the 5th Court of Appeals in Dallas sorts through the legality of denying the payments. To date, the prosecutors have submitted invoices totaling more than $500,000.
It was concern about people behind the fight over back pay that led Tarrant County Judge George Gallagher to move the case from Paxton’s home turf to Harris County, acquiescing to the prosecutors who had argued Paxton’s allies blitzed TV and radio airwaves to taint the jury pool in the attorney general’s favor.
Although the trial was to commence May 1 in Collin County, Gallagher ruled in April to move the case to Harris County and set a September trial date.
Hours later, Paxton’s legal team told the court it wanted a new judge and said they would refuse to sign paperwork allowing Gallagher to follow the case to Harris County.
Gallagher told the Houston Chronicle he intended to stay on the case.
Paxton then asked the Harris County District Clerk’s office to submit the case for random assignment to a local judge.
When that failed, Paxton’s team argued Gallagher should not have presided over the case in 2017 because his temporary assignment had expired last year, and insisted the case be returned to Collin County.
Paxton scored a victory when the 5th Court of Appeals in Dallas ruled last month that Gallagher gave up oversight of the case when he transferred it to Harris County. Special prosecutors quickly asked the Texas Court of Criminal Appeals to step in.
What’s next?
The prosecutors contend in legal documents that a Harris County appeals court should decide whether Gallagher stays on the case. They also argue the Legislature never meant for defendants like Paxton to opt for a new judge by refusing to sign paperwork.
“I would agree that it probably wasn’t their intent but certainly that’s how that was written,” said Melissa Hamilton, visiting criminal law scholar at the University of Houston Law Center. “When statutory language is clear, (judges) don’t want to go to legislative intent.”
Upholding the decision would mean a prosecutor or defendant who does not agree to a change of venue could have the power to boot a judge off a case, she said.
Should the special prosecutors lose, Paxton would be assigned a new judge in Harris County, throwing into question how long it will take for the jurist to get up to speed and set a date for a trial.
Attorneys on both sides of the case are under a gag order Gallagher reissued days before moving the case to Harris County, and are unable to comment.
If the court tackles the issue, it further could delay Paxton’s criminal trial. Special prosecutors plan to try Paxton first on the lesser charge of failing to register with the state as an investment adviser before conducting a second trial on his securities fraud charges.
Anyone planning to challenge Paxton for the attorney general’s spot would need to file candidacy paperwork by December. Fellow Republicans who want to challenge him only are likely to go after the incumbent if they think the trial has left him damaged, said Brandon Rottinghaus, a political science professor at the University of Houston.
“That won’t happen until a trial occurs or until there’s some kind of verdict in the case,” Rottinghaus said. “In a way, the delay has benefited him by pushing off those decisions until potentially after the filing deadline.”
On the other hand, he said, if the case is delayed too long and someone runs against him, the trial could pose an imaging nightmare for the incumbent.
“When you’re running for re-election, you don’t want to juxtapose you in and out of courtroom on trial for criminal acts right at the time voters are thinking about whether or not to re-elect you.”