Judge Rules Texas Attorney General Ken Paxton Must Testify in Abortion Lawsuit

Texas Attorney General Ken Paxton speaks at a border town hall in Brackettville, Texas, on Oct. 11, 2021. Charlotte Cuthbertson/The Epoch Times

A federal judge on Tuesday ruled that Texas Attorney General Ken Paxton must testify in a lawsuit bought by a string of nonprofit organizations seeking to block potential criminal charges against abortion providers offering Texan women access to abortions out of state.

U.S. District Judge Robert Pitman had previously quashed the subpoena before marking a U-turn on the decision on Thursday, court documents (pdf) show.

Paxton, a Republican, allegedly fled his home on Sept. 26 while a process server, Ernesto Martin Herrera, attempted to serve him with a subpoena regarding the lawsuit. Paxton said he fled to avoid a “stranger” who was lingering outside his home amid concerns over the safety of his family.

The nonprofits who filed the lawsuit have requested that Paxton clarify previous statements he made about the enforcement of Texas’s trigger law as it related to out-of-state abortions.

They argue that his statements “chill their First Amendment rights to speak about and fund abortion care” and “restrict their ability to facilitate out-of-state abortions, which is protected by the right to interstate travel.”

The plaintiffs in that lawsuit (pdf) are: Fund Texas Choice, The North Texas Equal Access Fund, The Lilith Fund for Reproductive Equity, Frontera Fund, The Afiya Center, West Fund, Jane’s Due Process, Clinic Access Support Network, and Dr. Ghazaleh Moayedi.

According to an affidavit (pdf) filed in federal court last week, Herrera arrived at Paxton’s home to serve him with the subpoena to appear in a federal court hearing but the attorney general “fled” in a vehicle driven by his wife, state Sen. Angela Paxton.

Paxton disputed Herrera’s version of events, stating on social media that he had left his home to avoid a stranger who was outside his house, and that “conservatives have faced threats to their safety” that have not been covered in the media.

Abortion activists (R) argue with pro-life activists (not in image) in front of the Supreme Court on June 26, 2022, in Washington, D.C. Nathan Howard/Getty Images

“It’s clear that the media wants to drum up another controversy involving my work as Attorney General, so they’re attacking me for having the audacity to avoid a stranger lingering outside my home and showing concern about the safety and well-being of my family,” he wrote.

‘At the Eleventh Hour’

Judge Pitman had initially quashed the subpoena the morning after Herrera arrived at Paxton’s home because the subpoena was issued at the very last minute.

But in Tuesday’s ruling, the judge said he had done so “on the assumption that counsel for Paxton had made candid representations to the Court about when Paxton had been served and when Paxton was notified that he was expected to attend the hearing.”

“The Court took Paxton’s factual statements—that the notification occurred ‘at the eleventh hour and ’on the literal eve of trial'—as accurate, candid representations of counsel, and those statements influenced the Court’s decision on Paxton’s motion to quash,” Pitman wrote in the filing.

Pitman said the court had also “assumed Paxton provided full, accurate factual statements” but had later learned that the attorney general had failed to disclose “Plaintiffs’ repeated emails attempting to inquire as to whether Paxton could testify.”

The judge also said Paxton, a close ally of former President Donald Trump, has unique, first-hand knowledge regarding how he will enforce the Trigger Ban, requiring him to testify.

“The Court will not sanction a scheme where Paxton repeatedly labels his threats of prosecution as real for the purpose of deterrence and as hypothetical for the purposes of judicial review,” the judge wrote.

“Because the Court was forced to decide Paxton’s motion to quash on a very limited timeframe ... and because the Court relied on Defendant’s representations as accurate depictions of when Paxton had been served and notified of his expected testimony, the Court issued its ruling on incomplete facts,” the filing reads.

Pitman gave lawyers for both parties until Oct. 11 to “meaningfully confer ... to agree on the particulars of Paxton’s testimony, whether by deposition or evidentiary hearing.”

The Epoch Times has contacted the Texas attorney general’s office for comment.