IN-DEPTH: What to Know Ahead of Texas AG Ken Paxton’s Historic Impeachment Trial

Texas state Attorney General Ken Paxton makes a statement at his office in Austin, Texas, on May 26, 2023. Eric Gay/AP Photo

Texas lawmakers are finalizing preparations for the historic impeachment trial of suspended Attorney General Ken Paxton.

On Tuesday, just a week ahead of the pending trial, state senators met at the state Capitol to go over rules and procedures. Steven Aranyi, a spokesman for Lt. Gov. Dan Patrick, confirmed to The Dallas Morning News that no voting on any pending motions took place during the closed-door session, including Mr. Paxton’s motions to dismiss the articles of impeachment.

It is unclear why the Senators have not responded to the numerous motions to dismiss the articles, but the processes for the trial are not clear-cut, given the rarity of such procedures.

“Impeachments are very rare in Texas, and the trials are even rarer,” Brian L. Owsley, associate professor of law at the University of Texas at Dallas, told The Epoch Times. “So, this is a quantified legal process, and there are things that are legal in nature on some level, but at the same time, it’s also a political process.”

As for the motions to dismiss, Mr. Owsley said it would lend efficiency to the process to do so upfront if the Senate intends to grant any of the motions.

“They can also decide to hear all the evidence and then decide whether or not they want to grant them,” he added.

Mr. Paxton is only the third sitting official to be impeached in the nearly 200-year history of the state.

The Judge

As president of the Texas Senate, Mr. Patrick is tasked with presiding as judge over the proceedings. From the beginning of this unprecedented case, he has promised Texans he would conduct a transparent process and a fair trial.

Mr. Patrick is arguably the most powerful lieutenant governor in the state’s history, with a reputation for getting his way. Most recently, he stood his ground during a public battle against House Speaker Dade Phelan over property tax cuts, which eventually passed.

Steve Armbruster, chairman of the Williamson County GOP, told The Texas Tribune that he initially had some concerns about Mr. Patrick’s ability to preside fairly over the trial.

“I will be honest; I was concerned that Patrick was gonna put his thumb on the scale,” Mr. Ambruster said. “Anyone that pays attention to Texas politics knows that there’s only one vote that matters in the Texas Senate, and that’s the lieutenant governor’s.”

Over the weekend, Mr. Patrick quickly denied an allegation on X by Scott Braddock, editor of the Quorum Report, who claimed there “*may* be back-channeling” to Paxton, suggesting he should resign ahead of the trial to “make it easier on everyone.”

“This is total false reporting. There are no ‘back channel’ conversations with any party to the proceedings. This is a fabricated story and an outrageous and irresponsible tweet by nothing but a hack writer who often spreads false information without any facts,” Mr. Patrick wrote in response to Mr. Braddock’s claims.

Mr. Patrick announced this week that retired Judge Lana Myers would serve as his personal legal counsel and assist him during the proceedings that will undoubtedly place him under close scrutiny.

Ms. Myers, who has a decades-long career as an attorney and judge, was appointed by former Gov. Rick Perry (R) to serve as a Justice of the Texas Fifth Court of Appeals in 2009. She held the position until her retirement in 2022. Previously, she served as a judge in Dallas County from 1995 to 2009 and as an assistant district attorney for Dallas County from 1982 to 1994.

The Jury

The Texas Senate chamber has been transformed into a courtroom where the managers, made up of House members and outside lawyers, and Mr. Paxton’s attorneys will argue their cases before a jury of Senators who will be left to decide whether or not the state’s top lawyer will return to his job.

Thirty-one state senators —19 Republicans and 12 Democrats — will be present on the jury, but only 30 of the members will be permitted to participate and vote, according to the impeachment trial rules. Mr. Paxton’s wife, Sen. Angela Paxton (R),  is barred from participating as a juror under the rules approved earlier this summer. (pdf)

Her ineligibility pushes the two-thirds threshold needed to convict her husband on each of the articles of impeachment from 20 to 21 votes.

Motions to Dismiss Articles of Impeachment

Attorneys for Mr. Paxton over the past month filed a slew of motions requesting all 20 impeachment articles — and some evidence — be tossed out before the trial begins, citing his actions.

Mr. Paxton’s legal team, which includes high-profile Houston lawyer Tony Buzbee, argues that  “any alleged conduct” occurring prior to January 2023 should be excluded in accordance with a rule known as the “prior-term doctrine” in Section 665.081 of the Texas Constitution (pdf).

The rule states that if the citizens elect an official whose allegations of misconduct were made known to the public before the election, the accusations cannot be a basis for removing the official from office.

But what it does not make clear is whether the rule defines elected to office as the first time an official is elected or, as in Mr. Paxton’s case, reelected to office.

“In the U.S., the way judges decide things is they look at statutes. Obviously, they also look at how other judges have interpreted similar situations,” Mr. Owsley said. “The problem here is, with respect to trial, there aren’t a lot of similar situations,” adding that it’s ultimately up to the Senators to decide how to interpret the rule and move forward.

In a 46-page filing to dismiss all but one of the articles, an exhibit lists more than 30 pages of news headlines regarding Paxton’s alleged misconduct dating back to January 2015, concerning three felony indictments that accuse the attorney general of misleading investors while raising funds for a technology company in Collin County.

A later filing called for the dismissal of the remaining article of impeachment.

But, House managers said in a memo dated May 26, 2023, one day before the House voted to impeach Mr. Paxton, that the rule does not apply to impeachment.

“The Texas Supreme Court has held that this provision does not apply when the Texas Constitution authorizes a procedure for removing a state officer,” they wrote (pdf).

The Impeachment

The Texas House, led by Mr. Phelan, overwhelmingly voted to impeach Mr. Paxton for allegations of abuse of power and bribery, among others, in a vote of 121-23, with 60 of the 85 Republicans voting with Democrats.

In October 2020, eight top deputies in Mr. Paxton’s agency reported him to the FBI for allegedly using his office to help Austin real estate investor Nate Paul, who donated $25,000 to the attorney general’s reelection campaign in 2018.

All of the so-called whistleblowers were fired or resigned, but the accusations led to a federal investigation that was taken over by the Department of Justice in February 2023.

Mr. Paul had come under investigation in 2019 over a conflict between his businesses and a charitable organization. The office of the attorney general is notified of cases involving charitable organizations.

According to a House Committee hearing transcript on May 24, the real estate developer was “entangled in lawsuits and facing as many as 13 foreclosures by 2020” (pdf).

The articles of impeachment claim that Mr. Paul renovated Mr. Paxton’s home at no cost and provided a job to the woman accused of having an affair with the attorney general in exchange for protection.

Mr. Paxton has adamantly denied any wrongdoing, and no federal charges have been brought against him.

But the House Committee launched its own investigation into the matter earlier this year after Mr. Paxton asked the House Appropriation subcommittee to fund the multimillion whistleblower settlement.

It is unclear whether Mr. Paxton will testify at the trial. His lawyers say he cannot be forced to testify since the case is essentially a criminal trial.

“Given that an impeachment trial is legally considered to be a criminal proceeding, there can only be one conclusion: the Attorney General may, but cannot be forced to, testify,” Mr. Paxton’s attorneys wrote in a motion filed on July 7 (pdf).

Complaint to Suspend or Disbar the AG

In addition to the impeachment articles, 14 lawyers, including three former State Bar of Texas presidents, filed a complaint that could potentially prevent Mr. Paxton from practicing law in the state of Texas. (pdf)

The 31-page complaint filed in July accuses Mr. Paxton of engaging in a “pattern of serious violations of the Texas Disciplinary Rules of Professional Conduct.”

The grievance pertains to Mr. Paxton’s lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin pertaining to the 2020 presidential election.

“Mr. Paxton’s lawsuit urged the Court to enjoin these states from using the results of their presidential elections to appoint electors and, instead, to have the States’ legislatures appoint new electors to replace any electors the States had already appointed or to appoint no electors at all,” the complaint reads.

The group of lawyers has accused Mr. Paxton of making a “false statement” to the court in his assertion that Mr. Joe Biden had a “‘one in quadrillion’ chance of winning.”

By these actions, Attorney General Paxton, the highest law officer of the State of Texas, has brought dishonor to his fellow Texas lawyers and to the legal profession,“ the complaint reads. ”After investigation, if the allegations in the complaint are validated, Mr. Paxton should be suspended from the practice of law or be permanently disbarred.”

Notably, the attorney general of Texas is not required to hold a license to practice law.

How to Watch the Trial

There are about 300 seats in the Senate gallery reserved for the public on a first-come, first-served basis. Tickets will be handed out starting at 7:30 a.m. each morning of the trial, and tickets for afternoon sessions will be available 45 minutes before the gallery reopens after lunch.

The trial will also be streamed by numerous media outlets, including The Dallas Morning News, KVUE-TV, and KHOU-TV.

Opening arguments are scheduled to begin at 9 a.m. on Sept. 5.