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Paxton prosecutors sue AG office to block records

Hold on to your hats.

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In an unusual and head-spinning twist, prosecutors in the criminal case against Texas Attorney General Ken Paxton sued the attorney general’s office Thursday to block the release of sensitive case information that could hinder Paxton’s defense but that his own agency ordered to be turned over to a Texas newspaper.

Go ahead, read that sentence again.

The latest twist began Oct. 14 when The Dallas Morning News requested copies of thousands of pages of investigative records that prosecutors had provided to Paxton’s defense lawyers in preparation for a potential trial on allegations that Paxton broke state securities laws in private business deals in 2011 and 2012.

Prosecutors sent a same-day reply email denying the request, saying previous attorney general opinions had declared such information off limits under the Texas Public Information Act. They also sought an attorney general’s opinion on whether the records could be withheld — a step the law requires when requested government information is denied.

On Jan. 4, however, the attorney general’s Open Records Division sent a letter informing the prosecutors that they had failed to take a second step required by the law — submitting their legal reasons for denying the request, along with samples of the requested information so Open Records Division lawyers could verify whether it fell under the law’s exceptions to disclosure.

Because the law wasn’t followed, the requested information must be automatically released, the letter said, adding that the only step remaining to prosecutors is a lawsuit “if you believe the information is confidential.”

That lawsuit was filed in Travis County district court Thursday by Dave Feldman, a Houston lawyer that Paxton’s trial judge appointed to represent prosecutors Kent Schaffer, Brian Wice and Nicole DeBorde in the matter.


“Talk about meeting yourself coming around the corner,” Feldman told the American-Statesman. “We’re having to sue the AG so we don’t have to disclose information adverse to the AG that we shouldn’t have to disclose under the law.”

Usually a story requires some element of time travel to have that kind of brain-bending quality. I might suggest that this is the sort of thing that happens when criminal defense attorneys get employed as special prosecutors: They actually take this kind of thing seriously. Look at it this way – this will not be an issue when Paxton appeals his conviction. Getting it right the first time has its merits. Trail Blazers, which has a copy of the lawsuit, has more.

(By the way, it’s not clear to me if this is the same “Dave Feldman” as our past City Attorney, but I’m going to assume that it is. If nothing else, it’s simpler that way.)

More special prosecutors for Paxton

Uh, oh.

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Best mugshot ever

Two additional special prosecutors have been appointed to look into other allegations of criminal misconduct involving Attorney General Ken Paxton, News 8 has learned.

The two Fort Worth attorneys – Miles Brissette and former state district Judge Bob Gill – were appointed Nov. 13 to investigate “criminal allegations” involving Paxton and others, according to filings obtained by News 8. The filings do not state who the “others” are.

News 8 has learned that the two men are looking into a 2004 land deal involving Paxton and other investors including Collin County District Attorney Greg Willis. That land would later become the site of the Collin Central Appraisal District.


Brissette and Gill were appointed by Tarrant County Judge George Gallagher, who was appointed to oversee the criminal cases already pending against Paxton.

The appointment of Brissette and Gill came after Ty Clevenger, a Collin County lawyer and blogger, raised questions about the land deal involving the site where the appraisal district was later built.

“The value of the property increased dramatically,” he told News 8 this past summer. “It appears there was some kind of insider information.”

Clevenger has previously sent letters to a Collin County grand jury asking that they investigate the land deal. He’s also alleged that Willis stymied the investigation of Paxton, his one-time friend and business associate.

See here for some background. Clevenger, who has been beating this drum for some time now, was calling for another special prosecutor to investigate this back in October; he has quite a bit more detail on what this is all about, if you want to take a deeper dive. For now, both Team Paxton and Collin County DA Willis are saying what you’d expect, that this is all routine, they’ve been fully cooperating, yadda yadda yadda. These things take time to develop, and it’s entirely possible that nothing will come of it. Still, this can’t be a good feeling for either of those gentlemen today.

Also, too:

Paxton is currently under indictment for two first-degree counts of securities fraud and count of failing to register as an investment advisor. He has denied any wrongdoing. Two other special prosecutors – Brian Wice and Kent Schaffer – are heading up that investigation.

Wice, Shaffer and a third special prosecutor are being $300 an hour. They have already turned in legal bills in excess of $250,000, with more to come.

Collin County Judge Keith Self has accused Wice and Schaffer of fleecing the county. He has called on them to resign.

However, with the appointment of Brissette and Gill, it means that the legal bills facing Collin County will continue to mount.

Suck it, Collin County Commissioners Court. The Trib, PDiddie, and Trail Blazers have more.

UPDATE: The Lone Star Project and the Chron have more.

Collin County agrees to pay Paxton prosecutors

Grudgingly. For now.

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Best mugshot ever

The special prosecutors handling the criminal case against Texas Attorney General Ken Paxton will be paid for their work so far at the rate they were promised.

Commissioners voted 3-2 on Monday to pay the more than $254,000 in legal fees and expenses that have accumulated since April.


“We have very little discretion over the orders by the judiciary,” said County Judge Keith Self, who questioned the need for “gold-plated justice.”

The fees have come under scrutiny because they far exceed the $100,000 that the county budgeted for the case. They also exceed the amounts set out in Collin County’s rules, which call for a flat $1,000 fee plus $1,000 a day during trial for lawyers appointed in first-degree felony cases. The county’s rules also state that appointed attorneys will be paid only after the case has concluded.

In his orders for payment, Gallagher cited a section in the county’s rules that allows for variances “in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.”

Self called for the special prosecutors to resign from the case so that a regional district attorney’s office be appointed to take over with guidance from a local investigator who works on securities law.

The move, he said, would substantially lower the costs without jeopardizing justice.

See here, here, and here for the background. Handing this case off to some county DA’s office might not jeopardize justice, but it sure would delay it, as it would take whatever poor attorneys that got saddled with this colossus months just to read through all the documents that have been generated so far. Maybe that wouldn’t seem so just to the guy who’s trying to clear his name, I don’t know. Anyway, if the good people of Collin County don’t like this arrangement, they should petition their legislators to come up with a better solution. But let’s be honest, Collin County is just complaining about the cost, and I’m afraid I have no sympathy for them. The good news for them is that the lawsuit to limit the prosecutors’ fees is still ongoing, and may wind up capping them from this point forward. But until then, pay up, y’all.

Paxton motion to cap prosecutors’ fees rejected

Sorry, Kenny.

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Best mugshot ever

A state district judge Wednesday rejected Attorney General Ken Paxton’s attempt to drastically cut legal fees for prosecutors in the criminal case against him.

District Judge George Gallagher issued two orders overruling Paxton’s objections to the prosecutors’ fees and ordering Collin County to honor an agreement to pay $300 an hour to Kent Schaffer and Brian Wice, Houston defense lawyers who were appointed as prosecutors in Paxton’s case after Collin County District Attorney Greg Willis — a friend and former business partner of Paxton — stepped aside in April.

Paxton’s lawyers had filed a late-December motion arguing that state law and Collin County rules limited payments for appointed lawyers, including prosecutors, to $1,000 each for pretrial work and $1,000 per day of trial.

According to Paxton’s filing, state District Judge Scott Becker agreed that Collin County would pay Schaffer and Wice $300 an hour. Becker later stepped aside, and the case was transferred to Gallagher.

“Judge Gallagher’s order does no more than honor the agreement we entered into with Collin County regarding the rate of compensation for our work as special prosecutors,” Wice said Wednesday.

I must have missed the filing of this motion, since I don’t appear to have anything on it in my archives. It’s not the same as the lawsuit that was filed to limit the prosecutors’ fees, which could take some time to be fully resolved. I’m hard-pressed to think of a non-petty reason for Team Paxton to do this – I mean sure, it might have made the prosecution do less, which certainly has strategic value for the defense, but come on. The only reason this is an issue at all is because there were no non-Paxton crony options for handling this case in Collin County. Whose fault is that? The Chron has more.

Another attack on the Paxton prosecution

If at first you don’t succeed

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A prominent real estate developer has filed a lawsuit seeking to stop payments to the private attorneys appointed to prosecute Attorney General Ken Paxton — the latest twist in the Republican’s securities fraud case.

Jeff Blackard, a Paxton donor, filed the lawsuit in Collin County District Court, arguing that the county was paying too much to the attorneys prosecuting Paxton, violating local rules for such payments.

“This lawsuit seeks to halt a threatened expenditure of public funds that would unlawfully serve to enrich private attorneys at the expense of taxpayers in Collin County, Texas,” says the complaint, filed on behalf of Blackard and “similarly situated taxpayers.”

Blackard says he lives in Hopkins County but pays taxes for two parcels of property in Collin County, along with local sales taxes.

The lawsuit names as defendants District Judge George Gallagher — who is presiding over Paxton’s case — as well as Collin County Judge Keith Self, County Auditor Jeff May and three county commissioners.

Blackard argues that promised payments of $300 per hour to the special prosecutors “would constitute an illegal expenditure of taxpayer funds” because they would eclipse fees typically paid to attorneys appointed to represent poor defendants.

See here and here for some background. Personally, I think this is bush league. This is a big case, it’s going to require that the prosecutors involved spend a lot of time on it, and they should be compensated fairly. I really don’t see what’s so controversial about that. The law may see it differently, however. I’m not at all clear on what that is, but I know what it ought to be. We’ll see if this suit has any merit. I won’t be surprised if this litigation has a life span as long as the Paxton case itself does.

Paxton remains under indictment

Sorry, Kenny.

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Best mugshot ever

A state district judge on Friday rejected Ken Paxton’s request to throw out his three felony indictments, likely sending the first-term attorney general to trial next year unless his lawyers appeal the ruling.

“Yes, all the motions we filed have been denied,” said Philip Hilder, one of Paxton’s attorneys, Friday. “We are extremely disappointed with the court’s ruling today as we believe that each of the motions was well founded. And we are currently reviewing options at this point, which may include appeal.”


Gallagher’s Friday ruling is a huge blow to the attorney general’s team of high-powered lawyers, who presented their arguments to the court at a daylong hearing in Collin County earlier this month. Sitting in a courtroom filled with Paxton supporters, Gallagher heard the team’s many motions to quash. Several of their arguments laid the blame at the feet of state district Judge Chris Oldner, whom they accused of improperly empaneling the grand jury, entering the grand jury room when he shouldn’t have and divulging news of the indictments to his wife when they were meant to remain secret. Paxton’s attorneys did not call Oldner to testify at the hearing, however, so he went to the media to tell his side of the story.

See here for some background, and here for Oldner’s side of the story. The Trib, which notes that Judge Gallagher did grant a couple of Team Paxton’s minor motions, has a copy of the ruling. I am certain they will appeal this. What does Paxton have to lose, other than more money down the legal rathole? Remember, you can string this all out for a very long time. I expect nothing less.

Judge Older, who is running for the CCA this cycle, raises an interesting point;

He said the defense’s claims against him are emblematic of a split that has formed among Collin County Republicans between those who think Paxton is guilty and those standing by his side.

“We’re seeing a huge rift. Now, the question could be, was it there all along and this is just exposing it, or is this causing it? I think it’s a little bit of both,” Oldner said. “I don’t know if it’s just a political hit job or there are motivations beyond that. I hear different things from different people.”

That sounds an awful lot like a political opportunity to me. I don’t know what the candidate filing situation looks like in Collin County, but it seems to me that one could do worse than to tie one’s opponent to Ken Paxton over there. May not get you much, but it can’t hurt and if nothing else it would be nice to have some empirical evidence about how far the needle can be moved via this route. 2018 isn’t that far off, after all. The Scoop Blog has more.

Paxton’s first day in court

And they’re off!

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Best mugshot ever

Clashing at a pretrial hearing Tuesday, lawyers for Attorney General Ken Paxton dismissed the criminal case against him as the result of a “rogue prosecution,” while prosecutors accused Paxton of relying on “nonsense” arguments and a string of legal technicalities to challenge the charges of securities law violations.

State District Judge George Gallagher allowed the frequently pointed give and take during a 5½-hour hearing that could determine whether Paxton goes to trial next year on charges linked to private business deals he brokered before becoming attorney general in January.

Gallagher, however, declined to issue any rulings on defense lawyers’ multiple requests to dismiss three felony charges against Paxton, saying he will issue written orders at an unspecified future date.

The judge also left one matter pending — a request from prosecutors to amend all three indictments.

Defense lawyer Phillip Hilder called it an improper do-over that acknowledged the weakness of the case against Paxton. Prosecutor Brian Wice said such changes are common, allowed by law and designed to give Paxton’s lawyers what they asked for — more information about the charges against him.

Defense lawyers have 10 days to file a response, and Gallagher said another hearing on the issue was possible.

An earlier Statesman story recapped what the sides were arguing about.

The pretrial hearing, which Paxton will attend, will focus on 10 defense filings arguing that the charges must be dismissed because, among other things:

  • The State Securities Board, which has primary jurisdiction over security crimes, did not refer the Paxton matter for prosecution.
  • The failure-to-register charge violated the statute of limitations and subjected Paxton to double jeopardy because the securities board had already reprimanded him for the infraction.
  • The failure-to-register law is unconstitutional because it is vague and cannot give fair notice about what acts are illegal.

But the biggest point of contention focused on defense accusations that the original judge in charge of the Paxton case engaged in “purposeful and cumulative efforts to subvert the grand jury process, all to Paxton’s detriment,” a Paxton motion said, adding that tossing out all three indictments “is the only appropriate remedy for this conduct.”

Before recusing himself from the case in July, state District Judge Chris Oldner improperly formed the grand jury that handled Paxton’s case by asking potential jurors to raise their hands if they were willing to serve, then choosing only from that pool, the defense argued.

In addition, defense lawyers accused Oldner — who, like Paxton, is a Republican — of improperly divulging secret grand jury details, including telling his wife about Paxton’s indictments one week before they were made public. Oldner also broke several rules in handling Paxton’s case and ordered the identity of grand jurors to remain secret, which is “contrary to Texas law” and hindered Paxton’s ability to challenge the makeup of the jury, a motion said.

Prosecutors Kent Schaffer, Nicole DeBorde and Wice defended Oldner’s handling of the case, arguing that nothing improper occurred and that Oldner’s actions did not entitle Paxton to avoid facing serious criminal charges.

Paxton’s rights as a defendant, prosecutors argued, also did not entitle him “to recklessly and cruelly injure Judge Oldner, who now must bear a scar needlessly inflicted by Paxton’s unsupported, unsupportable and unwarranted accusation that formed the centerpiece of his reed-thin motion to quash these lawfully obtained indictments.”

According to the DMN Crime Blog, Judge Oldner will be a candidate for the Court of Criminal Appeals in 2016. I’ll bet this will add a little spice to that campaign, especially if he has a primary opponent.

There’s one other point of contention in all this:

“We had objected, as you’ll recall, after the arraignment to the use of cameras in the courtroom, and we continue to object,” Bill Mateja, one of Paxton’s attorneys, told the Chronicle on Monday. “Our understanding is that Collin County local rules are that cameras are not allowed in the courtroom. There is an exception with the parties’ consent, and we have not consented.”

When asked if he expected the issue to impact Tuesday’s hearing, Mateja answered, “I don’t know. Truthfully, I have not heard anything.”

When asked what the Paxton team would do if they entered the courtroom Tuesday and a camera was present, Mateja added, “I’m not going to comment any further. We’ll take that up if that situation arises.”

I’m not sure where that stands. I presume we’ll know more after the matter of the refiled indictments, or should I say the re-refiled indictments, is settled. The Chron and WFAA have more.

Paxton fires back at prosecutors


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Lawyers in Attorney General Ken Paxton’s ongoing securities fraud case have fired back against special prosecutors in the latest in a series of back-and-forth court filings.

In their Thursday filing, Paxton’s attorneys called the prosecutors’ reply to their motions to drop three felony charges “bombastic and diversionary.”

“Attorneys Pro Tem attempt sarcasm and inappropriate fictional analogies to mask their unsubstantive Reply that repeatedly misrepresents both Paxton’s arguments and the law,” the court filing said. “They are under the misguided belief that sound bites and quotes from fictional characters somehow trump law and documented facts.”


Paxton’s attorneys say the reply does not address their actual argument of improper grand juror qualification and that Paxton’s right to due process under the 14th Amendment to the U.S. Constitution was violated.

The latest filing also claimed that prosecutors are enabling Oldner’s inappropriate actions as they “concoct a fiction that is unsupported in law or fact, to excuse his behavior.”

See here and here for the background. At this point, I think all future filings related to this should be more like this:

I’m far too amused by this case.

More prosecution responses to Paxton

Keep ’em coming, y’all.

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Prosecutors in the criminal case against Attorney General Ken Paxton defended themselves in a court filing Tuesday, calling accusations of misconduct leveled by defense lawyers a gratuitous ploy to direct attention away from Paxton’s felony indictments.

“Paxton’s ploy, as any Google search of this case will readily reveal, is merely the latest in a series of unwarranted personal attacks leveled against the special prosecutors in the media by Paxton’s spokesmen, public relations operatives and political supporters,” prosecutors told state District Judge George Gallagher.

The filing was the prosecutors’ second response to a broad attack launched last week by Paxton’s lawyers, who argued in court filings that three felony securities law violations should be dismissed because, among other problems, prosecutors disclosed secret grand jury proceedings in interviews with reporters, supplying information designed to taint the pool of prospective jurors.


The secrecy of grand jury proceedings, prosecutors argued, does not create a blanket ban on commenting about grand jury actions. Legal ethics also allow prosecutors to discuss the general scope of investigations, they told the judge.

“Paxton’s sole reason for filing this pleading is to cast the special prosecutors as the bad guys in the court of public opinion,” the prosecutors wrote.

See here and here for the background, and here for a copy of this motion. I’m not sure what the purpose is of filing two separate responses like this, but the prosecution did maintain its rather dismissive tone towards Paxton’s motion. In this case, they began with a quote from Mad Men, and on page four cited the Merriam-Webster definition of the word “series” to dispute another of Team Paxton’s allegations. This may already be the greatest special prosecution of an incumbent Texas politician ever, and we’re still in pre-game warmups. I can’t wait to see what comes next. The Press has more.

Prosecution responds to Paxton’s motions to quash

They’re pretty harsh.

In a 19-page court filing peppered with disdain — one footnote likens Paxton’s defense to an exchange from the 1978 film Animal House — the prosecutors called the attorney general’s legal arguments this week that the judge overseeing his case abused his discretion a “pre-trial shell game” based on a “quicksand-like foundation.”

“Paxton’s motion is a tale of sound and fury calculated to cast himself as a victim, and not a criminal defendant, in the court of public opinion,” they write. “That Paxton’s motion is not only desperate, but utterly without merit is predictable; that it recklessly and unnecessarily tars both a respected jurist and his spouse without a legal or factual basis to do so is unconscionable.”


Asking the court to reject what they at one point refer to as a “Grassy Knoll-like conspiracy … far more appropriate as a plot point in an Oliver Stone motion picture,” prosecutors Brian Wice, Kent Schaffer and Nicole DeBorde noted that the three charges against Paxton are the result of a “comprehensive investigation spearheaded by the Texas Rangers.”

His legal arguments, they write, are based on “a stunning lack of any controlling legal authority to support his unsupported and unsupportable claims … [he] wants this Court to quash these indictments based on the cumulation of non-errors, in the face of long-standing authority to the contrary.”

See here for the background. My first thought (actually, my second thought after “How can you allude to an Animal House reference without specifying it?”) was that they must be comparing Paxton’s defense to the Otter Defense, which made me wonder if the prosecutors had inadvertently cast themselves into the roles of Greg Marmalard and Dean Wormer. Thankfully, The Scoop Blog has the goods:

The prosecutors’ motion also takes a clever whack at the defense’s arguments by citing the 1978 film Animal House:

Paxton’s insistence at crafting an alternative narrative, one that avoides any mention of his own criminality, while it re-writes, distorts, or simply ignores the historical facts that inform his claim, calls to mind the following cinematic exchange. OTTER: “We’ll tell Fred you were doing a great job taking care of his car, but you parked it out back last night and this morning… it was gone. We report it stolen to the police. D-Day takes care of the wreck. Your brother’s insurance company buys him a new car.” FLOUNDER: “Will that work?” OTTER: “It’s gotta work better than the truth.”

Tarrant County Judge George Gallagher is presiding over Paxton’s criminal case.

Ouch. They have a copy of the prosecution’s response, and it’s worth a read. Again I’d love to know what the lawyers think. No word as to when the judge may take action. I can’t wait. The Press has more.

Paxton will get his hands on grand jury info

Score one for Team Paxton.

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A district judge ruled Friday to grant information related to the selection of Collin County grand juries to Attorney General Ken Paxton’s defense team.

The ruling by District Judge George Galllagher came over objections by special prosecutors in the case, who filed a motion to quash the subpoenas seeking the information, saying the request was improper and not relevant.

His order notes that the ruling came after a conference call Thursday where both sides agreed to cancel a hearing scheduled for Friday and to release the information to the defense.


“This is a victory, pure and simple,” defense attorney Bill Mateja said in a written statement Friday. “Not only is it a victory for General Paxton, it is a victory for transparency in the grand jury process. Despite the Special Prosecutors describing our request as desperate, the Court easily saw through that hyperbole. The Court’s ruling demonstrates that these subpoenas were justified and proper. We have every right to consider the circumstances in which the grand jury was picked in this case.”

Special prosecutor Brian Wice responded to Mateja’s comment with a written statement of his own.

“Had Mr. Paxton’s defense team followed the rules regarding pre-trial discovery in criminal cases, we would not have been compelled to file our motion to quash his subpoenas,” he wrote. “But we congratulate Mr. Paxton’s defense team on their self-styled “victory for transparency in the grand jury process” and welcome the release of information revealing that absolutely nothing improper occurred in the selection and empanelment of any of the four Collin County grand juries they sought to challenge. Perhaps now we can move on to the real issues in this case.”

See here and here for the background. I have no idea what difference if any this will make, but I suppose if one’s defense is based on the theory that the grand jury was out to get Ken Paxton for some reason, it would help to have all available information about said grand jury. Settle in and get comfortable, this is going to take awhile.

Not so fast with those subpoenas

The special prosecutors in the Paxton case respond forcefully to his legal team’s grand jury-related subpoenas.

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Special prosecutors in Ken Paxton’s felony securities fraud case are seeking to quash subpoenas his lawyers filed last week seeking information about the grand jury selection process.

Paxton’s legal team last Thursday subpoenaed four Collin County court reporters for information related to the selection and empanelment of the grand jury that indicted the first-term attorney general in July. A fifth subpoena requests information on “a personnel action regarding a deputy clerk” from a human resources employee.

The prosecutors on Tuesday asked presiding Judge George Gallagher of Tarrant County to shoot down the subpoenas.

“Paxton’s applications are an improper, indeed, desperate attempt at obtaining pre-trial discovery, fall far short of meeting the standard of materiality and relevance required by controlling legal authority and constitute an unsupported and unsupportable attempt to conduct the very type of fishing expedition anathema to the criminal justice system,” their motion states.

The motion to quash says Paxton’s attorneys improperly used the subpoenas as weapons for discovery and did not demonstrate that the information sought would be material to his case.

“Absent a claim that members of a identifiable minority group were purposefully excluded from serving on the grand jury, nothing about the random selection and empanelment of this grand jury could ever come close to meeting the threshold mandate of materiality,” the motion states.

See here for the background. The stenographers also filed motions, having to do with the cost of providing full transcripts (they get paid by the word) and what if any of the testimony should be excluded. I can’t tell which side is more likely to be blowing smoke here, but we ought to find out quickly one way or the other.

The hearing is scheduled for Oct. 16 at 1:00 p.m. in the Tarrant County courtroom of Judge George Gallagher. The judge that day could decide whether to quash the subpoenas, or enforce them, which would require court employees to hand over transcripts, audio recordings and other information related to the grand jury selection and empanelment process.

Paxton attorney Bill Mateja said he expects Gallagher will make a decision that day.

“We’re hopeful that he will allow the subpoenas to stand and not quash them,” Mateja told the Chronicle on Thursday. “This is a very common request for the grand jury transcripts.”

Mateja said he does not expect the proceedings to last very long, and has not discussed with Paxton whether he will attend: “It’s fairly routine on very preliminary matters that the clients don’t show.”

Like I said, clearly one side or the other is going to be very disappointed. We’ll know soon enough. Trail Blazers, which has a copy of the prosecution’s motion, has more.

Paxton seeks grand jury information

Ken Paxton’s legal team has filed five subpoenas seeking more information relating to the grand jury that indicted him.

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The defense seeks a complete transcript and audio recording related to the selection of the grand jurors who indicted him.


The transcripts would reveal what, if anything, came up about Paxton and possible criminal charges during the selection process of grand jurors who were drawn from Republican-dominant Collin County.

In Collin County, two grand juries are picked by district judges from a random pool of registered voters to serve six-month terms. Only one grand jury heard evidence in Paxton’s case and issued the indictments. But Paxton’s defense team applied for records on the selection of both grand juries serving in the July to December 2015 term.

The defense is also seeking the transcript and audio recording for the selection of the two grand juries that served in the first six months of this year.

Those grand jurors were contacted at their work and their home about the Paxton investigation. One grand juror also sent a letter to the Travis County district attorney’s office seeking its investigative file on Paxton. That letter came before Collin County District Attorney Greg Willis requested the Texas Rangers open an investigation.

Shortly after that, Willis recused himself from the case. Houston defense attorneys Kent Schaffer, Brian Wice and Nicole DeBorde were appointed as special prosecutors in the case against Paxton.

The defense’s final subpoena application seeks documents from the county’s Human Resources Department “related to a personnel action involving a deputy district clerk.”

The records don’t offer any further details. It’s unclear whether this involves the clerk who mistakenly sent out an email in July listing the grand jurors’ names.

According to the Chron story, special prosecutors Brian Wice and Kent Schaffer intend to file a motion opposing the subpoenas. I don’t know what Team Paxton hopes to accomplish with this – the story says they’re claiming the jury was stacked against Paxton, which seems like a stretch given how many friends in the county he has, but I suppose anything is possible – but I’m not the one being paid the big bucks to keep his sorry heinie out of jail. We’ll see what the judge makes of it.

Paxton the political advisor


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The former CEO of the technology firm tied to Texas Attorney General Ken Paxton’s securities fraud indictment told investigators he paid the then-lawmaker to provide information on how to market his product to government agencies, according to a new brief in the case.

The disclosure, filed Wednesday by the special prosecutors appointed to the case, also raises questions about the former CEO’s credibility, noting he gave different accounts of Paxton’s involvement with his firm to the Texas Rangers and the U.S. Securities and Exchange Commission during a federal fraud probe.

State and federal laws require prosecutors to disclose evidence that may be beneficial to a defendant in what is called a “Brady notice,” named for a Supreme Court ruling – Brady v. Maryland – that says criminal suspects are entitled to exculpatory information uncovered by prosecutors.

Wednesday’s filing states that William Mapp, then CEO of the McKinney technology firm Servergy, told the SEC in 2014 that he had handed over $100,000 worth of stock in his company as a commission for Paxton to solicit new investors. At the time, the federal agency was investigating Servergy over allegations it defrauded investors.

Mapp later told investigators with the Texas Rangers that Paxton refused the commission and accepted the stock “in exchange for Paxton being a political adviser to the company and for providing information about upcoming opportunities for Servergy to market their servers to government data centers,” the Brady disclosure states.

The special prosecutors, Kent Schaffer and Brian Wice, declined comment on the filing Wednesday.

“I can’t really say what the impact of the Brady Notice regarding Mr. Mapp is going to be, except to state the obvious – the prosecutors believed that the purported discrepancy in his positions was favorable to the defense or that it was a significant enough change that they were required to let us know, credibility wise,” Dan Cogdell, Paxton’s lead defense attorney wrote in an email Wednesday evening.

“It is interesting to see that some of the State’s theories as to what happened or didn’t happen seem to be evolving fairly quickly over a short period of time,” he wrote.

Nice to know that when defense attorneys get appointed as special prosecutors that they take Brady requirements seriously, isn’t it? As to the effect it may have on this case, who knows? It will likely make William Mapp’s credibility more of an issue now, but it still doesn’t exactly make Paxton look squeaky clean. We also don’t know what else the prosecutors may have up their sleeve. Wait and see what comes out at trial, that’s still the best strategy. The Statesman, the Press, and WFAA have more.

Still working out Paxton prosecution costs

Collin County is still hoping to do this on the cheap.

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Collin County officials expect to budget $100,000 to prosecute Attorney General Ken Paxton, but hope to eventually slash that amount by two-thirds.

The county Commissioners Court on Monday evening is expected to discuss how much it will cost to pay the three special prosecutors appointed to try Paxton, who was indicted in July on three felony charges of violating state securities laws.

Judge Keith Self, who sits on the five-member court, said he expects the panel to approve an allocation of $100,000 for the prosecution, but he hopes that amount will be cut to $33,000 once the county begins receiving invoices from the prosecutors.

Last week, the commissioners court unanimously passed a resolution urging Judge George Gallagher, the Tarrant County jurist presiding over Paxton’s case, to cap prosecution costs at the lower figure, citing Collin County’s rules surrounding indigent defense.

On Monday, Self told the Chronicle that Gallagher had responded to the request by noting he could not predict the total final cost of the prosecution.

“He wrote me a very cordial note back and said that he was unable to estimate expenses and time of the trial. So, he was unable to shed any light on the expenses,” said Self, who said while $100,000 will be budgeted, he thinks spending that amount would violate the county’s rules regarding a prosecution of this kind.

“We read the law as being very clear,” said Self. “We’re trying to be cautious with our budgeting.”


Texas law states that an attorney pro tem who not a state attorney like Willis “shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.”

Each county sets its indigent defense fee schedule. Some counties, like Harris and Travis, have no caps but require fees to be “reasonable.” Collin County’s, in contrast, places specific dollar restrictions on indigent defense.

See here for the background. The problem here is in those last two paragraphs. Collin County doesn’t allocate enough money for indigent defense, which in this case leaves them in the lurch for the special prosecutor they had to get since Ken Paxton is everyone’s buddy. One of those buddies is threatening to sue if they wind up spending any more than that $33K. The special prosecutors could take one for the team and agree to work for pittance wages, but they shouldn’t have to, and the judge shouldn’t feel any compunction to let them or to make them. Let this play out as it will, and if Collin County winds up holding the bag, maybe they’ll reconsider their penurious ways with indigent defense. I’m sure they can afford it. Trail Blazers has more.

Paxton hires new attorneys

Let’s see if he can keep them.

Best mugshot ever

Facing a high-profile securities fraud trial that could cost him his job and land him in prison, Attorney General Ken Paxton has enlisted the help of two top defense lawyers known for their forceful personalities and successes in the courtroom.

Paxton on Thursday announced he has hired high-powered Houston lawyer Dan Cogdell and former state and federal prosecutor Terri Moore of Fort Worth to defend him against three felony indictments. Both have extensive trial experience, and are known for their ability to gain the trust and understanding of juries.

“I believe that I have secured a strong and aggressive team of highly competent and respected attorneys,” the first-term attorney general said in a statement. “I am entrusting them to courageously lead this case, fighting for truth and justice.”


Paxton’s original attorney, former federal judge Joe Kendall, stepped down from the case Aug. 27, the day of his arraignment in a Fort Worth courtroom. State District Judge George Gallagher, the Tarrant County jurist who will preside over any trial, gave Paxton until Sept. 3 to find new legal representation.

Gallagher extended the deadline until Thursday after Paxton initially was unable to secure an attorney.

Special prosecutor Brian Wice, one of a team of three Houston criminal defense attorneys assigned to the case, called Cogdell one of the state’s top lawyers: “Dan’s a great lawyer and a long-time friend, and it’s not a cliché to say he’s an ‘A-list’ lawyer.”

A passionate lawyer who races motorcycles and was once known for wearing cufflinks shaped like buttocks in court, Cogdell’s forceful personality often is on display on and off the job. Early in his career, he shocked himself with a cattle prod in front of a jury to counter an expert witness’ testimony that it could cause a heart attack.

“I was a big frat boy at UT; in hell week, cattle prods are pretty much normal,” Cogdell told the Chronicle in 2004. “But I did have to practice for about four hours. I’m committed to my clients.”

Called “a Texas trial legend” by Best Lawyers in 2014, Cogdell said he preferred to defend his clients rather than settle.

See here for the background. The story goes on to describe Moore, a former First Assistant DA under Craig Watkins in Dallas, as a “pure predator” and “fast, loud, and colorful, going off on harangues about the justice system.” This ought to be a heck of a trial when we finally get to it. It’s not expected to begin for a year, however, so we’ll just have to be patient and be entertained by whatever pretrial motions get filed in the meantime. The Trib and Trail Blazers have more.

Paxton’s first day in court

It was a little weird.

Best mugshot ever

Texas Attorney General Ken Paxton on Thursday pleaded not guilty to violating state securities laws, while also telling the judge presiding over his felony case that he currently does not have an attorney.

Joe Kendall, Paxton’s lead counsel until Thursday morning, appeared in the Tarrant County courtroom with the first-term attorney general, but told the judge about halfway through the proceeding that he would be stepping down. He did not elaborate, saying only that there were issues in the matter that spurred him to do so.

His filed request to the judge to be removed from the case, however, cites unspecified “differences” between Paxton and Kendall’s law firm

“During the course of this representation, differences have arisen that adversely affect the attorney client relationship making further representation untenable,” the request reads.

Paxton told the judge he currently did not have legal representation, and that Dallas lawyer Pete Schulte, who had said he formally had joined the legal team, had not been hired as co-counsel.

“Yes, I’ll be having other counsel,” Paxton told Judge George Gallagher. “I do not right now… I don’t know who exactly will be on the team.”

Brian Wice and Kent Schaffer, two Houston criminal defense attorneys appointed to prosecute the case, said they did not know why Kendall, a former judge, was leaving Paxton’s legal team. In court, they told the judge they had amassed 14,000 pages of evidentiary documents in electronic form and were converting another seven to eight thousand.

Judge Gallagher set a Sept. 30 deadline for Paxton to file a motion to quash or take issue with his three felony indictments, issued by a Collin County grand jury last month. The state will have until Oct. 15 to respond and then the judge will rule. If he sides with Paxton, the prosecutors will be able to re-present their case to the same grand jury that indicted Paxton.

The Trib adds on.

During the hearing, Kendall indicated Paxton had retained Dallas-based lawyer Pete Schulte as counsel, appearing to contradict what the attorney general said about not having a lawyer. Gallagher also confirmed that Schulte had told him that he should be included on communications about the case.

Asked about the discrepancy, Paxton said he meant that he had not yet formally brought Schulte into the case as a lead attorney.

Later that morning, Schulte tweeted that “clarification will be forthcoming today” about who would be representing Paxton. “It’s unfortunate that Joe Kendall created this confusion in court as he was leaving the team,” Schulte said.

Special prosecutors Brian Wice and Kent Schaffer greeted the defense’s changing counsel with skepticism.

Telling the judge they would not raise a formal objection “this time,” Wice pointed out that Paxton was on his “third lawyer in as many months.” He said that he hoped the pattern did not become a stalling tactic.

Speaking to reporters after the hearing, Wice said he had not known Kendall planned to step down. But he added: “Nothing surprises me.”

I will admit, Paxton’s sudden change of attorney surprises and intrigues me. I suppose it’s most likely the case that there’s nothing to it – maybe their personalities didn’t mesh, maybe they couldn’t agree on a strategy, who knows – but it’s impossible to not speculate about more lurid scenarios. All foolishness aside, I’ll be interested to see what his new attorney has to say about the indictments. He’s going to have to do a lot of reading real fast to be able to prepare any motions by that September 30 deadline. Trail Blazers and the DMN Crime Blog have more.

Paxton reindicted

On the same charges, with slightly different wording.

Best mugshot ever

After re-filing indictments against Attorney General Ken Paxton in his securities fraud case, two special prosecutors are pushing back against criticism from Paxton’s attorney, who says the recent action shows that they “botched” the proceedings.

“It is not unusual in any felony case, particularly fraud cases, for prosecutors to ask the grand jury to re-indict so as to provide sufficient notice to the accused as to the nature of the criminal conduct with which he is charged,” Kent Schaffer and Brian Wice, the special prosecutors said in a prepared statement Tuesday evening.

On Tuesday afternoon, the prosecutors re-filed two of the three charges Paxton faces — two counts of first-degree felony securities fraud. The third charge — accusing Paxton of acting as an investment adviser or representative without registering – remained untouched.


In the charge naming Cook, for instance, prosecutors originally stated Paxton “had not, in fact, personally invested in Servergy.” The new charge states Paxton “had not, and was not investing his own funds” in the company.

Joe Kendall, Paxton’s attorney, criticized the re-indictment, saying it illustrated a process fraught with “troubling issues.”

“They had months to investigate and then rushed to indict,” Kendall said in a statement. “Now, the special prosecutors are back to clean up the botched indictments. It should make every fair-minded person question the process in this case.”

Not so, the prosecutors replied.

“Contrary to the assertion of Mr. Paxton’s criminal defense lawyer that the indictments charging his client with two counts of first-degree felony securities fraud were ‘botched,’ we obtained re-indictments to defuse the boilerplate arguments predictably advanced by the defense that the original indictments lacked specificity or were otherwise ambiguous,” Schaffer and Wice said in their statement.

Philip Hilder, a Houston-based criminal lawyer, said that while re-indictments don’t happen all the time in such cases, they are not rare.

“In this particular case, it’s clear that the prosecutors were trying to get out front and clean up the indictment before the defense had the opportunity to attack the pleadings,” he said after reviewing one of the re-filed charges.

You can see a copy of the indictments – there are two, one for each of the complainants in the first-degree cases, which are the ones from the expanded investigation – in the Chron story. I don’t know how often this kind of “cleanup” happens, but I can say that it happened in the Tom DeLay case. The fact that he was ultimately let off the hook by the Court of Criminal Appeals didn’t have anything to do with that. I’d be interested in hearing what any attorneys have to say about this, but beyond that it seems like a fairly mundane update to this story.

Ken who?

State Republican leaders don’t have much to say about our allegedly felonious Attorney General.

Ken Paxton

Texas’ Republican leaders Sunday continued their radio silence on the indictment of Attorney General Ken Paxton on three felony fraud charges.

Paxton, who was elected as part of a conservative GOP sweep that put Gov. Greg Abbott and Lt. Gov. Dan Patrick into office, will reportedly surrender to authorities Monday in North Texas on felony charges stemming from an alleged investment scheme into the McKinney-based technology company Servergy, as well as his failure to register as an investment advisor representative with the state.

Republicans’ silence comes in stark contrast to the support that followed then-Gov. Rick Perry when he was indicted on felony charges last year. Party leaders were quick to publicly decry those charges as politically motivated and insist Perry would prevail.

Paxton’s indictment could spell trouble for the state’s GOP leadership – generally with voters who may see it as symptomatic of ethics problems in Austin, and even among the conservative grassroots groups that helped elect Paxton but insist that elected officials should be squeaky clean.

Democrats and government-watchdog groups continue to blast the indictment Sunday as high-lighting cronyism among the state GOP leaders. Several called for his resignation.

Neither Abbott nor Patrick, who both championed ethics during the campaign and in the legislative session earlier this year, has commented on Paxton’s predicament.


The Texas Republican Party did not return calls and emails seeking comment since the news broke Saturday. Other Paxton supporters, including state legislators who count the same conservative groups among their supporters, remained silent over the weekend.

Calls to a spokesman for U.S. Sen. Ted Cruz were not returned Sunday.

But they have not always been so silent. During last year’s campaign, an array of GOP luminaries from Abbott to Cruz, now a presidential contender, were effusive in their praise for Paxton even after he admitted and was punished for violating state securities.

Cruz, a star among Christian conservatives and tea party activists, referred to Paxton as “a good friend” at campaign rallies and cited Paxton’s support of straight-line conservative causes from opposing Obamacare and federal overreach to support of voter ID and more border security.

“You’re a good, strong conservative leader,” Cruz said of Paxton in one speech.

Paxton, in return, ran heavily on Cruz’s support, a key proof of his conservative bona fides that some political observers said helped him clinch a victory in the GOP primaries against Rep. Dan Branch, a favorite among establishment Republicans.

Privately, some Austin insiders said the issue was Paxton’s to address. Since it did not involve allegations of wrongdoing in his role as a state official, and because the case involved private business dealings, they said state business was not involved.

No doubt, this is going to cause heartburn for some people, from Cruz to Abbott to Dan Patrick and on down. That will be one of the fun parts about this saga. It’s not like no one could have seen this coming – Dan Branch and Sam Houston both made an issue of it in the elections last year. There were enough voters who cared more about Paxton’s stances on social issues than his integrity or capability, and so here we are. Still, let’s not forget how much better we could have done in this department.

Paxton’s Democratic opponent from 2014, attorney Sam Houston, said when the November election rolled around there was a cloud of controversy hanging over the Republican nominee. By then, Paxton had already easily defeated state Rep. Dan Branch, R-Dallas, who had made Paxton’s alleged ethical lapses the centerpiece of his primary runoff.

“Dan Branch and I both talked about a pattern in the election. So I don’t think this is anything surprising or new,” Houston said. “I hate to say I told you so because that doesn’t make me feel better, but we were saying that it was likely that once he was elected that he could be indicted and sure enough, it’s happened. It’s just been even more counts than I even thought would happen.”


As word of the indictment spread, it was Tea Party activists who were the most willing to speak out about it. Writing for Empower Texans, an influential conservative group, its general counsel Tony McDonald questioned whether the investigations of Paxton had ties to the leadership of House Speaker Joe Straus.

Saying House leaders’ “motives are obvious,” McDonald wrote hours before word of the indictment spread: “Paxton rose to statewide prominence when he challenged Straus for the speakership in 2011. Further, the three are still stinging from Paxton’s defeat of their ally and Straus’s boyhood friend, Dan Branch, in the 2014 primary for Attorney General.”

Those voters who have sided with Paxton through the controversy, [SMU poli sci prof Cal] Jillson said, need to “blink hard twice and ask themselves what they were thinking.”

Some conservatives are taking a less defensive approach to Paxton’s legal troubles, though. North Texas Tea Party activist Mike Openshaw wrote on Facebook that Paxton should “step aside” if the reports about his indictment were true.

“Texas conservatives need to maintain a higher standard,” Openshaw wrote. “We aren’t Democrats.”

Yeah, we Democrats knew he was a crook a long time ago. Welcome to the table, but I’m not holding my breath waiting for your colleagues to come along with you. They’re all doing their best to pretend nothing has happened.

“Judge [George] Gallagher has specifically instructed both parties to refrain from public comment on this matter, and we are honoring the judge’s instructions,” Paxton attorney Joe Kendall, a former federal judge, said in a statement.

It was a far cry from the full-throated and indignant denials of other Texas leaders who have — on not entirely rare occasions — found themselves indicted. And it indicated that the state’s top law enforcement official is facing months, if not years, of his office and his stature being diminished under the weight of criminal charges.

“His situation is darkened,” said Republican political consultant Bill Miller.

The difficulties of Paxton’s defense are already stacking up: The investigation was run by the Texas Rangers; a hometown Collin County grand jury indicted him; and the charges spring from his questionable involvement in troubled financial deals, Miller said.

Paxton is accused of encouraging investors in 2011 to put more than $600,000 into a McKinney-based technology company, Servergy Inc. He is charged with failing to disclose to investors that he was making a commission on their investment. And he is alleged to have misrepresented himself as an investor in the company.

In the wake of the allegations has come a deafening silence from Republican colleagues.

“That’s the loudest noise in the room,” Miller said.

“The Democrats will yell for his resignation, and the Republicans will be silent,” he said. “However it’s resolved, he’s seriously wounded.”

They may have to say something now that Paxton has turned himself in for booking and a spectacularly ugly mugshot – seriously, where was Rick Perry’s stylist when Paxton needed him? The state Republican Party did issue a a perfunctorily snotty statement reminding us that even someone like Ken Paxton is innocent until proven guilty (and not subsequently cut loose by the Court of Criminal Appeals). Here’s one reason why at least some Republicans may not be out there standing by him: At least one, Rep. Byron Cook, is a complainant. Awkward! Several other Republicans lost money in a deal involving Paxton as well, though I don’t know if that one is part of the charges against him. Point being, as this is about money and not politics, the lines could get just a little blurry. Settle in and enjoy the ride going forward. Newsdesk, BOR, Hair Balls, Paradise in Hell, Texas Leftist, Trail Blazers, the Lone Star Project, the Observer, the full-of-ennui Burkablog, the Trib, and the Current have more.

UPDATE: Here’s the Republican Party of Texas’ statement on Paxton’s indictment. I did mention that they put out a statement in my writeup above, but there’s a pull quote from a story earlier in the cycle when they hadn’t yet put a statement out, so I’m putting this here for clarity.

Paxton indicted

It just got real, y’all.

Ken Paxton

Texas Attorney General Ken Paxton has been indicted on three charges in Collin County, according to KXAS-TV NBC 5, The Dallas Morning News’ media partner.

The grand jury’s indictments were issued on Tuesday, then immediately sealed. Paxton was indicted on two counts of first-degree securities fraud and one-count of third-degree failure to register. Sources tell KXAS’s Scott Gordon they will be unsealed Monday.

According to WFAA-TV, a Tarrant County judge has been appointed to the case.


“We went into this knowing that the Texas Rangers would uncover whatever evidence was there and if there was a sufficient amount that we would present it to a grand jury, so that’s what we did,” Kent Schaffer, one of the special prosecutors assigned to the case told The New York Times. “The grand jury elected to indict, and the indictments all speak for themselves.”

The Trib fills in some details.

Kent Schaffer, one of two special prosecutors who took the Paxton case to the grand jury, told The New York Times that the indictments include three felony counts — two alleging first-degree securities fraud and another alleging a third-degree charge that he failed to register as a securities agent.

Schaffer said Paxton is accused of encouraging others to invest more than $600,000 in a company called Servergy Inc. without telling them he was making a commission and misrepresenting himself as a fellow investor. The grand jury also charged him with failing to register with state securities regulators for soliciting clients for Mowery Capital Management in return for fees.


State officials do not have to step down from office if they are indicted, but convicted felons cannot serve.


Another potential problem for Paxton is the cost of defending himself. If he were charged for something he did as a state officeholder or as a candidate, his campaign funds could be used to pay the lawyers who defend him. In the case of charges that stem from his private or personal business activities, his campaign funds are out of bounds, according to experts in state ethics laws. Paxton would have to pay for his defense out of personal funds or find some way to set up a separate defense fund that could solicit contributions on his behalf.

I doubt he’ll have too much trouble raising money to defend himself, but we’ll see how things look on Monday when the indictment is unsealed. Not too many people want to hop on board a ship that’s going down. I also doubt that Paxton will step down any time soon, as it’s much harder to raise the kind of dough he’s going to need to defend himself as a private citizen than as a statewide officeholder, but there will be plenty of calls for him to do so. Here’s the official statement from Texans for Public Justice, whose complaint last year got this ball rolling:

“The only acceptable response to today’s indictment of Attorney General Ken Paxton is his resignation. The state’s highest law enforcement officer must be held to the highest standards of conduct. Ken Paxton’s behavior disqualifies him from serving as Texas’ top cop.”

You’d think so, wouldn’t you? The real question, as Nonsequiteuse asked a month ago, is at what point will Greg Abbott begin to consider Ken Paxton a problem? How long is he going to be happy to work alongside an indicted felon? These are serious charges, and Paxton has already admitted to one of them. Up to you, Governor. Thanks to Scott Braddock for being the first to call my attention to this. The Lone Star Project, Newsdesk, and Hair Balls have more.

Paxton girding for indictment

So are we, Kenny. So are we.

Ken Paxton

A Collin County grand jury is expected to weigh evidence brought by two temporary district attorneys assigned to the case. Paxton’s advisers are furiously preparing for a criminal indictment.

The looming showdown has the camps bickering. Anthony Holm, a spokesman for Paxton, contends the AG should not face criminal prosecution.

“As we’ve said for 14 months now, there was no criminal action because there was no crime,” Holm said. “This was solely a civil event with a $1,000 civil penalty.”

Holm took aim at the special prosecutors assigned to the case, calling Houston lawyers Kent Schaffer and Brian Wice lawyers “whose careers are built on defending the sort of child molesters and Mexican drug cartel leaders that Attorney General Paxton was elected to prosecute.”

Holm also accused a local lawyer who provided information about Paxton to a previous grand jury of having a vendetta.

“The Collin County situation is a drastic departure from objectivity, legal precedent or common sense, and it’s time for people to understand a respected public official is the target of a political vendetta,” Holm said. “This witch hunt must end.”

In a written statement, Schaffer and Wice fired back, saying their investigation was “neither a political vendetta nor a witch hunt.”

“The PR shell game Mr. Paxton’s hired gun employs once again seeks to change the conversation from his client’s conduct to personal attacks on us,” they wrote. “He knows full well that we were appointed by a Republican judge in one of the most conservative counties in Texas to conduct a full, fair and impartial investigation, and that is exactly what we intend to do.”

As the story notes, Paxton admitted to breaking the law to avoid a campaign issue. In his mind, that means the matter was settled, even though it had not yet come to the attention of any prosecutor. Now as we know a complaint has been filed and a special prosecutor appointed with a grand jury waiting in the wings, but Team Paxton wants everyone to believe that it’s all ancient history. It doesn’t work like that, I’m afraid. At least, not for normal people.

But prosecutors now say that at the least, there’s evidence that Paxton violated securities law by not registering with the securities board, a third-degree felony. And Schaffer has said he’ll ask for a first-degree felony indictment, though he won’t elaborate on the charge.

The prosecutors could submit evidence of the securities law violation that Paxton admitted to as a slam dunk case. But at least one legal expert says few people are criminally prosecuted for such offenses.

The state securities board did not refer the case for criminal prosecution.

“It’s technically a violation, but you don’t often see that type of violation charged criminally,” said Dallas lawyer Jeff Ansley, a former Assistant U.S. Attorney for the Northern District of Texas and a former Enforcement Attorney for the U.S. Securities and Exchange Commission. “That’s very rare.”

So the key question remains: What’s the evidence of a first-degree felony?

I assure you, we are all on pins and needles waiting to find out. One hopes that these two career defense attorneys will not pursue excessive charges on flimsy evidence – you know, the sort of thing they are critical of other prosecutors for – so we’ll see what goods they have.

That Paxton is in legal trouble can be attributed in part to the efforts of a watchdog group, and the determination of a local lawyer.

The public integrity unit within the Travis County district attorney’s office said it lacked jurisdiction and forwarded information to Dallas and Collin counties for lack of jurisdiction. Dallas County District Attorney Susan Hawk didn’t touch the case either, saying she was not aware of any alleged crimes being committed in the county.

That left Collin County, where Paxton’s friend and business partner, Greg Willis, is district attorney.

After receiving a complaint from Texans for Public Justice, Willis stepped aside and said that “appropriate investigation agencies, including the Texas Rangers,” should handle the allegations against Paxton.

“As soon as we saw what he signed with the State Securities Board, it was obvious that he was admitting to felony conduct,” said Craig McDonald, executive director for Texans for Public Justice. “If Greg Willis hadn’t stepped aside, this thing would have died.”

Meanwhile, Dallas lawyer and blogger Ty Clevenger took the extraordinary step of sending information about Paxton to members of a Collin County grand jury, including three from the same church. He said he also dropped off information to a grand jury member’s home. He got their names from Collin County officials by asking; in Dallas, Hawk declined to release the grand jury’s names.

The grand jury that will hear the Paxton evidence from the special prosecutors is not the same as the one Clevenger sought out. One should always be a little wary of crusaders, no matter how enticing their claims are, but again, one hopes that the evidence will back up whatever comes out. There’s been a lot of trash talk from Team Paxton, which is either bravado or whistling past the graveyard. That grand jury is now in, and it’s put up or shut up time. The Observer suggests what may be coming.

William Mapp, the disgraced founder of Servergy, Inc., was identified at the courthouse by WFAA reporter Tanya Eiserer. Servergy, based in McKinney, claimed to produce energy-efficient servers for corporate clients. The company made extraordinary claims about its core product, the Cleantech-1000, claiming it consumed “80% less power, cooling, and space in comparison to other servers currently available.” But there was a problem: The federal Securities and Exchange Commission (SEC) alleges that Servergy’s claims about its product were false. And the company, the SEC says, produced fraudulent pre-orders from tech companies like Amazon and Freescale to sell itself to investors.

Servergy raised some $26 million from selling stock between 2009 and 2013, as detailed by information released by the SEC. And it profited from grants from the McKinney Economic Development Corporation (MEDC), a local fund that reinvests money collected by local sales taxes. Servergy continued to receive money from MEDC even after a formal SEC investigation began in 2013. Servergy is also connected to a wide variety of other improprieties and shady activities.

Paxton was a prominent Servergy shareholder, owning at least 10,000 shares. But while other investors simply lost their shirts, Paxton’s role in the Servergy case has generated lingering interest from authorities. In 2014, Paxton’s name was included in a list of search terms used by the SEC to subpoena the company, along with several other prominent figures in McKinney. Mapp’s presence at the courthouse today suggests that Servergy’s case is connected to evidence special prosecutors are presenting against Paxton.

That would be a significant escalation in the case against the state’s AG. A large part of the public defense laid out by Paxton’s spokesman Anthony Holm revolves around the assertion that Paxton’s original violation of securities law, regarding his legal clients, was a simple mistake and civil matter that he corrected when it was brought to his attention. The Servergy episode is a whole different kettle of fish, and while it remains to be seen what the prosecutors have against Paxton in connection to this particular episode, it should be a source of significant concern in the AG’s office.

See here for the background. All I can say is “oh please, oh please, oh please”. We’ll see what happens.

L’affaire Paxton gets larger

Oh, yeah.

Ken Paxton

When Attorney General Ken Paxton publicly admitted that he violated a state securities law last year, the State Securities Board was obligated by law to gather evidence against him and immediately refer it to prosecutors who could seek criminal charges.

But prosecutors in Travis and Collin counties said the securities regulators did not refer Paxton’s case to them, an apparent violation of requirements set by state law, the American-Statesman has confirmed.

In May 2014, when Paxton was a state senator running for attorney general in the Republican primary runoff, he accepted a reprimand and $1,000 fine from the State Securities Board, whose five members were appointed by former Gov. Rick Perry.

In that proceeding, Paxton admitted to soliciting clients for a Texas investment firm without registering as an investment adviser representative — a violation that can be prosecuted as a third-degree felony under the State Securities Act — and without disclosing that he would receive 30 percent of management fees.

But despite state law that required Securities Board Commissioner John Morgan to “at once” refer evidence of a criminal violation to the appropriate prosecutors — a standard that has been in place since 1957 — there is no evidence that securities regulators did so in the Paxton matter.

Robert Elder, a State Securities Board spokesman, said the agency would not comment.

In Collin County, where Paxton lived while soliciting investment clients three times between 2004 and 2012 as an unregistered adviser, prosecutors received no information about Paxton’s activities from the board, said Bill Dobiyanski, first assistant district attorney.

In addition, the Travis County Public Integrity Unit — which prosecutes corruption by public officials — did not hear from securities regulators about Paxton’s admission of violating securities law, said Gregg Cox, director of special prosecutions for the Travis County district attorney’s office, which includes the Public Integrity Unit.


Allegations that the State Securities Board hadn’t followed the law were raised last week in a strongly worded letter sent to Wice and Schaffer by the director of the left-leaning Progress Texas PAC.

In a July 8 letter, Glenn Smith suggested that Gov. Greg Abbott, who was still attorney general at the time, also didn’t follow requirements set out in the Texas Securities Act.

“On the surface, those failures raise suspicions of widespread conspiracy among several agencies and officials aimed at minimizing the criminal exposure of Mr. Paxton,” wrote Smith in the letter, which he provided to the Statesman.

Cait Meisenheimer, an Abbott spokeswoman, declined to comment on Smith’s letter. Wice also declined to comment on the letter, and Schaffer could not be reached for comment.

In his complaint, Smith specifically names Texas Securities Commissioner John Morgan and Collin County District Attorney Willis.

“With something like this, which is a clear confession of a felony by Sen. Paxton, the sort of silence and inactivity of public officials was very suspicious to me from the beginning,” Smith said. “They were compelled to act and failed to act, and this deserves attention.”

See here, here, and here for the background on the State Securities Board stuff, and see the original Statesman story for a copy of the letter. It’s always the coverup that gets you, isn’t it? The State Securities Board, full of Rick Perry appointees, should have followed the law and done its duty. Attorney General Greg Abbott should have followed the law and done his duty. Collin County DA Greg Willis should have done his duty a lot more quickly and without having to be pushed into it. That’s hindsight for you. Now I really can’t wait till the special prosecutors start laying out their case to the grand jury.

Paxton grand juror names accidentally released


Ken Paxton

A list of Collin County grand jurors was mistakenly released by an employee with the Collin County District Clerk’s Office.

The release violates a June 25 order by District Judge Chris Oldner that deemed the names and personal information of grand jurors in the current term to be confidential.

Grand jury proceedings are secret, but the names of those serving in this term are of particular interest because they will be hearing evidence, possibly as early as this month, alleging securities law violations by Texas Attorney General Ken Paxton.

Brian Wice, who was appointed along with Kent Schaffer as a special prosecutor in the Paxton case, said Thursday they were made aware of the release.

They issued a statement, saying: “While certainly unfortunate and inopportune, we trust that whatever harm the inadvertent disclosure of the grand jurors’ names and addresses might have caused was mitigated by Judge Oldner’s immediate and thoughtful response.

“Because both the state and Mr. Paxton are entitled to an investigation informed by fairness and confidentiality, we hope that whomever had access to the grand jurors’ personal information — especially members of the media — will respect their privacy during the pendency of their investigation.”

Messages left for Oldner and the District Clerk’s Office were not returned.

Radio station KRLD-AM reported Thursday that the grand juror names were mistakenly sent by an employee with the clerk’s office to 93 email recipients. A second, frantic email demanded all the unintended recipients “please immediately delete the previous email sent in error,” according to the news story.

Apparently, there was a mix-up with a previous grand jury. The Chron story fills in a few blanks.

In sealing the names, Judge Oldner cited previous instances were Collin County grand jurors were contacted with information regarding cases they were hearing. Oldner’s order states this information “was received outside the grand jury process and in violation of the laws of the state of Texas.”

The Houston Chronicle did receive the names of the grand jurors empaneled for the term that ended in June. After [Collin County DA Greg] Willis’ inaction, those members confirmed to the Chronicle that they had asked the Travis County District Attorney’s office for Paxton’s file to undertake their own probe.

“Collin County appears to be the venue where this evidence needs to be heard,” the grand jury vice foreman’s letter to Travis County read. “Therefore, we are requesting the documents be sent to us as soon as possible.

So in the end this is likely no big deal and no damage done. But man, does it ever seem like everything associated with Ken Paxton is cursed. Makes you wonder if one of his ancestors got in a feud with the Sianis family or something. What could possibly happen next?

Paxton could be in real trouble


Ken Paxton

The criminal investigation against Texas Attorney General Ken Paxton has taken a more serious turn, with special prosecutors now planning to present a first-degree felony securities fraud case against him to a Collin County grand jury, News 8 has learned.

Special prosecutor Kent Schaffer told News 8 Wednesday afternoon that the Texas Rangers uncovered new evidence during the investigation that led to the securities fraud allegations against the sitting attorney general.

“The Rangers went out to investigate one thing, and they came back with information on something else,” Schaffer told News 8. “It’s turned into something different than when they started.”

Schaffer, a Houston criminal defense attorney, said the securities fraud allegations involve amounts well in excess of $100,000. He declined to comment specifics of the fraud allegations.

A first-degree felony conviction is punishable by up to life in prison.

Ponder that for a moment – “punishable by up to life in prison”. Not that I expect any such outcome, but how often do you hear that sort of thing said about an incumbent elected official? Again, this may very well turn out to be nothing, or at least something a lot less than that. But still.

Schaffer said he and the other special prosecutor will begin presenting their case to a Collin County grand jury within the next few weeks. He said he anticipates eight to nine witnesses will appear before the grand jury.

“We believe that there’s sufficient evidence to present to a grand jury,” Schaffer said.

Schaffer said he also anticipates presenting a case involving failing to register, which is a third-degree felony.

The investigation had started with allegations that Paxton violated the law when he failed to register as an investment advisor with the state.

News 8 also learned Wednesday that Paxton had hired a former federal district judge.

“I met with General Paxton and he had retained me to look into the matter,” said Joe Kendall, who practices in Dallas. “I am honored that he did. He’s a good man.”

Kendall told News 8 that he met with Paxton “very recently” in Dallas and confirmed that he was hired within the past two days.

“I’m going to be helping look into the matter,” Kendall said, declining to comment further.

See here, here, and here for the background. The Chron story dredges up a quote from Paxton’s longtime flak Anthony Holm in which he says that “at least three other entities have thoroughly reviewed these matters and each chose not to proceed”. One of them was the Travis County DA’s office, which concluded it didn’t have jurisdiction. One was the Dallas County DA’s office, which didn’t say why it declined to move forward. I’m not sure who the third was, but this sure is beginning to sound like whistling past the graveyard.

Perhaps that’s why Paxton was so aggressive in his response.

“This appears to be a politically motivated effort to ruin the career of a longtime public servant,” Paxton spokesman Anthony Holm said in a statement that also accused the two attorneys of building their case in the press. “These attacks on Ken Paxton appear to have become a political hit-job in the media, perhaps having the effect of inappropriately influencing the grand jury.”


Holm said Thursday that neither Schaffer nor Wice have “significant prosecutorial experience,” adding that it appears only one case has been prosecuted between the two of them. Neither Schaffer nor Wice has worked as a prosecutor, but both have extensive backgrounds in criminal defense. Wice was on the team that defended former House Majority Leader Tom DeLay, R-Texas, against corruption and money laundering charges.

“Not only do they appear inexperienced as prosecutors, they are from Houston,” Holm said. “Meanwhile thousands of experienced prosecutors and former prosecutors are in the Dallas area.”

Wow. One wonders who it is that authored this “hit job” on Paxton, given that (as a commenter on this Trib story noted) he’s been “indicted in one of the most Republican counties – Collin County – by a special prosecutor appointed by a Republican judge who is a friend of Paxton, in an investigation that was led by the Texas Rangers, which is part of the state government, which is led by all Republicans”. I know he’s just playing to the cheap seats, but you’d think he could at least let us know who he thinks is persecuting him. As for the dig on the special prosecutors, I’m pretty sure that Schaffer and Wice know their way around a criminal courtroom, regardless of what table they’re sitting at. When was the last time Paxton himself was in a courtroom? If this were the runup to a sporting event, we’d say that he just provided some bulletin board material for his opponents. I don’t know if this would be motivational to Schaffer and Wice, but they’re human beings, too. I know I’d focus a little harder after being insulted like that.

Anyway. In case anyone is wondering, if at some point Paxton resigns, the Governor appoints a replacement, who must be confirmed by a two-thirds vote of the Senate. That could get interesting, but we’re way ahead of ourselves. I can’t wait till the grand jury proceedings begin. A statement from Texans for Public Justice is beneath the fold, and Burka, PDiddie, Campos, Juanite, the Current, and the Trib have more.

UPDATE: Well, this sure answers my questions about Schaffer and Wice.

Reached for comment late Thursday, Schaffer said Holm “never denies the criminal conduct.”

“I noticed that in Mr. Holm’s obligatory statement there was not one time that he said that Mr. Paxton did not do the things that we are looking at,” said Schaffer. “I found (that) very concerning.”

Wice and Schaffer issued a lengthy statement criticizing Holm’s remarks as “the usual sound bites, culled from the play book of any public official whose conduct places them in the cross-hairs of a grand jury investigation.

“Tellingly, Mr. Paxton feels that a Dallas address or a career spent as a prosecutor somehow trumps our over seven decades of trial and appellate experience as two of Texas’s most respected criminal lawyers,” the statement reads. “We were brought in from Houston to ensure that an investigation that could have easily been driven by partisan politics and political agendas would not.”

It adds, “The facts, which Mr. Paxton would rather ignore than acknowledge, are, as Churchill said, stubborn things. And that’s exactly what we will provide the grand jury with: the facts. Our investigation will continue to be informed by what our oaths as special prosecutors commands: to do justice. And sound bites and personal attacks won’t change that.”

It. Is. On. Get that popcorn popping.


More complaints against Paxton

From the Lone Star Project, spotted on the Quorum Report with the original press release forwarded to my inbox:

Ken Paxton

Lone Star Project research has compiled significant information regarding the involvement of Texas Attorney General Ken Paxton in a series of questionable property transactions in Collin County. Some of the information gathered by the Lone Star Project has already been made public in press reports, while other information has not yet been reported on at all.

In reviewing the information gathered by Lone Star Project research, I realized that the actions of Attorney General Paxton may have gone beyond activities that warrant only political criticism. In fact, the information points to the potential use of insider information and actions by Ken Paxton and his associates that could rise to the level of criminal activity.

In light of this, the Lone Star Project submitted a detailed complaint to the U.S. Attorney in the Eastern District of Texas, which has jurisdiction over Collin County, last month. We also submitted the complaint to the Grand Jury in Collin County which is currently conducting a criminal inquiry into Ken Paxton’s violations of Texas securities laws.

Given that the ongoing investigation into Ken Paxton’s violations of state securities law, we believe his close involvement in questionable land transactions in Collin County also warrant the review of law enforcement officials.

Last year, the Dallas Morning News reported on a land deal involving Ken Paxton and his business partners involving the purchase of property in the City of McKinney for $700,000. The property was quickly flipped for a selling price of $1 million. The News report details the creation of an appraisal district and zoning change which raised the value of the property before the subsequent sale of the land by Paxton’s company. While Paxton denied knowing about the new zoning designation, associates within Paxton’s business lobbied local officials to obtain the change.

The letters sent by the Lone Star Project to the U.S. Attorney and the Collin County Grand Jury includes additional facts on the land transactions and raise new questions regarding Ken Paxton’s involvement. The information focuses on four specific areas:

  • Even following the 2014 Dallas Morning News story, key questions remain unanswered about the extent to which Paxton and his associates used insider knowledge and political connections to profit from the development of the McKinney Property.
  • A land swap with the City of McKinney in which a narrow strip of property owned by Paxton’s company was traded for a separate property on a nearby street corner – the trade that appears to be of significant benefit of Paxton. The same day of the trade, Paxton’s company flipped the newly acquired property to a private entity for an undisclosed amount.
  • In addition to profiting from the resale of the property acquired by the trade, it appears that a title company connected to Paxton provided the title insurance for the two transactions.
  • Paxton and his associates continue to hold property in Collin County that may also result in a significant profit when it is eventually sold.

Documents Attached:
Letter to the Collin County Grand Jury
Letter to the US Attorney
Background Document

I did blog about that DMN story from last May, but I only noted Paxton’s refusal to release his tax returns during the campaign, since caring about such things was apparently so 2010. Perhaps this is why he was so secretive about it. I can’t find any news coverage of this, so draw your own conclusions about how big a deal it is.

The news release touches on the ongoing investigation in Collin County, whose deadline date is as yet uncertain. Yesterday we got an update on where this stands.

Special prosecutors assigned to investigate Ken Paxton’s alleged violations of state securities laws said this week that they plan to take their case to a Collin County grand jury next month.

The confirmation comes just weeks after a judge expanded the probe to include possible fraud allegations involving the first-term attorney general.

“We are going to the grand jury,” special prosecutor Kent Schaffer told the Chronicle on Wednesday. The process will begin in July when the new grand jury is chosen, and Schaffer said he expects it to take more than the typical three-month period juries sit in Texas.

That puts any possible resolution of the inquiry into at least the October/November time frame. At least we know it’s moving along, which is more than we could have said earlier this year. Trail Blazers has more.

When might Paxton be prosecuted?

Attorney Ty Clevenger thinks the clock may be running out on the grand jury in Collin County.

Ken Paxton

As best I can determine, the limitations deadline for charging Texas Attorney General Ken Paxton with state securities violations is June 14, 2015. If so, that means the grand jury must indict Mr. Paxton at its meeting tomorrow or at its next meeting on Tuesday, June 9, 2015, or he cannot be prosecuted for those alleged violations.


According to transcripts of administrative hearings that were conducted during the week of March 9, 2015, Mr. Mowery asked his clients to backdate numerous documents, including one that was backdated to June 14, 2012. (I’m probably not supposed to have the transcript, but here it is anyway; and here are the state’s closing brief and Mowery’s closing brief). According to pages 285 and 287 of that transcript, the document was backdated to make it appear that Mr. Mowery informed Henry Allen and his wife (whose first name is not listed) about the referral fee arrangement with Mr. Paxton.

In reality, the Allens did not learn about Mr. Paxton’s kickback referral fee until April of 2014, when Mr. Mowery asked them to sign the backdated document. I have not seen the document itself because I do not have the hearing exhibits, but two sources have independently told me that June 14, 2012 appears to be the last time Mr. Paxton solicited clients for Mr. Mowery. Add three years to that date, and your limitations deadline is June 14, 2015.

Meanwhile, a source tells me that special prosecutors Brian Wice and Kent Schaffer have promised to present the case to the grand jury before its term expires on June 16, 2015. Even so, I do not understand why the special prosecutors would wait until so near the limitations deadline to present the case. Granted, I don’t know what they know, but this case appears to be pretty straightforward. Mr. Paxton either solicited clients or he did not, and either he was registered as a securities representative or he was not.

The Travis County DA’s office had already investigated the case before Mr. Wice, Mr. Schaffer and the Texas Rangers were assigned, and Mr. Paxton had already signed a sworn statement and an agreed order with the State Securities Board accepting a $1,000 fine because he solicited clients in 2012 without being registered. In other words, it appears that our attorney general has already admitted under oath that he committed a felony.

So how many more details do Mr. Wice and Mr. Schaffer need to gather before they can present the case to the grand jury? I realize they may not be ready to go to trial, but an indictment does not require a trial because it is not a conviction. The prosecutors only need to convince grand jurors that it is more likely than not that Mr. Paxton committed a crime. The trial comes later (if it comes at all).

I sure hope that means they’re getting close to doing something. In the meantime, the two special prosecutors may have more room to investigate:

In late April, Judge Scott Becker appointed Houston criminal defense attorneys Brian Wice and Kent Schaffer as special prosecutors to assist in the “investigation and, if warranted, the prosecution of Ken Paxton for the securities law complaints currently under investigation by the Texas Rangers.”

In an amended order issued May 20, however, it was expanded to “any and all offenses arising out of Ken Paxton’s alleged violations of the Texas Securities Act.”

“I requested the scope of our investigation be expanded because of things that were uncovered in the course of the investigation,” Schaffer told the Chronicle Thursday. “We wanted to make sure the scope of our investigation was not limited by the original order. We were simply going where the evidence took us.”

Very interesting, wouldn’t you say? The Trib suggests that the expansion of scope could also mean an extension on the statute of limitations. You can expect that to come up in a motion to dismiss some day, if we get that far. Be that as it may, I can’t wait to see what happens next. And just think, if Paxton does get indicted, no one will be able to blame it on those dirty hippies in Travis County. Link via the Dallas Morning Views blog.

Meet your Paxton prosecutors

Technically, they’re district attorneys pro tem, for those of you keeping score at home.

Ken Paxton

Two Houston attorneys have been appointed to replace Collin County District Attorney Greg Willis in any potential prosecution of his friend and business partner Attorney General Ken Paxton. The Texas Rangers are looking into whether Paxton should be criminally prosecuted for violating state securities law.

Kent Schaffer and Brian Wice will serve as criminal district attorneys pro tem, according to an order signed Tuesday by Scott Becker, a judge in Collin County district court. The order leaves open the possibility of “further additional appointments.”


While neither Schaffer nor Wice have worked as prosecutors, both have extensive criminal defense backgrounds. Wice recently worked on the defense team of NFL Star Adrian Peterson with attorney Rusty Hardin and is the legal analyst for KPRC-TV in Houston. He is most known as the appellate attorney for former House Majority Leader Tom DeLay.

Shaffer has represented high-profile politicians and business leaders including R. Allen Stanford, former Congressman Craig Washington and handled legal affairs for athletes and celebrities including Farrah Fawcett.

See here for the background. It’s interesting to name two lawyers who have never worked as prosecutors for this, but they are certainly well qualified to handle the procedure. One might surmise that if they wind up going forward with charges against Paxton, their case will be pretty darned solid. I look forward to seeing what happens next.

CCA to review dismissal of DeLay conviction

The criminal justice system isn’t done with Tom DeLay just yet.

Do YOU feel safe with me out on the streets?

The Texas Court of Criminal Appeals on Wednesday agreed to review whether a lower court correctly decided last fall to toss out the prison sentence handed to former House Majority Leader Tom DeLay on money-laundering charges.

The state’s highest court on criminal matters announced that it would accept a petition asking it to consider whether a 2-1 decision by the Third Court of Appeals overturning DeLay’s criminal case conviction was appropriate.

The appellate court in September 2013 tossed a high-profile jury verdict, ruling that “the evidence was legally insufficient to sustain DeLay’s convictions.” In a dissent, the lone Democrat on the three-judge panel argued the evidence for a conviction was sufficient enough to convince a rational jury that criminal conduct had taken place.

Travis County District Attorney Rosemary Lehmberg, whose office had prosecuted DeLay, had appealed the appellate court’s decision. They had no immediate comment to the morning decision to review the case.

No date for the hearing before the state Court of Criminal Appeals was set. Both sides will have time to file briefs outlining their arguments in the case.

Brian Wice, a Houston attorney who represents DeLay, said he looked forward to arguing again that the conviction should remain overturned. “We are confident,” he said, noting that he was at the Court of Criminal Appeals to argue another case when he was advised that the court would review the Third Court’s ruling.

See here for the last entry in this saga. We always knew that the Travis County DA would appeal that ruling, it was just a matter of time. The CCA has previously ruled against DeLay, but this is a different ballgame. We know that as a rule, the CCA is fairly hostile towards defendants, but not always. We’ll see if they follow their instincts or not. Juanita, who is practically dancing in the street at the news, has more.

Doesn’t he know that Valjean was French?

Poor, pitiful Tom DeLay.

I know who I am but who are YOU?

DeLay, and his attorney, Brian Wice, are hoping to get his convictions overturned. On Oct. 10, they will finally get a chance to make their case to the 3rd Court of Appeals, arguing the once-powerful Republican leader did nothing wrong and is the victim of a political vendetta, a claim that prosecutors deny.

DeLay, 65, was found guilty in November 2010 of money laundering and conspiracy to commit money laundering for helping illegally funnel corporate money to Texas candidates in 2002.

Sitting with DeLay in his office in downtown Houston on Wednesday, Wice used a literary allusion to explain the case. He compared DeLay to Jean Valjean, the kind-hearted protagonist of Victor Hugo’s “Les Misérables.” He called Ronnie Earle, the now-retired Democratic Travis County District Attorney in Austin who charged the former lawmaker, a modern-day Inspector Javert, who pursued Valjean at all costs.

The Travis County District Attorney’s Office says the case was never about politics but about someone who broke Texas law.

“Our office has always been fair and never been politically motivated in prosecuting this defendant or any other,” said prosecutor Holly Taylor.

I believe it was Ronnie Earle who said “Being called partisan by Tom DeLay is like being called ugly by a toad.” But never mind that, I feel a song coming on:

Yes, Jean Valjean was exactly like Tom DeLay, with his book deal and his touring the country giving speeches and rubbing elbows with power brokers, and of course his gig on “Viennese Waltzing With The Stars”, which was a big hit back in the day. Valjean also had a legal defense fund that helped keep him afloat all those years he was being pursued by Javert. It’s like they’re twins separated by a couple of centuries and the fact that one of them is fictional.

If I hadn’t been a math major, I might have read enough Great Books to have a better fictional doppelganger for DeLay to suggest, but I didn’t and I don’t. So I’ll leave that to you. Make your nomination for DeLay’s true literary counterpart in the comments. I’m sure we’ll get a better answer than this.

Henson removed from DeLay appeals case

Score one for Team DeLay.

Are YOU fit to judge me?

Former U.S. House Majority Leader Tom DeLay has won a tactical victory with the removal of Justice Diane Henson, a Democrat, from his appeal.

A motion to remove Henson was granted late Friday without comment and posted on the 3rd Court of Appeals’ website. The action might put the much-delayed appellate case back on track.

“All we ever asked for was a level playing field,” said Brian Wice, DeLay’s appellate lawyer from Houston. “That wasn’t going to happen as long as Justice Henson’s DNA was on the case.”

In his motion, Wice had complained about what he called “anti-Republican” comments Henson had made about his client, a prominent Republican, several years ago.


When Wice challenged Henson, the 3rd Court was down to Chief Justice Woodie Jones, a Democrat, and Justice Melissa Goodwin, a Republican, to decide whether Henson could hear the DeLay case.

Texas Supreme Court Chief Justice Wallace Jefferson added a third, temporary justice to hear the motion against Henson. He appointed San Antonio District Judge David Berchelmann Jr., a Republican and a former criminal appellate justice.

With Henson now off the case, Wice said Saturday he expects Jefferson will appoint a justice to hear oral arguments with Jones and Goodwin.

See here, here, and here for background. I seriously doubt this ruling would make any difference in the outcome of DeLay’s appeal, but now there’s one less cause for appeal if he loses again. Let’s get this show on the road already. Postcards and Hair Balls have more.

A trio of trial updates

Planned Parenthood versus Texas:

A ruling affecting health care, including contraception, for some 130,000 low-income Texas women probably won’t come until late this year as Planned Parenthood and the state of Texas plan for mid-October oral arguments in their legal fight.

The state is appealing a preliminary injunction that U.S. District Judge Lee Yeakel granted six weeks ago preventing Texas from disqualifying Planned Parenthood from participating in the Women’s Health Program. State leaders oppose Planned Parenthood because some of its clinics provide abortion services.

Yeakel told both parties Friday the case could change depending on how the 5th U.S. Circuit Court of Appeals rules on the state’s effort to lift his injunction. The appeals court will hear oral arguments on June 7.

According to Postcards, the schedule is depositions and discovery are to be done by August 17, the last briefs are due in October 5, and oral arguments will be on October 19. We’ll probably get a ruling in November.

Voter ID:

The state’s lawsuit against the U.S. Department of Justice over the voter ID bill will commence in July, keeping alive the chance that the controversial measure could be in effect by the November election.


The Department of Justice confirmed that a federal district court in Washington D.C. will hear the case starting July 9, but declined to offer any additional comment.

At this rate, the voter ID lawsuit could be decided before the redistricting lawsuit. Man, that’s taking forever. In the meantime, you’ve probably heard that a divided DC Court has upheld the Voting Rights Act in the Shelby County (Alabama) lawsuit. The Supreme Court may hear the inevitable appeal of the voter ID suit, which also challenges Section 5 of the VRA, before the appeal of this case. At least one of those cases will be on their docket next year.

Tom DeLay.

The much-delayed Tom DeLay case is delayed again.

The 3rd Court of Appeals cancelled [this] week’s oral arguments on DeLay’s money-laundering conviction after his lawyer, Brian Wice, asked Justice Diane Henson to recuse herself.


The latest postponement in the marathon case was prompted because three Republicans on the 3rd Court removed themselves from hearing the appeal. They did not cite a reason.

“The Republicans all apparently think this case is kryptonite,” Wice said at the time. That left Wice facing a 2-to-1 Democratic panel hearing the oral arguments.

Friday’s cancellation came after Wice had filed a motion asking the court to make a decision on Henson by Friday or he would ask a higher court to intervene.

The court did not explain the reason for the cancellation or suggest how long the appeal might be on hold. Wice speculated Friday that the court has reached an impasse over Henson’s participation.

“I think they did the sensible thing and called a timeout,” Wice said.

I’ve got the World Court in The Hague on speed dial whenever they’re ready to face up to the inevitable.

Will the last judge on the Third Court of Appeals please issue a ruling on Tom DeLay?

The way this is going, we may have to start importing judges from other states.

Are YOU fit to judge me?

Former U.S. House Majority Leader Tom DeLay’s appeal has taken an unexpected turn as three Republican justices removed themselves from his money laundering case in just a matter of days.

That leaves the fate of DeLay, a high-profile Republican who argued that he couldn’t get a fair trial in the Democratic Travis County, in the hands of a 2-1 Democratic majority on the 3rd Court of Appeals.

For now.

On Friday, DeLay’s appellate lawyer, Brian Wice, filed a motion to remove Justice Diane Henson, a Democrat, because of “anti-Republican” remarks she made at the state Democratic Convention in 2006.


In his motion, Wice said Chief Justice Woodie Jones, a Democrat, and two Republicans, Bob Pemberton and Jeff Rose, were initially scheduled to hear oral arguments.

Then, last week, Wice said he learned that Henson had replaced Pemberton and that Rose was stepping aside as well. But Rose’s replacement, David Puryear, another Republican, removed himself Thursday.

That left the lone remaining Republican on the court, Melissa Goodwin, to join her two Democratic colleagues.

Justices typically don’t say why they recuse themselves, but in Pemberton’s case, his re-election opponent is Bryan Case, a prosecutor involved in the DeLay case.

Puryear stepped aside Thursday, and Wice filed his motion challenging Henson’s impartiality the next day.

First they have to decide who will hear Wice’s motion to recuse Judge Henson, which may require a judge from another court being appointed for that hearing by Supreme Court Chief Justice Wallace Jefferson. Then, if Wice is successful in his attempt, a third judge will need to be appointed to hear the case, since there are no more judges on the Third Court who haven’t already recused themselves. Recusals have been the norm in this case and in the related case of DeLay associates Jim Ellis and John Colyandro. I once suggested we skip all of this folderol and go straight to the World Court in The Hague. Looks to me like that’s still a good idea.

DeLay files appeal of his conviction

The man has been a boon for the defense bar, I’ll say that much for him.

Tom DeLay’s appellate lawyer tapped a movie musical and Shakespeare in a wide-ranging appeal that argues the former U.S. House majority leader was wrongly convicted of conspiring to launder corporate dollars into campaign donations.

In 2002, DeLay’s political committee sent a $190,000 corporate check to the Republican National Committee that, in turn, agreed to donate the same amount from its noncorporate account to Texas candidates. State law prohibits corporate donations to candidates.

The monthlong trial before a Travis County jury last fall turned on the question: Were DeLay and his co-defendants laundering corporate money, or making the kind of “money swaps” both parties had done in the past?

To sum up the legal points in Houston lawyer Brian Wice’s appeal: DeLay didn’t do anything as part of a conspiracy. If he did, it wasn’t a crime. If it was, he couldn’t have known it was a crime. And, besides, the ban against corporate donations is a constitutional infringement on free speech.

Wice also requested a hearing to explain it all.

Judge Pat Priest, a visiting judge from San Antonio, sentenced the Sugar Land Republican, who was once one of the most powerful leaders in Washington D.C., to three years in prison. DeLay remains free pending an appeal that could take months, if not years. Prosecutors have weeks to respond to the brief filed late Thursday.

I should note that convicted felon Tom DeLay had previously filed a motion for a new trial. I have no idea what the status of that is. Also, Judge Priest had previously recused himself from the trial of DeLay’s cronies Jim Ellis and John Colyandro. A new judge has been named, but I have no idea when that trial may get underway. We may all be dead from old age by the time this finally gets adjudicated.

I have to say, DeLay has good taste in attorneys. He had Dick DeGuerin at trial, and Brian Wice is one of the top guys for appeals. As the story notes, he has a decent chance of winning thanks to the ridiculous “checks aren’t cash” ruling the Third Court of Appeals made a few years ago, for which it later received a spanking from the Court of Criminal Appeals. I had never expected DeLay to be found guilty in the first place, so even if he is ultimately freed the fact that I have been able to refer to him as “convicted felon Tom DeLay” in the interim will still have been sweet. And he’ll always be a convicted felon to me, no matter what the courts ultimately say.