Servergy

Time for an OG Paxton scandal update.

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The state’s top appeals court on Wednesday agreed to take up the question of where Texas Attorney General Ken Paxton should be tried for alleged securities fraud, a small victory for prosecutors pursuing the criminal cases against the Republican official.

The Texas Court of Criminal Appeals will settle whether Paxton’s trials should be held in Collin County, where the attorney general’s legal team would like to make their case, or in Harris County. Special prosecutor Brian Wice on Wednesday said a lower court decision to move the case to Collin County was a mistake.

“We’re confident today’s decision means the Court of Criminal Appeals will agree,” Wice said in a statement.

Paxton, a Republican, has been under active indictment for the majority of his time in statewide office.

[…]

In 2017, the cases against Paxton were moved after a judge previously presiding over the case agreed with prosecutors that they might struggle to get a impartial jury in Collin County, where the alleged crimes took place but also where Paxton lived and worked for decades.

Paxton’s lawyers took issue with the move to Harris County, which is more liberal politically. They challenged the decision by arguing that the judge’s time presiding over the case had already expired when he made it. In summer 2021, a Houston appeals court agreed with Paxton that Collin County was the proper venue for the cases against him and that any subsequent trials should be held there.

The prosecutors asked the Court of Criminal Appeals to reconsider that decision. It put the move on hold last year, and now will formally take up the issue and make the final decision on where the trials should be held.

See here for the previous update. If we’re lucky, maybe we’ll get a final determination about where the trial will be some time this year, though that’s probably too optimistic. In any event, this is now what appears to be the last obstacle in place before the trial itself can occur. If the original indictments of Ken Paxton were a person, it would now be old enough to be in first grade. Let’s hope we get a resolution to all this before it goes to high school.

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As you recall, the very long-awaited securities fraud trail of Ken Paxton is ticketed to go back to Collin County after the First Court of Appeals denied a request for an en banc hearing to reconsider the court’s previous ruling that had upheld the Harris County district court judge’s ruling from last year (and was itself a confirmation of a previous ruling). Special prosecutor Brian Wice has argued that the reason for that ruling is in error, and as such has filed a petition for a writ of mandamus with the Court of Criminal Appeals to overturn the First Court and keep the trial in Harris County.

The main thrust of the petition is that the First Court erred in its ruling, and for a detailed explanation of why it erred can be found here. The TL;dr of that is basically that Team Paxton has been playing fast and loose with its arguments about the original judge’s appointment to the case – if you read that petition, you will see multiple uses of the word “sandbag” or “sandbagging” – and it makes heavy use of the dissenting judge’s opinion from that First Court case. The Court of Criminal Appeals is notoriously pro-prosecutor, except when it isn’t, so who knows what they’ll do and who knows how long it will take. But we are at a point in this ridiculously long and drawn-out saga where the next step will be for the question of where the trial should be is resolved, and we will presumably move on to fighting about the actual trial. (There are still questions about the pay for the special prosecutors, which is a whole ‘nother can of worms.)

Anyway. Since people like to make snarky comments on Facebook and Twitter about how long Ken Paxton has been under indictment without having gone to trial, the least I can do is update you on the legal bits and pieces as we wend our way every so slowly towards that day. You’re welcome.

We’re at a point in the Ken Paxton criminal case where it’s hard to adequately summarize the most recent development in a headline-sized bite.

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Attorney General Ken Paxton’s securities fraud case can be tried in his home county in North Texas, an appeals court affirmed Thursday when it denied the prosecution’s plea to reconsider the decision.

The 1st Court of Appeals in Houston denied a motion by prosecutors to hold a hearing of the full nine-justice court to review the decision made by a three-justice panel of the court in May to move the case from Harris County back to Collin County, where Paxton lives. The order could have avoided further delays in the six-year-old criminal case against the sitting attorney general and returned the case to what is seen as a friendlier venue to the two-term Republican incumbent. But on Thursday, the prosecution said it would continue its appeals.

“Because we agree with the dissenting justices that there are critical errors in the majority’s decision, we will seek further review of it in the Court of Criminal Appeals,” special prosecutor Brian Wice said in a statement.

Justices Gordon Goodman and Amparo Guerra dissented to the court’s majority opinion and Justice April Farris did not participate. Goodman, who was part of the three-justice panel that sent the case back to Collin, had dissented in part to the original decision.

[…]

In May, the panel of three Democratic justices allowed the case to return to Collin County on a vote of 2-1, ruling that the presiding judge who moved the case out of Collin County in March 2017 had no longer been assigned to the judicial region handling Paxton’s case. The ruling was a major victory for Paxton, who had asked the courts to be tried in his home county, a staunchly Republican area of the state where he and his wife, state Sen. Angela Paxton, R-McKinney, are well-known political figures.

But prosecutors had accused Paxton’s legal team of “sandbagging” the courts, by withholding information about the judge’s expired assignment so they could later raise the issue in an attempt to move the case back to Collin County. Wice argued that Paxton’s legal team had waited until the presiding judge, Gallagher, of Tarrant County, had moved the case out of Collin County to bring up his expired term with the appeals court. Wice asked the full appeals court to reconsider the panel’s decision and determine whether Paxton’s legal team knew of Gallagher’s expired term earlier in the case.

The court’s majority denied that request.

See here, here, here, and here for the background. I had previously said that the First Court had granted the request for an en banc hearing, but all they had done at the time was ask for a response from Team Paxton to that request. I’ve always said I was not a lawyer, now you know why. Now we wait once again for the CCA process to play out.

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I don’t know if that headline makes sense, but it’s the natural next step after the special prosecutors in the Ken Paxton trial asked the First Court of Appeals to reconsider its ruling that would send the trial back to Collin County. The only news stories I have seen for this are behind paywalls – here’s the Statesman and here’s Law360 – but really all you need to know is in the two court orders. This one grants the temporary stay of the previous ruling pending the en banc hearing. This one says that Team Paxton has 30 days to file a response to the special prosecutors’ request.

After that, the full court will take however much time they will take and then issue their ruling. In theory, based on previous experience, we may get that ruling around the end of the year, give or take a month or two. And then, because we’ve seen this movie before and we know how it goes, whatever that ruling is will be appealed to the CCA. In other words, don’t expect there to be an actual trial any time soon.

The special prosecutors have requested an en banc review of the three-judge panel ruling.

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Prosecutors in the felony fraud case against Attorney General Ken Paxton are asking the full 1st Court of Appeals to review a decision by a three-justice panel last month that moved the trial from Harris County back to Collin County, where Paxton lives, potentially adding another delay to a case that is nearly 6 years old.

In May, a panel of three Democratic justices in the 1st Court of Appeals in Houston allowed the case to return to Collin County on a vote of 2-1, ruling that the presiding judge who moved the case out of Collin County in March 2017 had no longer been assigned to the judicial region handling Paxton’s case. The ruling was a major victory for Paxton, who had asked the courts to be tried in his home county, a staunchly Republican area of the state where he and his wife, state Sen. Angela Paxton, R-McKinney, are major political figures.

[…]

In a court filing Tuesday, prosecutor Brian Wice accused Paxton’s legal team of “sandbagging” the courts by withholding information about the judge’s expired assignment so they could later raise the issue in an attempt to move the case back to Collin County.

Tarrant County Judge George Gallagher was handed the Paxton fraud case in August 2015 after the original judge in Collin County recused himself. At the time, Gallagher was temporarily assigned to the Collin County administrative judicial region, which is in a different region from Tarrant County. But his assignment only ran through Jan. 1, 2017.

Gallagher continued as the presiding judge after that date and issued his ruling to move the case out of Collin County in March 2017. That May, Paxton’s legal team asked an administrative court to block Gallagher’s ruling and remove him from the case because his temporary assignment had expired at the beginning of the year.

In his Tuesday request, Wice argued that Paxton’s team failed to bring up Gallagher’s expired term until after the change-of-venue ruling did not go in their favor, and asked the full 1st Court of Appeals to stay the three-justice panel’s decision until the full nine-justice court could review the ruling. Wice threw doubt on the idea that Paxton’s team came upon Gallagher’s expired temporary assignment only “by happenstance” and said the burden was on the attorney general’s defense team to show when it learned of the judge’s expired term.

The majority opinion had already rejected that argument, ruling that “nothing in the record shows a lack of reasonable diligence in bringing the challenge.” But Justice Gordon Goodman, who dissented in part, noted in his opinion that the court had no evidence as to “how or when Paxton’s counsel discovered that Gallagher’s assignment had expired.”

Wice argued that while a review of a panel decision by a full appeals court is usually not favored, it is the right move in this instance.

See here for the previous entry. As the story notes, it took the three-judge panel seven months to rule on the initial appeal, so if we’re lucky we might get a ruling from the full panel by the end of this year. The odds of getting Paxton into a courtroom to actually litigate the charges against him before November 2022 seem slim, but there’s no way to go but forward. Let’s hope the full 1st Court of Appeals hustles this thing along.

You can go home again, apparently.

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A panel of three justices ruled Thursday that Texas Attorney General Ken Paxton’s felony fraud charges should be held in Collin County — where he lives — instead of Harris County, after a yearslong back-and-forth over where his criminal case should be heard.

The lawsuit, now nearly six years old, has been shackled by procedural delays and has not yet gone to trial because of a number of appeals related to where the case should be heard and how much the prosecutors should be paid. The suit has loomed over Paxton for nearly his entire time as attorney general, including during his narrow reelection in 2018. If convicted, Paxton could face up to 99 years in prison.

Prosecutors in the suit claim Paxton persuaded investors to buy stock in a technology firm without disclosing he would be compensated for it back when he was a member of the Texas House. Paxton denies any wrongdoing and says the accusations are politically motivated.

A panel of three all-Democratic justices in the 1st Court Of Appeals in Houston on Thursday allowed the case to return to Paxton’s home county on a 2-1 vote because of a technicality, affirming a lower court’s decision after nearly seven months of deliberation.

The case was originally to be held in Collin County but prosecutors argued that having the trial there would be unfair because of his political ties in that region. Paxton represented Collin County in the Texas Legislature for years, and now his wife, state Sen. Angela Paxton, represents the region.

The dissenting justice, Gordon Goodman, said no matter where the case is held, it is time it goes to trial.

“At this point almost six years has elapsed since Paxton was indicted. Whichever district court ultimately receives these cases should move them to trial as expeditiously as possible,” Goodman wrote in his dissent. “Further delay is anything but expedient.”

See here for the last update, which was in October. I don’t think there is anything in nature that moves more slowly than the court proceedings for this case. The prosecutors are seeking an en banc ruling, which I can understand given the split among the three-judge panel, but honestly I’m with Justice Goodman. Let’s get this show on the road, if we finally can.

And on that note, a word about this.

“If it gets moved back to Collin County, that certainly is advantageous for Paxton for two reasons: One, it’s more likely to go to a Republican judge as opposed to a Democratic judge in Harris County,” said Mark Jones, a political science professor at Rice University who has studied the case, in an interview in 2019. “And any jury pool is going to be much more sympathetic to Paxton in Collin versus Harris.”

Yes, he’ll get a Republican judge in Collin County, though one would like to hope that the judge would be impartial regardless of where the trial was held. As for the jury, I think Professor Jones is overstating things a bit. Look at the numbers:

2016: Trump 55.6%, Clinton 38.9%
2020: Trump 51.4%, Biden 47.0%

2014: Paxton 66.0%, Houston 30.4%
2018: Paxton 52.7%, Nelson 44.7%

Paxton did worse than every other statewide Republican in Collin County in 2018 except for Ted Cruz, and he only beat Cruz by a tenth of a percentage point. It’s not crazy to think that Collin County could go for his opponent next year. It’s true that Collin County is considerably less Democratic than Harris County, and as such the jury pool will likely be Republican-leaning. It’s just nowhere near as Republican as it was when Paxton was first indicted in 2015. Maybe he should have gone for the speedy trial in the first place.