special prosecutor

Where are we with the Paxton whistleblower lawsuit?

We are in the familiar position of waiting for the drawn-out appeals process to conclude. Pull up a chair and make yourself comfortable.

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The appeals process has grown a bit longer in state Attorney General Ken Paxton’s effort to dismiss a whistleblower lawsuit by four top agency officials who claim they were improperly fired in 2020 after accusing him of accepting bribes and other misconduct.

Paxton turned to the Texas Supreme Court 7½ months ago after two lower courts rejected his bids to toss out the lawsuit.

Last month, the Supreme Court told Paxton and the whistleblowers to provide justices with a deeper dive into the legal issues involved, kicking off a second round of legal briefing that was recently extended when the court granted Paxton’s request for an extra month to file his expanded brief.

Paxton’s brief is now due July 27, and although the court told Paxton that additional extensions aren’t likely to be granted, the move means the final brief isn’t due until Aug. 31 at the earliest.

That moves the case into election season as Paxton seeks a third four-year term against a Democrat, Rochelle Garza, who has made questioning Paxton’s ethics a campaign centerpiece. Three opponents tried the same tactic against Paxton in this year’s GOP primaries without success.

The timing also puts the case close to the two-year anniversary of when eight top officials of the attorney general’s office met with FBI agents and other investigators to relate their suspicions that Paxton had misused the powers of his office to help a friend and political donor, Austin real estate investor Nate Paul.

See here and here for the most recent updates. Paxton’s argument is that as an elected rather than appointed official, he doesn’t count as a “public official” under the Texas Whistleblower Act, so the employees who fired him have no grounds to sue. He has other arguments, but that’s the main thing that will be of interest to the Supreme Court. I’m sure you can surmise what I think, but if you want to dig deeper you can click the Texas Whistleblower Act tag link and review other posts in this genre.

Just as a reminder, we are also waiting for the FBI to take some kind of action in their investigation of the Ken Paxton-Nate Paul dealings, the State Bar complaint against Paxton for his attempt to overthrow the 2020 election should have a hearing sometime later this summer, and of course there’s the granddaddy of them all, the original state charges that Paxton engaged in securities fraud, which are now eight years old. He’s sure been a busy boy, hasn’t he?

CCA will take up the question of where Paxton’s securities trial should be

Mar 7th, 2022

by Charles Kuffner.

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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.

The fate of the Paxton trial location is once again with the CCA

Oct 12th, 2021

by Charles Kuffner.

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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.

First Court denies en banc hearing for Paxton trial move

Sep 10th, 2021

by Charles Kuffner.

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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.

The case against moving the Paxton trial back to Collin County just got more interesting

Jul 26th, 2021

by Charles Kuffner.

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All right, settle in for a minute, this is going to take a bit of explaining, and there’s no accompanying published news story that I know of. Way back in March of 2017, visiting District Court Judge George Gallagher (from Tarrant County), who was appointed to preside over the Ken Paxton trial in Collin County after literally every other District Court judge there recused themselves, ordered the trial to be moved from Collin County. A couple of weeks later, in April, he set Harris County as the venue. There was a note in one of the news stories about this that I gave no real thought to at the time, which was that “Paxton respectfully advises the Court that he will not be giving the statutorily-required written consent… to allow the Honorable George Gallagher or his court staff to continue to preside over the matter in Harris County”.

Judge Gallagher declined to step down, but Team Paxton pursued the matter, initially repeating the assertion that they did not give permission for Gallagher to follow the case to Harris County, but later asserting that Gallgher was no longer able to be judge because his appointment had expired at the end of 2016. (Note that we are now in May 2017 in this timeline, this becomes important later.) At the end of May, the 5th Court of Appeals sided with Paxton and ordered Gallagher off the case, voiding his rulings after the one that moved the case to Harris County. In June, the case was officially reassigned to Criminal District Court Judge Robert Johnson in Harris County.

After that, we settled into a long fight about the pay for the special prosecutors, culminating in a muddled ruling from the Court of Criminal Appeals in June of 2019 – yes, now two full years after the case was moved to Harris County. The issue of prosecutor pay was before Judge Johnson, but before he could begin to get anywhere on it, Team Paxton asked for the case to be moved back to Collin County; we are now in July of 2019. In December of 2019, Judge Johnson said he would rule on that Real Soon Now. That turned out to be six months later, in June of 2020, though that ruling had to be affirmed in October by a different judge, because Judge Johnson recused himself after it was pointed out that Paxton’s office was representing Johnson (among others) in the ongoing cash bail litigation. (That was yet another weird sideshow in a saga that has been little but sideshow, but never mind that for now.) Ultimately, Judge Johnson agreed with Paxton that Judge Gallagher’s ruling that sent the trial to Harris County was invalid because Gallgher’s term had expired at the time he made that ruling. In May of 2021, a three-judge panel on the First Court of Appeals agreed.

Just a little recap here, Judge George Gallagher was appointed to preside over the Paxton trial in July of 2015 by the administrative judge of the Second Court of Appeals (Mary Murphy). That appointment expired on January 2, 2017, but no one said anything at the time. In April 2017, Judge Gallagher ordered the trial moved to Harris County, where he would preside, but Paxton declined to approve his continued service (as is required by state law in these matters) and then filed a motion in May to boot Gallagher from the case because his appointment had expired back in January. That motion was granted later in May, Judge Johnson was randomly selected by the Harris County District Clerk in June, and on we went. Then in 2019, Paxton filed a motion to move the case back to Collin County, claiming now that Judge Gallagher’s original ruling to move the case was also invalid, again because his appointment had expired. That motion was granted and was upheld on appeal, which is now on hold as the special prosecutors have requested and were granted an en banc hearing to reconsider.

OK, now that we are caught up, you may be wondering why there was a four-month gap between when Gallagher’s appointment expired and Paxton first filed a motion that was based on said expiration. You may also note that said motion came shortly (but not immediately) after Gallagher’s order moving the trial to Harris County. Is that timing maybe a little convenient? I’m glad you asked, because that very subject comes up in the reply filed by the special prosecutors. I would encourage you to read that filing – it’s not very long, and it contains high doses of shade thrown by the special prosecutors at Paxton. We have previously seen how lethal and entertaining they can be when served a pitch in the zone, and you will get a good laugh out of their efforts this time as well.

But what’s crucial is this: Errors like nobody noticing that Judge Gallagher’s appointment had lapsed happen. Remember, his appointment had been made more than a year before, and I guess no one put a reminder on their calendar to ask for it to be re-upped. Normally, such minor errors are trivially resolved, but the thing is that the law requires any objections made to such a lapsed appointment be made in a timely fashion, and at one’s earliest opportunity. Paxton claimed that’s what they did, and in the initial First Court ruling, it was noted that there was no evidence to suggest otherwise. Except, as it turns out, they did know, and in fact they knew ahead of time, and then sat on that information until it was convenient to them to wheel it out. How do we know that? Because, as it turns out and as the special prosecutors managed to discover in the interim, there was an email sent by Administrative Judge Mary Murphy to Paxton’s defense team on April 24, 2017 – after Paxton refused to give his consent to Gallagher’s continued service on the trial, but before he first claimed that Gallagher was no longer allowed to continue because his appointment had expired – that sent them copies of communications about Gallagher’s appointment from July 2015, and which they said they had previously sent in November of 2015. In other words, Paxton received an inadvertent reminder of the appointment expiration from Justice Murphy in April 2017, right before he started arguing about it. He had that information all along, but did not do anything about it. And then it landed in his lap again, and they took advantage.

Again, I urge you to read the filing (the Team Paxton filing, which preceded this by about a week, is here. They lay out the argument for why Paxton “sandbagged” the court (their words), and show all the opportunities Paxton had to object to Gallagher’s continued presence on the case after the expiration but didn’t do so. That, they argue, invalidates the later objections based on the lapsed appointment because they didn’t do it in a timely fashion, and what’s more they knew or should have known they weren’t timely. I just wanted to provide a longer-than-I-originally-planned review of how we got here. The bottom line is that the special prosecutors’ argument is that the original rulings that ordered the case back to Collin County were in error, and they have a new piece of evidence to show why it was in error. Now we just have to wait and see what the First Court of Appeals does with that information. As you can see from this post, we may be waiting for awhile. But hey, at least we’re used to that.

En banc request granted for Paxton trial moving issue

Jun 18th, 2021

by Charles Kuffner.

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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.

Not so fast on moving the Paxton trial back to Collin County

Jun 11th, 2021

by Charles Kuffner.

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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.

Paxton trial to head back to Collin County

May 28th, 2021

by Charles Kuffner.

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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.

Paxton denies whistleblower allegations

Dec 16th, 2020

by Charles Kuffner.

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Pretty standard response.

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The Texas attorney general’s office will pay outside counsel $540 an hour to defend the state agency against accusations that it was retaliating against top aides when it fired them just weeks after they reported their boss, Ken Paxton, to authorities for possibly breaking the law.

William Helfand, a Houston attorney with Lewis Brisbois Bisgaard & Smith LLP, will make $540 per hour for his work on the case while an associate attorney and a paralegal will make $350 and $215 per hour, respectively, according to a contract with the agency.

They filed the agency’s first official response Monday to a lawsuit filed by four of eight whistleblowers who left the agency after leveling the accusations. Paxton’s attorneys roundly rejected pages and pages of allegations of wrongdoing and retaliation in just a few brief sentences.

The agency “generally denies each and every claim and allegation” made by the whistleblowers, attorneys for the state wrote in the brief filing.

“Any action Plaintiffs allege to be an adverse employment action was the result of each Plaintiff’s own misconduct, lack of competence, and/or disloyalty to the Office,” the outside attorneys for the agency wrote.

Paxton is reportedly being investigated by the FBI over the allegations raised by the aides.

Separately, he has been under indictment since 2015 on felony securities fraud charges but has yet to stand trial amid side issues over venue and prosecutor pay. Notably, his defense team and political allies have loudly objected to the special prosecutors in the case making $300 per hour — far lower than the pay scale for the outside attorneys in the whistleblower case.

That point was not lost on Brian Wice, one of the special prosecutors, who said it was “ludicrous for Paxton to believe that a seven-year attorney, not to mention a paralegal, should be paid more for defending him than two lawyers with over 80 years of combined experience should be paid for prosecuting him.”

“And it is outrageous that the taxpayers of Texas will be obligated to pay the legal fees for defending Paxton’s alleged misconduct that has reportedly triggered an FBI investigation,” Wice added.

See here and here for some background. Even I recognize this as Basic Lawyering 101, nothing new or unusual to see here. Where it gets exciting is in discovery, where Paxton will have to start coughing up some documents. As for how much the defense attorneys are being paid, as a theoretical matter the office of Attorney General deserves competent representation in matters like this. But the same is very much true for the special prosecutors, who have had to deal with a huge amount of political interference on Paxton’s behalf just to get paid. Surely if Paxton’s defense attorneys are worth that kind of fee, then we ought to see Brian Wice and Kent Schaffer as relative bargains. At least if Paxton does eventually get busted by the FBI, it’ll be the feds paying for that trial. In this case, we know Ken Paxton is going to raise money off of his latest legal travails. If the plaintiffs win, he can damn well kick in some of that loot to pay for the defense of his misdeeds.

Paxton trial move back to Collin County on hold

Nov 1st, 2020

by Charles Kuffner.

1 comment

Delay is the natural state of being in this saga. I don’t know why we’d ever expect anything else.

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A Houston appeals court has pressed pause on a ruling that would have allowed Texas Attorney General Ken Paxton to stand trial for felony securities fraud in his hometown of Collin County.

That Oct. 23 ruling came three years after the case was first sent to Harris County, with prosecutors arguing they could not get a fair trial prosecuting Paxton in a part of the state where he and his wife, state Sen. Angela Paxton, are deeply politically connected.

Paxton is accused of persuading investors to buy stock in a technology firm without disclosing he would be compensated for it. He has maintained his innocence and dismissed the charges as politically motivated.

The 1st Court of Appeals in Houston has, for now, blocked the case from resuming in Collin County — likely further delaying the five-year-old case — as it considers the issues.

See here for the previous update. The Chron adds a few details.

The case was moved to Harris County after a judge ruled in 2017 that Paxton’s Republican political connections in Collin County would give him an unfair advantage at trial. But that decision has been under judicial review now for three years as Paxton’s defense team and the special prosecutors appointed in the case battle over the venue.

The prosecutors applauded the latest decision by 1st Court of Appeals Judge Gordon Goodman, a Democrat elected in 2018 as his party swept judicial races.

“The ruling of the court was not unexpected as the law and facts are very straightforward,” said Kent Schaffer, one of the prosecutors. “We are optimistic that the Court of Appeals will do the right thing, and Ken Paxton will face justice in front of a Houston jury.”

[…]

Paxton’s lawyers had argued that the case should have never been moved in the first place, because the judge made the decision after his assignment to the case had expired.

In June, Harris County state District Judge Robert Johnson ruled in Paxton’s favor and moved the case to Collin County. But the 1st Court of Appeals struck that order about a month later, after Johnson recused himself from the case because Paxton’s office is representing him in a separate suit.

The case was then reassigned to Harris County Jason Luong, a Democrat and former prosecutor with the Harris County District Attorney’s office.

Luong agreed the case should be sent back to Collin County based on his interpretation Johnson’s ruling, and he did not discuss where he believed Paxton would receive a fair trial.

The prosecutors had argued in their appeal that Luong misinterpreted the law.

Just to recap, and I’m totally relying on this Chron story rather than spending an hour digging through my own archives, but the case was first moved from Collin County to Harris County because the judge at the time, a Tarrant County jurist who had been appointed as a visiting judge precisely because no Collin County judge could handle the initial hearings, agreed with the prosecutors’ argument that Paxton would get preferential treatment in his home county. All the arguments since then have been about technicalities. It’s surely a safe bet that this current dispute will wind up before the Court of Criminal Appeals, just as the previous ones did. It’s not at all far-fetched to think that Paxton’s more recent legal troubles will see the inside of courtroom before this case does.

Idle yet hilarious thought: How much do you think Paxton will want to move the case back to Collin County if it flips blue and votes for Joe Biden this year?

Anyway. Settle in, or stay settled in if you never bothered to settle out. This will take awhile.

Judge sends Paxton case back to Collin County

Oct 24th, 2020

by Charles Kuffner.

2 comments

Pending appeal, of course.

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A Harris County judge on Friday moved Attorney General Ken Paxton’s criminal case to Collin County, handing Paxton a major win by placing the case in his hometown, where legal experts say he’s more likely to face a sympathetic judge or jury.

Judge Jason Luong ruled that he did not have the authority to move the case, deferring to an earlier order moving the case to Collin County.

Special prosecutors Brian Wice and Kent Schaffer said Friday that they plan to appeal. Paxton’s attorneys could not immediately be reached.

The decision adds yet another layer of complication — and likely more delays — to a case that has dragged on for more than five years over numerous issues unrelated to the substance of the accusations against Paxton.

I’m going to jump in here to remind everyone that Judge Robert Johnson had ordered the case back to Collin County in June, agreeing with Paxton’s defense team that the judge who had sent the case to Harris County in the first place did not have the authority to do so. Johnson then recused himself from the case, because the AG’s office is representing the criminal district court judges in the felony bail reform lawsuit, though it is not clear that he had to do so, since Paxton is not directly involved in that case and the judges who are defendants are being sued in their official capacity, not as plain old citizens. The First Court of Appeals set that order aside in July (the technical legal term is “abated”), on the grounds that the new judge, Jason Luong, needed to have an opportunity to review Judge Johnson’s order and either agree with it or vacate it. (Team Paxton later tried to get Judge Luong removed, but that motion was denied and subsequently mocked.)

In his ruling Friday, Luong added that even if a higher court rules that he does in fact have authority, he agrees with Paxton’s lawyers that the judge who allowed the case to move to Harris in the first place lacked authority as well, meaning the case would remain in Collin County.

As it was explained to me, the same mandamus that had been filed with the First Court of Appeals to challenge Judge Johnson’s ruling will now be taken up for Judge Luong’s ruling. I should note that the First Court’s abatement was supposed to be for 45 days, but as with everything related to this Paxton case, things took longer than that. Lord only knows when the next thing will happen. In the meantime, of course, there is now the Nate Paul shitshow, and if that does not have an effect on this case somehow at some point, I will be puzzled and very, very disappointed – like, Susan Collins clucking her tongue at Donald Trump-level disappointed. What the world needed now, when not much else is happening, is some more Ken Paxton news, am I right? The Trib has more.

Paxton accuses his accusers

Oct 16th, 2020

by Charles Kuffner.

1 comment

Well, that’s one way to do it.

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In Republican Attorney General Ken Paxton’s first interview since seven of top aides accused him of accepting bribes and abusing his office, he said Tuesday that he was about to put one of them, first assistant attorney general Jeff Mateer, on administrative leave when Mateer made those accusations and resigned instead.

“I think he found out about it and decided he wanted to leave and set the narrative,” Paxton told the Southeast Texas Record.

Paxton also told the paper that he has placed two remaining executive employees — David Maxwell, director of law enforcement, and Mark Penley, deputy AG for criminal justice, who were among his seven accusers — on administrative leave while he investigates their actions.

Paxton’s statements on Tuesday provide the public’s first glimpse into how he is handling the matter inside the office of the Attorney General, where more than half of the executive staff has accused him of committing crimes.

[…]

In his interview Tuesday, Paxton reiterated his counterclaims against the whistleblowers, saying that they were trying to impede a legitimate investigation of the law enforcement agencies.

“It seems like my office did everything possible to stop an investigation of some law enforcement agencies,” Paxton said. “I can only come to the conclusion that there was an effort to cover up the reality of what really happened. This wasn’t supposed to be a complicated investigation.”

[…]

Paxton also backed accusations by Paul’s attorney, Michael Wynne, who said in a letter released late Sunday that Maxwell, a former Texas Ranger, berated Paul for even bringing the complaint. Paxton said he watched a video of the meeting between Maxwell and Paul.

“It was not a good interview — it was pretty harsh,” he said. “It was clear he had no interest in doing an investigation.”

In the interview, Paxton said Mateer also insisted that the attorney general did not have the authority to sign contracts and that only he, as first assistant, did. Paxton said he reviewed support documentation provided by Mateer and found it to be false.

“I don’t know why there’s so much turmoil over this investigation. I’m not impugning every law enforcement agent,” Paxton said. “We all should be held accountable. We all have to follow the law.”

Well, he was going to defend himself one way or another, and given what the accusations were, a defense of “no, they’re the real criminals” seems like the best option. That would then lead to the question of how it is Paxton managed to hire so many bad actors for high-ranking positions in his office, but that’s a problem for another day. For now, keeping his own ass out of trouble is the main goal.

Here we must pause and note that so far all we know is there were a bunch of accusations leveled against Paxton. We don’t know if there’s an investigation into the actions he’s alleged to have taken, much less if he did do the things he’s accused of. We do know that his accusers are fellow travelers in conservative circles, and that former Paxton lieutenant Chip Roy sided with them. We know that folks like Greg Abbott and Dan Patrick and John Cornyn have been in full “wait and see” mode, which may suggest that they genuinely don’t know what to make of all this, or that they’ve heard enough scuttlebutt to think there’s something to it, but they’re either not ready to throw Paxton overboard, or they’re seeking a more graceful way out of this mess. A lot of information has come out so far, none of which looks great for Paxton, but nothing yet that would force him to resign. That may be what this is like for awhile, and then either the feds do something to make it clear they’re going after him, or we get a press release saying he’s in the clear. Until then, this is what we have to sustain ourselves.

Well, there’s also this.

[Brandon] Cammack declined to answer questions about his work for the agency or speculate as to why Paxton called him about the job. But said he “rose to the occasion” in accepting a major assignment from the state’s top lawyer and that the fallout has been “unexpected.”

“When one of the highest elected officials in the state reached out to me to go conduct this investigation, knowing what my background and knowing what my experience was, with regards to state law claims… I took it seriously,” Cammack told The Texas Tribune Tuesday.

“I don’t know anything about office politics… I don’t know anything about [the relationship] between people. I was called to duty. I showed up for duty,” he said.

Cammack’s work for the attorney general’s office has ended, though he said it was “beyond” him to know if the review would go forward in someone else’s hands.

[…]

Legal experts have questioned the precise nature of Cammack’s job — Paxton described him as both an “outside independent prosecutor” and as “independent counsel” — and asked how he was able to issue subpoenas that aides said “related to private business concerns of Nate Paul.”

They also raised concerns that Cammack — who is connected to [Nate Paul’s attorney Michael] Wynne through their involvement in the Downtown Rotary Club of Houston and the Houston Bar Association — lacked the experience for such a high-profile assignment.

Cammack said the subpoenas were issued by a Travis County judge and that he never went before a grand jury. He submitted an application for subpoenas to the Travis County district attorney’s office and they assisted in getting them issued, he said. He declined to answer other questions about the subpoenas, including which judge issued them, and his role.

Cammack also disputed the notion that he lacked experience, saying he’d had a “successful practice” in Houston for about two and a half years, handling primarily criminal defense work. His investigation for the attorney general’s office centered on violations of the Texas penal code — “something I’m very well versed in having handled hundreds of cases for hundreds of families here in Harris County and contiguous counties.”

He said he was “not friends” with Wynne, but declined to say why Wynne was present when at least one subpoena was delivered. He also would not specify Paxton’s involvement in his work or provide specifics about his investigation.

Cammack said he was interviewed for the outside counsel position on Aug. 26 by Paxton and Mateer. He declined to provide specifics about the conversation, but said he understood there were a few other candidates for the job, and that Paxton asked about his educational and professional history.

A few days later, Cammack received a call from Ryan Vassar, deputy attorney general for legal counsel, about his contract, he said. Signed in early September, the agreement says Cammack would be paid $300 an hour to investigate a complaint and compile a report about any potential criminal charges. It did not give him the authority to indict or prosecute, and said he could work only as directed by the office of the Attorney General.

Cammack’s work on the case largely ended in late September when he received a cease and desist letter from Penley, the deputy attorney general for criminal justice, and then Mateer.

I mean, we still don’t know much, but what we do know just looks sketchy. And so we wait for more.

Nate Paul strikes back

Oct 15th, 2020

by Charles Kuffner.

Comments are off for this post

Just when I think this can’t get any better.

Best mugshot ever

When Ken Paxton announced Friday his office was dropping the investigation into an Austin real estate investor’s claims of mistreatment during a federal raid of his home and business, the attorney general may have hoped the questions swirling around his relationship with Nate Paul would dissipate.

But a letter released late Sunday by Paul’s attorney that appears to be laying the foundation for a lawsuit against Paxton’s office dispelled any notion the controversy would go away soon.

[…]

Until now, Paul and his attorney, Michael Wynne, have remained mostly silent. But Sunday’s letter, in which Wynne demands that the attorney general’s office preserve documents related to the investor’s contact with Paxton’s office, flips that narrative.

In it, Wynne asserts that, far from helping his client’s cause, deep dysfunction inside Paxton’s office scuttled his client’s legitimate claim of abuse at the hands of federal investigators and has led to “A chaotic public spectacle of allegations.”

In Wynne’s telling, investigators’ behavior during the August 2019 raid against Paul were “among the most egregious examples of inappropriate behavior by government officials that I have witnessed in my professional experience.” The searchers tampered with records and then gave testimony contradicted by documents, he wrote.

Paul took his complaints to District Attorney Margaret Moore, who advised him that Paxton’s office was the correct agency to conduct any investigation of wrongdoing on the part of the searchers, including the FBI. But when Paul detailed his complaints, Paxton’s staff was dismissive and abusive, Wynne wrote.

At a July meeting, Paul’s team was “met with open hostility,” Wynne wrote. Paxton’s director of law enforcement, David Maxwell, “berated and insulted my client for bringing the complaint.”

Wynne said additional meetings with Paxton’s staff yielded the same “hostile attitude.”

Paxton personally attended a third meeting, Wynne wrote. At it, Paul demonstrated that the attorney general’s review of his complaint had been cursory and contained several errors, and that “this appeared to be an embarrassment to your office,” Wynne recounted in the letter.

Oh, my. Paul and his attorney are mad about the way Paxton’s office handled his demand for an investigation into the way he was treated by the feds, whom you will recall were investigating him for various alleged financial misdeeds. The seven senior members of Paxton’s staff found Paul’s complaint to be without merit, and the fact that Paxton proceeded – including the hire of the inexperienced and unqualified Brandon Cammack – is what led to them sending Paxton a letter alleging that he was taking a bribe. Maybe this is Paul’s way of saying he expected better service at that price.

The Trib adds some details.

Wynne’s letter places the blame for the debacle on the attorney general’s office, alleging top aides there failed to investigate his client’s claims as they should have and “deprived [Paul] of a proper review.”

“The mishandling of this complaint as outlined below has risen to an alarming level,” Wynne wrote in the letter, which also demands that the agency retain all related documents and files in preparation for potential litigation.

[…]

Wynne questioned the attorney general’s office’s basis for closing the inquiry, accused employees in the attorney general’s office of making “numerous inappropriate and false statements to the media” and said their handling of Paul’s complaint culminated in a “chaotic public spectacle of allegations, mudslinging, and an apparent power struggle” within the agency last week.

Top aides to Paxton have said internal investigations showed that Paul’s complaint lacks “any good-faith factual basis” and have accused their boss of serving a donor’s interest by hiring an outside attorney to pursue it.

Wynne said the circumstances of the federal search were “among the most egregious examples of inappropriate behavior by government officials” that he had witnessed.

In May 2020, Paul “sought guidance on the protocol for reporting a complaint” about the search and was told by Paxton to file it with the Travis County district attorney’s office.

The next month, the district attorney’s office referred the complaint back to Paxton’s agency after determining it would be “inappropriate” to send it to the Department of Public Safety, which was named in the complaint.

Wynne said “seven weeks of inaction” were followed by a series of meetings between him, Paul and officials in the attorney general’s office, whom he accused of being “hostile.”

At a meeting on July 21, the attorney general’s director of law enforcement, David Maxwell, “berated and insulted” Paul for bringing the complaint and attempted to intimidate them into dropping the matter, Wynne alleged.

He wrote that Maxwell and another top official — Mark Penley, one of the signatories on the letter about Paxton — attended a second meeting, in which Maxwell at one point yelled at Paul and asked “who [does] he think he is?”

At a third meeting, personally attended by Paxton, the review was found to be flawed and “appeared to be an embarrassment to your office,” Wynne alleged.

The Karen-like “I want to speak to your manager” energy out of this is strong, isn’t it? I’m dying for them to file a lawsuit against the AG’s office over this, because discovery is sure to be a hoot. The capacity this scandal has had to surprise and amaze me has been quite the source of joy these past few days.

And speaking of Brandon Cammack, the Paxton special prosecutors have some thoughts – and a motion – about how much Paxton paid him.

Texas Attorney General Ken Paxton has argued that $300 an hour is too much to pay the two special prosecutors appointed to take him to trial in a long-running felony securities fraud case — but that’s the rate his agency is paying the inexperienced attorney Paxton hired last month to investigate a complaint by a political donor.

[…]

The prosecutors, Brian Wice and Kent Schaffer, pointed out that irony in a spirited filing Friday before Harris County District Judge Jason Luong, asking that they be compensated at the same rate as Cammack, whom they dismissed as “an untested and unqualified rookie.”

“If this hourly rate sounds familiar, it should: it is the very rate the Pro Tems were promised when they were appointed,” they wrote in a Friday filing. “If the defendant’s choice to pay Cammack $300 an hour appears to be disingenuous, it is only because it is: in successfully derailing this prosecution by spearheading a concerted effort to defund it, the defendant has repeatedly referred to the Pro Tem’s $300 hourly rate in his filings as unreasonable and unwarranted.”

Wice and Schaffer, who told the court that between them, they have 80 years of experience in the criminal justice system, questioned why they should not be entitled to the same sum as Cammack, “whose own experience, training and expertise, compared to the Pro Tems, is virtually microscopic.”

Paxton can “run but not hide” from his “concession that $300 an hour is reasonable,” Wice and Schaffer argued.

In their own filing to the court, Paxton’s defense attorneys told the judge that Cammack’s contract is irrelevant to the issue of pay for the prosecutors.

[…]

The issue of prosecutor pay in the securities fraud case against Paxton was raised by a Paxton donor, Jeff Blackard, in December 2015, when he sued, calling the fees exorbitant. Since then, the issue has dragged through the courts for years, bouncing all the way up to the Texas Court of Criminal Appeals, the state’s highest court for criminal matters.

Paxton’s defense attorneys told Luong he should rely on the high court’s ruling — which found the $300 hourly rate fell outside legal limits — in determining how much Wice and Schaffer should be paid.

Nothing in the prosecutors’ filing, “which contains unsubstantiated gossip about an irrelevant matter and no legal argument, authorizes this court to disregard the holding of the CCA and grant the relief requested by the pro tems,” Paxton’s attorneys wrote.

I don’t know if Wice and Schaffer’s motion can be a justification to essentially overturn that CCA ruling, but it certainly shows (again) why that ruling was ridiculous, and why the current system for hiring special prosecutors is fundmentally flawed. They may not be able to do more than score political points, but even just a reminder of how much Paxton has been coddled and protected by his political buddies all these years is useful. The Chron and Rick Casey, who notes a connection between Michael Wynne and Brandon Cammack, has more.

Why did Ken Paxton hire a newbie attorney to be a “special prosecutor” or whatever he meant to call him?

Oct 12th, 2020

by Charles Kuffner.

1 comment

The Trib has some questions.

Best mugshot ever

It was a baffling, perilous, perhaps unprecedented task.

Texas Attorney General Ken Paxton hired an outside lawyer last month to look into a complaint of misconduct by a host of state and federal officials, including the Texas Department of Public Safety, the Federal Bureau of Investigation and a U.S. attorney’s office. The claim had been made by a Paxton donor whose home and office were reportedly raided by federal agents last year.

Some legal experts say the investigation should never have been in the hands of the attorney general’s office at all. But if it was, longtime Texas attorneys say, it’s a job for a seasoned prosecutor, perhaps someone with years of experience as a U.S. attorney or district attorney, someone who’d already established a reputation, someone who’d taken dozens of cases all the way from investigation to sentencing.

Instead, Paxton personally signed off on a $300 hourly rate for Brandon Cammack, a 34-year-old Houston defense attorney with ties to the donor’s attorney and five years of experience whose docket, court records show, largely comprises cases involving driving while intoxicated, low-level theft or assault.

Paxton’s office abruptly ended that investigation Friday after political backlash from both parties and criminal allegations from his own top aides. But questions about Cammack’s role — and the process of his selection — persist.

“That’s the $64,000 question: How did Paxton come to hire this particular lawyer?” said Tim Johnson, a former U.S. attorney for the Southern District of Texas. “You’d expect, for something that would have the possibility for serious consequences, that you’d want to have somebody that had a great deal of experience in the criminal justice system. And it doesn’t appear that they did that.”

Equally inscrutable is the precise job Cammack was hired to perform for the attorney general’s office. Paxton has described him both as an “outside independent prosecutor” and as “independent counsel,” and one subpoena obtained by The Texas Tribune refers to Cammack as a “special prosecutor.”

But Cammack’s contract, which Paxton released this week, shows that Cammack was never independent, nor was he a prosecutor. Cammack can investigate “only as directed by the [Office of the Attorney General],” and his contract specifies that he will not be involved in any indictment or prosecution born out of his investigation. He’s submitted an invoice for more than $14,000 of work, according to media reports.

I’ll get back to this article in a second, but I should note that it’s a pretty good overview of the story so far, and includes a lot of new details. Because this is a sprawling story that’s being told in multiple places, it also covers some stuff we’ve already talked about. No one is going to be able to write a short article for anything related to this just because recapping the backstory will take at least six paragraphs.

Legal experts and lawyers who’ve worked with Cammack, including his estranged father, questioned whether he has the experience needed to take on such a high-profile assignment.

As recently as 2018, a judge appointed a more senior attorney to assist Cammack when he was working as a defense attorney on a felony manslaughter case.

Mark Hochglaube, the longtime prosecutor and defense attorney who was brought in, said it wasn’t clear whether the judge or Cammack himself considered the young lawyer too inexperienced to handle the case alone — but that both were on board with getting Cammack some help.

Their client, who was found guilty of manslaughter, was sentenced to 50 years.

He praised Cammack’s effort on the case but questioned his selection for the high-profile appointment.

“If I were the attorney general, and I was in this predicament, would the name Brandon Cammack be the first name that popped into my mind? No, it wouldn’t,” Hochglaube said.

Young attorneys can often punch above their weight and rise quickly through the ranks, Hochglaube said, but he added, “I have a hard time saying, based on my experience with Brandon, that I would’ve thought this was suitable for him.”

[…]

Beyond questions about Brandon Cammack’s qualifications, the scope of his role is murky, too.

Why, some legal experts wondered, would a state attorney general be investigating claims against federal authorities at all? Some called the situation unprecedented.

“I guess every politician is limited only by his imagination,” said longtime Houston defense attorney Rusty Hardin, “but that’s a pretty unique event.”

Edward Loya, a Dallas attorney and former federal prosecutor for the U.S. Department of Justice, said FBI agents are not above the law, and, in principle, there is nothing wrong with the state attorney general looking into FBI misconduct for violations of Texas law.

But he added that it is unusual — and raises serious ethical questions — for a state attorney general to take on an investigation of FBI misconduct in a case involving alleged criminal activity of one of the attorney general’s donors. The prudent course, he said, would have been to refer the matter to the U.S. Department of Justice’s Office of the Inspector General, an independent division within DOJ that probes such claims made against DOJ employees.

“I can’t imagine that’s ever happened before,” said Johnson, the former U.S. attorney, adding that if he had been asked to fill Cammack’s role, “I would’ve stayed as far away as I could.”

“Anybody with half a brain would’ve gotten as far away from this as they possibly could,” Johnson said. But Cammack “may not have had enough experience to realize this is something he really shouldn’t want to get involved with.”

Lawyers interviewed by The Texas Tribune said Cammack’s official role as outside counsel raises questions about whether he had the authority to issue subpoenas, a power limited to prosecutors and assistant attorneys general. His actions in the case could open him up to legal liability if he usurped his authority, and Phelps, the former official in the attorney general’s office, questioned whether the issuance of the subpoenas amounted to a criminal offense.

“An outside counsel is not a ‘special prosecutor’ and has no authority to issue subpoenas, appear in front of a grand jury, or prosecute a criminal case,” said Phelps, who also worked for a decade as first assistant district attorney in Brazos County, and head of a special prosecutions division under Morales.

“I wish someone would pull that Brandon Cammack aside because I think he’s being used, because of his inexperience,” Phelps said.

I skipped over a couple of paragraphs that describe Brandom Cammack’s relationship with his father, who is also an attorney and who comes across as an abusive. It’s icky stuff.

After several days and a whole lot of reading, I’ve been thinking about how to summarize what we know so far, so if we get into a conversation with someone who knows nothing about this other than a vague recollection of some headlines or Facebook posts, we can help them understand. The basic gist of it is that a real estate hotshot in Austin named Nate Paul had been the target of an FBI investigation into his finances, which involved raids on his offices. Paul filed a complaint about the investigation and searches of his properties with the office of Attorney General Ken Paxton, to whom he had contributed $25K in the last election. Paxton did open an investigation, going through the Travis County DA’s office first with a somewhat shady legal pretext to get the investigation handled by his office instead of the DA. He then hired Brandom Cammack, an inexperienced attorney, in a role that is not clearly defined but is something like a special prosecutor, except that Cammack was not independent of Paxton, and no one thinks he had the qualifications or experience for the job. All of this looked like Paxton doing some legal work on behalf of Nate Paul but with the official seal of the AG’s office. That caused a revolt among Paxton’s senior assistants, who told him all of this was highly inappropriate at the least. In the end, seven top assistants to Paxton asked for a federal investigation of Paxton’s involvement in the Nate Paul situation, accusing him of being paid off by Paul to help Paul defend himself against the feds in their investigation of him. Whew!

That’s where things stand now, and there are various subplots and unanswered questions and who knows what else. You can see what I mean when I say that it will be impossible any time soon to write a short article relating to this. I feel like there are still some big shoes to drop, but I couldn’t even guess at what that might mean. It’s becoming quite the political hot potato, as US Rep. Chip Roy – a former top lieutenant to Paxton – has called on him to resign (as have a couple of newspaper editorial boards), and Sen. John Cornyn, himself a former AG, has expressed his disappointment in Paxton’s handling of this. I have to believe that this will be an issue in 2022, in a bigger way than the existing Servergy indictments of Paxton ever were.

One more thing, just to expand on an item noted in the story above: Paxton has officially closed the Nate Paul investigation that started all this, shortly after Travis County DA Margaret Moore told him her office was not going to be involved any more in any way.

Texas Attorney General Ken Paxton said his office is closing its investigation into a complaint made by one of his donors, hours after the Travis County District Attorney formally distanced itself.

Also on Friday, the Texas Department of Public Safety said it was not investigating allegations by aides in Paxton’s office that he committed bribery and other corruption crimes but instead the matter had been referred to the Federal Bureau of Investigations. A DPS spokesman said the Texas Rangers are available to assist.

Paxton had argued that he only pursued an investigation urged by the donor, Austin real estate investor Nate Paul, after getting a referral from Travis County District Attorney Margaret Moore’s office. Moore already told the Houston Chronicle that it was Paxton who first brought Paul’s request for an investigation to her and not the other way around.

A letter she sent Paxton Friday upped the ante and made clear her office is cutting all ties to the probe. Moore noted all the revelations that have come out in recent days — revelations that demonstrate Paxton has more than gone out of his way to assist Paul and his troubled real estate dealings.

“Any action you have already taken or will take pursuing this investigation is done solely on your own authority as provided by Texas law,” Moore said. “The newly surfaced information raises serious concerns about the integrity of your investigation and the propriety of your conducting it.”

She said the referral of the Paul matter from her office to his — until now in the hands of an outside Houston lawyer Paxton hired — “cannot be used as any indication of a need for an investigation …or an endorsement of your acceptance of the referral.” She also said she had instructed her employees “to have no further contact with you or your office regarding this matter.”

Paxton said in a statement Friday that he closed the investigation because his office “can only investigate in response to a request for assistance from the District Attorney’s office.”

I wonder if we’ll hear some more about this from the perspective of someone in Moore’s office, now that they are free of any constraint. We’re almost a week into this story and it’s still a total firehose of new information. The Statesman has more.

Paxton’s first line of defense

Oct 9th, 2020

by Charles Kuffner.

2 comments

Settle in, folks, this is going to be a long one. We’ll start with the Dallas Morning News.

Best mugshot ever

Texas Attorney General Ken Paxton is defending his decision to bring on an outside lawyer to look into a complaint from real estate developer and campaign donor Nate Paul.

In an unusual step Wednesday, Paxton’s office released documents to beat back accusations by his own top deputies that the outside attorney, Brandon Cammack, is acting without authority. The records show Cammack is billing the state $300 an hour and that Paxton personally signed his hiring document.

The records — released through the agency’s Twitter account — signal Paxton is digging in for a fight after seven of his most senior employees accused him of bribery and abuse of office. The staff have raised concerns over Paxton’s relationship with Paul, whose home and businesses were raided last summer by the FBI.

Multiple senior officials in the agency told The Dallas Morning News late Wednesday they believed Paul was attempting to use the power of the office of the attorney general for personal and financial gain. And in a document obtained Wednesday by The News, Paxton’s deputy warned Cammack his employment agreement was invalid and may have been signed by Paxton “under duress.”

“The document appears to be signed by Attorney General Ken Paxton. To be clear this office has no record authorizing such a retention under our agency’s operating policies and procedures,” then-First Assistant Attorney General Jeff Mateer wrote in a letter dated Oct. 1.

“We believe this purported agreement is unlawful, invalid, unenforceable, against public policy, and may have been executed by the Attorney General under duress,” Mateer wrote, without elaborating.

“Under duress”? UNDER DURESS? Holy mother of Ann Richards. What does this even mean?

Cammack, 34, told The News on Tuesday that Paxton reached out to him in August to gauge his interest in working as outside counsel. He was asked to look into a complaint from Paul alleging misconduct by state and federal employees that was referred to Paxton’s agency by the Travis County District Attorney in June.

On Thursday, Travis County DA Margaret Moore said Paxton personally asked her to look into the complaint. After her office held a meeting with Paxton, Paul and Paul’s attorney, Moore referred the complaint to the Office of the Attorney General.

“The scope and nature of the complaints comprised matters that the D.A.’s Office would normally refer to a law enforcement agency with the resources necessary to conduct the investigation,” Moore said in a statement. “The entities complained against included the FBI and the Texas Department of Public Safety, so the only appropriate agency left to whom we would typically make the referral was the Office of the Attorney General.”

But the agency’s investigation into Paul’s complaint stalled. Multiple senior officials told The News on Wednesday they recommended not proceeding further with the probe because they found that the agency had no authority to investigate the claims in the complaint or that they lacked merit. They believed that Paul was attempting to use the office for personal and financial gain.

Paxton reached out reached to Cammack, the lawyer told The News, to pick up the investigation. On Wednesday, the statement from Paxton’s office said he decided to hire Cammack as outside counsel because his own employees impeded the investigation and “because the Attorney General knew Nate Paul.”

But multiple senior officials who would have needed to sign off on outside counsel told The News on Wednesday that they vigorously opposed Cammack’s hiring.

We should note that as some other outlets reported, Paxton made it sound like Travis County DA Margaret Moore approached his office to handle this complaint. Moore has released a statement making it clear that Paxton approached her, and the referral back to his office was because it was legally the only appropriate way to proceed. Once again, my jaw is hanging open.

The way Cammack was brought on is highly unusual, according to a person familiar with the agency’s policies and procedures, who said all contracts must be approved by several divisions and senior officials. It’s unclear whether that occurred in this case.

While Paxton has said he decided to bring on outside counsel because he knows Paul, the agreement released Wednesday does not give Cammack independence from Paxton and requires him to conduct an investigation only as directed by the Office of the Attorney General.

The hiring documents Paxton released Wednesday include an employment agreement and job description, which Paxton said “legally authorized [Cammack] to act.”

Paxton’s office also released emails between Cammack and one staff member, in which the two discussed a draft of a hiring agreement. That staff member, Deputy Attorney General for Legal Counsel Ryan Vassar, is one of the seven employees who lobbed criminal allegations against Paxton.

Cammack has said that his work is still going on. Who even knows what that means.

All that is a lot, but there’s still more. The Chron finds some more oddities about Brandon Cammack and how he came into the picture.

While a contract released by the attorney general’s office explains how outside counsel Brandon Cammack came to be hired, it leaves questions unanswered about how the arrangement allows Cammack to be independent of Paxton, who is at the helm of the agency and signed the contract.

“They may very well be allowed to do it,” said Larry McDougal, president of the Texas Bar and a former prosecutor. “I’ve just never actually seen it … Thirty years of being a lawyer, and I’ve never had that come up.”

We’re off to a great start. Now we look at the meeting with Travis County DA Margaret Moore again, and the way that Paxton’s office came to be involved in this investigation that he wanted.

Some lawyers interviewed said Paxton could also have declined the case or referred it to another law enforcement agency. All said it’s unclear what part of the law Paxton leaned on when bringing on Cammack.

Paxton’s office has described Cammack as “outside independent counsel,” but in at least on subpoena, obtained by Hearst Newspapers, he is called a “special prosecutor.”

“I was very surprised to hear that he was appointed as a special prosecutor only because I, candidly, don’t know that the Attorney General’s office has the authority to do so,” said Chris Downey, a Houston-based criminal defense attorney who has been an attorney pro tem three times before. “I think that’s a point of concern and potential exposure.”

The contract released Wednesday by Paxton’s office shows that Cammack was hired to investigate but not prosecute. That differentiation could mean legal consequences for Cammack if a court later finds that he was acting without authority.

In July 2020, the Fifth Circuit Court of Appeals ruled that prosecutors aren’t shielded with immunity from lawsuits when they are performing investigative functions.

Attorneys interviewed also raised questions about the choice of Cammack, who graduated from University of Houston law school in May 2015, was licensed in November of that year and has been in private practice for about five years. He’s also the chair-elect of the Houston Bar Association.

“Normally, when you do bring on someone as a special prosecutor, you do so because you’re trying to tap into that person’s unique skill set,” Downey said. “I would be surprised given that he’s been a lawyer for five years that he has a defined skillset that they couldn’t find within the attorney general’s office.”

Everywhere you turn, more and more questions. Many more questions than answers, that’s for sure.

My previous blogging on this topic can be found here, here, and here. I’ll have a separate post on the Nate Paul side of things, because this is all Just Too Much.

The Trib also covered this topic, but the DMN had the most comprehensive story, while the Chron has been running down other angles as well. One more detail in all this is that Paxton’s contract with Cammack pays him $300 and hour. You know who else is supposed to get paid that much? The special prosecutors against Paxton in the Servergy case. The same guys who have been fighting Paxton, his army of cronies and minions from Collin County, and the Republican-dominated courts to actually get that pay, which Team Paxton et al have claimed is extravagant. I expect the rotting corpse of Irony to turn up any day now.

UPDATE: Damn, there’s a lot happening with this story.

Five senior officials in the Texas Attorney General’s Office accused their boss, Ken Paxton, on Wednesday of subverting his office to serve the financial interests of a political donor, according to an email obtained by The Texas Tribune.

The aides are doubling down on accusations they made last week to law enforcement — that Paxton had committed crimes including bribery and abuse of office — even as the second-term Republican says he’ll forge ahead as the state’s top lawyer under a fresh cloud of criminal allegations and as some in his party call on him to resign.

“It would be a violation of our own public responsibilities and ethical obligations to stand by while the significant power and resources of the Texas Attorney General’s Office are used to serve the interests of a private citizen bent on impeding a federal investigation into his own alleged wrongdoing and advancing his own financial interests,” the aides aides wrote in the email. “We urge you to end this course of conduct immediately.”

[…]

The damning Oct. 7 email was addressed to Paxton and his new First Assistant Brent Webster and sent by five of the same senior aides and whistleblowers — Ryan Bangert, Blake Brickman, Lacey Mase, Darren McCarty and Ryan Vassar— who reported allegations of criminal activity to law enforcement last week. Two of Paxton’s aides, including former First Assistant Jeff Mateer who reported him to law enforcement have since resigned.

Their concerns stem from Paxton’s hiring of a special prosecutor to investigate claims made by Nate Paul, an Austin real estate investor and donor, of alleged impropriety by federal and state authorities. But several subpoenas served by the prosecutor, the aides said in the email, were “related to private business concerns of Nate Paul” — and were not the subject of the “narrow criminal referral” he was appointed to investigate.

“This office’s continued use of the criminal process, in a matter already determined to be without merit, to benefit the personal interests of Nate Paul, is unconscionable,” they wrote.

They’re bringing the heat, I have to say. It really is mind-boggling what these top assistants are saying about their boss, and sharing with the press. It’s also easy to imagine that there’s more coming. In the meantime, John Cornyn gets on the Concern Train, on which he will Wait And See before drawing any conclusions. Better buckle in, John.

Here, have a Paxton scandal roundup

Oct 7th, 2020

by Charles Kuffner.

2 comments

At first I couldn’t decide if I wanted to put the juiciest bit up front or at the end. I decided to put it at the end, to hold your interest throughout.

From the Trib, life and business tries to go on at the AG’s office.

Best mugshot ever

It had already been a difficult fall for the Texas attorney general’s office.

The sprawling agency, which employs some 4,000 people in more than 100 offices across Texas, has for months had to contend with the added challenges of the coronavirus, many staff members working from home and others deployed as legal backup to Gov. Greg Abbott in coronavirus-related lawsuits on everything from abortion rights to business closures.

Communications director Marc Rylander departed more than a month ago, and Nick Moutos, an assistant attorney general, lost his job at the agency in early September after revelations that he had shared racist rhetoric and QAnon conspiracy theories on social media. Meanwhile, top state attorneys are juggling a handful of fast-moving election-related lawsuits — When will early voting begin? Will Texas ballots allow for straight-ticket voting? — and gearing up for a Nov. 10 argument before the U.S. Supreme Court, the culmination of a yearslong effort to strike down the Affordable Care Act.

But things hit a fever pitch this weekend as seven of the agency’s most senior staff members accused their boss, Texas Attorney General Ken Paxton, of crimes including bribery and abuse of office, as the Austin-American Statesman and KVUE-TV first reported Saturday night. One of the whistleblowers, Jeff Mateer, abruptly resigned his position as Paxton’s top aide Friday after telling a human resources administrator at the agency that he and other aides “have a good faith belief that the attorney general is violating federal and/or state law including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses.”

But Paxton, who has pledged to forge ahead as attorney general, pointed the finger back at the seven aides.

“Despite the effort by rogue employees and their false allegations I will continue to seek justice in Texas and will not be resigning,” Paxton said.

Now, agency staff will have to juggle coordinating child support payments, open-records requests and major court dates under the cloud of fresh allegations against their boss, without Mateer, and with an internal battle quietly raging between Paxton and many of the most senior aides who remain.

Yes, so many distractions they must deal with as they work so hard to take away your health care and restrict your access to the ballot box. I don’t know how they manage to do it all.

A spokesperson for the agency, Kayleigh Date, said Saturday that the top aides made the allegations against Paxton “to impede an ongoing investigation into criminal wrongdoing by public officials including employees of this office.”

And she seemed to suggest that state officials hope to investigate or even prosecute the whistleblowers.

“Making false claims is a very serious matter and we plan to investigate this to the fullest extent of the law,” Date added.

Date declined to provide any further details about the investigation or how the agency will run amid the chaos. She also did not respond to questions about how many of the seven remain employed at the agency.

For his part, Paxton worked Monday to signal business as usual, appointing Brent Webster, a former assistant criminal district attorney in Williamson County, to replace Mateer in the critical role of first assistant attorney general.

Paxton also had lunch at an Austin barbecue restaurant with Bill Miller, a friend and longtime lobbyist, who said Paxton was surprised and puzzled by the allegations and maintains that he has not done anything wrong.

Miller said Paxton hadn’t heard from law enforcement or retained an attorney on the matter and pointed out that the aides leveling accusations against Paxton have yet to publicly show evidence: “There’s a lotta smoke; where’s the fire?”

Paxton doesn’t understand where the claims came from, and “he isn’t going anywhere,” Miller said, but is committed to forging ahead with the agency’s work with Webster as the new first assistant.

Yes, it would be nice to know what if anything is happening with these accusations. As per usual custom, there won’t be any comment from the FBI or US Attorney’s office, so unless someone leaks to the press, or until people with badges and search warrants show up at the office, all we can do is wait and speculate. I hate to say it, but there may not be much news on this for awhile.

The Chron goes into the politics and gets some detail on one of the more alarming charges.

Texas political analyst Mark Jones of Rice University, who has studied the felony case that has been hanging over Paxton for five years now, said these allegations are different.

“This isn’t an accusation that comes completely out of left field regarding a public servant who has an unblemished track record,” Jones said. “This is someone, from when he arrived in the state House, moved to the state Senate, moved to the office of the attorney general, has had a trail of questionable ethical behavior.”

Jones added: “We’re talking about the chief law enforcement official in the second-largest state in the country.”

Most state Republicans, watching as Paxton has weathered such allegations in the past, have backed him or stayed silent over the years. This time likely will be different, Jones said.

Hearst Newspapers reported Sunday that Houston lawyer Brandon Cammack, whom Paxton hired as a special prosecutor, issued grand jury subpoenas last week targeting “adversaries” of Paul, according to a senior attorney general’s office official. There were 37 subpoenas that targeted actions of federal authorities in an August 2019 raid of Paul’s home and offices, the Austin American-Statesman reported Monday.

One of the signatories on the letter accusing Paxton, deputy attorney general for criminal justice J. Mark Penley, filed a motion in state District Court in Austin to halt the subpoenas. The motion to quash them was granted Friday, records show.

Many questions remain about the nature of the alleged bribery and how Cammack came to work for the office in a move that has been opposed by half of Paxton’s executive staff.

Paxton has not responded to questions about any contract the office had with Cammack, when he was hired, how much he is being paid or any other details.

Hearst Newspapers has filed open records requests for records of payments to Cammack as well as any agreement the office had with him.

This right here is what I want to know more about, and it won’t be dependent on any loose lips or federal action. Let’s get those records and see what they tell us.

The Chron also has a timeline of Paxton’s malfeasance and pettifoggery. The MontBlanc pen episode is probably my favorite of them. The Trib reminds us that AGs in Texas often go on to run for other things, though not always with success. I don’t see much of a future in higher office for Paxton, but he went from the House to the Senate to the AG’s office pretty quickly, so it’s not like it couldn’t happen.

And finally, the bit you’ve been waiting for, from Law.com:

Appointed prosecutors who have been pursuing felony securities fraud charges against Texas Attorney General Ken Paxton for five years are researching new allegations that Paxton committed crimes in office.

If Paxton gets charged with new crimes, the prosecutors would seek to revoke his bond.

[…]

“We’re making contact with the individuals involved to determine what exactly happened and what evidence exists that suggests he was involved in misconduct,” said Kent Schaffer, one of the appointed prosecutors in Paxton’s pending case.

If Paxton does get charged with new criminal offenses, the prosecutors in his current felony case would file a motion to revoke Paxton’s bond, explained Schaffer, partner in Schaffer & Carter in Houston.

“When you’re under indictment in a felony case and you’re on bond, if you get a new violation, then your bond can be revoked and you can be held without bond,” he noted. “I’m not saying it’s going to happen. So far, we don’t have any evidence. He is not charged in a new case.”

Also, if Paxton eventually goes to trial in the securities fraud case, and he were also charged for crimes related to the new allegations, then Schaffer said the prosecutors would tell the jury about the new alleged crimes during the sentencing phase of the trial in order to argue for a harsher sentence.

Now, this could all be many months off, if it happens at all, but still. Enjoy the thought for a moment. You deserve it.

More details emerge about the latest Paxton allegations

Oct 5th, 2020

by Charles Kuffner.

4 comments

The Chron advances the ball.

Best mugshot ever

The top state officials who staged a mutiny against Attorney General Ken Paxton warned that he was using his office to benefit campaign donor Nate Paul, an embattled Austin real estate investor.

Paul, a once high-flying businessman whose offices were reportedly raided by the FBI last year, gave Paxton $25,000 ahead of the attorney general’s hard-fought re-election battle in 2018.

The No. 2 official in the attorney general’s office, First Assistant Attorney General Jeff Mateer, put Paul at the center of allegedly illegal activities by Paxton in a text message sent Thursday. Mateer, who resigned Friday, joined six other high-ranking employees in accusing Paxton, the state’s top law enforcement officer, of abuse of office, bribery and improper influence.

“Each of the individuals on this text chain made a good faith report of violations by you to an appropriate law enforcement authority concerning your relationship and activities with Nate Paul,” Mateer wrote in the text message, which was obtained by Hearst Newspapers.

The group requested an immediate meeting with Paxton, but the attorney general said he was “out of the office” and asked them to email him with their concerns. The Austin American-Statesman, which first reported on the allegations against Paxton, published a letter the officials sent to the attorney general’s human resources office on Oct. 1.

Neither Paul nor his attorney returned calls or messages left on their voicemail.

Paxton said in a statement Sunday: “The Texas attorney general’s office was referred a case from Travis County regarding allegations of crimes relating to the FBI, other government agencies and individuals. My obligation as attorney general is to conduct an investigation upon such referral. Because employees from my office impeded the investigation and because I knew Nate Paul, I ultimately decided to hire an outside independent prosecutor to make his own independent determination. Despite the effort by rogue employees and their false allegations, the AG’s office will continue to seek justice in Texas.”

The uprising against Paxton crystallized when a special prosecutor he appointed, Houston lawyer Brandon Cammack, issued grand jury subpoenas last week targeting “adversaries” of Paul, a senior AG official told Hearst Newspapers.

The official who spoke with Hearst Newspapers said those subpoenas spurred the seven top deputies in the attorney general’s office into action. One of the signatories on the letter accusing Paxton, deputy attorney general for criminal justice J. Mark Penley, filed a motion in state district court in Austin to halt the subpoenas. The motion to “quash” them was granted on Friday, records show.

In filing the subpoenas, Cammack “represented that he was acting on behalf of the office of the Attorney General as a Special Prosecutor,” Penley’s motion said. “He is not properly authorized to act as a Special Prosecutor, and … has no authority to appear before the grand jury or issue grand jury subpoenas.”

See here for the background. The information about the special prosecutor appointed by Paxton who’s been issuing subpoenas that “target adversaries” of this Nate Paul character is what really made my hair stand on end. If there is any truth to that, then this is a massive violation of the AG’s office and I can see why his top lieutenants rebelled the way they did. Greg Abbott and Dan Patrick are quoted in the story issuing “this sounds bad but let’s wait an see” statements – which, in all honesty, is reasonable enough for now – but the pressure is going to be on them, too.

There’s more in the story about Nate Paul, who sounds like a typical “more money than brains or ethics” sort, and I’ll leave that to you to read. This is the other bit that had me going “hmmmm”:

Kent Schaffer, a special prosecutor in [the long-running financial fraud case against Paxton], said Saturday that the latest accusations, if they leads to charges, could imperil Paxton’s odds of securing any kind of deal to resolve the criminal case.

“We were trying to get this case resolved, but if this guy’s out committing crimes while he’s on bond, then it’s going to become an extremely serious matter,” Schaffer said. “I’m not saying that he has — I don’t know the specifics, (but if he has) then it’s game on.

“Maybe the people that reported him are not shooting straight, but I want to hear from both sides, if possible. We’re going to do what we can to investigate.”

Schaffer said he contacted the Texas Rangers on Saturday immediately upon hearing the news. He declined to comment on whether the agency mentioned any existing investigation on the matter.

Paxton has also been accused by his staff of accepting bribes in the past.

Those 2016 bribery allegations did not lead to charges, though they did give us all a momentary thrill. The idea that the special prosecutors in the current case against Paxton might be able to get some leverage against him from this scandal-in-the-making is also giving me a thrill. I should know better by know, but I can’t help myself.

The revelations over the weekend appeared to have shaken the agency, where Ryan Bangert, deputy first assistant attorney general and one of the seven officials who reported Paxton to the authorities, sent out a letter of reassurance to staff.

“I write to assure you that the executive team remains committed to serving you, this office and the people of Texas,” Bangert wrote. “Your work, your sacrifice, and your dedication to this office inspire us all.”

Jordan Berry, Paxton’s political adviser, said he resigned after news of the allegations broke.

Watch what the people around Paxton do. We could be in for a mass exodus. I will try to stay on top of things. The Statesman has more on Nate Paul, and there’s national coverage from Bloomberg and CNN.

Giving a motion its proper due

Aug 30th, 2020

by Charles Kuffner.

Comments are off for this post

Best mugshot ever

As you know, Ken Paxton really really wants to get his securities fraud case moved back to what he assumes are the warm and friendly confines of Collin County. The case was originally moved out of Collin County on the grounds that it would be hard to get a sufficiently impartial jury there, and so it has been in Harris County for the last million years, give or take a century. Then it looked like Paxton had scored a win, when Harris County Criminal Court Judge Robert Johnson ruled in favor of a Paxton motion to send the case back to Collin County, while also recusing himself from the case due to a potential conflict of interest, as the Attorney General’s office is representing the Harris County Criminal District Court judges in the bail practices lawsuit, for which they are named defendants. Johnson stepped down and fellow jurist Jason Luong was put on the case while Johnson’s ruling to move the case back to Collin County was appealed by prosecutors.

This presented a problem for Paxton, because prosecutors could ask Judge Luong to reconsider Judge Johnson’s ruling, and thus possibly rule instead to keep the case in Harris County. So, Team Paxton moved to have Judge Luong recused from the case (he declined to recuse himself) on the grounds that the same potential conflict of interest that Judge Johnson cited in his own recusal would apply to Judge Luong as well. The prosecutors objected, on the grounds that there really isn’t a conflict of interest here, in part because the AG’s office is representing the Criminal District Court judges as an entity not as individuals – they are being sued in their official capacity, not as private citizens – and also because Paxton himself is not involved in the bail litigation. Last Friday, Administrative Judge Susan Brown ruled for the prosecutors, denying Paxton’s motion to remove Judge Luong from the case, and thus allowing Luong to revisit Johnson’s ruling to move it.

I assume this ruling can and will be appealed, but in the meantime, Team Paxton has filed a motion asking Judge Brown to reconsider her ruling. This is the legal strategy of saying “Are you sure you meant to rule that way? Here, let me give you the same set of facts and arguments as before but maybe emphasize them a little differently, and you’ll see it my way this time, right?” This means that the prosecutors have to respond to this motion, and so they did, with the tone of voice and general tenor one might expect in such a circumstance. When you start with a quote from the movie Dumb and Dumber and conclude with the canonical definition of the word “chutzpah”, it’s safe to say you feel confident in your position. In between, the prosecutors remind everyone that both Paxton and his lawyer have stated that 1) the AG’s office has been “working to remove [Paxton] from ‘active participation in matters in which a conflict may exist’” and 2) “[Judge Johnson] did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office.”

Now, assuming that Judge Luong does stay on the case so that he can rule on the motion to reconsider Judge Johnson’s ruling to send the case back to Collin County (*), and assuming that he rules that Judge Johnson erred in his ruling and that the case should stay here, will the question of Judge Luong needing to be recused come up again? Probably, but we’ll cross that bridge when we get there. In the meantime, enjoy this little exercise in the fine legal art of saying “You’ve got to be kidding me” as only lawyers can.

(*) It’s quite standard for a new judge to revisit consequential rulings made by a previous judge on a case. That’s why having Judge Luong reconsider Judge Johnson’s ruling is not in the same category as asking Judge Brown to reconsider her own ruling.

No new judge for Paxton

Aug 22nd, 2020

by Charles Kuffner.

1 comment

Sorry, Kenny.

Best mugshot ever

Texas Attorney General Ken Paxton, who is still fighting five-year-old felony securities fraud charges, has failed in his bid to kick a Democratic Harris County judge off his ongoing criminal case.

An administrative judge in Houston, Susan Brown, denied Paxton’s motion to recuse Judge Jason Luong from the case, the Dallas Morning News first reported Friday.

It’s a loss for Paxton’s team in the long-running prosecution, which has yet to go to trial amid side fights over venue and prosecutor pay that have spanned years and bounced between numerous courts across the state. Paxton, a Republican, has maintained his innocence in the case, in which he is accused of persuading investors to buy stock in a technology firm without disclosing that he would be compensated for it.

[…]

“We’re gratified that Judge Brown found that Paxton’s motion to recuse Judge Luong was baseless,” said Brian Wice, one of the prosecutors taking Paxton to trial. “We’re confident that Judge Luong will find that Paxton’s motion to keep from being tried in Harris County is cut from the same cloth.”

See here and here for the previous updates. Here’s that DMN story.

Luong, a Democrat, is the fourth judge to preside over Paxton’s case since the attorney general was charged in July 2015. The first judge to preside over the case recused himself early on. Paxton successfully argued for the recusal of the second judge, Tarrant County Republican George Gallagher, over his objections. The third judge to preside over the case, Harris County District Court Judge Robert Johnson, recused himself last month because the attorney general is representing him and several other judges in a lawsuit challenging the region’s cash bail system.

Paxton’s lawyers argued that Luong should be removed from the case for this same reason. The prosecutors, however, said Paxton wanted to recuse Luong because he could reverse Johnson’s decision, made just before his recusal, to move the case out of Harris County. The case was moved from Collin to Harris County in 2017 after the prosecutors argued that they would be unable to ensure a fair trial in Paxton’s backyard.

All righty then. What is unclear to me from these stories is whether or not Team Paxton can appeal this ruling. I’m sure if they can they will, all previous nattering about wanting to get their guy his day in court aside, but that is not addressed and they did not comment. I’m sure we’ll find out soon enough. I also assume any ruling Judge Luong may make on where the trial should be will wait until that happens, if it does. So we don’t yet know how much more time is on the clock before something substantial happens.

Paxton (again) wants another judge on his case

Aug 10th, 2020

by Charles Kuffner.

Comments are off for this post

Round and round they go.

Best mugshot ever

Defense attorneys for Texas Attorney General Ken Paxton — whose indictment for felony securities fraud is now more than five years old — are again asking for a different judge to oversee the case. It’s the latest turn in a long-delayed prosecution that has bounced all the way from a trial court in North Texas to the state Supreme Court in Austin, and now sits in legal purgatory in Houston.

Paxton’s attorneys wrote Thursday that Judge Jason Luong should recuse himself from the case because the attorney general’s office is representing him — among a group of about 20 Harris County district court judges — in an unrelated lawsuit over bail practices. Robert Johnson, who oversaw the case until recently, voluntarily recused himself from the case for that reason earlier this summer. A Houston appeals court reassigned the case to Luong late last month.

“Judge Luong’s impartiality might be reasonably questioned” because Paxton is defending him, Paxton’s attorneys argued in a filing this week.

[…]

The prosecutors appointed to take Paxton to trial shot back Friday, arguing that Luong should remain on the case.

“Because Paxton’s palpable fear that Judge Luong will follow the law and keep these felony cases in Harris County does not come within a time zone of meeting the Draconian burden required for recusal, his motion is without merit and should be denied,” prosecutors Brian Wice and Kent Schaffer wrote.

And they noted that last month, Paxton’s attorney Philip Hilder told the Houston Chronicle that Johnson “did not need to recuse himself on the matter since … the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity.”

See here for the previous update. I don’t think the Paxton argument about a potential conflict of interest due to the bail lawsuit is completely without merit, but I do agree that it’s a thin reed. I mean, the AG’s office is basically defending the office of Criminal District Court Judge in this lawsuit, and Jason Luong just happens to be in that category. It’s Jason Luong in his official capacity, not Jason Luong, person of Texas. It’s true that Judge Robert Johnson agreed to recuse himself on those grounds, but that doesn’t mean other judges would agree with that position. It’s also true that the question could be made moot, either by Judge Luong making like Chuck Silverman and Brian Warren and filing a motion in agreement with the plaintiffs, or by the presiding judge in the bail case granting the motion to dismiss that was recently filed. Of course, a ruling on that motion could take months, and we needn’t wait that long. The point is, though, that there are other ways to resolve this conflict, if one agrees that there is a conflict.

And I too would point out that Team Paxton was just the other day talking about how their guy is ready for his day in court and that the prosecutors should quit fighting the effort to move the case back to Collin County so we can get this show on the road already. Funny how one’s perspective can change on that. It’s been pretty much entirely the work of Team Paxton and his political supporters that have caused this case to drag on for now more than five years. The DMN, in its reporting on this latest action, provides a handy timeline.

The prosecutors, Paxton’s lawyers added, are improperly trying for a do-over on this change-of-venue decision.

“It simply defies belief that the State can get two bites at the apple on the critical jurisdictional issue that Judge Johnson already properly ruled on by allowing a new judge who is similarly situated with Judge Johnson (i.e., both represented by the Texas Attorney General in the same case) to review Judge Johnson’s prior ruling. This is the ultimate appearance of impropriety.”

In their response, the prosecutors said Paxton’s own lawyers already undercut their argument when they told the Houston Chronicle last month that Johnson never needed to step off the case.

“He did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office,” Paxton attorney Philip Hilder told the Chronicle.

A Collin County jury indicted Paxton in July 2015. Since then, his case has been repeatedly delayed by fights over where the trials should take place, how much the prosecutors should make and what judge should preside. Paxton’s defense team spent more than a year attempting to have the charges against their client thrown out. They failed.

Hurricane Harvey also delayed the case and many others in Houston. The COVID-19 pandemic could further push any possible trial back.

Paxton is charged with two first-degree felonies over allegations that he persuaded friends to invest in a McKinney technology company called Servergy Inc. without telling them he received 100,000 shares of stock. He also is charged with a third-degree felony, accused of funneling clients to a friend’s investment firm without being registered with the state. The Texas State Securities Board reprimanded and fined Paxton $1,000 for this failure to register in 2014.

If found guilty, Paxton could face two to 10 years in prison for the third-degree felony and five to 99 years for each of the first-degree felonies, as well as fines. He has pleaded not guilty to all of the charges.

When I started writing this post, I began with the post title, and I was pretty sure that it was Paxton who had demanded a new judge in the past, but I wasn’t sure and I knew it would take a lot of archive-diving find an answer. I’m thankful the DMN did that work for me. Who wants to bet this case will still be active when the voters go to choose an AG in 2022?

A whole lot of Paxton case news all of a sudden

Jul 28th, 2020

by Charles Kuffner.

3 comments

Brace yourselves.

Best mugshot ever

A Houston appeals court on Monday abated a recent decision to move the criminal cases against Attorney General Ken Paxton from Harris to Collin County, giving a new judge on the case the chance to revisit that order.

The abatement is a win for special prosecutors Kent Schaffer and Brian Wice. It will also allow the judge, Jason Luong, to consider whether to reinstate pay to the prosecutors, who have not been paid since 2016. The prosecutors confirmed the appeals court decision to The News but declined to speak to the matter further.

Paxton’s lawyers said they were “disappointed” and “troubled” that the appeals court ruled without giving them a change to respond.

“Mr. Paxton’s response brief on the merits of returning the case to Collin County was due today and filed after the Court had already decided to abate the case,” Paxton defense attorney Bill Mateja told The News in a statement. “As such, we intend to ask the Court of Appeals to reconsider its ruling.”

I did not know that it was in play for the First Court of Appeals to “abate” the ruling that moved the Paxton case back to Collin County. (I also don’t exactly know what “abate” means here, and how it differs from “overturns or “reverses”. You lawyers out there, please chime in.) I did know that Robert Johnson, the judge in Harris County who ruled that the case should go back to Collin, then recused himself because the AG’s office will be representing criminal district court judges in Harris in the latest bail reform lawsuit. I had not known that a new judge – who, it should be noted, is in the same boat as Judge Johnson in re: the bail lawsuit, unless he decides to make like Chuck Silverman and side with the plaintiffs. I’m putting all that in here so as not to quote the whole damn story. Now back to the excerpt:

Paxton’s legal team applauded the decision [to move the case back to Collin County] at the time and said the attorney general is ready to have his day in court.

“We are gratified by the Court’s ruling and look forward to getting Mr. Paxton’s case back on track. This case has gone on far too long,” Paxton lawyer Dan Cogdell said in an emailed statement that day. Bill Mateja added: “The Prosecutors need to let Judge Johnson’s decision stand and allow Mr. Paxton to have his day in court.”

The special prosecutors appealed his decision.

In early July, the 1st Court of Appeals delayed moving the cases to Collin County until it could rule on the merits of the prosecutors’ arguments that they remain in Houston. Now, the prosecutors say the court has abated Johnson’s decision and allowed Luong, a Democrat, to revisit the move back to Collin County.

Luong, who is also being represented by Paxton’s office in the same separate case as Johnson, has not answered questions about whether he too will recuse himself from this case.

Did you know that the original Paxton indictments are now five years old? Let’s just say I don’t believe Attorneys Cogdell and Mateja in their assessment of how long this has taken and their client’s desire to see the inside of a courtroom, even one in front of a presumably friendly judge. It ain’t the not-paid-since-2016 special prosecutors who have dragged this out for so long. I have no idea what issue there may be for Judge Luong to decide in re: their pay, but 1) they deserve to be paid, and 2) any further action on that front will for sure drag this out until the heat death of the universe. In the meantime, the ball is literally in Judge Luong’s court, and we’ll see what the next action item is. The Chron has more.

UPDATE: I have been given the following explanation of what an “abatement” is:

A Texas appellate court “abates” a case when it decides that there is some action a trial judge must take before the case goes forward. The same word is used in other circumstances but it almost always means a court is pausing proceedings.

This is a mandamus in which the prosecutors are challenging Judge Johnson’s transfer order. A mandamus is technically a suit against the trial judge in their official capacity. The First Court’s order yesterday abated the case because it had learned Judge Johnson had recused himself and Judge Luong is the new judge. The case against Judge Johnson can’t proceed because there’s a new judge who must be given an opportunity to either agree or to vacate Judge Johnson’s order. If Judge Luong agrees with Judge Johnson, the mandamus will proceed against the new judge. If he vacates, it will be up to Paxton’s defense counsel to try the case here or appeal the new judge’s order.

This type of abatement is not unusual and is all but mandatory when there is a change in judges in the middle of a mandamus. It’s unfortunate that the appellate brief was filed after the abatement, but that happens sometimes. It would be unusual if the court of appeals had not abated the mandamus to allow Judge Luong time to rule.

That makes sense to me, and as you can see from the court order, the abatement is for 45 days. So, in the next six weeks or so we should know if the ruling to move the case back to Collin County is still in place or if it has been vacated. (This is assuming Judge Luong doesn’t recuse himself, in which case I presume the main effect would be to push the timeline further back, because sure, why not.) Once we have that, we’ll know who’s appealing what. Isn’t this fun?

Move to Collin County on hold, Paxton judge recuses himself

Jul 12th, 2020

by Charles Kuffner.

1 comment

Stay with me here.

Best mugshot ever

The Harris County state district judge who handed Attorney General Ken Paxton a big win by moving his criminal case back to Collin County two weeks ago is now recusing himself because Paxton’s office is representing him in a separate suit.

Now Judge Robert Johnson’s quick exit is leading the attorneys prosecuting Paxton to question the decision to move the case back to Paxton’s home county.

Johnson, who did not respond to requests for comment, made the venue change decision on June 25. A day later, he and all 22 other Harris County felony judges were added as defendants in a lawsuit alleging that the region’s bail practices discriminate against poor defendants.

The Attorney General’s Office represents state agencies and individual employees of the state and officially became counsel to Johnson and 19 other judges on July 1.

[…]

Prosecutors in the case have appealed the move to Collin County, and the First Court of Appeals on Tuesday granted a motion for a stay of the proceedings during the appeal.

One of the prosecutors, Kent Schaffer, says the recusal raises questions about when Johnson knew he had a potential conflict of interest. He said he plans to look into the issue and will continue to push for the venue change to be voided.

“If we can show that he was already in conversations with the AG about representation, he should have recused himself at that point,” Schaffer said. “If he had a conflict, he shouldn’t have ruled on it to begin with.”

Johnson said in court documents on Monday that he was recusing himself out of a concern that his “impartiality might reasonably be questioned,” citing from the Texas Rules of Civil Procedure.

Philip Hilder, an attorney for Paxton, said Tuesday that he has no doubt that Johnson’s decision to move the case should stand.

“The judge’s ruling was completely based in following the law and facts and (he) made the right decision by sending the case back to Collin County,” Hilder said. “He did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office.”

Johnson had agreed with Paxton that the judge who moved the case to Harris County in 2017 did so after his term had expired and the decision therefore should not stand.

The case is out of Johnson’s hands for now until the appellate court rules — either upholding the move to Collin County or sending it back to his courtroom.

See here for the background. I agree that the addition of district criminal court judges to the bail reform lawsuit, for which they will be represented by the Attorney General’s office, is a complicating factor, and that it would have been better if Judge Johnson had either ruled or recused himself before that happened. I can’t quite articulate what the conflict of interest may be here, but as a matter of general principle it would be best to separate the two cases. Given the reasons why the case was moved in the first place, maybe moving it to Bexar or Fort Bend or some other large-but-not-Collin county is the better way to go; I’d guess no one was advocating such a position, however. As usual, this case gives me a headache, so I’m just going to leave this here and wait till the First Court of Appeals makes its ruling.

Back to Collin County for the Paxton trial

Jun 26th, 2020

by Charles Kuffner.

Comments are off for this post

Where it all began.

Best mugshot ever

Years after it was sent to Harris County, the criminal case against Texas Attorney General Ken Paxton will move back to his native Collin County, a Harris County judge ruled Thursday.

Paxton, a Republican, was indicted in 2015 on felony securities fraud charges, but the case has yet to go to trial as side battles persist over the venue where he will be tried and the amount the special prosecutors will be paid.

A judge moved Paxton’s case to Harris County years ago, after prosecutors said they could not get a fair trial in Collin County, Paxton’s home and former district from his time in the state Legislature. His wife, state Sen. Angela Paxton, R-McKinney, now represents the region.

But Ken Paxton’s defense team argued last year that the judge who initially ordered the move to Harris County did not have the authority to do so, as his time overseeing the case had elapsed. The two attorneys prosecuting Paxton, Brian Wice and Kent Schaffer, disputed that at a December hearing and said the case belongs in Harris County. But Judge Robert Johnson, a Democrat, agreed with Paxton’s defense team in an order this week.

Wice pledged to appeal the decision.

“The only thing more wrong than the judge’s ruling is that it took him almost a year to make it,” he said. “We’re confident the court of appeals will set it aside and keep venue in Harris County where it belongs.”

See here for the previous update, and here for a full timeline of L’Affaire Paxton. Judge Johnson had said at that December hearing that he’d rule by the end of the month. I have no idea what happened with that, but here we are. As I said then, the only sure thing in all this is that it will eventually end up before the Court of Criminal Appeals. I don’t even have it in me to make a joke at this point. The Chron and the DMN have more.

Will the Paxton case move back to Collin County?

Dec 21st, 2019

by Charles Kuffner.

Comments are off for this post

Team Paxton is asking for that to happen.

Best mugshot ever

A Harris County judge said Tuesday he will rule by the end of next month on Attorney General Ken Paxton’s request to move his felony securities fraud case back to his home county.

Judge Robert Johnson avoided getting into other issues raised in the case until he decides whether to send it back to Collin County, where it originated nearly four years ago.

Special prosecutor Kent Schaffer — who opposed Paxton’s motion to move the case — said after Tuesday’s hearing that he thinks Johnson “will make the right decision” and that he believes “with a high degree of certainty” that Paxton will go to trial by spring 2020.

[…]

The case has been delayed for nearly four years now for reasons ranging from the change of venue request to courtroom damage due to Hurricane Harvey to an ongoing disagreement between Collin County officials and special prosecutors over what they ought to be paid for their work.

It was Paxton’s political influence in Collin County that led a judge to move the case to Harris County in the first place. In 2017, Judge George Gallagher sided with prosecutors who argued that Paxton could not receive a fair trial in the county where many of his friends and political allies live and hold positions of power.

The Collin County District Attorney, for example, recused himself from the case because of a friendship with Paxton, a former state legislator.

Paxton’s lawyers argue that Gallagher exceeded his authority in changing the venue in the first place because his temporary assignment to the case had expired months before he made the decision.

They’ve also said that public attention on Paxton’s indictment has waned since 2016 when the case was the talk of “blogs, media and Facebook posts.” Plus, Collin County is better-equipped to take the case as well, they say, because the Harris County court system is already overburdened.

See here, here, and here for the background. Paxton’s argument seems pretty self-serving here, but in some sense it doesn’t matter. We all know Judge Johnson’s ruling will get appealed, all the way to the CCA, and that whole rigamarole will take a couple more years. We’re all going to be old and gray before this case is resolved.

Here come the Rangers

Aug 13th, 2019

by Charles Kuffner.

1 comment

I don’t know where this is going to go, but it sure will be fun getting there.

Rep. Dennis Bonnen

The Texas House General Investigating Committee voted Monday to request that the Texas Rangers look into allegations against House Speaker Dennis Bonnen and one of his top lieutenants in the lower chamber.

The committee vote, which was unanimous, followed roughly an hour of closed-door deliberations among the five House members who serve on the panel. At issue is whether Bonnen, an Angleton Republican, and state Rep. Dustin Burrows, R-Lubbock, offered hardline conservative activist Michael Quinn Sullivan media credentials for his organization in exchange for politically targeting a list of fellow GOP members in the 2020 primaries.

[…]

State Rep. Morgan Meyer, a Dallas Republican who chairs the House committee, said Monday that the Texas Ranger’s Public Integrity Unit “will conduct an investigation into the facts and circumstances surrounding” that meeting between Sullivan, Bonnen and Burrows. Meyer also requested that the Texas Rangers provide a copy of its final investigative report to the committee at the end of its investigation.

See here for the background. What might happen next could get complicated.

Aside from the quid pro quo aspect of the scandal, exchanging money in the Capitol or directing expenditures from a Capitol office has been a Class A misdemeanor ever since the Legislature reacted to a 1989 public outcry over the late chicken producer Lonnie “Bo” Pilgrim handing out $10,000 checks to nine senators in the Senate chamber during a hearing on workers compensation reform.

Besides the issue of whether there was bribery involved, there are also potential election law crimes, including not disclosing the source of campaign contributions directed by Bonnen. The Texas Democratic Party filed a lawsuit against Sullivan on Thursday, alleging nine different potential criminal violations of the Texas Election Code, each a Class A misdemeanor. The lawsuit seeks to preserve evidence and damages of $100,000.

Given the potential for criminal wrongdoing, what happens next?

First, consider the dramatic changes that the Texas Legislature made to how public corruption cases are handled in Texas. Under a state law passed in 2015, the Travis County public integrity unit no longer has jurisdiction over elected officials at the Capitol. Potential criminal cases must be investigated first by the Texas Rangers. As of Thursday, the Rangers had not been asked to investigate the Bonnen/Sullivan controversy, nor had they initiated an investigation on their own, according to a Texas Department of Public Safety spokesperson.

If the Rangers do investigate and decide further action is warranted, the case is referred to the home county of the public official. That means any corruption charges against Bonnen would have to be brought by the Brazoria County DA. For Burrows, it would be the Lubbock County DA. Travis County would retain jurisdiction only over Sullivan. In cases of multiple jurisdiction, the Texas attorney general’s office can take charge.

Funnily enough, Attorney General Ken Paxton is under indictment on securities fraud charges in his home territory of Collin County. Paxton is accused of failing to register as a securities agent as part of his private law practice. He claims he is innocent and that the case is politically motivated. Paxton counts among his allies the funders of Empower Texans. (The plot always seems to thicken in this scandal.)

You know what this would mean: Special prosecutors would be needed. Nothing could possibly go wrong with that approach. It’s almost as if abolishing the prosecutorial power of the Public Integrity Unit was a bad idea with all kinds of potentially unwanted consequences. We are getting way ahead of ourselves here, so let’s reel it in a bit and say we can’t wait to see what happens next. Ross Ramsey has more.

David Temple convicted again

Aug 8th, 2019

by Charles Kuffner.

Comments are off for this post

New trial, same result.

A Harris County jury on Tuesday convicted David Temple of murder in the 1999 death of his pregnant wife, opening the door for the former Katy-area football coach to be sent back to prison several years after an appeals court reversed his original guilty verdict because of prosecutorial misconduct.

The panel of seven men and five women handed down the decision following almost eight hours of deliberation and 18 days of witness testimony, including evidence prosecutors withheld during the initial trial and which led to the reversal. In the end, jurors convicted David Temple of murder for a second time, rejecting the defense attorneys’ claim that an alternate suspect, a teenage neighbor, fatally shot Belinda Temple.

As state District Judge Kelli Johnson read the verdict, Temple cast his face downward, sweating and suppressing tears while his family members, including his adult son, burst into a chorus of sobs.

Just feet away, siblings and friends of Belinda Temple let out audible sighs of relief, comforted that the man they have long believed killed her could be locked up once more.

[…]

Testimony in the retrial revolved around two competing timelines of events on Jan. 11, 1999, the day Belinda was found shot to death in her master bedroom closet. David Temple told authorities that he came home from a trip to the park and store with his 3-year-old son and found his wife dead amid an apparent burglary.

Prosecutors argued that the husband — who was in the throes of a secret relationship with a coworker — had executed Belinda with a close-contact shotgun wound shortly after she arrived home from a work and a trip to pick up soup for her sick child. He washed his hands, changed his clothes, and left for the store, before returning home and staging a crime scene, state attorneys said. At some point during his shopping trip, prosecutors said, he ditched the murder weapon, which was never located.

Temple’s defense lawyers contended that their client didn’t have time to murder his wife, given a “narrow window” of opportunity when they were both home alone. They argued that the killing occurred while Temple was at the store, and was carried out by a 16-year-old neighbor who had a bone to pick with Belinda, who was also his teacher at Katy High School.

The neighbor testified during the retrial, telling jurors that he skipped the last class period of the day on Jan. 11, 1999. He said that he spent much of the afternoon on a mostly fruitless quest to find marijuana, and several of his high school friends corroborated parts of his story.

See here and here for the background, and here for the rest of my blogging about this. The re-trial was due to Temple’s attorneys successfully arguing that he had not received a fair trial in 1999 because of misconduct by then-Assistant DA Kelly Siegler. Current District Attorney Kim Ogg recused her office from the do-over, with prosecutors from the Attorney General’s office handling the case. In the end, it seems the jury didn’t buy Temple’s defense. Sentencing is still to come, but I imagine he’ll be spending some more time in prison.

Paxton wants to move his case back to Collin County

Jul 26th, 2019

by Charles Kuffner.

Comments are off for this post

Of course they do.

Best mugshot ever

Paxton’s defense team has asked that the case be moved back to his hometown of Collin County, years after it was moved from there to Harris County. The case was moved hundreds of miles southeast after the prosecutors claimed that Paxton, a Republican who is well connected in that region and once represented it in the Texas Legislature, would not get a fair trial there.

But Paxton’s defense team argued this week that the judge who moved the case to Harris County two years ago didn’t have the authority to do so, as his term overseeing the case had elapsed.

[…]

That leaves [Judge Robert] Johnson, a Democratic judge overseeing the case, with several issues to mull before Paxton faces a jury. Johnson has not yet responded to either side’s motion.

On Monday, Paxton’s defense attorneys argued that if there is a hearing on the prosecutors’ fees, they should also be present — and asked that the judge rule on changing the venue before the pay issue.

The Team Paxton motions were in response to the prosecutors’ motion to confer with Judge Johnson – just them, Team Paxton is not invited – regarding their pay. I can understand that motion, but as the Observer notes, the argument to move the case back to Collin County is a rehash of the same arguments they made when the case was originally moved. That was seen at the time as a win for Paxton, since his team had moved to boot the original judge from the case. It seems unlikely to me that Judge Johnson will agree to just hand the case back to Collin County, but it’s a lead pipe cinch that Team Paxton will appeal that ruling and thus accomplish their main goal, which is delaying this trial from now until the heat death of the universe. Either way, they get something they want. The DMN has more.

We return once again to the Paxton prosecutor pay fight

Jul 21st, 2019

by Charles Kuffner.

Comments are off for this post

This is an interesting argument.

Best mugshot ever

The prosecutors appointed years ago to take Texas Attorney General Ken Paxton to trial will continue to fight over their pay rate, lengthening a dispute that has already delayed the case for well over a year.

[…]

Prosecutors Brian Wice and Kent Schaffer had signaled they might withdraw from the case if they could not be paid. Instead, they are now asking a Harris County judge for a private, “ex parte” hearing over their fees — a meeting that would not include Paxton’s defense team. In a filing this week, they asked Judge Robert Johnson to “issue a new order for payment of fees.”

“The Attorneys Pro Tem’s payment is now an administrative matter for the trial court to decide,” an attorney for Wice and Schaffer wrote. “The Court of Criminal Appeals’ decision provides the court with the parameters necessary for the court to use its discretion in discharging its administrative duties.”

They added that “there is no authority suggesting that an adversarial hearing regarding the payment of fees … should be held” — arguing that Paxton’s defense lawyers should not be present for the hearing.

The judge has not yet responded to the request. A spokesman for Paxton did not return a request for comment.

See here for the last update. I’m glad they waited till after the legislative session to advance this argument, as I can easily imagine a hastily-written bill to cut this off at the knees getting rammed through. I’ve no idea if this brief, let alone the assertion that there doesn’t need to be a response from Team Paxton, has any merit or has ever been tried before. But it sure isn’t boring, and I can’t wait to see how Judge Johnson rules. The DMN has more.

David Temple re-trial is now underway

Jul 9th, 2019

by Charles Kuffner.

Comments are off for this post

I continue to be fascinated by this.

It’s 1999 in Katy, Texas.

A seemingly perfect couple is falling apart at the seams. David Temple, a high school football coach, is having an affair with a beautiful teacher on campus. His wife, a beloved special education instructor, is becoming anxious. She’s also eight months pregnant.

It was an act of disloyalty, David Temple’s attorneys conceded with opposing state prosecutors. The legal parties disagree, however, on the events of Jan. 11, when Belinda Temple was found shot to death in the closet of her master bedroom.

Lawyers began to reconstruct the murder of Belinda Temple for Harris County jurors on Monday, launching testimony for her husband’s second criminal trial in 12 years. Unlike the first trial, when jurors found David Temple guilty in the killing – a decision that was later overturned by an appeals court – attorneys were tasked with making the panel understand a story from another era.

“We’re going to go back in time,” David Temple’s attorney, Stanley Schneider, began his opening argument on Monday. “We’re going to hear a story of betrayal, two betrayals.”

The lawyer told jurors that while the defendant was unfaithful to his wife, law enforcement also betrayed citizens by operating with “tunnel vision” in the case, which rocked the Katy area in the early 2000s and has maintained a hold in the county ever since.

[…]

“There was only one person on this Earth who had the motive, the means and the opportunity to cause her death,” said Lisa Tanner, a state prosecutor re-trying the case in lieu of the Harris County District Attorney’s Office, which recused itself after the initial verdict was reversed. Investigators didn’t charge anyone with the crime at first but had questions about Temple’s account, Tanner said. The family’s dog was aggressive and made it difficult for police officers to even gain entry into the yard, making them wonder how a burglar could have made it past. The break-in also seemed staged, Tanner said, as evidenced by the location of broken glass on the floor.

Surveillance videos located Temple being where he said he was on two instances, but the videos are separated by a nearly 45-minute gap, Tanner said.

See here for the background and here for all posts. Again, I don’t have anything to add. We just don’t see many re-trials like this, especially in cases where the original prosecutors had been found to have withheld possibly exculpatory evidence. We’ll never know the answer to the questiof what might have happened if they had played by the rules back then, but we’ll see what happens now that this evidence is known to all. I’ll be keeping an eye on this.

David Temple re-trial starts

Jun 26th, 2019

by Charles Kuffner.

2 comments

The beginning of the next chapter in a long story.

For the second time in 12 years, a former Katy-area football coach is standing trial in the murder of his pregnant wife, seeking exoneration after prosecutorial misconduct caused his first conviction to be reversed.

David Temple’s return to court takes place almost 20 years after his wife’s death, which he has insisted was the result of a botched break-in at their home. The murder and trial in 2007 became drew national attention and the case has remained controversial ever since.

Jury selection began Thursday and will continue this week, with testimony due to begin next month. State District Judge Kelli Johnson, special prosecutors from the Texas Attorney General’s Office and defense attorneys are choosing from a pool of 240 potential jurors.

The amount of time that has lapsed usually benefits the defense, said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston. It remains to be seen what evidence withheld from the first trial will be presented.

“We probably shouldn’t expect any surprises,” she said. “The question is how much the prosecutors’ case has degraded over time.”

See here for all the background I have on this. The case is being prosecuted by a lawyer from the Attorney General’s office, as DA Kim Ogg recused her office due to the allegations of misconduct against the office from the past. Suffice it to say that this case is a hot potato, and people have strong feelings about it and about David Temple. I’m just interested in seeing how it plays out this time around.

Will Ken Paxton ever be prosecuted?

Jun 20th, 2019

by Charles Kuffner.

2 comments

At this point, I’d have to say it’s very unlikely.

Best mugshot ever

After mulling the question for nearly six months, the nine Republican judges on Texas’ highest criminal court will not reconsider their 2018 ruling that threatens to imperil the criminal case against Texas Attorney General Ken Paxton.

In November, a fractured Texas Court of Criminal Appeals ruled that a six-figure payment to the special prosecutors appointed to take Paxton to trial for felony securities fraud fell outside legal limits for what such attorneys may be paid. A month later, the attorneys asked the high court to reconsider that decision in a spirited legal filing that went unanswered until this week.

The court did not provide any reason for rejecting the motion, nor did any judges write dissenting opinions. Few expected that the high court would reconsider its own ruling.

Payments for special prosecutors are based on strict fee schedules, but judges are permitted to approve payments outside those strictures in unusual circumstances, as a North Texas GOP judge did for the prosecutors in the Paxton case. But after Jeff Blackard, a Paxton donor, sued in December 2015, claiming that the fees were exorbitant, the Dallas Court of Appeals voided the prosecutors’ invoice and the payment has been in question. Meanwhile, the trial itself has been derailed again and again.

Wednesday’s ruling threatens the long-delayed prosecution of Texas’ top lawyer, as the prosecutors —unpaid in years — have signaled they may withdraw from the case if they cannot be paid. The prosecutors have also argued that the pay ruling, in limiting how much attorneys may be paid even in cases of extraordinary circumstances, threatens the state’s ability to adequately compensate lawyers representing indigent defendants.

See here, here, and here for the latest updates, and here for even more, if you want to do a deeper dive. We should all have friends as steadfast as Ken Paxton has in Collin County, both on their Commissioners Court and in the person of Jeff Blackard. Friends help you move, real friends help you game the criminal justice system to effectively quash felony indictments.

At this point, either the existing prosecutors decide to stick it out and maybe extract a bit of revenge via jury verdict, or they throw in the towel and the whole thing starts over with new prosecutors. Which in turn would open a whole ‘nother can of worms, thanks to the Lege.

Under Senate Bill 341, which moved quietly and without controversy through the Texas Legislature, only county attorneys, district attorneys and assistant attorneys general would be qualified to serve in the high-stakes, often high-profile affairs that require specially appointed prosecutors. Currently, judges may appoint “any competent attorney,” which some have argued is an insufficient standard.

The author of that bill, Houston Republican Sen. Joan Huffman, has presented it as a cost-saving effort for counties — special prosecutors will now be government attorneys who would not require additional funds — and also as a way to raise the bar of qualifications for special prosecutors.

That would limit the selection pool from the more than 100,000 practicing attorneys in Texas to a much smaller group of several hundred elected prosecutors or attorneys employed by the agency Paxton runs. The replacement for Wice and Schaffer would have to be either a Democratic district attorney, who might be seen as overly aggressive in her prosecution of a Republican statewide official; a Republican district attorney, who could be seen as overly sympathetic to a leader of his own party; or an assistant attorney general, who would be an employee of the defendant.

That law goes into effect September 1. This law does make some sense, and if the Paxton prosecution had been handed off to a DA or County Attorney there would not have been an issue with payment. I for one would argue that this case should absolutely be turned over to a big urban county DA’s office – Harris, Dallas, Bexar, or (oh, the delicious irony) Travis – since an aggressive prosecution is exactly what is needed, and the DAs in those counties will have less to fear from the voters than, say, the Denton or Tarrant or Montgomery County DAs would. I will be very interested to see what the presiding judge decides to do, if it comes to that. In the meantime, we need the voters of Collin County to start voting out members of their Commissioners Court, and the voters of Texas to start electing better jurists to the CCA. You want a lower-level cause to get behind in 2020, there’s two of them for you.

Paxton prosecutors take their shot at a do-over

Dec 29th, 2018

by Charles Kuffner.

Comments are off for this post

Good luck.

Best mugshot ever

In a fiery filing that amounts to a legal Hail Mary, the attorneys appointed to prosecute Texas Attorney General Ken Paxton implored the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yielded “a patently absurd result.”

The Texas Court of Criminal Appeals ruled in November that a six-figure payment originally approved for the special prosecutors was outside legal limits — a move that boosted Paxton and threatened to derail the case against him, as the prosecutors had indicated they might withdraw if they could not be paid. A month later, the prosecutors have asked the court to reconsider their decision in a crucial case “where the ‘x’ axis of justice and the ‘y’ axis of politics intersect.”

Rehearing, they argued in a filing last week, is critical for ensuring that the high court’s proceedings “appear fair to all who observe them.” [Read the filing here]

[…]

In the Dec. 21 filing, prosecutor Brian Wice wrote that the prosecutors “would never have accepted the formidable task of prosecuting the Texas Attorney General over the last three-plus years had they been able to look into the future and discern that their pay would come within a coat of paint of minimum wage.”

From the opening sentence, the 18-page filing doesn’t mince words.

“If you’re fortunate enough to be Texas Attorney General Ken Paxton, you can lawfully create and endow a defense fund to pay for an armada of top-flight legal talent that most defendants can only dream of to defend yourself against three felony offenses,” Wice wrote.

In the motion for rehearing, which includes references to Atticus Finch, Shakespeare, Gilbert & Sullivan and the impending “Sword of Damocles,” the prosecutors implore the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yields “a patently absurd result” that would pay the special prosecutors “unconscionable” rates.

Letting the ruling stand, Wice argued, would allow any local government in Texas “to derail what it sees as an unjust prosecution by de-funding it.” And that type of funding dispute can be influenced by major political players, he suggested.

“Make no mistake,” he wrote. “While it was the Commissioners who prevailed in this Court, Paxton first recognized that the best, indeed, the only way to derail his prosecution was to de-fund it by challenging [prosecutors’] fees three years ago.”

See here and here for the background. I mean, the prosecutors are 100% right on the merits, and they lay it out with utter clarity. I maintain that the Legislature can and should fix this by making the state pick up the tab for prosecutions like this, but that won’t help here, even if we could be sure that a bill to address this would pass. We need the Court to do the right thing, which they failed to do the first time around. It’s either that or they show that they don’t care about the law when one of their own is on the sharp end of it.

CCA may have killed the Paxton prosecution

Nov 22nd, 2018

by Charles Kuffner.

9 comments

Ugh. Just, ugh.

Best mugshot ever

The Texas Court of Criminal Appeals on Wednesday potentially imperiled the long-delayed criminal prosecution of Texas Attorney General Ken Paxton, ruling that payments to special prosecutors were outside legal limits.

If they cannot get paid, the prosecutors have suggested they could withdraw from the case against Paxton, a three-year-long legal saga that has dragged on in fits and starts amid side fights like the dispute over legal fees.

In its opinion Wednesday, the state’s highest criminal court said a lower trial court was wrong last year to approve a six-figure payment to the three special prosecutors handling the Paxton case. The prosecutors’ invoice was rejected by commissioners in Collin County — Paxton’s home county — touching off the legal fight that made its way to the Court of Criminal Appeals.

“Here, the trial court exceeded its authority by issuing an order for payment of frees that is not in accordance with an approved fee schedule containing reasonable fixed rates or minimum and maximum rates,” the opinion said.

The Court of Criminal Appeals invalidated the payment and ordered the lower court to re-issue it in accordance with the fee schedule.

“While we are disappointed with the majority’s ruling and are exploring all legal options available to us, it does not alter the fact that Ken Paxton remains charged with three serious felony offenses,” the prosecutors said in a statement responding to the ruling.

See here, here, and here for the background. I have no idea what happens next. A copy of the opinion is here, and the Observer has some thoughts. Maybe the prosecutors stick it out – maybe now Collin County will agree to pay them something reasonable, now that they can dictate the terms more. Maybe they step down and some other prosecutors step in. Maybe it all goes up in flames. The fact that we’re having this conversation at all is a scandal that needs to be addressed by the Lege. The possibility that Paxton may end up skating because the system as designed was not capable of finding a prosecutor for the charges against him is too gruesome to contemplate, so I’m not going to think about it any more today. Have some turkey or turkey-alternative, watch some football, and quit griping about how it’s Christmas season already. Happy Thanksgiving to you and yours.

Don’t expect a Ken Paxton trial to happen this year

Jun 30th, 2018

by Charles Kuffner.

Comments are off for this post

Delays, delays, nothing but delays.

Best mugshot ever

Texas Attorney General Ken Paxton was indicted for fraud nearly three years ago but is unlikely to go on trial before Election Day.

Paxton’s trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid. The court went on summer recess Wednesday, and won’t hear any cases or issue any major opinions before the fall.

This means they won’t announce a decision in the pay case until September, at the earliest, which experts said will delay Paxton’s trial dates until after the Nov. 6 election — and probably into next year.

“I just don’t see there’s any way it gets tried before the election,” said Rusty Hardin, a Houston attorney who has represented everyone from Enron employees to athletes and TV stars. “I would have doubted that the trial would have happened before the election even if the Court of Criminal Appeals would have decided today.”

There’s more, so read the rest. Just for a sense of the timeline here, the 5th Court of Appeals in Dallas halted the special prosecutors’ pay last February, then ruled they had to give a bunch of it back to Collin County in August. The CCA then stayed that ruling pending any action it would take in September, and after giving everyone 30 days to respond to the prosecutors’ appeal of the 5th Court’s ruling, they agreed in December to formally review that ruling. At that time, it delayed the actual Paxton trial, which was originally set to start on December 11, to this year. More than six months later, the CCA has not scheduled oral arguments for that appeal, and so here we are. There are other factors at play here – the damage done to the Harris County courthouse by Harvey greatly complicates things, for example – but either until this lawsuit gets resolved, nothing else will happen. And just any ruling won’t get us back on track, because if the CCA lets the 5th Court’s ruling stand, the special prosecutors will resign, and we’ll have to start more or less from scratch. Ken Paxton could well be collecting his state pension by the time this sucker gets to a courthouse.

You’ve heard the expression that “justice delayed is justice denied”. Usually, that applies to the defendant, who is entitled by the Constitution to a fair and prompt trial. In this case, as Democratic nominee for AG Justin Nelson says in a statement, Ken Paxton is benefiting from the unending delays, with the assistance of his legislative cronies. You’d think a guy who loudly proclaims his innocence would want to get this over with, but not Ken Paxton. It would seem he’s just fine with putting this off, at least until after the election. Feel free to speculate as to why that might be.

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