June 27, 2023

Can Paxton Be Removed for Conduct before the Last Election?

Can Paxton Be Removed for Conduct before the Last Election?

As most of you know, the Texas House of Representatives has impeached Attorney General Ken Paxton. The Articles of Impeachment, which overwhelming passed the Texas House, accuse Paxton of very serious charges most of which revolve around his relationship with an Austin developer and extraordinary "favors" Paxton did for him in his office. Included in the articles are allegations that the developer received this preferential treatment because he put Paxton's mistress on his payroll and because the developer did work on Paxton's home that Paxton did not pay for. Paxton has denied the charges.

Let me begin by saying that if conduct of which Paxton is accused is proven, he should be impeached.  As a lawyer, I find the conduct alleged beyond unprofessional, and a violation of his oath as the Attorney General and as an attorney generally.  If the conduct is proven to be true, he should be impeached and disbarred.

However, whether any of us personally feel he is unfit to be the Attorney General is not the relevant issue. He should only be impeached if the facts justify impeachment under the applicable law, which in this case is the Texas Constitution.

In Paxton’s case, there is an unusual legal issue which may keep him from being convicted which has nothing to do with whether he is guilty of the conduct alleged. Indeed, it may result in the impeachment being dismissed by the Texas Senate before the merits of the case are even considered.

There are two types of impeachment proceedings under Texas law. The more common are statutory impeachments. These are impeachments which are authorized under laws passed by the Legislature. Depending on the circumstances, various officials can initiate the impeachment and those cases are tried in a court. Statutory impeachments can ultimately be appealed to the Texas Supreme Court.

When the Legislature first adopted the laws setting out procedures for statutory impeachments, it included a section that provided, “no officer shall be prosecuted or removed from office for any act he may have committed prior to his election to office." That provision has been carried forward in subsequent reiterations of the impeachment laws and is currently found in Tex. Gov't Code § 665.081.

As you can see from the language, this provision does not specify which “election” in the case of an official that has been elected multiple times. So, the question is, does the prohibition against impeachment apply to conduct before the official’s first election or most recent election?

The Texas Supreme Court answered that question in 1924 in Reeves v. State of Texas Ex Rel. Mason, 267 S.W. 666 (Tex. 1924). In that case, the Supreme Court held that the conduct must be after the last election on the theory that the voters, being the ultimate sovereign, have the power to forgive errant conduct by an official. That ruling has since been known as the voter forgiveness doctrine and has been reaffirmed by the Supreme Court on multiple occasions.

In Paxton’s case, most of the conduct on which the House’s articles of impeachment occurred before his most recent election last year. So, if Paxton was the subject of a statutory impeachment, most of the articles of impeachment would be summarily dismissed under the voter forgiveness doctrine.

But Paxton’s impeachment was not brought under statutes passed by the Legislature. It was brought under Article 15 of the Texas Constitution, which gives the Legislature the exclusive power to impeach certain state officers, including the Attorney General.  That article gives the Texas Senate power try the impeachment and to set rules for the trial and determine the basis for impeachment.  Importantly, the Senate is not bound by Texas Supreme Court precedents in statutory impeachment cases in its deliberations. Therefore, the Texas Senate is free to rule whether or not to apply the voter forgiveness doctrine to Paxton's case.

One of the first items the Texas Senate is likely to take up will be a motion to dismiss the articles of impeachment based on the voter forgiveness doctrine. Let me say that I think the voter forgiveness doctrine is an unrealistic and outdated notion that the Supreme Court should overrule. The idea that the roughly 4 million Texans who voted for Paxton knew about these allegations and forgave him is a legal fiction that defies common sense. Nonetheless, the voter forgiveness doctrine is a current Supreme Court precedent and a decision by the Texas Senate to rely on it in Paxton’s case would not be unreasonable.

Most observers believe that Lt. Governor Dan Patrick will ultimately decide Paxton’s fate because his view will prevail in the Senate. That seems likely to me as well. But it is hard to divine what Patrick’s political calculus will be. My sense is that there would be few tears shed by most leaders in the Texas Republican Party if Paxton were impeached. He is a constant source of embarrassment and bad press for the party and there is a strong possibility he will eventually be the subject of a federal indictment.  (The developer who Paxton alleged gave preferential treatment was recently indicted on unrelated federal charges.)

If he is not convicted, there will undoubtedly be a torrent of criticism and political fallout because the conduct alleged is so egregious.  On the other hand, Paxton is still popular with the Republican base. Senators voting for impeachment might face the wrath of Republican primary voters. So, the Republican Senators face a bit of a Hobson’s choice.

A convenient way out of the conundrum would be to rely on the voter forgiveness doctrine and dismiss the articles of impeachment. That would avoid a potentially embarrassing trial and be forced to cast a vote on the merits. The Senate could further window dress the dismissal by censuring Paxton or taking some other action short of impeachment condemning his conduct.

In any event, we should know pretty quickly after the trial begins. Rule 5(b) for the impeachment trial provides that immediately after Paxton’s plea is accepted, the first order of business will be for the Senate to rule on any motions that “would result in dismissal of any article or articles of impeachment.” The ruling on any motions to dismiss will be decided by a majority vote of the Senators. It is not hard to imagine that a majority of the Senators will decide to follow the Supreme Court’s precedent and avoid a trial altogether.

I hope I am wrong. I think the people of Texas deserve to hear the evidence on Paxton’s conduct regardless of whether the Senate ultimately votes to convict him, because as the Texas Supreme Court said in their 1924 decision, the people are the ultimate sovereign.

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