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Ken Paxton’s lawyers move to dismiss nearly all articles of impeachment against him

Jorge Sanhueza-Lyon

The attorneys for Ken Paxton filed a motion Monday to dismiss 19 of the 20 articles of impeachment against the suspended Republican attorney general of Texas.

Paxton’s lawyers claim the 19 articles of impeachment are related to allegations that happened before his most recent election, and therefore should be dismissed.

They said the articles violate a legal rule called the “prior-term doctrine.”

“The alleged acts underlying nineteen of the Articles took place before the Attorney General’s most recent election and were highly publicized,” the motion reads. “They therefore cannot factually or legally form the basis for the Attorney General’s removal.”

Paxton’s attorneys also claim that moving forward with any of the articles of impeachment would negate the will of the voters, since many of the allegations were already public before his November 2022 reelection.

Monday’s motion comes a little over a month before the Sept. 5 trial against Paxton in the Texas Senate.

What is Paxton accused of?

Paxton was impeached by the Texas House of Representatives in May. The 20 articles of impeachment include constitutional bribery, misapplication of public resources and obstruction of justice.

Most of the articles are related to Paxton’s alleged decision to use his office to intervene in a federal investigation against Nate Paul, an Austin real estate tycoon and one of Paxton’s political donors.

In a text message to The Texas Newsroom Monday, Rusty Hardin, an attorney who will serve as one of the lead prosecutors for the Texas House in the impeachment trial, said, “We are obviously opposed and will file our response by August 15 as called for by the Senate rules.”

Under the Texas Constitution, a public official cannot be removed from office for acts committed before the person's election to office.

However, the Constitution is not specific on whether it refers to the first time the official is elected or the most recent election.

Brandon Rottinghaus, a political science professor at the University of Houston, said the courts would ultimately have to decide how to interpret or define “most recent election.”

“That’s the key phrase because that’s the one that dictates when the timeline starts,” Rottinghaus said. “If it started when the Attorney General was first elected, it’s different than when the Attorney General was elected the most recent time.”

Paxton’s attorneys have cited multiple Texas Senate Court of Impeachment rulings where it applied the “prior-term doctrine” during other impeachment proceedings, including that ofTexas Land Commissioner W.L. McGaughey in 1893.

Rottinghaus told The Texas Newsroom precedent is important to consider, but added it’s debatable whether or not the allegations against Paxton were fully known prior to his most recent election.

According to an October 2022 poll by the Texas Politics Project at the University of Texas at Austin, 20% of Texans had heard a lot about Paxton’s legal problems, while 37% had heard some. On the other hand, 26% had not heard very much of the legal problems and 16% had heard nothing at all.

“That’s not to say that it’s not publicly known because it was reported and it’s out there, but most people were not aware by a significant degree of these kinds of charges,” Rottinghaus said.

Now, it will be up to Lt. Gov. Dan Patrick, the presiding officer of the Senate Court of Impeachment, to decide whether to dismiss the motion from Paxton’s lawyers — or dismiss the articles of impeachment.

“The issue of course is that to dismiss these articles would mean that effectively most of the House impeachment managers’ case falls out and that would obviously undermine the entirety of this process,” Rottinghaus said.

Copyright 2023 KUT 90.5. To see more, visit KUT 90.5.

Sergio Martínez-Beltrán