The impeachment of Attorney General Ken Paxton rocketed through the Texas House last week, when 20 articles of impeachment were overwhelmingly adopted with bipartisan support only two days after they were drafted.
Expect a very different rhythm in the state Senate.
The upper chamber is tasked with holding a trial on whether to remove Paxton from office, a responsibility that will take much more time and effort. The Senate plans to consider impeachment rules on June 20 and to start the trial by Aug. 28.
Yet there are a lot of unknowns, and the Senate is keeping quiet. The GOP presiding officer, Lt. Gov. Dan Patrick, promised Tuesday that Paxton will get a fair trial but otherwise declined to give an opinion on the matter.
"Don't ask me any more questions because I can't answer them," Patrick said during an event with the Texas Public Policy Foundation. "Look at me like a judge before a case and look at our senators like that. Be respectful of their space and time. This is very serious. There are very serious people, and the Senate is going to do our job in a professional way."
The House vote to impeach Paxton was 121-23, with 60 Republicans and 61 Democrats in support. All it required was a simple majority.
In the Senate, however, the threshold to remove Paxton from office is two-thirds support. That means if all 31 senators participate, 21 votes would be required for removal. And if all 12 Democrats support removal, nine of the 19 Republicans would have to join them to kick Paxton out of office.
Paxton was suspended from office upon the House vote, and Gov. Greg Abbott on Wednesday named John Scott, the former secretary of state, as interim attorney general.
Paxton and his allies have expressed hope for a swift resolution in the Senate. Ahead of the House vote, the chair of the Texas GOP, Matt Rinaldi, predicted the state's Republicans "will have to rely yet again on the principled leadership of the Texas Senate to restore sanity and reason for our state."
The House leader on impeachment, Rep. Andrew Murr, R-Junction, expressed confidence Tuesday in the Senate's preparations for the trial. He told reporters he understands it "is a very deliberative process and will be handled in a thoughtful way to ensure that all parties are prepared for trial."
Six Paxton staffers have taken leaves of absence to help defend him in the Senate trial, including the solicitor general, Judd Stone. On the other side, House Speaker Dade Phelan, R-Beaumont, has appointed a 12-member board of managers to help prosecute Paxton, led by Murr. On Thursday, Murr introduced two Texas legal legends — Dick DeGuerin and Rusty Hardin — who will make the case against Paxton in the Senate.
Paxton's office seems to have already irked the prosecution by reportedly delivering a packet to senators' office outlining his defense. Rep. Ann Johnson, the Houston Democrat and vice chair of the board of managers, said Tuesday she expects Paxton to "realize that dropping a binder on your potential jurors could be considered tampering or attempting to interfere with a lawful process."
After Saturday's House voted to impeach Paxton, several Republican senators issued nearly identical statements saying they were taking a vow of silence on the trial. They said they "welcome and encourage" feedback from constituents but added that they cannot "communicate directly" about the case.
Senate Democrats are also staying tight-lipped. The head of the Democratic caucus, Sen. Carol Alvarado of Houston, declined to comment Wednesday. Another Democratic senator, Austin's Sarah Eckhardt, noted in a statement Wednesday that during the last impeachment trial, the rules banned senators from discussing the matter with anyone beyond themselves and the Senate's presiding.
"Please be assured that I am committed to fulfilling my constitutional duty, including my duty to act as an impartial juror in weighing the facts and merits of the case," Eckhardt said.
The last public official to face a Senate impeachment trial was District Judge O.P. Carrillo, who was removed from office after a four-month proceeding in 1975-76. No current senators were serving at the time.
All eyes on rules for a Senate trial
Before the Senate can conduct the trial, it has to set rules for the trial — and the Texas Constitution gives the chamber wide latitude to do so.
"The [Paxton] impeachment trial rules could be key," Ross Garber, a nationally known impeachment lawyer, tweeted Thursday. "Watch, for example, to see whether they allow for discovery/depositions by Paxton or require disclosure of investigative info by the House."
On Monday, the Senate unanimously passed a resolution allowing Patrick to name a seven-member committee to devise trial rules. They will present proposed rules to the full Senate on June 20, according to the resolution. It is unclear if they will vote on approving them the same day.
The committee that Patrick named is majority Republican — there are only two Democrats — and its chair, Sen. Brian Birdwell of Granbury, is an ally of the lieutenant governor. He currently leads two other Senate committees, including one on border security.
The team that will present the case against Paxton appears aware how important the Senate rules could be.
"I hope that as they develop [the rules] and as we go forward, we are going to have a full, public hearing that allows both sides to present the evidence that allows the public and the world to know just what happened here," Hardin said Thursday.
Depending on the rules, a big question for Paxton is who should testify, including the attorney general himself. Rep. Carl Tepper, a Lubbock Republican who voted to impeach, said Thursday that trial testimony would be fraught with legal risk for Paxton.
"He needs to have a fair trial in the Senate but realize that in this fair trial, he gets to testify or his people get to testify on his behalf, and that is all admissible in criminal and civil cases," Tepper told Lubbock radio host Chad Hasty. "He's in a lot of trouble, he's in a big mess, because I think there's a lot there."
Rife with conflicts of interest
The Senate is rife with potential conflicts of interest in the Paxton matter, and it is unclear if any member will — or can — recuse. State law says lawmakers should step aside from matters in which they have a personal stake, but it also says all senators must be present for an impeachment trial.
Patrick has not yet appeared to contemplate recusals, telling a Dallas TV station that he "will be presiding over that case and the senators — all 31 senators — will have a vote."
For starters, Paxton's wife, Sen. Angela Paxton, has served in the Senate since 2019 and currently chairs the Republican caucus. The articles of impeachment allege that Ken Paxton cheated on her and "benefited" when friend and political donor Nate Paul employed the woman.
Sen. Bryan Hughes, R-Mineola, is also tangled up in the allegations. Paxton stands accused of recruiting Hughes to be an unwitting "straw requestor" for an attorney general's office legal opinion that helped Paul.
A third state senator could also be caught up in the case. It has been reported that the woman Paxton had an affair with was a former Senate aide.
Asked Tuesday about potential recusals in the trial, Murr declined to comment, noting the Senate will set the rules.
Notably, Patrick did not name Angela Paxton or Hughes to the committee that will propose rules for the trial.
Even the lieutenant governor has been singed by Paxton's scandals over the years. He received a $10,000 campaign donation from Paul in the closing days of the 2018 election, three days before Paul made his well-documented $25,000 donation to Paxton.
After the whistleblowers stepped forward in 2020, a Patrick adviser told the Austin American-Statesman that the lieutenant governor "does not recall ever meeting (Paul) and he doesn't know him." The adviser promised Patrick would give the money to a charity called Be an Angel.
Campaign finance records confirm Patrick followed through on that promise two days later.
Senate politics could play a role
Then there are the politics inside the Senate.
While Patrick does not get a vote in the trial, he holds powerful sway over the GOP caucus, which typically marches in lockstep with his legislative agenda. And he has already taken responsibility for key decisions ahead of the trial, like the appointment of the rules committee and the scheduling of the trial start date.
Patrick has not offered a personal view on the impeachment of Paxton, but he is seen as more aligned with Paxton's wing of the GOP than Phelan's. He endorsed Paxton in his primary runoff last year, when his opponent was focusing on Paxton's long-running legal problems.
Patrick is also close with former President Donald Trump, who has blasted the House impeachment of Paxton.
As for the 19 Republican senators, some have a more unique political history with Paxton than others.
Two Republican senators already sided against Paxton in his hotly contested primary last year. Sen. Charles Schwertner of Georgetown publicly endorsed one of Paxton's challengers, George P. Bush. And Sen. Mayes Middleton of Galveston was a top donor to another Paxton opponent, Matt Krause. Middleton later put his money behind Paxton challenger Louie Gohmert after Krause dropped out.
Political ambitions could also weigh on senators. Patrick has long said he would like to see a senator succeed him — and it is no secret that multiple Republicans hope it will be them.
Patrick initially said he would not seek reelection in 2026 but reversed himself earlier this year.
Disclosure: The Texas Public Policy Foundation, Dick DeGuerin and Rusty Hardin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/06/01/ken-paxton-impeach-texas-senate/. The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.