Suspended Attorney General Ken Paxton will answer to 16 of 20 articles of impeachment at a trial to begin Sept. 5, the Texas Senate said Wednesday night after spending about 20 hours drafting the trial rules in private.
Paxton's wife, Sen. Angela Paxton, R-McKinney, can attend, but she will not participate in deliberations or closed sessions when the Senate sits as a court of impeachment, according to the trial rules adopted without discussion Wednesday on a 25-3 vote.
The trial, which will be held in public, will begin with opening statements. Lawyers for the House impeachment managers will present evidence first, with cross-examination of witnesses allowed. Paxton's lawyers will be allowed to present evidence and witnesses as well.
A list of witnesses, who under the rules can be compelled to appear, must be filed by Aug. 22 and made available to the opposing side.
Each article of impeachment will be voted on separately by senators. If an article is accepted by two-thirds of the present senators, it will be entered as a conviction. If it fails to reach two-thirds, it will be counted as an acquittal. If any article of impeachment is entered as a conviction, the House board of managers can ask for the judgment to disqualify Paxton from office, which would also require approval by two-thirds of the present senators.
A separate resolution, adopted 28-0, notified Paxton that he must appear in person in the Senate chamber "to answer the said charges of impeachment."
After the votes, Lt. Gov. Dan Patrick, who presides over the Senate, told senators, their staff and others involved in the court of impeachment to refrain from discussing the merits of the case with others, including Paxton, his lawyers and lawyers for the House impeachment managers.
A separate rule prohibits senators from discussing the case with one another as well, he said.
"No member of the court, or the presiding officer of the court, shall advocate a position on the merits of the proceedings to other members of the court or the presiding officer of the court until such a time as deliberations shall begin," Patrick said.
A major question settled by the Senate rules was the determination that Angela Paxton has a conflict of interest in her husband's trial. She can sit in the impeachment trial because the Texas Constitution requires all members to do so, but she will not be allowed to "vote on any matter, motion, or question, or participate in closed sessions or deliberations."
In late May, the House vote 121-23 to approve 20 articles of impeachment that accused Paxton of misconduct that required his permanent removal from office, sending the matter to the Senate for a trial. Paxton, who was suspended from office upon impeachment, would be removed if two-thirds of senators agree.
In the rules adopted Wednesday, the Senate set aside four of the articles, saying they can be considered after the senators decide the first 16 or can be dismissed by a vote of a majority of senators.
Two of the set-aside articles were related to Paxton's eight-year-old securities fraud case in which he is accused of soliciting investors in Servergy Inc. without disclosing that the McKinney tech company was paying him to tout its stock.
One of the articles accused Paxton of causing "protracted" delays, while the other accused Paxton of "thwarting justice" when one of his political donors took legal action that halted payments to the prosecutors in the case.
The other two articles accused Paxton of lying on official records by failing to register as an investment adviser, as required by state law, and for not "fully and accurately" disclosing his financial interests on required disclosure forms.
Under other trial rules adopted Wednesday:
- Before the trial, Paxton's lawyers can challenge any or all of the articles of impeachment, which can be dismissed with a majority vote by senators.
- Senators will deliberate behind closed doors, and their votes on the articles of impeachment will be made "without debate or comment."
- After final judgment, senators may submit a written statement within 72 hours of their vote to the chamber's clerk, which would become "a part of the official record and entered into the journal."
- The use of cellphones on the Senate floor by members of the court and their staff, as well as both legal teams while the impeachment trial is proceeding, is banned unless the phones are necessary for hearing assistance or for reviewing documents.
- The public and the press can attend and view the impeachment trial from the Senate gallery.
Each side will have 24 hours to present evidence, and the Senate rules emphasized that "unnecessary delays, outbursts or side bar remarks" will not be tolerated. The trial's presiding officer, which could be Patrick or a jurist appointed by him, will oversee the presentation of evidence and the questioning of witnesses.
Rule-making process began in secret
The rule-making process began when the Senate, on the last day of the regular legislative session in late May, voted to create a committee of seven senators, gave it permission to conduct its business in private and directed it to return Tuesday to present rules of procedure to a "caucus of the Senate" — which typically meets outside of public view.
Members of the committee did not publicly discuss their work, but that had not stopped Paxton's allies and the House impeachment managers from lobbying for their preferred package of rules.
Paxton's legal team, led by boisterous Houston attorney Tony Buzbee, had urged the committee to recommend rules that would allow the Senate to toss out the House-approved articles of impeachment, calling the procedure a "kangaroo court" because Paxton was not given the opportunity to defend himself.
The House managers, who have hired Texas legal giants Dick DeGuerin and Rusty Hardin to present the case against Paxton, sent the Senate committee 17 examples of rules that were used in past impeachment trials in Texas, including a recusal rule.
Patrick on Monday tamped down on talk about ending the impeachment trial before it can begin.
"We actually have to address the issues," Patrick told Dallas radio host Mark Davis. "If not, they could keep Ken Paxton away from doing his job forever. ... In general, we have to deal with it."
Paxton's legal team and the House managers have also quarreled about whether the trial should be public and how much discovery and preparation will be allowed.
Buzbee said in his first news conference as Paxton's lead lawyer that the process of lining up witnesses and documents could take up to a year. And Paxton's legal team argued in a memo to the committee that it should limit testimony to deposition statements, rather than allow live witnesses, which they said could turn the proceedings into "political theater."
After he was impeached by the House, Paxton was immediately suspended from his official duties, and Gov. Greg Abbott appointed former Secretary of State John Scott as interim attorney general.
In the run-up to the House impeachment vote, Paxton supporters, including former President Donald Trump, urged lawmakers to vote no.
On Saturday, the State Republican Executive Committee, grassroots leaders who help set the Texas GOP's platform, condemned the impeachment in a 53-11 vote. A resolution denounced the House for not allowing Paxton to defend himself against the accusations and for not putting witnesses under oath when they were questioned by investigators. It likened the impeachment process in the House to a "banana republic."
A majority of the impeachment allegations against Paxton originated with eight of his former top deputies who, in 2020, met with law enforcement to accuse Paxton of misusing his power to benefit his friend and political donor, Austin real estate investor Nate Paul. In return, they said, Paxton apparently accepted bribes that included a $25,000 political donation and funding for remodeling Paxton's Austin home, plus they said a woman involved in an extramarital affair with Paxton was given a job at one of Paul's companies.
The former officials said Paxton directed agency employees to help Paul gain access to investigative records and that he drafted a legal opinion that helped Paul stall impending foreclosure sales on properties. Paxton also pushed the agency to hire an outside lawyer to harass Paul's enemies, the officials said.
On June 6, a federal grand jury indicted Paul on eight counts of making false statements to financial institutions. He is involved in numerous other bankruptcy and legal disputes related to his real estate businesses.
Within two months, all eight of the attorney general's office executives who reported Paxton to the FBI and other agencies were fired or resigned. Four of them filed a whistleblower lawsuit in November 2020 claiming they were improperly fired in retaliation.
Disclosure: Dick DeGuerin, Rusty Hardin and Tony Buzbee 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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Correction, : An earlier version of this story misstated the day the Texas Senate returns from recess. It is Wednesday, not Monday.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/06/20/ken-paxton-impeachment-trial-senate-rules/. The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.