AUSTIN, Texas — The Texas Senate has approved a tight set of guardrails to guide Attorney General Ken Paxton’s impeachment trial in September, including the ability of the Senate to dismiss any of the 20 articles of impeachment on a majority vote.
The biggest question, which was resolved in the last section of the rules, was whether Paxton's wife Angela would participate in the trial. Paxton, who is serving her second term in the Senate, issued a statement this week saying it was important to represent her constituents, but the rules cited a section in the Texas Constitution that requires lawmakers to disclose personal or private interests in measures or bills, and recuse themselves from those votes.
Angela Paxton, who represents the Plano area, will be allowed to sit on the floor, but she will not participate in deliberations or the final vote.
The House passed 21 articles of impeachment last month. The case now goes to the Senate for trial on Sept. 5. Both sides will be represented by high-profile Texas lawyers: Rusty Hardin and Dick DeGuerin, hired by the House, will present the case. Paxton has hired attorneys Tony Buzbee and Dan Cogdell to provide his defense. All four lawyers practice out of Houston.
One big reason to exclude Paxton from the jury pool, apart from personal ethical conflicts, is the fact she might be called as a witness in the case. Bob Stein, a political professor at Rice University, predicts Hardin will call Angela Paxton to the stand. The two sides must exchange witness lists by Aug. 22, according to the rules, but those lists will not be released to the public.
“I suspect she will be called as a witness,” Stein said. “Rusty Hardin has been very effective using witnesses, particularly rather strong and forceful women. And I expect that she will be a material witness because she is an owner, or co-owner, of the house that is alleged to have received — or been the beneficiary of — a bribe from (Austin real estate developer) Nate Paul.”
Brian Smith, a political science professor at St. Edward’s University, called the decision to excuse Angela Paxton “a smart move.”
“It removes any possibility for impropriety,” Smith said. “There’s not a win-win situation for her, meaning if she served on the jury, people would ask if she was impartial. If she recused herself, people would say she’s only doing that because she’s being forced to. Now, when you look at the rules, it actually gives her an easy way out.”
Paxton is facing a variety of impeachment charges for alleged dereliction of duty, many of them involving his relationship with Austin real estate developer Nate Paul. He is accused of having taken unusual actions to intervene in Paul’s pending legal cases and to forestall the potential sale of Paul’s foreclosed commercial properties. One impeachment charge also involves allegations that Paul paid for a portion of the residential upgrades to Ken and Angela Paxton’s home in Austin, described as a bribe, a charge that Paxton’s lawyers deny.
Two other senators also have direct and indirect ties to the specific impeachment charges. Sen. Bryan Hughes, R-Mineola, filed an open records request, allegedly at Paxton’s behest, which protected some of Paul’s foreclosed properties from sale. And Paxton’s alleged mistress, who was hired by Paul at one time as a San Antonio apartment manager, was a onetime employee of Sen. Donna Campbell, R-New Braunfels.
This is only the third impeachment trial in the state’s history, following cases against former Gov. James Ferguson and District Judge O.P. Carillo. David Coale, an appellate attorney based in Dallas, said the rules of this impeachment case mirror those of a civil or criminal trial.
“The big philosophical question coming into these rules was, ‘Is this proceeding like a traditional court trial? Or is it like something else,’” Coale said, acknowledging that impeachment can’t be exactly be like a trial. “These rules answer that question to say, basically, it’s a lot like a trial. It adapts a lot of ideas that we see in civil and criminal trials every day for this setting.”
A lot of the power in the impeachment, as set out by the Senate rules, will reside with presiding officer Lt. Gov. Dan Patrick, Coale said. The procedural decisions stick with him. Senators have some right to speak, but it’s really just one judge, not 31, Coale said.
“There’s got to be just one judge to make decisions,” Coale said. “If you have 30-odd judges, it’ll never get done.”
The rules set out time limits for opening statements, closing statements and discussion of each article. It also gives the Senate, as the jury, the ability to dismiss individual articles of impeachment, which was the main reason Sen. Sarah Eckhardt, D-Austin, chose to vote against the rules.
Brandon Rottinghaus, a political science professor at the University of Houston, has studied the procedures of the two prior impeachment cases.
“The thing that struck me as the most potentially problematic, from a constitutional perspective, is that they can dismiss some of these charges by a majority vote, which is written nowhere,” Rottinghaus said. “That seems to be blatantly against the structure of the impeachment rules and the constitution. So that’s a weird artifact of the rules that may end up in a court challenge.”
Paxton is accused of accepting bribes and other misconduct. Members of Paxton’s team at the Attorney General’s office contacted federal officials, which sparked an investigation by the FBI. Subsequently, a number of those employees were fired, which led to a lawsuit against Paxton. Paxton settled the whistleblower lawsuit and then asked the Texas Legislature to use taxpayer dollars this session to pay the $3.3 million settlement. That sparked the eventual House investigation, which led to the impeachment vote at the end of May.
Given the timeline, Coale expects the trial could go on for two to three weeks. Rottinghaus guesses the timeline might be closer to a week, starting with the strongest evidence. That would be the whistleblower charges against Paxton. Paxton either fired or removed key agency division leaders in 2020 after they reported Paxton’s activity with Paul to the Federal Bureau of Investigation.
“The first thing they are likely to take up, given the structure of how they set things up, are the whistleblower charges,” Rottinghaus said. “I think these charges, the whistleblower and FBI charges, are the most significant, right? They’re the ones that have been investigated significantly and have the credible backing of the federal government. So those are the ones that are probably the most dramatic and explosive. Those are the ones that the defense is probably the most worried about.”
The one way the case in the Senate won’t be like a civil trial — an impeachment is not a criminal action — is that the Senate is nothing like a jury, Coale said. A jury is typically drawn from people who know little about the case. That’s not the case in the Senate.
“What’s different is, with a jury, you try to get people that don’t have a view of the case. Ideally, they have never heard of the parties,” Coale said. “Here, everybody not only knows the parties, but knows a lot about them. They know them all personally. They have reviewed a lot of the evidence, so they’re way more familiar with the subject matter than a typical jury every would be.”
Under the rules, senators are prohibited from publicly speaking about the case. Access to the chamber, and the back hallways, will be restricted during the trial. The Senate agreed to two stationary pool cameras to record the proceedings.