Indictment of the Attorney General under the Texas Constitution

On Thursday, a Texas House committee recommended twenty articles of impeachment against Attorney General Ken Paxton. We are in somewhat uncharted waters. It seems there have only been two impeachments in Texas history. In 1917, a governor was impeached but resigned before the Senate could convict him. And in 1975-76, a district judge was convicted, removed, and disqualified. In this post, I will provide a high-level overview of the impeachment process in Texas, with a focus on the particular issues that may arise in the Paxton case.

Article 15 of the Texas Constitution governs the impeachment process. Section 1 states that the House of Representatives has the “power of impeachment.” Presumably a simple majority is enough to remove, but that threshold is not clearly defined. Articles 2 and 3 provide that the impeachment shall be tried by the Senate, and 2/3 of the Senators “present” are required to impeach. (The same threshold is used in the federal Constitution.) Section 4 includes a provision that mirrors the Federal Constitution’s Impeachment Disqualification Clause: “Sentence in impeachment cases shall extend only to removal from office and disqualification from holding any office of honor, trust, or gain in This status”. However, Section 5 provides a unique quirk: after an article of impeachment is “preferred” to the Senate, the accused official “shall be suspended from the exercise of the duties of his office, pending such impeachment.” In other words, an accused official is temporarily removed from office. And the Governor may make a “provisional appointment.” (Governor Abbott could choose someone from Paxton’s staff, or one of the Republicans who challenged Paxton in last year’s primary, or a “caretaker” to fill the void for a short time.)

Section 7 appears to give the legislature some additional authority with respect to prosecution. It provides: “The Legislature shall provide by law for the prosecution and dismissal of all officials of this State, the modalities for which have not been provided for in this Constitution.” In the federal system, Congress has adopted various rules governing impeachment. For example, evidence may be heard by a Senate committee, rather than the full Senate. Judge Walter Nixon challenged this delegation of authority as inconsistent with the federal Constitution. The United States Supreme Court declined to decide that question on justiciability grounds, but left open the possibility that some departures from constitutional process might be justiciable. (Chief Justice Rehnquist pointed out this problem during oral argument.) Section 7 appears to expressly delegate the power to the legislature to establish certain rules by law. And “by law”, as a general matter, means through actual legislation, rather than a single house resolution.

Those laws appear in Chapter 665 of the Government Code. At first glance, Article 15 does not provide a standard for prosecution, such as “serious crimes and misdemeanors”. Section 665.062 lists specific causes for removal “by direction,” including “willful neglect of duty,” “incompetence,” and “breach of trust.” But, pursuant to Section 665.051, the Attorney General is not subject to removal “by domicile.” So these motives are not directly relevant to Paxton.

Subchapter D of Chapter 665 includes one provision: Section 665.081. It provides, in part: “An officer in this status may not be removed from office for an act the officer committed prior to the officer’s election to office.” Many of the allegations against Paxton occurred before Paxton was elected to a third term in November 2022. And Paxton’s attorney cited Section 665.081 as a possible defense. He maintains that the voters re-elected Paxton, with full knowledge of the allegations against him.

The upending of the elections begins behind closed doors.
pic.twitter.com/Mved9ddU3i

— Attorney General Ken Paxton (@KenPaxtonTX) May 25, 2023

Section 665.081 can be read in two different ways. First, an officer cannot be removed for an act he committed before he was elected to office. current term in office. Second, an official cannot be removed for an act that he committed before being elected to office. first term of his current position. Under the first reading, Paxton could not be removed for conduct that occurred before November 2022. Under the second reading, Paxton could not be removed for conduct that occurred before November 2014, when he was elected to his first term.

Texas courts have recognized something called the “forgiveness doctrine.” The Texas Supreme Court described it this way:

Can’t retire either [of judges] be based on acts prior to the election, which in themselves are not disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the voters and were sanctioned and approved or pardoned by them in the election. This decision is in harmony with the public policy declared by the Legislative Assembly with respect to other public officials. Article 5986 SRC [An older version of Section 665.081] .

But this doctrine has limits:

We hold that the willful and persistent acts of misconduct committed by Judge Carrillo prior to his last election were such as to cast as much public disrepute on the judiciary as if they had been committed after the election; and they were by no means acquitted by his choice.

The Texas Supreme Court opined on this standard in a disciplinary proceeding of the only defendant district judge:

In Brown, supra, we recognized that the sound logic of this doctrine is that the public, as the ultimate judge and jury in a democratic society, can choose to forgive an elected official’s misconduct if the public knows of such misconduct prior to the choice. If, on the other hand, the misconduct is unknown to the public before the election and is of such a malicious nature that it publicly discredits the judiciary, it cannot be said that the judge was pardoned for his election or re-election.

And a later decision of the Court of Appeals applied this doctrine:

There is language in Brown, Bates, and Carrillo that completely removes any doubt as to the applicability of the “pardon” doctrine to section 5986. According to Brown and Carrillo, it was essentially an attempt by the Supreme Court in Laughlin to articulate the “spirit” of the Article 5986, which prompted the court to use that language that has come to represent the “forgiveness” doctrine. According to Bates, the phrases “previous term” and “pardon” mean essentially the same thing. Therefore, it is an inescapable conclusion that the “pardon” doctrine simply states the raison d’être of Article 5986 and the “prior term” rule.

Should the doctrine of pardon be applied to an official who is reelected? The Texas Court of Criminal Appeals addressed this issue, indirectly, in Williams v. State150 SW2d 803 (1941):

Appellant’s next argument is that if the evidence shows that he sold the bonds and converted the money for his own use and benefit before his re-election as county attorney in 1936, therefore, he cannot be prosecuted for the offense charged against him. imputes, because article 5986 of the Reformed Civil Statutes, relieves of the accusation. The article referred to reads as follows: “No official will be prosecuted or dismissed from office for any act that he has committed prior to his election to office.”

To maintain that a person running for office can commit murder, robbery, theft, rape, or any of these crimes and then be elected to office would be exempt from punishment is the most monstrous proposition the writer of this opinion has ever heard. in the justification of any such offences. To maintain this way would be contrary, not only to any law on the matter, but also to public order. We think that the Legislative Assembly, when promulgating said law, meant that the same should be applied to any crime committed related to the abuse of office and certainly not to make one immune from punishment for any other crime. Therefore, we reject the appellant’s assertion.

This case concerned a criminal proceeding, although it would seem to suggest that the Forgiveness Doctrine would not immunize an official from removal for conduct prior to re-election. However, none of these cases arose in the direct context of impeachment. (Westlaw lists about two dozen references in the “Decision Notes” under the Statute.) Ultimately, the Senate, acting as a court of impeachment, would have to resolve this question of law.

Of course, Paxton can seek some kind of judicial intervention. As a general matter, Texas courts have much more lenient rules regarding standing and justiciability. And, as I pointed out before, Walter Nixon v. USA left open the possibility that certain issues related to impeachment may be justiciable. For example, what if someone other than the Chief Justice presided over a presidential impeachment trial? The construction of this statute, into the government code, may provide a justiciable question, especially since the Texas Supreme Court has already interpreted the doctrine of pardon.

My thoughts here are based on somewhat abbreviated research, in an area where there is little precedent. If I missed anything please email me and I’ll be happy to post an update.