Lawyers for suspended Texas Attorney General Ken Paxton are pushing for the Texas Senate to drop the impeachment articles against the Republican, whose trial is currently scheduled for Sept. 5.
Paxton faces allegations ranging from dereliction of duty to obstruction of justice.
Last week, Paxton鈥檚 attorneys filed a motion saying the because of a legal rule they call 鈥減rior-term doctrine.鈥�
But the rule has a mixed history in Texas and experts say it's up to Lt. Gov. Dan Patrick, and state senators, to decide whether it has merits or not.
A Texas-centric rule
Paxton was for alleged illegal actions that happened between 2015 and 2020.
There are against Paxton 鈥� some are related to his securities fraud indictment, while others stem from his alleged decision to use his office to intervene in a federal investigation against one of his political donors.
Paxton has denied any wrongdoing.
鈥淭he impeachment articles that have been laid out by the House are bologna,鈥� Tony Buzbee, one of Paxton鈥檚 impeachment lawyers, told reporters in Austin shortly after the Texas House voted to impeach. 鈥淛ust so we are clear: the allegations are untrue. They are false.鈥�
Paxton鈥檚 defense also said the Texas Senate should toss out the impeachment articles because the allegations happened before Paxton鈥檚 most recent election.
They call it the 鈥減rior-term doctrine.鈥� Paxton鈥檚 lawyers cite the Texas Constitution and say only offenses that happened after November 2022 鈥� Paxton鈥檚 most recent election 鈥� could be grounds for impeachment.
But the is not that explicit. It only says a person cannot be impeached for offenses committed before their election to office. It doesn鈥檛 specify if that means their first election to a position or their most recent reelection.
Cal Jillson, a professor of political science at Southern Methodist University, said Lt. Gov. Patrick will ultimately be the decider on how to interpret that constitutional language.
鈥淭he two main interpreter principles 鈥� it is to credit common-language meaning of words, and then to be sure that that language doesn鈥檛 produce an absurd result,鈥� he said.
By 鈥渁bsurd鈥� Jillson means different than the way most people would interpret the language.
鈥淚f I were to ask: 鈥榃hen was Ken Paxton elected as attorney general?鈥� For most people, they wouldn鈥檛 know,鈥� he said. 鈥淏ut for you and I, we take 2014.鈥�
A mixed history of interpretation
Complicating this is the fact that, in Texas, the precedent on this legal concept is not exactly clear.
鈥淭he thing about the 鈥榩rior term鈥� is that it鈥檚 very Texas-centric 鈥� this isn鈥檛 something we would talk about on the national level,鈥� said Todd Curry, who teaches political science at the University of Texas at El Paso.
鈥淭he problem with that is that it鈥檚 so rarely used and has been so rarely used that there actually exists legal precedent on both sides of how it might be applied,鈥� he said.
Curry points to several examples of how "prior-term鈥� has been discussed and applied in state history.
Take 1893. That year, Texas Land Commissioner W.L. McGaughey against him.
One of the defenses raised by McGaughey鈥檚 team was that some of the allegations against him happened prior to his reelection in 1892. They argued that, by being reelected, the public was essentially absolving McGaughey of any official mistake.
While that worked in 1893, that argument didn't convince Senators in the 1917 impeachment of Texas Gov. James Ferguson. That time, the Senate voted overwhelmingly to convict Ferguson and remove him from office.
Curry 鈥� and many others 鈥� are watching to see what Lt. Gov Patrick decides.
鈥淗e could choose to follow the precedent he likes or not follow the precedent he likes, but it鈥檚 entirely his choice,鈥� he said.
Curry added it鈥檚 important to keep in mind that impeachment trials are nothing like a real court trial.
They are political. And should be treated that way.
That means precedent and all the rules that count in a normal courtroom might not hold as much weight on the Senate floor.
Copyright 2023 KUT 90.5. To see more, visit .
