The Texas Senate during the last day of the 88th regular session on May 29, 2023.
The dismissal of the attorney general Ken Paxton fired up in the Texas House last week, when 20 articles of impeachment were overwhelmingly passed with bipartisan support just two days after they were drafted.
Expect a very different pace in the state Senate.
The upper house is tasked with holding a trial on whether to remove Paxton from office, a responsibility that will require much more time and effort. The Senate plans to consider the rules of impeachment on June 20 and begin the trial on August 28.
Still, there are many unknowns, and the Senate is silent. GOP chairman Lt.-Gov. Dan Patrickpromised Tuesday that Paxton would get a fair trial, but otherwise declined to comment 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 as 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 out there, and the Senate will do our job in a way professional.”
The House vote to impeach Paxton was 121 to 23, with 60 Republicans and 61 Democrats in support. A simple majority was all that was needed.
In the Senate, however, the threshold to remove Paxton from office is two-thirds support. This means that if all 31 senators participate, 21 votes would be needed for impeachment. And if all 12 Democrats support impeachment, nine of the 19 Republicans would have to join them in ousting Paxton from office.
Paxton was suspended from office after a vote by the House and the governor. Greg Abbott on Wednesday named John Scott, the former secretary of state, as acting attorney general.
Paxton and his allies have expressed hope for a quick resolution in the Senate. Ahead of the House vote, Texas GOP Chairman Matt Rinaldi predicted that state Republicans “will once again have to rely on the principled leadership of the Texas Senate to restore sanity and reason of our state”.
The leader of the House on impeachment, the deputy. Andrew Murr, R-Junction, expressed confidence Tuesday in the Senate’s preparations for the trial. He told reporters that he understands that “it’s a very deliberative process and it will be handled in a thoughtful way to ensure that all parties are prepared for trial.”
Six Paxton employees they have taken leave to help defend him in the Senate trial, including Attorney General Judd Stone. On the other hand, president of the Chamber Dad Phelan, R-Beaumont, has appointed a 12-member board of directors to help prosecute Paxton, led by Murr. On Thursday, Murr introduced two Texas legal legends – Dick DeGuerin and Rusty Hardin, who will present the case against Paxton in the Senate.
Paxton’s office appears to have already upset the DA reportedly delivering a package in the senators’ office explaining his defense. Rep. Ann Johnson, D-Houston and vice chair of the board, said Tuesday that she hopes Paxton “realizes that dropping a folder on your potential jurors could be considered tampering or an attempt to interfere with a process legal”.
After the House on Saturday voted to impeach Paxton, several Republican senators issued nearly identical statements saying they were taking a vote 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 also remain tight-lipped. The head of the Democratic caucus, Sen. Carol Alvarado of Houston, declined to comment Wednesday. Another Democratic senator, Austin Sarah Eckhardtnoted in a statement Wednesday that during the latest impeachment trial, rules prohibited senators from discussing the matter with anyone beyond themselves and the Senate presidency.
“Please be assured that I am committed to fulfilling my constitutional duty, including my duty to serve as an impartial juror in weighing the facts and merits of the case,” Eckhardt said.
The last public official to face an impeachment trial in the Senate was District Judge OP Carrillo, who was removed from office after a four-month trial in 1975-76. There was no current senator at the time.
All eyes on the rules for a Senate trial
Before the Senate can conduct the trial, it must establish 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 attorney, tweeted on Thursday. “Watch, for example, to see if they allow discovery/depositions by Paxton or require the disclosure of investigative information by the House.”
On Monday, the Senate unanimously approved a resolution allowing Patrick to appoint a seven-member committee to draw up the trial’s rules. They will present proposed rules to the full Senate on June 20, according to the resolution. It is unclear whether they will vote to approve them on the same day.
The committee that appointed Patrick is mostly Republican (there are only two Democrats) and its chairman, Sen. Brian Birdwell of Granbury, is an ally of the lieutenant governor. He currently chairs two other Senate committees, including one on border security.
The team making the case against Paxton seems aware of how important Senate rules can be.
“I hope that as they develop [the rules] and as we move forward, we will have a full public hearing that will allow both sides to present the evidence that will allow the public and the world to know 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 Teppera Lubbock Republican who voted for impeachment, said Thursday that testifying in the trial would be fraught with legal risk for Paxton.
“He has to have a fair trial in the Senate, but he realizes that in that fair trial, he can testify or his people can testify on his behalf, and all of that is admissible in criminal and civil cases,” Tepper told the 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.”
Full of conflicts of interest
The Senate is rife with potential conflicts of interest in the Paxton matter, and it’s unclear whether any member will or can recuse himself. State law says lawmakers should sit out matters in which they have a personal interest, but it also says all senators must be present for an impeachment trial.
Patrick has not yet appeared to contemplate recusal, telling a Dallas television station that “he will preside over this case and the senators — all 31 senators — will have a vote.”
For starters, Paxton’s wife, Sen. Angela Paxton, has been in the Senate since 2019 and currently chairs the Republican caucus. The articles of impeachment allege Ken Paxton cheated on her and “benefited” when friend and political donor Nate Paul hired the woman.
Sen. Bryan Hughes, R-Mineola, is also embroiled in the allegations. Paxton is accused of recruiting Hughes to be an unwitting “straw applicant” for a legal opinion from the attorney general’s office that helped Paul.
A third state senator could also be caught up in the case. The woman Paxton had an affair with was reportedly a former Senate aide.
Asked Tuesday about possible recusals in the trial, Murr declined to comment, noting that the Senate will set the rules.
Notably, Patrick did not appoint Angela Paxton or Hughes to the committee that will propose the rules for the trial.
Even the lieutenant governor has grown weary of 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 whistleblowers came forward in 2020, an adviser to Patrick he told the Austin American-Statesman that the lieutenant governor “can’t remember ever meeting (Pau) and doesn’t know him.” The counselor promised that Patrick would donate the money to a charity called Be an Angel.
Campaign finance records confirm that Patrick followed through on that promise two days later.
Senate politics could play a role
Then there is the politics within the Senate.
Although Patrick doesn’t get a vote in the trial, he has powerful leverage over the GOP caucus, which typically marches in line with his legislative agenda. And he has already assumed responsibility for key pretrial decisions, such as appointing the rules committee and scheduling the trial’s start date.
Patrick has not offered a personal view on Paxton’s impeachment, but is seen as more aligned with Paxton’s wing of the GOP than Phelan’s. He endorsed Paxton in his runoff last year, when his opponent focused on Paxton’s longstanding legal troubles.
Patrick is also close to former President Donald Trump, who has criticized Paxton’s impeachment in the House.
As for the 19 Republican senators, some have a more unique political history with Paxton than others.
Two Republican senators already sided with 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 major 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 a senator to succeed him, and it’s no secret that several Republicans are hoping it will be them.
Patrick initially said he would not seek re-election 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 on The Texas Tribune at https://www.texastribune.org/2023/06/01/ken-paxton-impeach-texas-senate/. The Texas Tribune is a nonpartisan, member-supported newsroom that informs and engages Texans about politics and state policy. Learn more at texastribune.org.
