An appellate court stayed the securities fraud trial against Texas Attorney General Ken Paxton on Tuesday. The issue is whether Judge George Gallagher is acting without authority to preside over the criminal case.
Lawyers for Paxton filed extraordinary writs in the Fifth Court of Appeals in Dallas late Monday, and the appellate court issued an order the next day staying trial proceedings “until further order of this Court.”
The intermediate appellate court gave the parties more time to file briefing to address if Judge Gallagher has the legal authority to remain as the presiding judge.
Paxton’s lawyers urge that Gallagher no longer has jurisdiction to act in the case because he granted the prosecutors’ motion to transfer the case, and then moved the case to Harris County, a politically “purple” county. Conservative Collin County is a solid Republican jurisdiction.
The special prosecutors asked the judge to grant their motion to transfer venue because they could not get a fair jury in Collin County. Paxton is from McKinney, Texas in Collin County and the tea party Republican is very popular in his hometown.
Prosecutors urged that Paxton’s supporters tainted the jury pool by assailing the indictment, prosecution, and the special prosecutors. Taxpayers have also been protesting the legal fees of the special prosecutors.
Grassroots defenders and others have called the proceedings a political witch hunt.
Tuesday’s order stays a hearing that was scheduled by Judge Gallagher for Thursday in Houston.
The writs of prohibition and mandamus and request for emergency relief ask the appellate court in Dallas to void the orders issued by Gallagher after he granted the motion to transfer venue. They also ask the appellate court to issue a writ of prohibition preventing the judge from further presiding in the case.
The Texas Code of Criminal Procedure provides in article 31.09 that:
If a change of venue in a criminal case is ordered under this chapter, the judge ordering the change of venue may, with the written consent of the prosecuting attorney, the defense attorney, and the defendant, maintain the original case number on its own docket, preside over the case, and use the services of the court reporter, the court coordinator, and the clerk of the court of original venue.
Paxton’s criminal lawyers argue that it follows then “if the defendant and defense attorney do not provide written consent, the judge ordering the change of venue may not preside over the case.” They say the clear language of the statute controls the resolution of the issue.
When Paxton’s defense team notified the judge of this provision, Gallagher responded by immediately issuing a scheduling order setting a trial date and giving written notice that he was going to continue to preside over the case. Judge Gallagher set Paxton’s criminal trial for September 11.
The writs filed with the appellate court also stated that the judge “visited Harris County to consider facilities and accommodation for trial, and entered an order setting a hearing for later this week.” They say Gallagher also notified the Collin County Clerk that she will continue to serve as the clerk in the case and has refused to send the case file to the Harris County Clerk.
The defense urges that the judge was acting without legal authority when he continued to preside over the case and asks the court of appeals to vacate Gallagher’s order and his hearing notice for Thursday.
The order of the Dallas Court of Appeals gave the parties until May 23 to file responses.
The question before the court has no precedent the defense says because there has been “no authority addressing these precise facts.”