‘Nip This in the Bud,’ Paxton’s Lawyers Argue Improprieties with Grand Jury Selection

Texas Attorney General Indicted
File Photo: Star-Telegram/Rodger Mallison via AP

Texas Attorney General Paxton was in Dallas to hear his lawyers argue that the Court should “nip in the bud” any improper methods used in selecting a grand jury under the new system in Texas.

Much of the argument centered around whether or not the grand jury that indicted him was improperly selected because the judge, who later recused himself after alleged improprieties by his wife in connection to the case, asked for jurors who were willing to serve on the grand jury.

Paxton’s lawyers also argued that the case could be decided on issues as a matter of law. They urged that the law provides that the case need not be submitted to a jury.

The Attorney General and his wife were in the courtroom to hear the oral argument which lasted for about an hour and a half.

Dallas-based attorney Bill Mateja, one of the lawyers representing Paxton, asked the appellate court to reverse the trial court judge who failed to dismiss the indictments. He said the law supports granting the remedy requested on appeal, which are formally called applications for writ of habeas corpus.

Mateja, a former assistant U.S. attorney, is a securities law expert at the Polsinelli law firm in Dallas. He focuses on white collar crime cases.

Much of the time spent arguing before the en banc court, discussed the issue of the selection of the grand jury that indicted Paxton. Specifically, Paxton’s defense counsel urges that the grand jury impaneled by Collin County District Court Judge Chris Oldner was improperly selected because the judge “violated the custom, tradition, and text of Texas law” by impaneling only those with “willingness to serve.”

The judge, who later recused himself after his wife was reported to have told Collin County Commissioner Susan Fletcher that Paxton had been indicted while the indictments were still secret, is accused of improperly qualifying the potential jurors by asking them about their willingness to serve on the grand jury. Paxton’s lawyers assert that the judge “improperly added an additional qualification for grand jury service not found in law” and also destroyed its intended randomness.

Mateja urged, “We all can agree that we want random grand juries to ensure that they represent a true cross section of a society.”

The alleged breach of grand jury secrecy by the judge, and text messages by his wife prior to the indictments where she admitted that she was “gloating” about Paxton’s legal troubles, has been reported by Breitbart Texas. The motions to dismiss filed in the case include an affidavit from Commissioner Fletcher, and exhibits, including a timeline of the alleged text messages and a substance of those messages.

Just two days ago, the judge’s wife again made her opinions known about Paxton when she posted a comment to a reporter’s Facebook post that was complaining about Paxton’s communication staff, as reported by Breitbart Texas.

In addition to the grand jury selection arguments, Mateja also urged that the questions before the court did not involve fact issues that needed to be tried. He urged they were all issues that can be decided as a matter of law by the court. Brian Wice, one of the two special prosecutors appointed in the case, argued that a jury should decide the case.

Mateja also argued that federal law preempts the state securities law under which Paxton was indicted.

Paxton was indicted by a Collin County grand jury in July of 2015. The first indictment charges him with “Acting as an investment adviser representative without being registered by the Texas Securities Board.”

He has also been charged with two counts of securities fraud. Breitbart Texas has reported in depth about the legal charges brought against him.

The complaining witnesses in the securities fraud cases are Texas State Representative Byron Cook and Joel Hochberg. The counts involve his recruiting customers in July 2011 for a technology company located in McKinney, Texas, where Paxton lives. The indictment charges that he failed to tell Cook and Hochberg that: “(1) he would be compensated by Servergy in the form of shares of stock, and (2) he was not investing his own funds in Servergy.”

All of the charges involve alleged actions occurring prior to Paxton being elected as Texas Attorney General. His opponent, Dan Branch, raised issues in the Republican primary for AG relating to Paxton’s alleged failing to register with the Texas Securities Board.

After he left the courthouse, the Texas Attorney General joined the Collin County delegation at the Texas Republican Convention. He received a standing ovation after he addressed his fellow Republicans. He told them, “I think the hearing went very well for us. I’m confident in our legal process and I’m confident in the people of Texas. My legal team has done an excellent job of exposing the flaws in the case brought by the special prosecutors. The charges against me are false and I will prevail against them. In the meantime, I am and will continue to do the job that Texas elected me to do as their Attorney General.”

In a statement provided to Breitbart Texas, special prosecutor Brian W. Wice said, “We’re confident that the en banc court of appeals will agree with us that Mr. Paxton’s claims cannot be litigated in advance of a trial or are wholly lacking in legal merit to the extent they may be raised at all.” He added, “This case has never been about the criminalization of politics. It is about the criminalization of securities fraud and the failure to register as an investment adviser as required by state law.”

Phillip Hilder, a Houston lawyer who also represents Paxton told Breitbart Texas, “I am extremely satisfied as to the arguments that were made and the reception from the Court. I am optimistic we will get a favorable decision.”

A decision by the court of appeals is not expected immediately, and could take months, especially given that there are nine justices who will weigh in on the decision, not just a panel of three justices as is normally the case. The Fifth Court of Appeals took the very unusual step to decide, on the court’s own motion, that all of the justices would hear the case. Four of the thirteen justices on the court declined to participate.

Before the argument, Paxton released a video that said he is “standing and fighting” the charges. He said he has been charged with crimes he did not commit. He says on the video, “The public will see for themselves that they are at their roots, politically motivated.” The AG states, “It’s not a coincidence that the chief witness against me in these charges is a political adversary of mine.”

Breitbart Texas has reported that the complaining witness, Texas State Rep. Bryon Cook, is a chief lieutenant for Texas House Speaker Joe Straus. Cook is chairman of the powerful State Affairs Committee. Paxton ran against Straus for speaker in 2011. Speaker Straus, Rep. Cook, and former Texas State Representative Dan Branch are from the “establishment” wing of the Republican party. Paxton is from the “anti-establishment” and Tea Party wing.

Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2




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