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Texas A.G. Prevails in Kicking Judge Off His Criminal Case

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File Photo: Robert Daemmrich Photography Inc/Corbis via Getty Images
Austin, TX

Lawyers for Texas Attorney General Ken Paxton have prevailed in getting the judge kicked off his criminal securities fraud case. The highest criminal court in the Lone Star State declined to overturn an intermediate appellate court’s ruling removing Judge George Gallagher and voiding his orders.

As reported by Breitbart Texas, special prosecutors in the criminal trial against Paxton appealed the Dallas Court of Appeals removal of the judge. On Wednesday, the majority of the court denied the prosecutor’s motion for a stay and denied leave to file their writ of mandamus challenging the booting of the judge. The majority denied the extraordinary writ without an opinion and without allowing briefing by the special prosecutors.

Texas Court of Criminal Appeals Judges Bert Richardson, Elsa Alcala and Scott Walker, dissented issuing a statement that they would allow the parties to file briefs.

Paxton’s defense lawyer Philip H. Hilder filed the mandamus in the Dallas appellate court on May 15. The “Super Lawyer” has been involved in high-profile cases, including representing the Enron and Countrywide whistleblowers. Hilder served as the attorney-in-charge of the Houston office of the U.S. Department of Justice’s Organized Crime Strike Force and was an assistant U.S. attorney in the Southern District of Texas.

The Dallas appellate court stayed Paxton’s criminal securities fraud trial after the writ was filed urging that Gallagher was presiding over the criminal case without legal authority to do so.

On May 30, the appellate court granted the relief requested by Paxton’s defense and prohibited the judge from taking any further action in the case. The appellate court also agreed that any orders signed by Judge Gallagher after the judge granted the transfer were void.

Special prosecutors Brian H. Wice, Kent A. Schaffer and Nicole DeBorde, filed the motion to transfer venue on February 9. They urged they could not get a fair jury in conservative Collin County where the popular Republican resides.

Brian Wice is best known to Republicans for successfully representing former House Majority Leader Tom Delay in the appeal of his money laundering and conspiracy conviction from Travis County.

Judge Gallagher granted the prosecutors’ motion to transfer the case and then moved it to Harris County. As reported by The Texas Monitor and other publications, including the Dallas Morning News, a change of venue is rarely granted in criminal cases.

Hilder argued in the Dallas appellate court that Judge Gallagher lost jurisdiction to act in the case because Paxton and his defense counsel did not consent for him to continue to act as presiding judge. Article 31.09 of the Texas Code of Criminal Procedure requires this consent after a case is transferred to another county, they argued.

This provision provides:

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 counsel urged, as reported by Breitbart Texas, 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.” The clear language of the statute controls the resolution of the issue. The issue was one of first impression in Texas and has not been challenged before.

After Gallagher had granted the prosecutors’ motion to change venue, Hilder filed a motion advising the judge that Paxton and his legal team did not consent to him presiding over the cases in Harris County. The same day, Gallagher responded by emailing the parties that he intended to start the jury trial on September 11, 2017, in Harris County.

Paxton was indicted by a Collin County grand jury on two counts of securities fraud and one count of failing to register with the Texas State Securities Board.These charges relate to actions and events in Collin County involving the same company and the same parties as were the basis of the U.S. Securities and Exchange Commission (SEC) civil action brought against Paxton by Obama Administration lawyers.

The SEC filed the lawsuit against General Paxton just one week to the day before the AG was to represent Texas and lead 26 states at the U.S. Supreme Court in the executive amnesty case – United States v. Texas. The AG told Breitbart Texas at the time, “That’s just creative timing by the Obama administration to file a lawsuit one week before I lead a 26 state coalition against his illegal immigration order.”

In March, a federal district judge nominated by President Obama dismissed the civil securities fraud case.

Now the attorney general is facing felony charges in Harris County. All of the alleged actions occurred before Paxton took office in January of 2015. As reported by Breitbart Texas, allegations of Paxton’s failure to register as a securities adviser were raised by Dan Branch, Paxton’s opponent during the Republican primary for attorney general.

Some Republicans have called the attacks on Paxton a political witch hunt by “Texas mainstream GOPers.”

It is anticipated that a new criminal district court judge will be named in Harris County very soon.

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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