AG Paxton Tries Again to Remove Judge in Criminal Case

DALLAS (CN) – A Dallas appeals court temporarily halted the criminal securities fraud case against Texas Attorney General Ken Paxton late Tuesday, one day after he filed his fourth attempt at removing the judge who moved the trial from Dallas to Houston.

Paxton, a 54-year-old Republican from McKinney, filed his request for emergency relief with the 5th Court of Appeals in Dallas. He claims state District Judge George Gallagher has no discretion to continue presiding over the case after a venue change from Collin County near Dallas to Harris County in the Houston area because Paxton has not given written consent to continue under the Texas Code of Criminal Procedure. Paxton says Gallagher maintained the case on his docket after changing venue.

“That method is only applicable where the state, defendant’s counsel and the defendant give written consent,” Paxton’s 23-page appeal states. “As the requisite consent is lacking, the general rule applies and respondent cannot preside over the case outside Collin County.”

In granting Paxton’s request, the Dallas-based appeals court halted all proceedings indefinitely. The ruling gives both sides until May 23 to respond to Paxton’s filing.

Paxton was charged in 2015 with a third-degree felony count of failing to register with the Texas Securities Board and two first-degree felony counts of securities fraud. He faces up to 99 years in state prison if convicted.

He is accused of failing to tell investors in McKinney-based tech firm Servergy that he would earn commissions on their money, and of lying to them that he was investing in the company. The alleged crimes took place while he was a member of the Texas House of Representatives.

Paxton was set to go to trial in Collin County this month on the failure to register charge before being tried separately on the securities fraud charges. His first trial is now scheduled to begin in September in Harris County.

Judge Gallagher has irritated Paxton’s team with a series of unfavorable pre-trial rulings. He rejected four applications for habeas corpus and six motions to quash in December 2015.

Subsequent appeals to the 5th Court and the Texas Court of Criminal Appeals in 2016 were unsuccessful. The nine-member 5th Court was not persuaded that the previous trial judge in the case erred when he asked prospective jurors who among them wanted to serve on the grand jury.

Paxton steadfastly opposed Gallagher’s decision last month to move the case out of his home county. Gallagher was apparently persuaded by special prosecutors’ argument that Paxton’s team had launched a “crusade” to taint the local jury pool.

Paxton has tried to have Gallagher removed four times in the past month. His first request was rejected by the judge on April 17.

He asked Harris County District Clerk Chris Daniel to randomly assign a Harris County state judge two weeks later.

Paxton then asked the head of the First Administrative Judicial Region in Dallas last week to remove Gallagher.

Judge Mary Murphy declined, telling Paxton she lacks such power and that the matter is under the jurisdiction of trial and appellate courts.

Gallagher cited convenience for moving the trial to Harris County, noting that special prosecutors Brian Wice, Kent Schaffer and Nicole DeBorde and defense attorney Dan Cogdell are all based in Houston. Those special prosecutors responded to Paxton’s latest request on Tuesday, telling the court in a letter that Paxton erred by not filing his request with an appeals court in Houston.

Paxton’s attorneys were scheduled to appear before Gallagher in Harris County on Thursday to discuss his removal requests. The 5th Court of Appeal’s order effectively cancels that hearing.

%d bloggers like this: