AUSTIN (CN) – Texas’ highest criminal appeals court late Wednesday paved the way for removal of the trial judge in Attorney General Ken Paxton’s criminal securities fraud case, rejecting prosecutors’ request to reinstate the judge.
Special prosecutors Brian Wice, Kent Schaffer and Nicole DeBorde asked the Texas Court of Criminal Appeals last week to keep state District Judge George Gallagher on the case. The request came after the intermediate 5th Court of Appeals in Dallas granted Paxton’s petition for writ of mandamus on May 30, concluding that Gallagher lost jurisdiction when he moved the case on April 11 from Collin County in suburban Dallas to Harris County.
The high court denied the prosecution’s request without comment, meaning the 5th Court’s vacating of all of Gallagher’s orders after the transfer order will stand. The 5th Court did not explicitly remove Gallagher from the case, but a state district judge in Harris County is expected to be appointed.
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 has tried to get Gallagher removed from the case at least four times since the venue change, arguing that state law requires it.
Gallagher rejected Paxton’s first request for a new trial judge on April 17.
Two weeks later, Paxton asked Harris County District Clerk Chris Daniels to randomly assign a Harris County judge.
He then asked the head of the First Administrative Judicial Region in Dallas to remove Gallagher. Judge Mary Murphy declined, saying she lacks the power to do so and that the trial and appellate courts have jurisdiction.
Gallagher, a trial judge from Tarrant County, has frustrated Paxton’s defense with a string of adverse rulings since his appointment to the case in 2015 when a Collin County judge recused himself. He rejected Paxton’s four applications for habeas corpus and six motions to quash in December 2015.
Gallagher surprised Paxton’s attorneys in February when he granted prosecutors’ request to hold two felony trials, one for each type of charge. Paxton’s attorneys called the second trial “absurd,” and said it would “either double or triple” the cost to Collin County taxpayers.
In granting prosecutors’ request for a change of venue two months later, Gallagher apparently was persuaded by arguments that Paxton’s legal team had engaged in a “crusade” to taint the jury pool in his home county.