HOUSTON – The Fifth District Court of Appeals halted the prosecution of Attorney General Ken Paxton Tuesday afternoon by granting an emergency stay that Paxton’s lawyers had requested.
On Monday, Paxton’s lawyers had asked the appeals court to tell District Judge George Gallagher that he no longer has any authority over Paxton’s securities fraud case.
They say Gallagher is disregarding “crystal clear” state law that requires him to relinquish control of the case.
The appeals court asked the parties to file their arguments by May 23.
If the appeals court agrees that Gallagher is acting illegally, it would represent a black mark on the judge’s reputation.
The district clerk of Collin County, Lynne Finley, is also accused of violating the law by refusing to transfer the Paxton case file to Harris County, where the trial is due to be held.
Contrary to news reports, Paxton’s attorneys are not asking the appeals court to return the case to Paxton’s home turf of Collin County.
Rather, they are saying that after Gallagher ordered the case transferred from Collin County to Harris County, he failed to obtain the defendant’s permission to continue presiding over the case.
State law spells out a clear procedure, which Paxton’s attorneys cited, emphasizing one line in italics: “[i]f a change in 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 and his attorneys refused to consent to have Gallagher preside over the case, and notified him of that.
But Gallagher has gone on and scheduled a trial for September. Paxton’s attorneys argue that the order is invalid, since “it is crystal clear that (Gallagher) no longer had authority to preside over the case once he changed venue to Harris County without the requisite written consents.”
In a situation where all parties consent to the judge staying on, then the law also allows for original court personnel and the district clerk to stay on. Otherwise, the standard procedure under the law is that the district clerk “shall transmit the (file) to the clerk of the court to which the venue has been changed.”
The question of which clerk has custody of the case file matters because once the case is transmitted to another court, it sets in motion administrative procedures for a new judge to be assigned.
Paxton’s attorneys wrote Finley, the Collin County district clerk, a letter on May 1 noting that the file had not yet been transferred to Harris County, and asking her to comply with the law.
“Your letter puts me in the unenviable position of complying with your request and, by doing so, perhaps running afoul of the directions, expressed and/or implicit, of the Presiding Judge regarding venue and my office’s ongoing role,” Finley wrote back. “It is my understanding that Judge Gallagher continues to preside over these cases under their current Collin County cause numbers and that he continues to use the services of the Collin County District Clerk’s office as the custodian of the records in the above referenced cause numbers.”
Last year, Finley also refused to provide this reporter the names of the grand jurors who indicted Paxton, despite Attorney General opinions holding that such records are public.
Gallagher has scheduled a hearing for Thursday on the issue of his jurisdiction, but Paxton’s attorneys are asking a Dallas court of appeals to halt proceedings.
The court-appointed prosecutors reportedly responded Tuesday by arguing that Paxton should have appealed in Harris County rather than Dallas.
The papers filed Monday also contain records that cast doubt on the justification Gallagher gave for his extraordinary decision to transfer the case to Harris County in the first place.
Gallagher’s decision to change venue is unlikely to be reversed absent a finding of “abuse of discretion” on his part, which the courts have defined as failing “to state in its order the grounds for its decision to change venue.”
Gallagher gave two reasons for changing venue: “Harris County was selected because the lead counsel for the state and the defense are located there,” and “Harris County also has the facilities to accommodate the trial.”
Actually, it turns out that Harris County has very limited capacity to host the trial, with a two-week window in September as the only slot available for courtrooms. Gallagher knows that the prosecutors intend to split the case into two separate trials – one for an alleged registration violation; the other charges are based on a novel theory that Paxton failed to disabuse other investors of an assumption they had made, and that this amounts to defrauding them.
In his emails to counsel proposing various options, Gallagher was clear about his real criterion.
“I will require that trial be held in an urban county,” he wrote.
Jon Cassidy can be reached at [email protected]