Paxton prosecutors explain ‘fabricated’ date used to secure indictment

Ken Paxton
July 29, 2015, Texas Attorney General Ken Paxton looks during a hearing in Austin, Texas. (AP Photo/Eric Gay)

HOUSTON — Did the special prosecutors pursuing Attorney General Ken Paxton fabricate a date in order to mislead a grand jury into indicting him?

Since The Texas Monitor reported on a secret legal document making that allegation, the prosecutors have persuaded District Judge Robert Johnson to allow them to tell their side of the story.

Late last week, the Harris County courts unsealed some of the previously secret records in the debate, from March of this year.

Paxton originally challenged the validity of his indictment in late 2015, but an appeals court rejected those arguments in June 2016 on procedural grounds, ruling that the proper time for such challenges would be on appeal after any eventual conviction, as Paxton hadn’t met the high standard of proving that the trial judge abused his discretion.

However, Paxton tried again this spring after Judge George Gallagher gave the defense access to a PowerPoint presentation by special prosecutor Brian Wice, which the defense team said they found misleading.

The question is on what date Paxton referred his client James Henry to Mowery Capital Management. Paxton is accused of soliciting business for Mowery without putting his name on a state registry, a charge he denies, arguing that he wasn’t required to register.

The date matters because the charge has a three-year statute of limitations. Paxton’s attorneys say that Paxton made the referral more than three years before he was indicted on July 7, 2015, and that the prosecutors knew the correct date and disregarded it.

The prosecutors told a grand jury that Paxton referred Henry and his wife to Mowery on July 18, 2012, which would fall just inside the statute of limitations. (On another occasion, in correspondence with a reporter, they said the referral was on July 12, 2012.)

Paxton says the referral was in June 2012, beyond the statute of limitations, and that the prosecutors have had the proof all along — namely, a “letter of authorization” dated June 26, 2012, in which Henry authorized Mowery and Paxton to “discuss any and all business related matters” concerning the Henrys’ “business and personal accounts at Mowery.”

If Henry had already established his accounts at Mowery, then clearly the referral came before that, defense attorneys say.

Actually, the key verb is “solicit,” not “refer” — that is, when did Paxton solicit business for Mowery? That’s according to an appeals court decision last year, although the prosecutors avoided the term in their statute-of-limitations argument.

So how did the prosecutors come up with the July 18, 2012, date? That is when, they say, Henry signed a paper Mowery gave him disclosing referral fees for Paxton. In other words, the prosecutors’ theory is that Henry signing that paper on July 18, 2012, was the culmination of Paxton’s criminal act.

They argue that the heart of the crime is acting as an investment advisor representative “for compensation,” and so, Paxton’s act wasn’t complete until Henry acknowledged the referral fees. In their newly unsealed brief, the prosecutors refer to the definition of “investment advisor representative” in state law, although the only part of the definition they actually quote is the phrase “for compensation.”

The actual definition is a “person or company who, for compensation, is employed, appointed, or authorized by an investment adviser to solicit clients for the investment adviser.”

As the prosecutors know, because they’ve cited it in other briefs, Paxton was authorized to solicit clients for Mowery, for compensation, in an agreement signed July 28, 2006.

The question is when he solicited them in this case. Although the prosecutors avoid the verb in their writing, as it focuses attention on when Paxton told his client about the investment manager, if their theory is going to hold, it will require a court to agree that the solicitation extended weeks past the discussion and the point Henry transferred his accounts to Mowery.

The prosecutors argue that the definition of the crime is “clear and unambiguous,” and the appeals court agreed last June that the meaning of “solicit,” at least, was perfectly clear.

Paxton’s attorneys had argued that “solicit” wasn’t clearly defined in state law, but the appeals court disagreed, finding that “the word ‘solicit’ is not vague, indefinite, or uncertain and its import is a matter understood by people who understand the meaning of the language.”

It means, the court wrote, “[t]he act or an instance of requesting or seeking to obtain something; a request or petition…. An attempt or effort to gain business.”

In the original 2015-2016 appeal over the statute of limitations, Paxton tried to offer evidence that the prosecutors had the dates wrong.

The prosecutors’ argument then was that Paxton was precluded by law from arguing about the dates, that he simply had to accept the dates they claimed until trial, when they could introduce evidence. It worked.

The prosecutors, however, have known since the start that they were up against the statute of limitations. In their very first conversations with Paxton’s first attorney, Joe Kendall, on June 28-29, 2015, they asked for Paxton to sign an agreement tolling the statute of limitations. Paxton declined through Kendall in a letter dated June 30.

A week later, Judge Chris Oldner, having empaneled the grand jury that indicted Paxton, walked to the clerk’s office in the Collin County courthouse, pulled the top of a sheet of paper out of an envelope, told the clerk it was an indictment, and had the clerk timestamp it to show that it had been filed.

Only Oldner didn’t file it, according to court records. He took it back to his office.

Jon Cassidy can be reached at [email protected].

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Jon Cassidy is a reporter for The Texas Monitor and a contributing editor for The American Spectator. He has been an investigative reporter for and an editor and reporter for The Orange County Register. His work has also appeared in The Wall Street Journal, City Journal, The Federalist, Fox News, Chronicles, Reason, and other publications. He was a 2014 Robert Novak Journalism Fellow, and is a graduate of the University of Southern California. He and his wife Michelle live just outside Houston with their two children.


  1. Oh he will walk just like all the rest have… doubt about it…….just like the biggest proven crook in Dallas……John Wiley Price…………disgusting but that is how Texas rolls……….

  2. Don’t turn Texas into another Criminal Blue State, like California and the rest of the criminal states that are Clinton infected with the lowest of morals and all other low class idiots. Keep Texas sensible

  3. I wonder how many of these comments are from paid trolls. All politicians are crooked. If you havent figured that out yet then you need to remove your head from whichever beasts rear end you have it firmly planted in….an elephant or a donkey respectively. When are you ignorant fucks going to realize that while your over here argueing red vs blue, these sorry mother fuckers have been raiding the banks for every penny they can find? Im gonna laugh when the chinese decide its time to pay back all them loans “or else”. Your government sold you and you dont even know it lmao.

  4. Radical leftist judges and attorneys are sought out by Soros funded organizations like EQUAL JUSTICE USA and ALLIANCE FOR JUSTICE AMERICA COMING TOGETHER, AMERICAN CONSTITUTON SOCIETY FOR LAW AND POLITICS and AMERICAN BRIDGE 21st CENTURY

  5. This was a hit job from the beginning. The poor loser Demowit and his cronies couldn’t stand it that they lost the election so they went after Paxton to try and get him out of office just like the Demowits have tried and failed to do with President Trump. They’re all a bunch of LOSERS and CRYBABIES!!

  6. Paxton is corrupt and if they can’t get rid of him honestly, then we need to do it for them. Vote the “Anyone But Paxton Ticket” next time. If what is alleged is true, then the prosecutors need to be gone, disbarred.


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