AUSTIN — The impeachment of Attorney General Ken Paxton on Saturday opens a Pandora’s Box of legal questions surrounding the process and what will happen to the office of the state’s top lawyer while he is sidelined from performing his duties.

Experts said the state has moved into uncharted territory as the House made history Saturday when it voted to impeach Paxton. The unprecedented action raises questions of conflicts of interest regarding two senators who would act as jurors in an impeachment trial.

And Paxton is effectively suspended from duty for an untold amount of time while lawmakers and lawyers untangle how to conduct the first impeachment of a Texas attorney general.

On Friday, Paxton’s General Litigation Division Chief Chris Hilton told Dallas conservative radio host Mark Davis the office has been looking for “historical precedent.”

“There isn’t much,” Hilton said. “There hasn’t been an impeachment of a statewide constitutional officer in the state of Texas for over 100 years.”

Paxton is not allowed to act as attorney general, a post he has held since 2015, until the impeachment matter is resolved in the Senate. Paxton said Friday his removal “imperils critical litigation my office has brought against the Biden administration.”

Hilton told the radio host the work of the office will continue with or without Paxton.

“We need him here for the important work of the state,” Hilton said. “But the work of the state will go on and we’ll defend him in the Senate.”

“We would take the most cautious approach,” Hilton added. “We certainly wouldn’t want to run afoul of any sort of prohibition on this. But I can tell you regardless of what happens, we’ll never stop fighting for Texans.”

The specter of Paxton’s removal from office arises from a House investigation that alleged he abused his office and broke the law in his dealings with a campaign donor.

Gov. Greg Abbott could appoint an interim attorney general to lead the office until the conclusion of Paxton’s trial, which might not occur until months after impeachment. Abbott also could choose to not make an appointment, leaving the office in the hands of First Assistant Attorney General Brent Webster, who notified staff Saturday of his plans to take the reins for now. Webster has served as Paxton’s second in command since 2020.

“If the attorney general’s impeached, somebody has to be temporarily the attorney general whether it’s a deputy … in the normal chain of command or whether it’s because the governor appoints somebody else temporarily to serve,” said Brandon Rottinghaus, a University of Houston political scientist.

Unclear process

The Texas Constitution does not outline how the Senate would conduct an impeachment trial. The Texas Senate has adopted rules before each impeachment, according to a 1975 analysis of impeachment in Texas by the secretary of state’s office.

Procedural rules for a Senate trial would largely be left up to the body, where Lt. Gov. Dan Patrick wields with an “iron fist,” said Mark Jones, a Rice University political scientist.

“Patrick holds the keys to the Senate,” Jones said. “So we have an interesting dynamic here where on one hand, he politically endorsed Paxton in the 2022 primary … when every single accusation that was made by that committee was public knowledge.”

Patrick so far has refused to say how the Senate would conduct a trial. He demurred on questions from WFAA’s Jason Whitely on the subject, but indicated he intended to run a fair trial if it happens.

“We will all be responsible as any juror would be if that turns out to be and I think the members will, will do their duty,” Patrick told WFAA on Thursday.

Recusal

Questions are already being raised about how McKinney Republican Sen. Angela Paxton, the attorney general’s wife, would participate in a hearing. The Texas director of the good government group Public Citizen demanded she recuse herself Friday.

“There is no court in the country that would allow a spouse to sit in judgment of the defendant or have contact with the jurors,” said Public Citizen’s Adrian Shelley. “No reasonable person could argue that Sen. Paxton can cast an impartial vote.”

There are no clear rules for recusal in an impeachment hearing and Texas law offers conflicting guidance. On one hand, the Texas Constitution states lawmakers with “personal or private interest in any measure or bill, proposed, or pending before the Legislature” cannot vote on the matter. On the other hand, Texas government code states that each senator “shall be in attendance” while the Senate meets for an impeachment trial.

“She always has the option of not voting, but it’s not entirely clear that she can recuse herself from being there,” Rice University’s Jones said.

Sen. Bryan Hughes, R-Mineola, also might face a conflict in an impeachment trial if called as a witness.

Hughes was the senator that asked Paxton’s office for a legal opinion that is one of the central pieces of the ethics investigation that triggered the articles of impeachment. His involvement leaves open the possibility of Hughes being called as a witness. The articles of impeachment described him as a “straw requestor.”

Texas’ rules of evidence state a “juror may not testify as a witness before the other jurors at the trial.”

“You probably would have Hughes recuse himself too if he was a material witness,” Rottinghaus said.

Angela Paxton and Hughes did not respond to emails and text messages sent Friday about their possible recusal.

The last impeachment trial

Procedural precedent would only be a guidepost, but they offer a likely process for what happens now that Paxton is impeached.

Following the House vote, the Senate would be formally notified. During the trial, Patrick would act as the presiding judge while the senators would be jurors. The articles of impeachment would be presented and Paxton would be afforded an opportunity to respond.

The most recent impeachment trial in Texas history, that of Duval County district judge O.P. Carrillo in 1975, resembled federal impeachments. Rules for the trial were developed by the Senate’s Administration Committee, which were adopted on the day the trial began.

The Senate also would appoint staff officers to serve during the impeachment trial. During the Carrillo impeachment trial, the Senate hired famed Watergate prosecutor Leon Jaworski to serve as general counsel for the chamber.

The House would appoint managers to present the case against Paxton. In the last impeachment trial, 10 House representatives were appointed managers, including Rep. Senfronia Thompson, D-Houston, according to journals of the impeachment proceedings.

However, the House could hire attorneys to present the case. Several attorneys have already been hired, but they so far have operated in an investigative capacity that culminated in a public presentation of evidence to the House General Investigating Committee Wednesday.

The Carrillo impeachment occurred outside of a regular Legislative session and months after the House voted to impeach the judge. Rice University’s Jones said he would expect a more speedy process if Paxton is impeached.

Prosecutors would present their case to the Senate and Paxton would be allowed to present his. Final arguments would come and then the Senate would deliberate, possibly in a closed session. During the Carrillo trial, all senators were sworn to not comment on proceedings.

Finally a vote would be taken, and if convicted, Paxton would be removed from office. The Senate would then decide whether to ban Paxton from ever holding public office in Texas again as well as doing business with the state.

Texas impeachment trials are generally classified as “quasi-criminal” proceedings. And Paxton need not have broken the law to be convicted.

The Texas Constitution makes an impeachment conviction a judgment that cannot be reversed via pardon, legal challenge or action from a future legislature.

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