Paxton's Motion to Dismiss Felony Charges Backfires in Legal Lashing From Prosecutors

When the criminal investigation into Ken Paxton’s business dealings began in earnest earlier this year, the attorney general and his supporters wrote it off as a political witch hunt. The charge was easier to stomach when it was just a left-leaning watchdog group, stunned that Paxton skated by an admitted violation of state securities law with a slap-on-the-wrist fine, went gunning for Paxton by filing a complaint with prosecutors in Travis County.

Claims that politics was behind the case against Paxton became more difficult to swallow by late spring. The case had been kicked to Paxton’s home turf of Collin County, where the district attorney, a longtime friend and business partner of Paxton’s, quickly recused himself from the case. A Republican judge appointed two special prosecutors (one of whom helped overturn former House Majority Leader Tom DeLay’s convictions on conspiracy and money-laundering charges) while the Texas Rangers expanded their inquiry into Paxton. By late July, Paxton became Texas's first sitting attorney general in more than 30 years to face criminal indictment.

Meanwhile, Paxton and his supporters have alluded to a vague plot against him. Paxton and his latest round of attorneys put that conspiracy theory in writing earlier this week. In a motion to dismiss the charges, Paxton blamed the criminal case against him on a “vindictive” judge who oversaw the grand jury that indicted him on three felony counts, a Republican judge first appointed to the bench by then-Gov. Rick Perry in 2003.

Prosecutors responded Thursday with a stunning rebuke of Texas’s top law enforcement official, calling Paxton’s theory nothing more than a “pre-trial shell game” that comes dangerously close to erroneously accusing a sitting judge of criminal misconduct. From calling Paxton’s theory a “cut-from-whole-cloth fictional rant” to quoting lines from Animal House, the response from Brian Wice, Kent Schaffer and Nicole DeBorde, the three Houston attorneys appointed to prosecute Paxton, manages to both mock the AG’s legal acumen and point out how thin Paxton's defense against these serious felony charges appears to be at this point in the case. 

Paxton’s legal problems first surfaced just as he was running for AG last year, when a Dallas couple claimed they’d been coaxed by Paxton to dump hundreds of thousands of dollars into a doomed real estate investment scheme only to find out later, once the venture had tanked, that the lawyer-turned-Tea Party darling had been paid to solicit their money.

The two most serious indictments against Paxton, first-degree felony charges of securities fraud, allege a similar racket. According to prosecutors, Paxton duped a fellow Republican lawmaker and another businessman into putting their money into a North Texas tech company currently under investigation for lying to investors. Prosecutors claim Paxton didn’t disclose the company was paying him to find investors.

Rather than address any of the allegations at the heart of his case, Paxton, in his motion to dismiss the charges against him, unleashed a flood of allegations against state District Court Judge Chris Oldner, who oversaw the Collin County grand jury that indicted him. Paxton cites everything from alleged missteps in how the grand jury was empaneled (Paxton says Oldner improperly asked for grand jurors who were “willing to serve”) to the fact that Oldner sealed the names and personal information of grand jurors.

The most serious allegations Paxton throws at Oldner, however, are that the judge told his wife about the sealed indictments against Paxton and that the judge “somehow arranged to have Paxton’s case assigned to his trial court.”

To that first point, Paxton, in his filing earlier this week, included text messages between Oldner’s wife and a Collin County commissioner discussing the indictment. The exchange appears to be little more than gossip.

“Your friend Paxton has not had a good week,” the judge’s wife tells the commissioner. “This is exactly what we told you was going to happen to Paxton. It’s worse than … we ever thought. Over 100k. Ouch,” she says, alluding to the charges against Paxton. “Don’t advise people to invest, take 30% commission you forget to tell people about and then watch then (sic) lose their life savings.”

While Paxton claims the judge leaked information to his wife, and therefore the case should be thrown out, prosecutors claim the indictments against Paxton weren’t sealed by a court order when Oldner told his wife about the charges, and that it was simply the district clerk’s policy to seal indictments when a defendant hasn’t yet turned himself in or been arrested.

Prosecutors call the texts between Oldner’s wife and the commissioner, which Paxton included in his filing, “a mere slideshow for the public’s titillation that Paxton employs like a drunk uses a lamppost — for support and not illumination.”

As for whether Oldner somehow angled to have Paxton’s case in his court, the special prosecutors had this to say (see the full filing below):
“What poetic license, writer’s embellishment, or suspension of disbelief gives Paxton the inalienable right to advance such an inherently speculation-laden and defamatory concoction? Where is one iota of proof that a veteran and respected jurist was somehow, some way, capable of putting his thumb on the scale of justice, and managing to bypass the random assignment of criminal cases? To the contrary, Paxton’s exhibits—statements from members of the District Clerk’s office he ignores—belie his groundless and gratuitous avowal. Paxton’s unwarranted, unsupported, and ultimately unsupportable avowal that Judge Oldner, the focal point in his Grassy Knoll-like conspiracy to indict Paxton ‘somehow arranged to have Paxton’s case assigned to his trial court’ has no place in a legal pleading—it is far more appropriate as a plot point in an Oliver Stone motion picture.” 
Wice, when reached Friday morning, wouldn’t comment on the legal lashing he and his team just gave Texas’s top law enforcement official. In their filing, however, they point out that Paxton’s “alternative narrative” conveniently avoids any mention of the actual criminal charges against him.

It’s reminiscent, they say, of the scene from Animal House in which Otter explains the scam to cover up the car Flounder just trashed.

“Will that work?” Flounder asks. Otter's response: “It’s gotta work better than the truth.” 

KEEP THE HOUSTON PRESS FREE... Since we started the Houston Press, it has been defined as the free, independent voice of Houston, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Michael Barajas
Contact: Michael Barajas