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FACT CHECK: Is the Paxton Impeachment “Illegal”? No.

Impeachment Proceedings Governed by the Texas Constitution

With the impeachment trial of Texas Attorney General Ken Paxton set to begin in the Texas Senate next week, Paxton’s attorneys and allies have argued that Paxton’s impeachment is “illegal” because most of the acts cited in the Articles of Impeachment occurred before the start of Paxton’s current term which began this January. But is this really the case?

The Texas Voice has reviewed the arguments raised by Paxton’s legal team, activists who oppose Paxton’s impeachment, the House Impeachment Managers and their counsel who will be trying the case against Paxton in the Texas Senate, as well as relevant State Constitutional provisions, statutes, and case law.

Upon review of the arguments and law, it appears that the impeachment proceedings against Paxton are valid under the Texas Constitution and that a full trial should be held before the Texas Senate.

Article XV of the Texas Constitution grants broad impeachment powers to the Texas House of Representatives, with Article XV, Section 2 of the Texas Constitution stating, “Impeachment of the Governor, Lieutenant Governor, Attorney General, Commissioner of the General Land Office, Comptroller and the Judges of the Supreme Court, Court of Appeals and District Court shall be tried by the Senate.”

The Texas Constitution does not establish limits on what matters may establish the basis for an impeachment. The decision to convict and remove one of the state officials listed in Article XV, Section 2 after an impeachment trial lies solely with the Texas Senate, with at least two-thirds of the Senators voting in favor of conviction.

The broad impeachment powers outlined in the Texas Constitution can be contrasted with the narrower language found in the United States Constitution, which limits impeachment to “treason, bribery, or other high crimes and misdemeanors.” While the Framers of the Texas Constitution could have limited the scope of impeachable offenses, or limited impeachment to offenses that occurred during an officeholder’s current term in office, they chose not to.

The omission of specific language regarding impeachable offenses in the Texas Constitution, as differentiated by the language found in the United States Constitution, was discussed by the Texas Supreme Court in the 1924 case of Ferguson v. Maddox, which was related to the impeachment and removal from office of Governor James “Pa” Ferguson.

“A proper construction of the provisions of the present constitution of Texas relating to impeachment, when considered in connection with other provisions limiting the powers of the government and protecting the rights and liberties of the citizen, leads to the conclusion that the framers of that instrument intended to and did provide for a tribunal before which impeachment proceedings should be heard and determined, leaving to the Legislature the authority to define the offenses for which such tribunal could impeach a governor. This duty the Legislature had never performed prior to the judgment of impeachment under consideration. It will be noted that the provisions of our Constitution relating to impeachment followed in substantial terms the provisions of the Federal Constitution, except with respect to the provision defining impeachable offenses, which provision was, it must be presumed, purposely and intentionally omitted and no provision was incorporated as a substitute therefor,” wrote the Court.

While Article XV, Section 2 of the Texas Constitution provides the sole authority for the impeachment trials of those state officers named in that section, such as the Attorney General, Article XV, Section 7 of the Texas Constitution compels the legislature to “provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.”

The language of Article XV, Section 7 places an express limitation on the legislature’s ability to pass laws establishing the trial and removal of state officers, such as the Attorney General, that Article XV, Section 2 covers.

Paxton’s attorneys and allies have frequently cited Section 665.081 of the Texas Government Code to support their argument that Paxton’s impeachment is “illegal.” The statute states:

“NO REMOVAL FOR ACTS COMMITTED BEFORE ELECTION TO OFFICE. (a)  An officer in this state may not be removed from office for an act the officer may have committed before the officer’s election to office.

(b)  The prohibition against the removal from office for an act the officer commits before the officer’s election is covered by:

(1)  Section 21.002, Local Government Code, for a mayor or alderman of a general law municipality;  or

(2)  Chapter 87, Local Government Code, for a county or precinct officer.”

This statute is inapplicable to the Paxton impeachment, as it is a proceeding expressly authorized by Article XV, Section 2 of the Texas Constitution.

While the supremacy of the Texas Constitution dictates that Section 665.081 of the Texas Constitution does not apply to the Paxton impeachment, even if the statute did apply, it would not shield Paxton from being impeached for acts that occurred before the start of his current term as Attorney General.

There is precedent for impeachment proceedings involving acts that occurred before the start of an elected official’s current term. In 1917, Governor James “Pa” Ferguson was impeached and removed from office for acts that occurred during his first term before his 1916 reelection.

In 1976, State District Judge O.P. Carrillo was removed from office by the Texas Senate in an impeachment trial involving acts before his reelection in 1974.

One of the most detailed explanations of the limitations of the so-called forgiveness doctrine in more recent years came from then-Texas Supreme Court Justice Don Willett, who is widely regarded as one of the most conservative members of the Fifth Circuit Court of Appeals since he was appointed to that bench by President Trump.

In the 2008 Texas Supreme Court case of In re Bazan, involving the removal of an elected Hidalgo County Constable, Willett wrote a concurring opinion that closely examined the applicability of the so-called forgiveness doctrine to acts that occurred before an elected official’s current term in office.

Unlike the Paxton impeachment, which is governed solely by Article XV of the Texas Constitution, the Bazan case involved the judicial removal of a constable. The Texas Local Government Code thus governed it. While the specific statute at issue in the Bazan case does not apply to the Paxton impeachment, Willet’s analysis is valuable in understanding the weaknesses in the arguments made by those citing the so-called “forgiveness doctrine” in opposition to Paxton’s impeachment.

In discussing the meaning of the term “before election to office,” Willett wrote, “I think it manifestly means the former and relates to an official’s entire tenure in office, not merely his current term in office. Our Constitution’s concern for the integrity of public office allows no room for the notion that reelection operates to spare elected officials from the full effects of felonies committed during a prior term, whether or not they were known to the voting public.”

Willett continued, “Granting legal sanctuary to public officers convicted of felonies committed while in office is hard to conceive and, as a judge, even harder to confirm. An official who commits a high crime on the last day of his prior term is no less unfit than an official who commits a high crime on the first day of his present term.”

Paxton’s impeachment trial in the Texas Senate is set to begin on September 5.

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