Thursday, a Texas House of Representatives committee recommended twenty articles of impeachment against Attorney General Ken Paxton. We are in somewhat uncharted waters. It appears there have only been two impeachments in Texas history. In 1917, a governor was impeached, but resigned before the Senate condemned him. And in 1975-76, a district judge was found guilty, removed and disqualified. In this article, I will provide a high-level overview of the impeachment process in Texas, with a focus on the particular issues that may arise in the Paxton case.
Section 15 of the Texas Constitution governs the impeachment process. Section 1 states that the House of Representatives has the “power of impeachment”. Presumably, a simple majority is enough to impeach, but this threshold is not clearly defined. Sections 2 and 3 provide that the impeachment must be tried by the Senate, and 2/3 of the “present” senators are required to impeach. (The same threshold is used in the Federal Constitution). Section 4 includes a provision that mirrors the impeachment disqualification clause in the Federal Constitution: “Judgment on impeachment extends only to removal from office and prohibition of exercise a function of honour, trust or profit within the framework of this State.” However, Section 5 offers a unique wrinkle: After a section of impeachment is “preferred” to the Senate, the impeached officer “shall be suspended from the performance of the duties of his office, for the duration of such Accused”. In other words, an impeached official is temporarily relieved of his duties. And the Governor can make a “provisional appointment”. (Governor Abbott could pick someone from Paxton’s staff, or one of the Republicans who challenged Paxton in last year’s primary, or a “gatekeeper” to fill the void for a short time.)
Section 7 appears to give the legislator an additional power in matters of dismissal. It provides that “the Legislature shall provide by law for the trial and removal from office of all officers of this State, the manner of which has not been provided for in this Constitution.” In the federal system, Congress has enacted various rules governing impeachment. For example, evidence may be heard by a Senate committee rather than by the full Senate. Judge Walter Nixon challenged this delegation of power as inconsistent with the Federal Constitution. The Supreme Court of the United States decreases resolve this issue on justiciability grounds, but left open the possibility that some deviations from the process set out in the Constitution may be justiciable. (Chief Justice Rehnquist reported this problem in pleadings.) Section 7 appears to expressly delegate the power to the legislature to establish certain rules by statute. And “by law”, in general, means through actual legislation, rather than a single chamber resolution.
These laws appear in Chapter 665 of the Government Code. At a quick glance, Section 15 does not provide a standard for impeachment, such as “high felonies and misdemeanors”. Section 665.062 lists specific causes for dismissal “by address”, including “willful neglect of duty”, “incompetence”, and “breach of trust”. But, in accordance with Section 665.051, the Attorney General is not subject to dismissal “by address”. These grounds are therefore not directly relevant to Paxton.
Subchapter D of Section 665 includes a provision: Section 665.081. It provides, in part: “An officer in this State shall not be removed from office for any act which he may have done before his election to office.” Numerous allegations against Paxton have occurred Before Paxton was elected to a third term in November 2022. And Paxton’s attorney cited section 665.081 as a possible defense. He argues that voters re-elected Paxton with full knowledge of the allegations against him.
The cancellation of the elections begins behind closed doors.
— Attorney General Ken Paxton (@KenPaxtonTX) May 25, 2023
Section 665.081 can be interpreted in two different ways. First, an officer cannot be removed for an act he committed before being elected to his current mandate in office. Second, a leader cannot be removed for an act he committed before being elected to his position. First of all duration of his current position. On first reading, Paxton could not be impeached for behavior that occurred before November 2022. On second reading, Paxton could not be impeached for behavior that occurred before November 2014, when he was elected to his first term.
Texas courts have recognized what is known as the “forgiveness doctrine.” THE Texas Supreme Court described it this way:
Nor can withdrawal [of judges] be based on acts prior to the election, not in themselves disqualifying under the Constitution and laws of that State, when such acts were in the public domain or otherwise known to the voters and were sanctioned and approved or pardoned by them in the election. This outfit is consistent with the public order declared by the legislator with regard to other public officials. Section 5986, RCS [An older version of Section 665.081] .
But this doctrine has limits:
We believe that the deliberate and persistent acts of misconduct committed by Justice Carrillo prior to his last election were such as to bring as much public discredit to the judiciary as if committed after the election; and they were in no way absolved by his election.
The Supreme Court of Texas opined on this standard in a disciplinary proceeding by the sole impeached district judge:
In Brown, supra, we recognized that the logical basis for this doctrine is that the public, as the ultimate judge and jury in a democratic society, can choose to pardon the misconduct of an elected official if they are aware of such misconduct before the election. If, on the other hand, the misconduct is unknown to the public before the election and is of such a deliberate nature as to bring public discredit to the judiciary, the judge cannot be said to have been pardoned by his election or re-election.
And a subsequent decision of the Court of Appeal applied this doctrine:
There is language in Brown, Bates, and Carrillo that completely eliminates any doubt as to the applicability of the “pardon” doctrine to Section 5986. According to Brown and Carrillo, it was essentially an attempt by the Supreme Court in Laughlin to articulate the “spirit” of section 5986, which prompted the court to use language that has become synonymous with the doctrine of “pardon”. According to Bates, the expressions “prior term” and “forgiveness” essentially mean the same thing. Thus, it is inevitable to conclude that the “pardon” doctrine simply states the rationale for Section 5986 and the “prior term” rule.
Should the doctrine of forgiveness apply to a re-elected official? The Texas Court of Criminal Appeals addressed this issue, indirectly, by Williams v. State150 SW2d 803 (1941):
The appellant’s next contention is that if the evidence shows that he sold the bonds and converted the money for his own use and benefit prior to his re-election as county attorney in 1936, that therefore he cannot be prosecuted for the offense thus charged, because article 5986 of the Revised Civil Statutes exempts from prosecution. The article in question reads: “No officer may be prosecuted or removed from office for an act which he may have committed before his election to office.”
Considering that a person running for office could commit murder, burglary, robbery, robbery, rape or any of these offenses and then be elected to office would be exempt from punishment is the most monstrous that the author of this opinion has ever heard advanced. to justify any of these offences. To hold so would be contrary, not only to all laws in the matter, but also to public order. We believe that the legislator, in the promulgation of the said law, wanted the same to apply to any offense committed relating to professional misconduct and certainly not to immunize it against any other offense. We therefore reject the appellant’s contention.
This case involved criminal prosecution, although it would seem to suggest that the pardon doctrine would not immunize a public servant from removal for conduct prior to re-election. However, none of these cases occurred in the direct context of an impeachment. (Westlaw lists about two dozen references in the “Decision Notes” under the Statute.) Ultimately, the Senate, when sitting as a court of impeachment, would have to resolve this question of law.
Of course, Paxton can seek some sort of judicial intervention. Generally speaking, Texas courts have much more permissive rules regarding standing and justiciability. And, as I said earlier, Walter Nixon v. United States left open the possibility that some impeachment issues could be justiciable. For example, what if someone other than the Chief Justice presided over a presidential impeachment? The construction of this law, in the government’s code, may provide a justiciable question, especially since the Texas Supreme Court has already interpreted the pardon doctrine.
My thoughts here are based on somewhat abbreviated research, in an area where there is little precedent. If I missed anything, please email me, and I’d be happy to post an update.