Lawyers for suspended Texas Attorney General Ken Paxton are pushing for the Texas Senate to drop the impeachment articles against the Republican, whose trial is currently scheduled for Sept. 5.
Paxton faces allegations ranging from dereliction of duty to obstruction of justice.
Last week, Paxton’s attorneys filed a motion saying the impeachment should be dismissed because of a legal rule they call “prior-term doctrine.”
But the rule has a mixed history in Texas and experts say it's up to Lt. Gov. Dan Patrick, and state senators, to decide whether it has merits or not.
A Texas-centric rule
Paxton was impeached by the Texas House of Representatives in May for alleged illegal actions that happened between 2015 and 2020.
There are 20 articles of impeachment against Paxton — some are related to his securities fraud indictment, while others stem from his alleged decision to use his office to intervene in a federal investigation against one of his political donors.
Paxton has denied any wrongdoing.
“The impeachment articles that have been laid out by the House are bologna,” Tony Buzbee, one of Paxton’s impeachment lawyers, told reporters in Austin shortly after the Texas House voted to impeach. “Just so we are clear: the allegations are untrue. They are false.”
Paxton’s defense also said the Texas Senate should toss out the impeachment articles because the allegations happened before Paxton’s most recent election.
They call it the “prior-term doctrine.” Paxton’s lawyers cite the Texas Constitution and say only offenses that happened after November 2022 — Paxton’s most recent election — could be grounds for impeachment.
But the Texas Constitution is not that explicit. It only says a person cannot be impeached for offenses committed before their election to office. It doesn’t specify if that means their first election to a position or their most recent reelection.
Cal Jillson, a professor of political science at Southern Methodist University, said Lt. Gov. Patrick will ultimately be the decider on how to interpret that constitutional language.
“The two main interpreter principles — it is to credit common-language meaning of words, and then to be sure that that language doesn’t produce an absurd result,” he said.
By “absurd” Jillson means different than the way most people would interpret the language.
“If I were to ask: ‘When was Ken Paxton elected as attorney general?’ For most people, they wouldn’t know,” he said. “But for you and I, we take 2014.”
A mixed history of interpretation
Complicating this is the fact that, in Texas, the precedent on this legal concept is not exactly clear.
“The thing about the ‘prior term’ is that it’s very Texas-centric — this isn’t something we would talk about on the national level,” said Todd Curry, who teaches political science at the University of Texas at El Paso.
“The problem with that is that it’s so rarely used and has been so rarely used that there actually exists legal precedent on both sides of how it might be applied,” he said.
Curry points to several examples of how "prior-term” has been discussed and applied in state history.
Take 1893. That year, Texas Land Commissioner W.L. McGaugheywas acquitted of all 16 articles of impeachment against him.
One of the defenses raised by McGaughey’s team was that some of the allegations against him happened prior to his reelection in 1892. They argued that, by being reelected, the public was essentially absolving McGaughey of any official mistake.
While that worked in 1893, that argument didn't convince Senators in the 1917 impeachment of Texas Gov. James Ferguson. That time, the Senate voted overwhelmingly to convict Ferguson and remove him from office.
Curry — and many others — are watching to see what Lt. Gov Patrick decides.
“He could choose to follow the precedent he likes or not follow the precedent he likes, but it’s entirely his choice,” he said.
Curry added it’s important to keep in mind that impeachment trials are nothing like a real court trial.
They are political. And should be treated that way.
That means precedent and all the rules that count in a normal courtroom might not hold as much weight on the Senate floor.
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