Texas First Court of Appeals Correctly Reverses Attorney General Ken Paxton’s Criminal Trial from Being Conducted in His Home Town.

A new Harris County district judge will again take up the decision of whether to move Attorney General Ken Paxton’s criminal case back to his hometown of Collin County.

A Houston appellate judge on Monday set aside a previous district judge’s ruling on the venue change, and has redirected the case to Harris District Judge Jason Luong, giving him until Sept. 10 to decide whether it should stay in Harris County or return to Collin County where it originated, as first reported by the Dallas Morning News.

This marks the latest in a series of setbacks that have dragged out the resolution of five-year-old criminal charges that have already outlasted one of Paxton’s re-election cycles. The two-term Republican attorney general was indicted on felony securities fraud charges in July 2015 but is still far from trial. Paxton has maintained his innocence.

Luong, a former prosecutor with the Harris County District Attorney’s office, was assigned to the case after the previous presiding judge, Robert Johnson, recused himself because the attorney general’s office is representing him in a separate, unrelated case alleging discriminatory bail practices in the county’s felony courts.

It’s unclear whether Luong, who is also being represented by Paxton’s office in the bail case, will recuse himself as well.

Prior to recusing himself, Johnson had ordered the case moved to Collin County, siding with Paxton’s lawyers who had argued that the judge who moved the case out of Paxton’s home county in the first place lacked the authority to do so because his term had expired.

The location of the trial could have immense bearing on how it’s decided. Paxton, who lives in in McKinney, has many allies in Collin County — those very connections were enough to convince a judge in 2017 that the case ought to move from Collin to Harris.

Paxton is charged with two counts of first-degree felony securities fraud and a third-degree felony charge of selling securities without registering with the state.

He is accused of encouraging investors, including friends and a Texas lawmaker, in 2011 to invest in a technology startup without disclosing that he was being paid by the firm. He is also accused of soliciting clients for a friend’s investment company without registering with the state.

Paxton’s lawyers had just filed a nearly 80-page brief on the appeal Monday only to find out that 1st Court of Appeals Judge Gordon Goodman had bounced the case back to district court.

“We’re not only disappointed but also troubled by the fact that the Court of Appeals ruled without giving Mr. Paxton an opportunity to respond,” Paxton defense attorney Bill Mateja said in a statement. Paxton’s legal team is also asking Goodman to reconsider his ruling.

Special prosecutors Kent Schaffer and Brian Wice declined to comment.

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name:        In re The State of Texas Ex Rel. Brian W. Wice Appellate case number:                             01-20-00477-CR; 01-20-00478-CR; 01-20-00479-CR;

Trial court case number: 1555100, 1555101, 1555102

Trial court:                        177th District Court of Harris County

On June 30, 2020, relator, Brian W. Wice, filed a petition for writ of mandamus (1) challenging a June 25, 2020 order signed by the Honorable Robert Johnson, Presiding Judge of the 177th District Court of Harris County, vacating a change of venue order in the underlying cases and returning venue of the cases to Collin County; and (2) compelling rulings on certain motions.

After the mandamus petition was filed, relator subsequently informed this Court that (1) Judge Johnson voluntarily recused himself from the underlying cases on July 6, 2020, and (2) the cases were reassigned on July 15, 2020 to the Honorable Jason Luong of the 185th District Court. Although relator has not filed a motion requesting abatement of this original proceeding, relator’s filing notifying the Court of these developments “advises” that abatement is appropriate under the circumstances.

When a mandamus petition complains of actions taken by a trial judge who subsequently recuses, appellate courts have the discretion to either deny the petition or to abate the case and allow the successor judge to consider the issues raised in the petition. See In re Blevins, 480 S.W.3d 542, 544 (Tex. 2013).

Our decision should be based on a determination of “which of the two approaches affords the better and more efficient manner.” Id. We conclude that the better and more efficient approach in these original proceedings is to abate.

Accordingly, we ABATE these original proceedings for 45 days from the date of this order to allow Judge Luong to reconsider the challenged order and, if appropriate, to consider the pending motions.

Judge Luong is directed to take whatever actions and hold whatever hearings he determines are necessary to consider the matters herein.

A supplemental clerk’s record containing any rulings, along with a reporter’s record of any hearings held, shall be filed within 45 days from this order. We withdraw our request that real party in interest file a response to the mandamus petition.

It is so ORDERED.

Judge’s signature:       /s/Gordon Goodman             

Acting for the Court

Date:        July 28, 2020       

Panel consists of Justices Goodman, Hightower, and Countiss.