The judge presiding over Attorney General Ken Paxton’s criminal trial plans to remain on the case, regardless of Paxton’s request for a new judge, his spokesman said.
“He anticipates remaining the judge,” District Judge George Gallagher’s spokeswoman Melody McDonald Lanier told the Houston Chronicle Thursday.
Paxton’s criminal defense team requested a new judge after Gallagher moved Paxton’s criminal trial to Harris County from Paxton’s home of Collin County, a move the attorney general’s lawyers opposed. Special prosecutors argued the attorney general’s allies had worked to poison the jury pool there.
Lawyers representing the embattled Republican attorney general said in a motion Tuesday they would refuse to sign off on a procedural move to to keep Gallagher with the case at it moves to Harris County.
Asked for comment about Paxton’s motion to remove him as the case’s judge, Gallagher’s spokeswoman said “He can’t comment because he is the judge and he anticipates remaining the judge.”
“As far as I know, there is nothing in the Code of Criminal Procedure that addresses what is to happen if the defendant or defense counsel withholds the consent to which article 31.09 refers,” said George Dix, a law professor at the University of Texas at Austin, referring to the code Paxton cited in his motion. “No case, as far as I know, has addressed the meaning of this provision.”
It’s quite possible no one else has ever asked for what Ken Paxton wants now.
This week, after Judge George Gallagher moved the attorney general’s upcoming criminal trials from Collin to Harris County, Paxton asked for a new judge. He cited a state law that’s meant to be procedural, a way for Gallagher to maintain the original case number and continue to use his own court reporter and clerk when the proceedings move to Houston.
But Paxton’s attorneys have interpreted the law to also require their client’s “written consent” for Gallagher to continue presiding over the case.
Paxton didn’t give his consent. He’s the first to refuse to do so and ask for a new judge in the process, experts said.
If Paxton’s motion is granted and upheld on appeal, it could set a precedent that will allow any criminal defendant or prosecutor to use the same tactic and get a new judge if a case is moved. But it’s unclear how likely that is to occur.
If Judge Gallagher denies the motion, the Chron story suggests any appeals would be heard by either the 5th Court of Appeals in Dallas or the 1st or 14th Court of Appeals in Houston. I don’t think this is likely to affect the proposed trial calendar, but as noted we are in unprecedented territory here. Already the entertainment value of this proceeding is off the charts, and we’re still five months away from jury selection.