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Jim Mattox

Paxton recuses himself from lots of regular AG activity

Other people in the AG’s office are doing parts of Ken Paxton’s job because right now he can’t.

Best mugshot ever

The AG’s office has followed agency policy, state rules and laws to screen Paxton from participating in matters where he may have a conflict of interest, wrote Cynthia Meyer, spokeswoman for the Texas Office of the Attorney General, in an email. The office has screened Paxton’s participation in matters pertaining to his pending charges, any of the five law firms that represent him against those charges, and anything involving the State Securities Board or the Texas Ethics Commission, explained Meyer.

“The OAG will revise this screening procedure as needed to continue to avoid any conflicts. Any recusal under this policy is intended to go beyond the letter and spirit of the governing law and rules,” wrote Meyer.

She wrote that when Paxton recuses himself, the appropriate division in the AG’s office keeps handling the matter, and the AG’s authority is delegated to the first assistant AG.

Bill Mateja, one of Paxton’s five criminal defense attorneys, said it makes sense for Paxton to recuse himself.

“That’s a good thing, because what that indicates is that he either has, or may have, or may perceive to have a conflict of interest, and you actually don’t want him presiding over matters in which he may have real or perceived conflicts of interest,” said Mateja, principal in Fish & Richardson in Dallas.

[…]

The AG’s office assists local prosecutors when they ask for help, but Paxton would recuse himself from those matters if they are similar to his own criminal case.

Paxton has also recused himself from matters involving the law firms where his five criminal defense attorneys work.

“We were requested to give him a list of the matters where the attorney general’s office is on the other side,” said Mateja. “I would imagine nearly every person on his legal team has at least one matter that the attorney general’s office is involved in.”

Paxton has also recused himself from matters in which the AG’s office represents the Texas State Securities Board or the Texas Ethics Commission in court. He will also recuse himself from any open records rulings involving either agency.

The Texas State Securities Board enforces Texas securities laws and can bring administrative, civil or criminal cases against people or firms that violate the law. Previously, the securities board sanctioned Paxton in an administrative case for failing to register as an investment adviser representative. One of his criminal charges includes the same allegations.

[…]

The first public indication that Paxton’s criminal case might be affecting his work in the AG’s office came when he recused himself from signing an AG opinion in late September. The opinion request asked if it was legal for a county to reimburse the criminal defense costs of a county commissioner who was indicted for a crime, but found not guilty in a jury trial. The office determined that common law allowed the county to reimburse the expenses in certain situations.

First assistant AG Chip Roy signed the AG’s opinion, not Paxton.

In a Sept. 28 letter explaining his recusal, Paxton wrote that his administration strives to write opinions with a high degree of legal accuracy and “without any hint of impropriety.

“Staff members involved in the opinion process must recuse themselves from matters in which there may exist an actual or perceived conflict of interest,” wrote Paxton.

Roy wrote a Sept. 28 letter to Brown County to explain why he signed the AG opinion.

“Any such recusal is intended to go beyond the letter and spirit of the governing law and rules in order to avoid even the appearance of impropriety and to demonstrate our ongoing commitment to the highest ethical standards,” Roy wrote.

Link via the Trib. We’re in somewhat unfamiliar territory here. Paxton isn’t the first AG to be under indictment, but offhand I have no idea (and the story doesn’t explore the topic) if those other AGs, like Jim Mattox, did something similar. Anyone with a longer memory than I have want to weigh in on that? As for the question of whether this diminution of duties should be a cause for Paxton to resign, as the Lone Star Project urges, I don’t see anything happening on that front unless Paxton is forced into it, and that won’t happen until Republicans start calling for him to step down. Until then, the crass partisan in me is happy to have an indicted (and hopefully soon convicted) felon putting some taint on the statewide GOP brand and perhaps eventually weighing their re-election bids down. You do you, Kenny.

On Greg Abbott and who gets to get married

As you may have heard, Peggy Fikac got to ask Greg Abbott the obvious question about how exactly the state’s law against same-sex marriage, which Abbott is diligently defending in court, differs from the old laws that once banned interracial marriage, and would he have defended those as well since he claims he’s just doing his job as the state’s lawyer.

RedEquality

It didn’t take Texas Attorney General Greg Abbott any time at all to decide that not answering that question was the best course during a meeting with the San Antonio Express-News Editorial Board.

“Right now, if there was a ban on interracial marriage, that’s already been ruled unconstitutional,” Abbott pointed out. “And all I can do is deal with the issues that are before me … The job of an attorney general is to represent and defend in court the laws of their client, which is the state Legislature, unless and until a court strikes it down.”

When I said I wasn’t clear if he was saying he would have defended a ban on interracial marriage, he said, “Actually, the reason why you’re uncertain about it is because I didn’t answer the question. And I can’t go back and answer some hypothetical question like that.”

Asked about the similarities some see between the ban on gay marriage and past prohibitions on interracial marriage, Abbott said, “Well, the Supreme Court has disagreed with that” by holding that sexual orientation isn’t due protected-class status in the way that race is.

[…]

“What kind of state would we live in if the public policies of this state were allowed to be determined by the attorney general? The attorney general would have a super veto over the elected representatives, and that would be a chaotic form of government, contrary to our fundamental constitutional principles,” he said. “It would be way beyond the separation of powers. It would be a dictatorship… by the attorney general.

“Believe me, I would love it,” he added, “The state would look a whole lot more like me right now if I did abandon my role and exercised my magic wand and decided what cases I would defend and which I didn’t, and therefore allowed me to dictate policy in this state.

“But I think that by doing what I do, I am maintaining the policy that I think is appropriate, and that is for each elected official to fulfill their constitutional obligations,” he said.

Not surprisingly, this broke the Internet as people around the globe reacted with gasps, guffaws, facepalms, and sputtering outrage. The Wendy Davis campaign was swift to jump all over this. One reason for the outpouring was the basic fact that Abbott’s answer was, in a word, a crock. The DMN points out one problem with it:

Other attorneys general, citing their oath of office to uphold the Constitution, have refused to defend certain policies, laws and judgments.

John Cornyn, now a Republican U.S. senator, as attorney general voluntarily dropped an appeal of a death penalty case and sought a new punishment hearing. He determined he could not defend the punishment meted out to a black defendant after the state presented an expert witness who had testified that blacks are more inclined to violence.

Former Attorney General Jim Mattox, a Democrat, refused to defend a state law that criminalized homosexual conduct. He dropped the appeal of that law.

In other words, previous attorneys general have felt free to follow their conscience when they thought that the situation merited it. The Observer cites an example of Abbott’s folly by sticking to his mantra.

But while the Attorney General may have to mount some kind of defense of the state, he has “a tremendous amount of discretion” over how aggressively to prosecute those cases, how “effectively” to prosecute cases, and which cases to bring to court. Abbott has been using his stint as AG to campaign for governor for years—he’s brought failed case after failed case against the federal government, costing Texas taxpayers millions. But his hands are tied when it comes to gay marriage and school finance, he insists. He has to aggressively defend bad laws to the last.

Abbott’s tenure has included a number of instances in which he pursued comically bizarre legal arguments in cases for which he could have no reasonable hope of victory—seemingly forfeiting his powers of discretion. In 2008, Abbott chose to defend the state’s ban on the sale of sex toys, a case that emerged from the fallout of Lawrence v. Texas. Over the years, Abbott has deployed novel legal arguments against gay marriage. But this wasn’t a case about gay marriage, a subject that still animates sincere moral disagreements. This was a case about every American’s god-given right to buy dildos.

At the time, anti-sex toy laws were widely understood to be unconstitutional, but Abbott suited up for battle. The state, his lieutenants argued with straight faces before the 5th Circuit, had an interest in “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” The state of Texas has a pressing interest, Abbott said, in discouraging you from masturbating or blowing your boyfriend. That was just six years ago.

By the way, the law that criminalized gay sex, which was the basis of the Lawrence v. Texas case, is still on the books in Texas, as our Republican-dominated Legislature has not seen fit to repeal it. If the Legislature instead decided to amend that law by offering reparative therapy as an alternate sentencing option for defendants – an action that would clearly be unconstitutional on its face but would nevertheless represent the will of his client – would he feel compelled to defend that?

I know, I know, that’s another hypothetical, and Greg Abbott doesn’t do hypotheticals. So let me ask this instead: Can Greg Abbott name one instance in his time as Attorney General when he had to defend a law or regulation that he didn’t support or approve of? Putting aside the obvious discretion he has used in deciding what lawsuits to file and what defendants to file them against, can he cite an example of a law he didn’t like but had to defend? I kind of suspect the answer to that is “no”. Maybe that’s not fair to him – maybe the opportunity just never arose – but regardless, it would put his “just doing my job” claim into some perspective. It’s a lot easier to just do your job when your job involves doing things you like and want to do. It’s a little different when you do something with the same vigor and diligence for a cause you wouldn’t have chosen to support but are compelled to because it’s your job. BOR and Lone Star Q have more.

Patrick and Williams keep squabbling

Just as a reminder that Senate Republicans don’t need Democrats to stir up trouble, here’s a flare-up of an earlier kerfuffle. Fire one.

In this corner…

In a recent interview with The Texas Tribune, my colleague, state Sen. Dan Patrick, chairman of the Senate Education Committee, attempted to explain his vote against our no-new-tax balanced state budget that was approved by a supermajority of Republicans.

In part, Patrick, R-Houston, said he opposed the budget due to his concerns about specific public education programs not being funded.

The problem with these comments is that Patrick was directly responsible for these same education programs not being funded. Such revisionism cannot go unchallenged.

As chairman of the Senate Finance Committee, I appointed Patrick to lead the committee’s public education workgroup. The full committee adopted, in whole, his public education budget recommendations. These recommendations did not include funding for PSAT/SAT/ACT tests. Supplemental pre-K funding of $40 million was included in the adopted recommendations. Conference committee actions reduced the supplemental pre-K funding by $10 million, which was partially offset by an overall increase in public education formula funding.

Additionally, Patrick lamented in his Tribune interview that the new state budget lacked sufficient Career and Technical Education (CTE) funding. But he failed to acknowledge that he offered the Senate floor amendment that eliminated new CTE funding in House Bill 5.

Patrick was the Senate’s lead negotiator on that bill’s conference committee. I also served on the HB 5 conference committee, along with Sens. Robert Duncan, Kel Seliger and Leticia Van de Putte. I specifically told Patrick I would fund eighth-grade CTE (at a cost of $36.1 million) in the budget if he could get the House to agree. Ultimately, he asked me and the other conferees to sign a Conference Committee report which did not include new CTE funding.

[…]

Every member of the Legislature has the right and the duty to vote the interests of their district and their conscience. Patrick consistently supported virtually every decision made during the process of writing the appropriations bill. His unannounced opposition to the final version of Senate Bill 1 was a betrayal of every member of the finance committee who worked in good faith to prepare this budget.

I can only conclude he was looking for an excuse to distance himself from our good work to advance his own political interests.

Fire two.

And in this corner...

Patrick said Friday that he read Williams’ column “with amusement.”

“His attack on me is a classic example of a politician who has forgotten that we represent the people first and foremost,” Patrick said in a statement. “I don’t have to explain my vote to Tommy Williams. I have to explain my vote to the people and I’m happy to do that.”

Patrick described Williams’ arguments in his column as “wrong … or disingenuous at best.” He specifically refuted Williams’ suggestion that Patrick’s vote on the budget was unexpected.

“He had no reason to be surprised by my ‘no’ vote,” Patrick said. “I told him I would be a ‘no’ vote on the budget several days before the bill came to the floor.”

Patrick said Williams’ column is in line with the Senate finance chairman’s recent “attacks” on groups that have criticized the budget, including the Wall Street Journal editorial board. Following the regular session, Williams also tried to strip Patrick of his chairmanship of the education committee.

“His attacks have been personal in nature and offensive,” Patrick said.

See here for the opening salvo. I have two thoughts about this. One, Dan Patrick is probably going to run for Lite Guv – he has a press conference scheduled for today to discuss his 2014 electoral plans – and in a field with David Dewhurst, Todd Staples, and Jerry Patterson he’s got to have a decent chance to make a runoff. Given how many intramural fights he’s gotten into lately, I have to wonder if stuff like this helps him or hurts him with the seething masses of the GOP primary electorate. Being “anti-establishment”, even as a multi-term incumbent, is generally a positive in those races, and that’s been his brand. Do these quarrels help fire up his base or does it drive people who might otherwise agree with him away? I have no idea, but perhaps the reaction to Patrick’s announcement, if it is what we think it might be, will give us a clue.

Two, I wonder if these high-profile personality clashes between people who have little ideological distance between them is a sign of healthy debate for a party that hasn’t been greatly challenged at the state level, or a sign of an impending fall by a longstanding hegemon that may be getting a tad stale because it hasn’t needed for years to talk to voters who don’t participate in their increasingly parochial primary elections? In other words, is this further evidence that the Texas GOP of 2013 looks a lot like the Texas Democrats of 1983? (This is the flip side of Colin Strother’s thesis.) I wasn’t around for much of the Texas Dems’ fall, and I wasn’t paying close attention for the time that I was here, but I do remember how nasty the Jim Mattox/Ann Richards primary of 1990 was, and as I recall it went beyond the usual nastiness of politics. Williams/Patrick is on a smaller scale than that – among other things, they’re not both running for the same office – but it’s still pretty similar. They’re also not the only ones talking to a small subset of the electorate to the exclusion of anyone else – everyone from empty suits like Barry Smitherman and longstanding ideologues like Greg Abbott to people with more balanced records of policy and engagement like Dan Branch and Jerry Patterson are doing it. I know, everyone has a primary to win, but does anyone expect anything different after the nominations are settled? I don’t. Like the Dems of the late 80s and early 90s, the inability to talk to voters who aren’t already on your side – and may not be if someone else manages to get through to them – will come back to bite these guys. The question is when. Harold makes a similar point in discussing the SB5 debate, and Burka has more on Patrick v Williams.