Best mugshot ever
A Houston appeals court on Monday abated a recent decision to move the criminal cases against Attorney General Ken Paxton from Harris to Collin County, giving a new judge on the case the chance to revisit that order.
The abatement is a win for special prosecutors Kent Schaffer and Brian Wice. It will also allow the judge, Jason Luong, to consider whether to reinstate pay to the prosecutors, who have not been paid since 2016. The prosecutors confirmed the appeals court decision to The News but declined to speak to the matter further.
Paxton’s lawyers said they were “disappointed” and “troubled” that the appeals court ruled without giving them a change to respond.
“Mr. Paxton’s response brief on the merits of returning the case to Collin County was due today and filed after the Court had already decided to abate the case,” Paxton defense attorney Bill Mateja told The News in a statement. “As such, we intend to ask the Court of Appeals to reconsider its ruling.”
I did not know that it was in play for the First Court of Appeals to “abate” the ruling that moved the Paxton case back to Collin County. (I also don’t exactly know what “abate” means here, and how it differs from “overturns or “reverses”. You lawyers out there, please chime in.) I did know that Robert Johnson, the judge in Harris County who ruled that the case should go back to Collin, then recused himself because the AG’s office will be representing criminal district court judges in Harris in the latest bail reform lawsuit. I had not known that a new judge – who, it should be noted, is in the same boat as Judge Johnson in re: the bail lawsuit, unless he decides to make like Chuck Silverman and side with the plaintiffs. I’m putting all that in here so as not to quote the whole damn story. Now back to the excerpt:
Paxton’s legal team applauded the decision [to move the case back to Collin County] at the time and said the attorney general is ready to have his day in court.
“We are gratified by the Court’s ruling and look forward to getting Mr. Paxton’s case back on track. This case has gone on far too long,” Paxton lawyer Dan Cogdell said in an emailed statement that day. Bill Mateja added: “The Prosecutors need to let Judge Johnson’s decision stand and allow Mr. Paxton to have his day in court.”
The special prosecutors appealed his decision.
In early July, the 1st Court of Appeals delayed moving the cases to Collin County until it could rule on the merits of the prosecutors’ arguments that they remain in Houston. Now, the prosecutors say the court has abated Johnson’s decision and allowed Luong, a Democrat, to revisit the move back to Collin County.
Luong, who is also being represented by Paxton’s office in the same separate case as Johnson, has not answered questions about whether he too will recuse himself from this case.
Did you know that the original Paxton indictments are now five years old? Let’s just say I don’t believe Attorneys Cogdell and Mateja in their assessment of how long this has taken and their client’s desire to see the inside of a courtroom, even one in front of a presumably friendly judge. It ain’t the not-paid-since-2016 special prosecutors who have dragged this out for so long. I have no idea what issue there may be for Judge Luong to decide in re: their pay, but 1) they deserve to be paid, and 2) any further action on that front will for sure drag this out until the heat death of the universe. In the meantime, the ball is literally in Judge Luong’s court, and we’ll see what the next action item is. The Chron has more.
UPDATE: I have been given the following explanation of what an “abatement” is:
A Texas appellate court “abates” a case when it decides that there is some action a trial judge must take before the case goes forward. The same word is used in other circumstances but it almost always means a court is pausing proceedings.
This is a mandamus in which the prosecutors are challenging Judge Johnson’s transfer order. A mandamus is technically a suit against the trial judge in their official capacity. The First Court’s order yesterday abated the case because it had learned Judge Johnson had recused himself and Judge Luong is the new judge. The case against Judge Johnson can’t proceed because there’s a new judge who must be given an opportunity to either agree or to vacate Judge Johnson’s order. If Judge Luong agrees with Judge Johnson, the mandamus will proceed against the new judge. If he vacates, it will be up to Paxton’s defense counsel to try the case here or appeal the new judge’s order.
This type of abatement is not unusual and is all but mandatory when there is a change in judges in the middle of a mandamus. It’s unfortunate that the appellate brief was filed after the abatement, but that happens sometimes. It would be unusual if the court of appeals had not abated the mandamus to allow Judge Luong time to rule.
That makes sense to me, and as you can see from the court order, the abatement is for 45 days. So, in the next six weeks or so we should know if the ruling to move the case back to Collin County is still in place or if it has been vacated. (This is assuming Judge Luong doesn’t recuse himself, in which case I presume the main effect would be to push the timeline further back, because sure, why not.) Once we have that, we’ll know who’s appealing what. Isn’t this fun?
LEGALESE TO VERNACULAR: NOTHING TO DO WITH ASBESTOS ABATEMENT
Abatement means the case is being put on hold to allow for something that needs to be done, or needs to occur, to be done, or occur, respectively. Another word is “stay” but an abatement can be indefinite, or seemingly so.
Here, the case in the court of appeals involves a mandamus petition, which is technically a complaint against a trial court judge, rather than “the trial court”, i.e. the judge is the respondent (the other party in the case is the “real party in interest”).
TRAP 7.2 (b) Abatement. If the case is an original
proceeding under Rule 52, the court must
abate the proceeding to allow the successor to
reconsider the original party’s decision. In all
other cases, the suit will not abate, and the
successor will be bound by the appellate
court’s judgment or order as if the successor
were the original party.
After the Dems defeated a lot of incumbent judges, pending mandamus cases were abated to allow the successor judges to reconsider the challenged ruling (or failure to rule) of the prior judge, but the same rule did not apply in regular pending appeals. If the successor decides differently, such a setting aside the challenged order, the mandamus will likely be moot, or may have to be refiled by the dissatisfied party. Here it’s a little different because the trial judge recused from the case.
EXCERPT FROM THE ORDER HERE:
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.
In re The State of Texas Ex Rel. Brian W. Wice, No. 01-20-00478-CR
Order [ PDF ]
Appeal from 177th District Court of Harris County ABATE CASE,
Order by Justice Goodman
The cyber-attacked appellate docket system (TAMES) is finally up again:
Accordingly, the case data and procedural history with hotlinks can be view on the First COA website.
http://search.txcourts.gov/Case.aspx?cn=01-20-00478-CR&coa=coa01
Justice delayed is justice denied.
Maybe denied to the people of Texas, not Paxton