Analysis: A Contest That's Not on the Ballot

While Ken Paxton fights to avoid convictions and jail time on indictments alleging securities violations — and to keep his job as Texas attorney general — a muted and unofficial conversation about who will succeed him is already underway.

Instead of rallying to Paxton’s defense, as they did when Gov. Rick Perry was indicted a year ago, most of the Republican establishment in Texas has gone quiet, murmuring that the legal system will take its course and that everyone is entitled to his or her day in court.

They’re not exactly tearing down the gallows. Paxton’s is a different kind of case than Perry’s. The former governor is accused of using his veto power to deny state funding to a local prosecutor he thought was unfit to hold office. Paxton is accused of misleading potential investors in a tech company and of failing to register with the state before soliciting clients for an investment adviser.

This is not new information. Barry Smitherman, who ran against Paxton in last year’s GOP primary, tried to convince voters that Paxton was untrustworthy. The Texas Tribune’s Jay Root wrote in April of last year about Paxton’s failure to register as an investment adviser representative before steering his law clients to an investment firm in return for commissions. Paxton’s campaign went dark for a couple of weeks while sorting it out. He ended up admitting he had not registered, was reprimanded by the Texas State Securities Board and paid a $1,000 fine.

Dan Branch tried to win the runoff for AG with commercials blasting Paxton for the oversight. But Texas voters apparently don’t listen to negative campaign ads — or do listen, and decided Paxton had erased this blemish.

Or so it looked a year ago. Paxton won the general election in November and took office as the state’s 51st attorney general in January. But last month, a Collin County grand jury indicted him, triggering talk of who might be the 52nd attorney general of Texas. Paxton, meanwhile, has told supporters that he expects to be fully vindicated.

Nobody wants his own supporters talking about succession plans after less than a year in office, but Paxton has other things to worry about before he gets to that. He would like to stay out of jail. He would like to stay in the office he battled for more than a year to win.

The three indictments against him allege two first-degree felonies and one felony of the third degree, and it’s that last one that could cause the most trouble. Paxton has already admitted to acting as an investment adviser representative without registering. He was reprimanded. He paid a fine. It’s not going to be easy to tell a judge now that he didn’t do it, but that’s essentially the charge in one of the three indictments.

That considerable legal predicament opens the conversation about whether Paxton can survive politically. Any felony conviction, whether it involves prison or not, would cost him his law license and probably whatever remains of his term. And that could set up an appointment of his successor by Gov. Greg Abbott — his predecessor as attorney general.

That leads to this: There is a political fluster underway that most people know nothing about.

Names of possible Paxton successors are floating around in Republican circles: Supreme Court Justices Don Willett and Eva Guzman; former Chief Justice Wallace Jefferson; current and former first assistants to the AG Chip Roy and Daniel Hodge; Branch and Smitherman, the two also-rans in last year’s Republican primary. It goes on, picking up Education Commissioner Michael Williams and state Rep. Jason Villalba of Dallas.

The people in the preceding paragraph have a few things in common. They are Republicans. They are lawyers. They are not openly campaigning for Paxton’s job. Some support Paxton and hope he emerges without a mark. And they make up a pretty good list of viable candidates for state office, whether it turns out to be this one or something in the future. They’re from different parts of the GOP, and the infighting, should an opening occur, could be fierce.

Maybe it won’t happen. Paxton might dodge the bullet. That would start a different scramble — of people racing to get back into his favor.