Analysis: At Attorney General's Office, Making the Best of a Bad Situation

Suppose the Texas agriculture commissioner had to recuse himself from any regulation of beef, or the state comptroller had to stay out of any tax cases involving motor fuel. The Texas attorney general actually has a problem like that.

Texas Attorney Gen.  Ken Paxton, speaks at The Texas Response: Pastors, Marriage & Religious Freedom event at the First Baptist Church in Pflugerville, Texas on September 29, 2015

Suppose the Texas agriculture commissioner had to recuse himself from any regulation of beef, or the state comptroller had to stay out of any tax cases involving motor fuel.

Strange, right? Attorney General Ken Paxton is in that kind of a box right now. Paxton, a McKinney Republican who has been the state’s top lawyer since January, was indicted this year on securities charges. He has said he is innocent and expects to be acquitted, but you know what they say about the speed of the wheels of justice.

This is going to take a while.

In the meantime, Paxton is still the state’s attorney general, and he’s a busy one, too, churning out legal actions and news releases to announce them several times a week.

Except on securities law.

That’s not a big part of the Texas attorney general’s business, but it is his job to represent the state in those matters, whether they come to him from the State Securities Board, as consumer actions or from something else.

As first reported by Texas Lawyer, Paxton’s office is routing some things to Chip Roy, his first assistant attorney general, and others: matters pertaining to his pending charges or any of the five law firms representing him against those charges, and anything involving the State Securities Board or the Texas Ethics Commission, the paper said.

It’s not ideal, but the Office of the Attorney General is one of those agencies that can run pretty well when the boss is gone. You wouldn’t know it from the news releases — that’s what they’re for, after all — but most of the work is done by people down the line, whether it’s litigation or child support, open records or whatever.

Texas law doesn’t even require the attorney general to be an attorney.

It would probably be hard to get a nonlawyer through an election — or even a political debate — but the requirements tell you something about the job. The AG doesn’t have to go to court or read law to do the job. The AG just has to manage the people who do those things, deciding what they should concentrate on and making decisions when needed.

Truth be told, the first assistant to the attorney general already does a lot of that work.

The last time a Texas  AG was indicted while in office — Jim Mattox, a Democrat, was charged with commercial bribery in 1983 — he stayed on as AG and let others handle much of the work until he was acquitted. Mattox got re-elected in 1986, a reminder that charges like these are not always politically fatal.

Paxton is charged with acting as a securities investment adviser without registering — a third-degree felony — and on two counts of felony securities fraud. Prosecutors allege he offered to sell two people more than $100,000 worth of stock in Servergy, a tech firm, while not disclosing to those buyers that the company was compensating him.

Partisans on the other side have gone predictably bonkers about his recusals, suggesting that Paxton should quit his office because of the indictments. That’s politics. Paxton isn’t going to quit. Mattox didn’t quit, either.

And if he did quit, his top aides would run the AG’s office until a new boss came in. Just like they’re doing right now with some of the work there, and just as they will be doing if and when Paxton goes to trial and has his hands full with that.

It’s not normal to have a statewide officeholder serving while under indictment — not in Texas, anyhow — but it happens. The people whose names aren’t on agency letterheads keep doing what they do whether the boss is soaring or nose-diving. They run their agencies, and the state doesn’t screech to a stop.

And consider the alternative: What if Paxton hadn’t recused himself from matters that might be conflicts of interest? We’d have the indictments, the trial, and then the state would have to unwind whatever tangle was created by those conflicts.

Sometimes, governing means choosing the lesser of two messes.