Paxton, prosecutors tangle over court's jurisdiction to oust judge

Texas Attorney General Ken Paxton's months-long effort to remove the judge in his securities fraud case is coming to a head in a Dallas appeals court.

Texas Attorney General Ken Paxton during a news conference on Jan. 12, 2017.

Texas Attorney General Ken Paxton's months-long effort to remove the judge in his securities fraud case is coming to a head in a Dallas appeals court.

Prosecutors say the 5th Court of Appeals has no jurisdiction to get rid of the judge, George Gallagher, because he has moved the case out of its reach — to Harris County. But Paxton's lawyers say there is no evidence the case has been sent there yet, making the 5th Court of Appeals the appropriate place to push for Gallagher's removal. 

The 5th Court of Appeals paused the case earlier this month to give all sides an opportunity to hash out the dispute. A number of responses stemming from that decision were due Tuesday.

The prosecutors, in their latest response, called it "deja vu all over again" to see Paxton ask the 5th Court of Appeals to intervene in the case. His lawyers were unsuccessful last year in trying to get the court to dismiss the charges.

The prosecutors held firm Tuesday in their central argument against Paxton's attempt to get the 5th Court of Appeals involved, saying his "claims are ultimately undone by the same facts that purport to fortify them; the transfer of venue to Harris County makes the Harris County appellate courts the proper place" to ask for Gallagher's removal. Harris County is served by the 1st Court of Appeals.

Paxton's lawyers countered that the prosecutors "entire argument is premised on the flawed assumption" that Gallagher remains the presiding judge in the case. They reiterated that they have not consented to letting Gallagher follow the case to Harris County, arguing it thus remains in Collin County — and under the jurisdiction of the 5th Court of Appeals.

Paxton's lawyers have said Gallagher needs their written permission to preside over the case in Harris County and they will not provide it. They have also claimed Gallagher's appointment to the case expired at the end of 2016, arguing his rulings this year — including the order to change the venue — should be voided. 

Paxton's lawyers have been looking for ways to ditch Gallagher since earlier this year, when he ordered a change of venue for the case. Gallagher's order came after prosecutors argued that Paxton and his allies had tainted the jury pool in Collin County, where the attorney general resides.

Paxton has been fighting the securities fraud charges for close to two years now. He is accused of misleading investors in a company from before his time as attorney general. If convicted, he could face up to 99 years in prison.

Before the 5th Court of Appeals put the case on hold, Paxton was set to go to trial in September in Harris County on the lesser of three charges he faces.

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