Editor's note: This story has been updated with additional details from the hearing.
HOUSTON — Attorney General Ken Paxton's trial has been put off for a third time, likely until next year.
The judge in the securities fraud case against Paxton sided Wednesday with prosecutors who had been pushing for another trial delay because of a long-running dispute over their fees. The decision by Harris County District Court Judge Robert Johnson scrapped Paxton's Dec. 11 trial date and left the new one to be determined, possibly at a Nov. 2 conference.
Paxton had been set to go to trial on the least serious of three charges he faces. The date for that trial had already been pushed back twice because of pretrial disputes, first over the venue and then the judge.
For more than two years, Paxton has been fighting charges that he misled investors in a company from before his time as attorney general. The delayed trial deals with the charge that Paxton failed to register with the state securities board.
Paxton has pleaded not guilty to all the allegations. He has already been cleared in a similar civil case at the federal level.
In a feisty hourlong hearing Wednesday, the prosecutors and Paxton’s lawyers sparred over a familiar subject: whether they should hold off on a trial until the prosecutors could collect a paycheck — an issue currently tied up in a separate legal battle. Earlier this year, when the case was before a different judge, he denied the prosecutors’ first request to delay the trial until they could get paid.
Johnson had a different take Wednesday, granting the prosecutors’ latest motion for continuance. He asked both sides to come up with a new trial date, preferably in late February or early March. After some back and forth — a Paxton lawyer proposed a new trial date on March 6 — they all agreed to continue the discussion at the Nov. 2 pretrial conference.
The prosecutors had been seeking to put off the trial until the state’s highest criminal court, the Texas Court of Criminal Appeals, could sort out the payment issue. Last week, the Court of Criminal Appeals stepped into the dispute over the prosecutors’ pay, issuing a stay of a lower-court ruling last month that invalidated a six-figure paycheck for them. In its decision, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ contention that the lower court, the Dallas-based 5th Court of Appeals, overstepped its authority when it voided the payment.
If the Court of Criminal Appeals ultimately rules against the prosecutors — effectively leaving them without pay for the foreseeable future — they will move to withdraw from the case, Special Prosecutor Brian Wice said.
Paxton’s team was having none of it: His lawyers contended the prosecutors were seeking to undermine Paxton’s right to a speedy trial and repeatedly pointed to the prosecutors’ previous failures to get the trial delayed due to the payment issue.
“It’s time,” Paxton lawyer Dan Cogdell said. “It’s time to try the case.”
At one point, Paxton lawyer Philip Hilder argued against delaying the trial by noting the attorney general is up for re-election in 2018, “has a primary battle” and that a “criminal matter hanging over his head” could hurt him with voters. Paxton is indeed on the ballot next year, but he currently has no serious challengers, Democratic or Republican.
Both sides also wrangled over Hurricane Harvey’s impact on the case, which the prosecutors had cited in their push for a later trial date. They pointed to the damage the storm had wrought on their Houston law offices as well as the Harris County criminal court building, while Paxton’s lawyers cast doubt on whether the storm had seriously affected their ability to prepare for trial.
Things were chippy from the start of the hearing. Wice assailed a recent court filing by Paxton’s team as “bush league” and compared it to a “stump speech that Mr. Paxton would give to the Tea Party Patriots in McKinney.” Cogdell countered that Wice’s objections to the strongly worded filing were “a lot like the Menendez brothers complaining they’re orphans,” referring to the brothers who were convicted of killing their parents in a high-profile 1994 trial.
The tension continued up until the final moments of the hearing, when Johnson announced his ruling and Hilder pressed for some clarification on the basis for the decision.
“That is the ruling of the court,” a stone-faced Johnson responded without elaborating beyond what he previously said. “That is the ruling of the court."