The impeachment trial of Attorney General Warren Kenneth Paxton Jr. took a new turn in early July as his legal team filed a motion seeking to preclude him from being compelled to testify before the Texas State Senate.
In the motion, filed on July 5, Paxton's attorneys argue that a impeachment trials in Texas are considered by the state Constitution as a criminal proceeding, meaning that Paxton has the right not to testify against himself.
The motion quotes the Texas Constitution, including Article I, section 10, which grants the right not to be held to answer for a criminal offense. While this provision does not apply to impeachments, the Constitution characterizes impeachments as resulting in individuals being "convicted" and “acquitted.”
Paxton's team claims this makes clear that impeachments in Texas are criminal proceedings for purposes of protections provided to the accused.
According to the filing, the right not to be compelled to testify is deeply rooted in common law, and Texas law and practice recognize it in impeachment trials as well.
The motion also points to the 1917 impeachment trial of Governor James E. Ferguson, which established as precedent that any impeachment proceeding in Texas is a criminal proceeding.
A court ruled that Governor Ferguson could not be compelled to testify against himself, and this right has been consistently recognized in Texas's impeachment practice.
The filing cites previous impeachment proceedings, including in Texas, where respondents were not compelled to testify.
The motion claims that the right extends beyond refusing to answer questions, and includes the right not to testify altogether.
Paxton's team requests that the Senate prohibit the House impeachment managers from seeking a subpoena for his testimony, forbid them or their counsel from commenting on any decision by Paxton to not testify, and provide a limiting instruction to Senators who will hear the trial, if necessary.
Paxton was indicted in July 2015 on claims that he violated state securities laws, though the state has not proceeded with the trial.
After the impeachment by the Texas House on May 27, prosecutors announced they intend to try to re-start the criminal proceedings.
Any testimony Paxton may be compelled to provide in the impeachment proceeding would be available for use by the prosecutors in the criminal trial if they are able to proceed.