The Dallas Court of Appeals has stayed further proceedings in the prosecution of Texas Attorney General Ken Paxton pending a hearing on Paxton’s petition for mandamus and prohibition against Judge George Gallagher.

In his petition for writ of mandamus and writ of prohibition, Paxton’s defense team is seeking to force Judge Gallagher to step off of the Paxton case, arguing that he is required to do so by the Texas Code of Criminal Procedure. The Dallas Court of Appeals has issued a stay preventing further proceedings in the Paxton matter, including a hearing that was scheduled for Thursday, until they decide on Paxton’s petition.

Gallagher recently ordered Paxton’s trial transferred from Collin County to Harris County, the backyard of the special prosecutors in the case. But Paxton’s defense team is now pointing to Article 31.09 of the Code of Criminal Procedure, which states that after a motion to transfer venue is granted, it is only “with the written consent of the prosecuting attorney, the defense attorney, and the defendant” that the judge, clerk, court reporter, and court reporter in the original county may remain with the case in the new venue.

Gallagher has ignored repeated notices from Paxton’s defense team that they do not consent to him remaining on the case. Instead, he has attempted to schedule a trial and a discovery schedule for Harris County.

In fact, Gallagher took the extraordinary step of appointing Melody McDonald Lanier, the media relations director with the Fort Worth law firm of Varghese Summersett, as his spokesperson to communicate with the media regarding his insistence that he remain on the case despite the plain language of Article 31.09.

Gallagher’s decision is the latest in a long line of decisions in which he has ignored state law to the detriment of Paxton’s defense.

The motion to transfer venue was granted after the prosecutors filed a motion requesting the court to decide, on its own motion, to transfer venue out of Collin County. The prosecutors complained that they – not Paxton – couldn’t get a fair trial in Collin County, arguing that a conspiracy by all of their critics on social media across the state had uniquely tainted the jury pool in Collin County.

Gallagher’s decision to grant the motion to transfer venue appears to be based almost entirely on the fact that Paxton attended a routine political fundraiser with local Collin County officials more than a year and a half before his indictments.

Emails attached to Paxton’s petition also revealed that Gallagher attempted to steer the case to either Harris or Dallas counties despite being advised of adequate facilities in neighboring Denton and Rockwall counties.

The baseless decision to transfer venue was not Gallagher’s first failure. He has repeatedly ignored evidence that special prosecutors Brian Wice and Kent Schaffer abused the grand jury process in order to obtain the indictments against Paxton.

Their ability to obtain those indictments has allowed them to run up a legal fees tab of over half a million dollars on the case. That is despite the fact that a nearly identical civil case brought in federal court by the Obama administration’s Securities and Exchange Commission was dismissed when those officials were unable to articulate any factual theory that would amount to a violation of securities laws by Paxton.

Given the failure of the Securities and Exchange Commission to even articulate a theory under which Paxton committed a civil violation of securities laws, it is impossible that the special prosecutors will be able to prove beyond a reasonable doubt in a fair trial that he is guilty of a criminal violation of those laws.

It is time that the courts put a stop to Wice, Schaffer, and Gallagher abusing their power to continue railroading Paxton on charges that a federal court has already ruled are baseless. For now, the Dallas Court of Appeals will have an opportunity to at least replace Gallagher with a judge who is interested in following the law. That would be a good first step.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.