For the first time in two years, the rule of law has prevailed in the prosecution of Texas Attorney General Ken Paxton. The Dallas Court of Appeals has ordered Judge George Gallagher removed from the case and all orders he has issued since granting a motion to transfer venue vacated.

In April, Gallagher granted a motion to transfer venue in the case from Collin County to Harris County, the backyard of the three criminal defense attorneys who were appointed as special prosecutors in the case. The motion to transfer venue was legally baseless and centered on the prosecutors’ complaints about criticism they have received on social media. The decision to grant the motion followed months of bad rulings from Gallagher in which he had turned a blind eye to abuses of the grand jury process by the special prosecutors.

When Gallagher granted the motion to transfer venue, Paxton’s defense team immediately informed him that they would not consent to him continuing to preside over the case and cited to the Code of Criminal Procedure, which requires the consent of the defendant before a judge can continue on a case after venue is transferred.

It appears Gallagher was unaware of that requirement when he granted the motion because he refused to follow the law and attempted to set Paxton’s case for trial in Houston. Paxton’s team filed a petition for a writ of mandamus with the Dallas Court of Appeals, which has now agreed that Gallagher must be removed from the case.

This is a colossal misstep by the special prosecutors – Kent Schaffer, Brian Wice, and Nicole DeBorde – as well as by Gallagher, who had been assisting the trio in pushing forward on the baseless Paxton prosecution. The case will now be transferred to Harris County, where Paxton will have a random draw at being assigned to a fair judge.

That judge will confront a case that has already been determined in federal court to lack a factual basis. Earlier this year a federal court dismissed an identical civil suit against Paxton filed by the Obama administration Securities and Exchange Commission, holding that the SEC could not articulate a legal theory under which Paxton violated securities laws. That judge should dismiss the case and end the travesty that has been the Paxton prosecution.

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.


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