When the Ken Paxton prosecution inevitably concludes with his acquittal, Texans will look back at the motion to transfer venue as the turning point when the special prosecutors lost their case against the state’s top law enforcement officer.

The Dallas Court of Appeals on Tuesday ruled that Judge George Gallagher must be removed from the Paxton case following his granting of a motion to transfer venue from Collin County to Harris County last month. As the case moved, Gallagher had attempted to stay on and set it for trial in Houston despite a provision in the Code of Criminal Procedure that required the consent of the defense in order to proceed.

It seems neither Gallagher nor the special prosecutors – Kent Schaffer, Brian Wice, and Nicole DeBorde – knew that granting the motion would give the Paxton defense team leverage to ask for a new judge. If their goal was to continue railroading Paxton, granting the motion was a colossal error.

Indeed, Gallagher had been like a fourth prosecutor on the case. He repeatedly dismissed evidence that Schaffer and Wice had abused the grand jury process and he allowed the prosecutors to go back on their agreement with the Paxton defense team by bifurcating their trial. That move was designed to give the prosecution a chance at a do-over if a jury acquitted Paxton in the first trial.

Now Gallagher is off the case and the trio will have to take a random draw on a new Harris County district judge. But even worse for them, the order transferring venue appears to be a poison pill in the case that will likely result in anything they accomplish moving forward being undone on appeal.

In its opinion booting Gallagher, the Dallas Court of Appeals recognized that the order transferring venue was granted “on the State’s motion” under Texas Code of Criminal Procedure Art. 31.02. That presents a huge problem for the prosecutors’ case going forward.

When the special prosecutors moved to transfer venue, they ham-fistedly attempted to style their request as a motion for the Court, “on its own motion,” to change venue.

They wrote the motion that way as a work-around because they knew they were not legally entitled to a transfer of venue under the correct standard.

The Code of Criminal Procedure Art. 31.02 provides that the state can only be granted a change of venue if, “by reason of existing combinations or influences in favor of the accused, or on account of the lawless condition of affairs in the county, a fair and impartial trial as between the accused and the State cannot be safely and speedily had; or whenever … the life of the prisoner, or of any witness, would be jeopardized by a trial in the county in which the case is pending.”

In order to prevail on the appropriate standard, the prosecutors would have had to present evidence that conditions in Collin County were so lawless that they reasonably feared a band of rogue Paxton supporters would do something like dynamite the court on the day of trial.

It’s an antiquated standard, fit for the plot of a western, not a modern prosecution in a suburban county.

On the other hand, a court, on its own motion, can transfer venue if the court simply believes a trial, “alike fair and impartial to the accused and to the State,” cannot be had in the original county.

But Gallagher didn’t indulge the prosecutors in their rhetorical acrobatics. His order stated clearly that the Court was granting the “State’s Motion for Change of Venue” under Article 31.02. The Dallas Court of Appeals viewed the matter the same way, and if the Houston Court of Appeals, which will hear any appeals moving forward, agrees with that assessment, then it’s hard to see how all further proceedings in the Paxton case have not been tainted by the unlawful transfer of venue.

Given that result, it’s hard to see what the trio of prosecutors meant to accomplish in seeking the change of venue.

Maybe they didn’t expect the motion would actually be granted and were simply using the document as an opportunity to grandstand.

Indeed, the rambling and conspiratorial motion appeared to be more of an attack on the prosecutors’ critics, including Texas Scorecard, than a legitimate legal brief. Motions by the prosecution to transfer venue are hardly ever brought, and are granted even less often. It’s possible the prosecutors never imagined Gallagher would make the mistake of giving them what they were requesting.

Or, maybe, Gallagher or the prosecutors intended to put a poison pill in the own case. It’s possible their consciences got to them.

Indeed, anyone who is deeply familiar with the case knows that it is a travesty of justice. Taken to their case’s logical conclusion, the prosecutors would see Paxton locked away for the rest of his life for failing to file a form and for failing to correct a wealthy public official’s faulty assumption.

Earlier this year a federal court threw out an identical case against Paxton brought by the Obama administration Securities and Exchange Commission, holding that the SEC couldn’t even articulate a legal theory under which Paxton had violated securities laws.

The core problem for the Obama administration and for the special prosecutors is the simple fact that, in order to commit securities fraud, the accused has to have told some sort of a lie. In this case, no one has ever been able to point to any lie by Paxton.

In light of the federal court decision, Gallagher and the prosecutors knew there is no way to faithfully prove beyond a reasonable doubt that Paxton criminally violated those same laws. But clearly, they want to continue to run Paxton through the mud and to rack up millions in legal fees doing it.

A faulty change of venue allows Schaffer, Wice, and DeBorde to continue abusing the criminal justice system to taint Paxton’s reputation (and his reelection chances) and rack up fees while, at the end of the day, ensuring that an innocent man will never actually be put behind bars.

But the simplest explanation is usually the correct one. It appears Kent Schaffer, Brian Wice, Nicole DeBorde, and Judge Gallagher are bad lawyers who didn’t have a clue what they were doing. And now they appear to have spoiled their case.

That shouldn’t be such a surprise. These are not top prosecutors. Indeed, Schaffer is the in-house criminal defense lawyer for a motorcycle gang. DeBorde is his assistant. And Wice is a TV commentator.

Regardless of their motivations or competence, it is long past time for the Texas judicial system to take control of the Paxton case. Further proceedings will only serve to further drag Paxton through the mud at a high expense to taxpayers. When a new judge is assigned to the case in Houston, they should take a hard and critical look at the case against Paxton, and dismiss it.

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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