Paxton’s Political Sway Hangs Over New Texas Supreme Court Term

The Texas Supreme Court, by the end of its current term, will have decided several times over how much power to grant the state’s attorney general, Ken Paxton (R).

After lower courts have told Paxton and his office that he and his assistant don’t have immunities for misstatements related to the 2020 election, that he cannot avoid a deposition, and that he can’t investigate charities aiding migrants, the high court’s nine elected Republican justices will make the final call.

But hanging over these cases is Paxton’s powerful sway in the state’s judicial elections and one particular example from 2021.

That year, Paxton suffered a bruising defeat before the state’s Court of Criminal Appeals. The court ruled that Paxton can’t unilaterally investigate allegations of voter fraud, an issue Paxton says is rampant in Democratic-leaning areas in Texas.

After that, Paxton backed candidates in the 2024 Republican primary opposing three incumbent judges who ruled against him in the case. With Paxton’s support, all three opponents secured landslide victories.

As the Texas Supreme Court heads into a term that will be marked by so many cases that will be personal to Paxton, it’s difficult to ignore the effectiveness of his past political moves.

“I am concerned that the members of the Texas Supreme Court, all Republicans, will be sorely tempted to view the upcoming Paxton cases through the prism of what only recently happened to the members of the Texas Court of Criminal Appeals,” said Renea Hicks, an Austin appellate lawyer.

Hicks continued, “It would be a terrible thing for Texas justice if they did that, but it’s only realistic to fear they might.”

“I, for one, assume the Texas Supreme Court is above that particular battle,” said David Richards, of Richards Rodriguez & Skeith. “I hope I’m not naive.”

The Cases

The first of the cases to come before the Texas Supreme Court heads to oral arguments Thursday, the third day of the term. Paxton’s first assistant, Brent Webster, is subject to possible sanctions from the state bar for misrepresentations in a lawsuit he brought with Paxton to undo the results of the 2020 presidential election.

In a second case, Paxton is facing potential discipline from the bar over similar allegations related to the 2020 election challenge.

Paxton tapped the top appellate lawyer in his office, Solicitor General Aaron Nielson, to argue he and Webster can’t be disciplined because they were acting in their official duties, not as ordinary lawyers.

Paxton’s discipline case doesn’t have a hearing date.

In another case, justices will decide if Paxton must sit for a deposition from former lawyers in his office who were fired after they made a complaint against him that triggered a four-year federal investigation over allegations Paxton exchanged favors with a campaign donor.

The Supreme Court previously ruled Paxton had to answer questions. However, the case returned to the court after Paxton announced he’d no longer defend the suit, forcing the whistleblowers to secure a court judgment and funding from the Texas Legislature.

Last year, the Texas House refused to pay for a $3.3 million conditional settlement Paxton negotiated with the lawyers. Instead the legislators opened an investigation that led to his impeachment. He was acquitted in a removal trial in the Texas Senate.

Meanwhile, Paxton’s bid to end the case has been pending in the Supreme Court since January. A ruling could come at any time.

Finally, the state supreme court will hear oral arguments on Paxton’s effort to investigate an El Paso nonprofit that he says helps migrants enter the country illegally.

The court’s ruling could also determine next steps in three related cases in which lower courts halted Paxton’s probes into groups that help migrants.

Arguments are scheduled for January 13.

Paxton’s office didn’t respond to a request for comment Wednesday about whether his prior actions in judicial elections could affect the decisions the Supreme Court faces.

Good Sign for Paxton

By agreeing to accept Paxton’s cases, the justices have already signaled he is likely to get his way.

In the court’s last term, justices favored the party that lost at the lower court in about 80% of argued cases—a number in line with recent years, according to a Bloomberg Law analysis.

In all of Paxton’s matters the court agreed to consider, he is the party challenging a lower court’s ruling.

Beyond the Supreme Court’s past trends, the specifics of these cases appear to favor Paxton, as well, in spite of his lower court losses.

“I don’t see him losing unless there is some aspect of legality that I’m missing or others are missing,” said Jon Taylor, a political science professor at University of Texas at San Antonio said.

Taylor added: “We’re talking about a man who with all of his warts, with all of his problems, continues to survive in this environment.”