My wife, Kathie Glass, and I drove to the Texas Capitol Saturday, May 27, 2023, and stood in a long line to sit in the House Gallery to witness the historic impeachment of Attorney General Ken Paxton.
I definitely have my own world view, values, and take on what happened, but given the importance of the event, I figured that an account and perspective of one Lee County resident who was there would be of interest to my Lee County neighbors.
The Texas Capitol was very crowded on this Saturday afternoon on Memorial Day weekend. Many Texans and other tourists were there just to see the Capitol. Families were there to celebrate quinceaneras and other family get togethers.
My estimate of who filled the gallery is about 25% in favor of impeachment and 75% against. To my knowledge, the impeachment was sprung so fast on Texans that there was no organized call for different camps to show up. Rather, the attendance was spontaneous on both sides. I saw many grassroots activists in the crowd that had visited the Capitol all session advocating for conservative issues.
I sat next to an older woman I had never met who spoke with an accent. She was there with her family who was opposed to the impeachment. She told me that she had grown up in a Communist country and knew what tyranny looked like, and that this impeachment looked like that to her.
National and state media reporters and camera crews were out in force. Kathie Glass was videotaped and snippets were shown on KXAN news, and she was quoted in multiple news sources. I was interviewed live on MSNBC and quoted by two different reporters in the New York Times and Dallas Morning News.
The impeachment layout, debate, and vote lasted a bit over 3 hours. After a long, boring, eye-glazing read of the articles of impeachment by a clerk, the five members of the House General Investigating Committee Chair laid out the case. In the first statement by the Committee, Republican member Charles Geren opened by saying that the reason the investigation happened was because Paxton asked for money from the legislature. (See comment below.)
Then the elder statesman and attorney from the Panhandle — courtly, reserved Rep John Smithee — rose to oppose impeachment. He calmly laid out his knowledge of the two other impeachments that resulted in removal in Texas history and how different the process was in those cases from the process being used against Paxton.
He pointed out that because impeachment was so important and rare, the Texas House had traditionally offered due process and the courtesy to be heard to the accused and that Texas Rules of Evidence were followed. He talked about how transparent and lengthy the previous impeachments had been and contrasted that with what he called “triple hearsay” that produced no evidence that could be used in any court of law in Texas. It was a devastating critique of the non-transparent, blitzkrieg, and due-process absent process being foisted on the people of Texas.
Despite previous admonitions from the Speaker and pages in the Gallery to the crowd against making any noise in the gallery, Smithee was given loud, sustained applause from the Gallery, causing Speaker Phelan to slam his gavel in attempt to stop it. No other statement of the day got such a response.
Then a succession of members rose to oppose the impeachment. Notably, elder Democrat statesman and Houston defense attorney, Harold Dutton rose to say that not long ago in our history, blacks had been routinely denied due process, and that his life as a defense attorney was dedicated to insuring that all Texans received due process. He said that his displeasure with the lack of such in this impeachment would lead him to “cast a white light” in his vote and urged his fellow members to do the same. He meant he was going to cast his vote as present, not voting (PNV). Since to prevail, a majority of the vote needed to be in favor, a PNV vote by a significant number of members would cause the impeachment to fail.
Other Republican representatives weighed in against impeachment, notably attorneys Michael Schofield of Katy and moderate Nacogdoches defense attorney Travis Clardy. Both attorneys embellished the discussion of how the current impeachment violates the history and traditions of the Texas House. Clardy warned the body that history would judge this House harshly for its “rush to judgment,” arguing that there is no evidence on the record because of lack of sworn testimony and cross examination. Representatives Richard Hayes, Tony Tinderholt, and Steve Toth weighed in against as well. Tinderholt said that Pelosi gave more due process to Trump in his impeachments than the Texas House was giving Paxton.
The leading advocates of impeachment appeared to get nervous. The proponents brought out Republican Jeff Leach of Paxton’s home Collin County and Edinburg Democrat Terry Canales. Both claimed that they had not planned to speak, but felt compelled to respond. Canales, the most skilled orator of the day, argued that since impeachment was somewhat like a grand jury, and that our grand jury practice has sunk to the improper practice of allowing grand juries to “indict a ham sandwich,” that the Texas House could, too. No need to do a lot of work in the House, he argued. Give the hard job to the Senate.
In the end, the vote on HR 2377 was 121 for impeachment, 23 against, and two Present, Not Voting. Stan Gerdes, the State Representative from HD 17 that includes Lee County, voted for impeachment. The issue will now go to the Senate for a trial. Because the Texas Constitution in Article 15, Section 5 requires it, Ken Paxton was immediately suspended from office, pending resolution of the matter in the Senate.
I have several observations and opinions on this matter. First, to add insult to injury in the rushed, non-transparent, sham, politically-weaponized impeachment process in the Texas House, the vote was on all 20 articles at once. Every impeachment I have ever seen in U.S. and Texas history used a process that had the body vote separately on each article.
Second, not a single representative raised this issue, but had I been a representative in that body, I would have made a point of order to squash the entire proceeding because it violates Texas law. In Texas chapter 665 of the Government Code governing Impeachment and Removal we find this: “Sec. 665.081. NO REMOVAL FOR ACTS COMMITTED BEFORE ELECTION TO OFFICE. (a) An officer in this state may not be removed from office for an act the officer may have committed before the officer’s election to office.”
All of the articles brought against Paxton were for acts alleged to have been committed before the November 2022 election. The Texas Supreme Court expanded on the meaning and applicability of the words of this statute in the case of In re Brown in 1974, saying, “The rationale for the doctrine is the sound reason that the public, as the ultimate judge and jury in a democratic society, can choose to forgive the misconduct of an elected official . . . The underlying basis for the principle is that the public can knowingly return one to office in spite of charges of misconduct. Public access to full information was the basis . . .”
I call this statute and doctrine the non-disenfranchisement doctrine. It is based on Article I, Sec. 2 of the Texas Bill of Rights, which says that “All political power is inherent in the people . . .” The opponents of Ken Paxton in both the Republican primary and general elections in 2022 spent millions raising the issues raised by the impeachment and were rejected by the voters. This act of impeachment violates Texas law and the spirit of the Texas Constitution which says the people are in charge.
As the Dallas Morning News quoted me, “This is disenfranchisement.”
Another outrage of the impeachment is the blatant misrepresentation, politicization, and weaponization of the Attorney General’s request to the legislature for an appropriation to settle a lawsuit against the Office of the Attorney General (OAG). Whenever a state agency is sued, it is usually sued in its official capacity, and if the defendant loses, the state legislature is asked to fund the judgment. Had the OAG spend hundreds of thousands or millions to defend the case and lose, the plaintiffs would have asked the legislature to fund the judgment. The OAG was ordered by the court to mediate a settlement, and the terms of the settlement were that the OAG ask the legislature to fund it.
The fact that the OAG engaged in the normal practices of government in this situation, only to have attorney and former county judge Andrew Murr make this the most important reason for the impeachment is outrageous proof of the political and personal nature of the impeachment.
Tom Glass lives in Lee County, Texas. He spends lots of his time focused on persuading the Texas legislature to pass strategic liberty-oriented legislation. He leads Texas Constitutional Enforcement, was a 2022 Republican Candidate for Texas House District 17, and served on the 2022 RPT Platform Committee from SD 18.
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