Ken Paxton has asked the Fifth Court of Appeals in Dallas to postpone oral arguments in a lawsuit brought by the state bar’s Commission for Lawyer Discipline until the conclusion of his impeachment trial.
Noting that this is the first impeachment trial of a statewide elected official in more than 100 years and that this lawsuit involves “complex issues which require extensive preparation,” Paxton told the court it would “prove difficult for counsel to provide competent representation in this matter as well without postponing argument.”
“The present date for oral argument is Sept. 13,” the motion reads. “Counsel for appellant in this matter also serve as counsel to the attorney general in the ongoing impeachment proceedings. That trial is expected to begin Sept. 5 and is expected to take between two and three weeks.”
The unopposed motion was received by the Fifth Court of Appeals Tuesday at 7:13 p.m. The court had issued notice on July 13 that it set oral arguments to take place Sept. 13 before Justices Ken Molberg, Bill Pedersen III and Erin A. Nowell.
Paxton wrote that he was seeking the postponement “in the interests of justice and not for the purposes of delay.”
The lawsuit was filed in Collin County in May 2022 by the state bar’s disciplinary arm, accusing Paxton of violating the ethics rules every attorney in Texas must abide by when he made misrepresentations to the U.S. Supreme court in a lawsuit that attempted to overturn the results of the 2020 election.
Collin County District Judge Andrea K. Bouressa denied Paxton’s request to have the lawsuit dismissed in January, and Paxton filed notice of appeal in February.
On appeal, Paxton has called the Commission’s actions “unprecedented” and argues it doesn’t have jurisdiction to bring the suit, citing both sovereign immunity and the separation of powers.
One amicus brief has been filed in the case.
The Texas Lawyers Defending American Democracy — which describes its members as “senior members of the Texas Bar, including highly respected leaders in the fields of ethics and professionalism” — submitted a brief in support of the Commission May 17.
“By arguing that the constitutional separation of powers and the common law sovereign immunity doctrine prevent the Commission from bringing this disciplinary proceeding against him, Paxton is effectively asking this court to nullify the application of these statutes to him, i.e., to declare these statutes unconstitutional or illegal as applied to him,” the amicus argued. “Paxton cannot meet the heavy burden required to overcome the presumption of constitutionality and to show that the statutes are unconstitutional as applied.”
The group told the court that if Paxton’s sovereign immunity and separation of powers arguments are adopted, it would effectively exempt “all Texas-licensed executive-branch attorneys from potential discipline for professional misconduct.”
“This would cause immense harm to the public’s respect for lawyers and to the legal profession,” the group wrote. “It would, moreover, violate a fundamental American principle: ‘No person is above the law.’ Paxton’s arguments are legally unsupportable and should be rejected.”
Paxton is represented by Judd E. Stone and Christopher Hilton of Stone Hilton, a law firm the pair recently formed after resigning from the attorney general’s office.
The Commission is represented by its own Royce LeMoine, Michael G. Graham and Amanda Kates.
The case number is 05-23-00128-CV.