Impeachment of the Attorney General Under The Texas Constitution
On Thursday, a committee of the Texas House of Representatives recommended twenty articles of impeachment against Attorney General Ken Paxton. We are in somewhat uncharted waters. It seems there have been only two impeachments in Texas history. In 1917, a governor was impeached, but resigned before the Senate convicted him. And in 1975-76, a district judge was convicted, removed, and disqualified. In this post, I will provide a high-level overview of the impeachment process in Texas, with a focus on the particular issues that may arise in the Paxton case.
Article 15 of the Texas Constitution governs the impeachment process. Section 1 states that the House of Representatives has the “power of impeachment.” Presumably, a simple majority is enough to impeach, but that threshold is not clearly spelled out. Sections 2 and 3 provide that the impeachment shall be tried by the Senate, and 2/3 of the Senators “present” are required to impeach. (The same threshold is used in the federal Constitution). Section 4 includes a provision that mirrors the Impeachment Disqualification Clause in the federal Constitution: “Judgement in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State.” However, Section 5 provides a unique wrinkle: after an article of impeachment is “preferred” to the Senate, the impeached officer “shall be suspended from the exercise of the duties of their office, during the pendency of such impeachment.” In other words, an impeached official is temporarily removed from office. And the Governor may make a “provisional appointment.” (Governor Abbott could pick someone from Paxton’s staff, or one of the Republicans who challenged Paxton in last year’s primary, or a “caretaker” to fill the gap for a short time).
Section 7 seems to provide the legislature some additional authority with regard to impeachment. It provide, “The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.” In the federal system, Congress has adopted various rules governing impeachment. For example, evidence can be heard by a Senate committee, rather than by the full Senate. Judge Walter Nixon challenged this delegation of authority as being inconsistent with the federal Constitution. The U.S. Supreme Court declined to resolve that issue on justiciability grounds, but did leave open the possibility that some deviations from the process spelled out in the Constitution could be justiciable. (Chief Justice Rehnquist flagged this issue during oral argument.) Section 7 seems to expressly delegate the power to the legislature to establish certain rules by law. And “by law,” as a general matter, means through actual legislation, rather than by single-house resolution.
Those laws appear in Chapter 665 of the Government Code. At quick glance, Article 15 does not provide a standard for impeachment, such as “high crimes and misdemeanors.” Section 665.062 lists specif
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