Ken Paxton
Ken Paxton (Kurt Nelson Innovative Image)

Since he was indicted for alleged securities law violations, Texas Attorney General Ken Paxton has repeatedly assured the public that he is focused on serving Texans and completing his duties as AG. But Paxton’s indictment has prompted him to recuse himself from some duties and to delegate his authority to his second-in-command.

The AG’s office has followed agency policy, state rules and laws to screen Paxton from participating in matters where he may have a conflict of interest, wrote Cynthia Meyer, spokeswoman for the Texas Office of the Attorney General, in an email. The office has screened Paxton’s participation in matters pertaining to his pending charges, any of the five law firms that represent him against those charges, and anything involving the State Securities Board or the Texas Ethics Commission, explained Meyer.

“The OAG will revise this screening procedure as needed to continue to avoid any conflicts. Any recusal under this policy is intended to go beyond the letter and spirit of the governing law and rules,” wrote Meyer.

Meyer wrote that when Paxton recuses himself, the appropriate division in the AG’s office keeps handling the matter, and Paxton delegates his authority to the first assistant AG.

Bill Mateja, one of Paxton’s five criminal defense attorneys, said it makes sense for Paxton to recuse himself.

“That’s a good thing, because what that indicates is that he either has, or may have, or may perceive to have a conflict of interest, and you actually don’t want him presiding over matters in which he may have real or perceived conflicts of interest,” said Mateja, principal in Fish & Richardson in Dallas.

Recusals

Paxton faces two counts of first-degree felony securities fraud and one count of third-degree felony failure to register as an investment adviser representative. He has pleaded not guilty.

The AG’s office assists local prosecutors when they ask for help, but Paxton would recuse himself from those matters if they are similar to his own criminal case.

Paxton has also recused himself from matters involving the law firms where his five criminal defense attorneys work.

“We were requested to give him a list of the matters where the attorney general’s office is on the other side,” said Mateja. “I would imagine nearly every person on his legal team has at least one matter that the attorney general’s office is involved in.”

Paxton has also recused himself from matters in which the AG’s office represents the Texas State Securities Board or the Texas Ethics Commission in court. He will also recuse himself from any open records rulings involving either agency.

The Texas State Securities Board enforces Texas securities laws and can bring administrative, civil or criminal cases against people or firms that violate the law. Previously, the securities board sanctioned Paxton in an administrative case for failing to register as an investment adviser representative. One of his criminal charges includes the same allegations.

Bob Elder, securities board spokesman, declined to comment on Paxton’s recusal.

When asked why Paxton would recuse himself from matters related to the ethics commission, Meyer replied, “To avoid any appearance of impropriety, the attorney general has been screened from more than just matters which might involve an actual conflict.”

Ian Steusloff, general counsel of the Texas Ethics Commission, said he knew Paxton had recused himself from commission matters, but he does not know why. Among other things, the AG’s office represents the commission when it gets sued by someone or when the commission sues officials to collect civil penalties for violations of campaign finance or financial disclosure rules, he said.

“We are pleased with the representation they have provided to us and we have confidence in the representation of the attorney general’s office in the future,” Steusloff said.

Recusal Becomes Public

The first public indication that Paxton’s criminal case might be affecting his work in the AG’s office came when he recused himself from signing an AG opinion in late September. The opinion request asked if it was legal for a county to reimburse the criminal defense costs of a county commissioner who was indicted for a crime, but found not guilty in a jury trial. The office determined that common law allowed the county to reimburse the expenses in certain situations.

First assistant AG Chip Roy signed the AG’s opinion, not Paxton.

In a Sept. 28 letter explaining his recusal, Paxton wrote that his administration strives to write opinions with a high degree of legal accuracy and “without any hint of impropriety.

“Staff members involved in the opinion process must recuse themselves from matters in which there may exist an actual or perceived conflict of interest,” wrote Paxton.

Roy wrote a Sept. 28 letter to Brown County to explain why he signed the AG opinion.

“Any such recusal is intended to go beyond the letter and spirit of the governing law and rules in order to avoid even the appearance of impropriety and to demonstrate our ongoing commitment to the highest ethical standards,” Roy wrote.

After Paxton’s recusal became public, Texas Lawyer sent a Sept. 29 Texas Public Information Act request to the AG’s office to request records about Paxton’s recusal from the AG opinion, and records about any other matters or duties for which Paxton recused himself.

The office is seeking an open records ruling on the request.

Lauren Downey, assistant attorney general and public information coordinator for the AG’s office, wrote in an Oct. 20 letter that the information is excepted from disclosure under the TPIA because it is privileged attorney-client communication.

“The representative sample of information … includes internal communications between OAG attorneys and personnel, as well as communications between the OAG’s general counsel and an outside attorney who shares a common interest with the OAG regarding these issues,” said the letter.