Despite Legal Woes, Paxton Emerges as Culture Warrior

In the six months before Ken Paxton won election as Texas attorney general last fall, he stayed largely out of sight. Under an ethical cloud amid claims of financial fraud, he avoided public events and rarely spoke to reporters, coasting to victory as part of new Republican leadership including Gov. Greg Abbott and Lt. Gov. Dan Patrick.

Lacking Patrick’s knack for political theater, and yet to display the lawyerly intellect of Abbott, his predecessor as the state's top attorney, the 52-year-old former legislator struggled to emerge from their shadows during his first several months in office.

But now, even as his personal legal troubles resurface, Paxton is poised to claim his place in the sun as the state's top culture warrior. 

Two days after the U.S. Supreme Court struck down Texas’ long-standing same-sex marriage ban, Paxton issued an opinion telling county clerks with religious objections that pro bono lawyers were standing by to help defend them against legal challenges if they denied licenses to same-sex couples.

"Our religious liberties find protection in state and federal constitutions and statutes," he said. "While they are indisputably our first freedom, we should not let them be our last.”

The missive launched him into the national consciousness, earning comparisons to George Wallace, the former Alabama governor who fought desperately to preserve racial segregation in the 1960s. Blasting Paxton for encouraging state officials to violate the law, a Democratic lawmaker has since asked the U.S. Justice Department to monitor the implementation of the Supreme Court’s decision.

The nonbinding opinion amounted to more of a statement of moral support than legal defiance. But to social conservatives — some beginning to feel abandoned by a governor who has declined their requests to call a special legislative session to address the issue of same-sex marriage — it bolstered the McKinney Republican's standing as one of the last guardians of religious liberty.

“Texas often tries to bill itself as the most conservative state in the union, which isn’t very often the case actually. We have a reputation that we don’t live up to. But I think that Ken Paxton is living up to it,” said Julie McCarty, president of the NE Tarrant Tea Party, which wields considerable influence in Republican primaries. “I haven’t heard anything from our governor, which is not surprising, but again disappointing.”

Even Patrick, who came to power with the backing of the conservative movement, has not avoided the perception that he failed to do enough as the Senate's presiding officer to protect traditional marriage this session.

“There’s a lot of other things that should have been passed, that the rest of the Republican leadership caved into the homosexual demands — that would be Abbott and Patrick and [Speaker] Straus,” said Steve Hotze, a Houston doctor who operates the powerful Conservative Republicans of Texas political action committee.

Paxton’s office was “very instrumental” in pushing lawmakers to pass legislation affirming religious officials’ rights to refuse to perform same-sex marriages known as the Pastor Protection Act, said Hotze, whose group distributes mailers and scorecards to a vast network of GOP voters.

“Most people don’t understand, but Ken Paxton does understand the direction of this movement, and he is speaking out,” he said. “Abbott has been AWOL on the issue.”

But just as Paxton appears to be hitting his stride politically, the legal issues that emerged during his campaign have returned, with potentially more damaging implications than before.

Late Wednesday, special prosecutors appointed to investigate his securities dealings announced that they plan to pursue a first-degree felony charge, which under state law applies to amounts exceeding $100,000. Earlier this week, Paxton hired heavyweight Dallas criminal defense lawyer Joe Kendall, a former federal judge, to lead his defense team.

Paxton, who declined to be interviewed for this story, has maintained that the investigation is politically motivated. In a statement Thursday, spokesman Anthony Holm accused the two attorneys prosecuting the attorney general of building their case in the press.

"These attacks on Ken Paxton appear to have become a political hit-job in the media, perhaps having the effect of inappropriately influencing the grand jury,” he said, calling Paxton a “longtime public servant.”

The Texas State Securities Board fined Paxton $1,000 last May, after the then-candidate admitted he had solicited investment clients for a friend and business partner without properly registering with the state.

For a time, it appeared his legal troubles had subsided. Travis County prosecutors declined last year to pursue charges against Paxton, referring the allegations to Collin and Dallas counties. Dallas County District Attorney Susan Hawk also passed on bringing a case. When Collin County District Attorney Greg Willis, a Paxton friend and business partner, agreed to take it, he asked the Texas Rangers to investigate.

But in April, after Willis stepped aside after accusations of stalling, two Houston attorneys were tapped to replace him. Now, a Collin County grand jury is expected to hear a case against Paxton that appears broader than the one Travis County prosecutors declined to pursue last year.

If the grand jury does hand down an indictment, Paxton could legally remain in office while fighting the charges. And if he faces political pressure to step down, it is unlikely to come from the conservative base that elected him. Last year, he won a bitter three-way Republican primary in a runoff against a well-financed opponent, winning more than 60 percent of the vote even after aggressive attacks on his business background from both of his opponents.

During the campaign, Paxton's securities dealings weren't the only focus of critics.  

He also drew scrutiny for his early investments in WatchGuard, a digital technology company founded in 2002 that was able to flourish nationally after a boost from a 2006 Texas Department of Public Safety contract worth $10 million to outfit all state trooper vehicles. Paxton, who was joined by a second lawmaker in the deal, has said he did not know it had contracts with the state at the time. First elected to the Legislature in 2002, Paxton served five terms in the House and one in the Senate.

There was also a second venture involving fellow lawmakers. In 2008, along with three other House members, Paxton bought into a startup technology company that aimed to profit from trades in electricity markets. The four lawmakers later filed a lawsuit saying they had been scammed by an investor involved with the company, a McKinney businessman who claimed to be a part of an expedition that discovered Noah’s Ark.

Based on the questions about Paxton’s ethical compass, former Railroad Commissioner Barry Smitherman, the candidate who came in third in the primary, later endorsed Paxton opponent Dan Branch in the runoff.

But concerns about Paxton's business matters did not dissuade conservatives in 2014, and don't seem to have gained traction among them recently.

McCarty said Thursday she was not aware that Paxton could face a felony charge, but said it did not affect her support for him. 

“This is how politics goes. People are always pressing charges and making frivolous suits just to smear someone’s name," she said. "The general public doesn’t follow it closely enough to know when everything’s been cleared and that it was all trumped up for nothing. Until we have a conclusion, I would definitely side with Paxton and give him the benefit of the doubt because I just know that’s how these games are played.”

Patrick Svitek contributed to this report