Analysis: Is Attorney General Ken Paxton Feeling Lucky?

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Attorney General Ken Paxton can raise money for a legal defense fund if he wants to, but he won’t have the state’s protection if he does.

This is problematic for the state’s top lawyer, who faces criminal charges in this first year of what is supposed to be a four-year term and needs some expensive legal talent to get him out of that jam.

Paxton can’t seem to catch a break.

He was indicted late last summer on charges of securities fraud and failing to register as an investment adviser representative before acting as one. His lawyers are trying — unsuccessfully, so far — to get the charges dropped.

He lawyered up, just like anybody would. But because these are not the alleged transgressions of an elected official, Paxton can’t use his campaign funds to pay his lawyers. If these were allegations about his activities in public office, he could. He has to use his own money or — if he can find a way — a separate legal defense fund.

In October, he recused himself from any involvement in securities and ethics cases that come to his agency, which serves, among other things, as the in-house law firm for the Texas State Securities Board and the Texas Ethics Commission.

The same special prosecutors who took the securities charges to a Collin County grand jury are now examining real estate transactions that involved Paxton and other elected officials. The land in question ended up as the site of the Collin Central Appraisal District.

To recap his last 15 months: Elected, sworn in, investigated, indicted, recused from some official duties, and investigated again.

This guy could read the Book of Job for comfort.

But there’s more.

This week, the Texas Ethics Commission met to consider an advisory opinion that would have offered a flicker of good news. They came close, but ultimately couldn’t agree on how to allow someone in the attorney general’s office to raise money for a legal defense without tripping the state’s bribery statutes. The proposal was not Paxton-specific, although everybody seemed to know the undisclosed name of the man at the center of all of this activity.

The Ethics Commission has eight members, and it takes five to approve an opinion. Only four did so, and that appears to be the end of it.

An advisory opinion from the commission isn’t exactly a get-out-of-jail free card, but it’s close. The commission proposed, over the course of a dozen pages, some guidelines for Paxton or anyone else in the AG’s office to follow if they needed to raise money for their legal defense. The donor couldn’t have any connections to the jurisdiction of the state’s lawyers, except for the donation itself. The donors would have to be vetted with some diligence, and donations (termed “gifts” in the draft proposal) of more than $250 would have to be disclosed within 30 days. The commission also proposed keeping the officeholder’s fundraisers and other political employees out of anything involving the defense fund.

None of it was approved, leaving Paxton exposed to state bribery laws if he raises a defense fund. Those laws are tighter over this particular office of state government and say, essentially, that nobody with any past, present or future business with the state can give money to the lawyers. Campaign contributions are an exception. Legal defense funds are not.

The reasoning is pretty simple. People with business before the attorney general, people who might find his friendship useful to their business or their interests, might be more willing to pay for his lawyers than you would. That’s not aimed at Paxton; Louisiana is next door, and ideas tend to travel.

Lawyers for some unnamed somebody asked the ethics commissioners if there was some way that people outside the state — with no apparent interest in Texas affairs — might be able to give money to Paxton.

The nuances here are interesting and important. The commissioners did not say yes, but they did not say no. By not saying yes, they declined to write a blueprint for raising legal defense money that Paxton or anyone else in his agency could follow, knowing all the while that if someone called a foul, the ethics opinion would offer protection.

It’s possible to imagine a way to raise money, but it’s perilous. It would have to be done without triggering the state’s bribery laws and their ban on taking money from anyone who might have business before the state.

The commissioners had some ideas of how to raise that money legally, and Paxton might be willing to do what they proposed, even without the shelter of an advisory opinion they had too few votes to approve.

He needs the lawyers to defend him against the indictments and to shield him against the real estate investigation. Lawyers are expensive. A treasure chest raised from friendlies would remedy that. But filling the treasure chest might break another law.

With Paxton’s luck, would you take the risk?