Cease and Desist Improper Contact with Potential Witnesses

FYI. The letter below and attached was sent by Attorney General Paxton’s legal team today.

STONE HILTON 

June 8, 2023 

Rep. Dade Phelan 

Rep. Andrew Murr 

Rep. Ann Johnson 

Rusty Hardin 

Dick DeGuerin 

via email and certified mail 

Re: Cease and Desist Improper Contact with Potential Witnesses 

Representatives and Counsel: 

It has come to our attention that you and your agents have been contacting potential witnesses, including  employees of the Office of the Attorney General, regarding the House’s meritless impeachment of Attorney  General Ken Paxton. Presumably this is an after-the-fact attempt to gather facts to support your sham  investigation, which has made a mockery of all Texans who believe in justice and the constitution. But whatever  the reason for your refusal to conduct your investigation in public, it must stop. 

When the House debased itself and stained Texas’s history by voting to impeach the third-term Attorney  General mere months after his overwhelming electoral victory, all jurisdiction over this matter was transferred to  the Texas Senate. Tex. Const. art. XV, § 2. Never before in Texas history has a House attempted to continue its  impeachment investigation—much less in secret—after it approved articles and delivered them to the Senate.  Indeed, once the House presented its articles, it lost all the powers that have been conferred on it to conduct  impeachment proceedings. See Tex. Gov’t Code § 665.005 (providing for broad investigative powers by House  only “[w]hen conducting an impeaching proceeding”); id. § 665.001 (defining “impeachment proceedings”). 

You have no authority to request documents, approach witnesses, or do anything else regarding this matter  until the Senate establishes the rules for this proceeding. See Tex. Gov’t Code § 665.024. Indeed, as you are well  aware, any action that you undertake without express legal authority could potentially subject you to liability. See, e.g., City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (subjecting lawless public officials to  lawsuits in order to “reassert the control of the state” when those officers “act[] without legal authority”). 

To the extent that you are relying on the Public Information Act in obtaining information from any public  agency or employee, you have two choices. First, you can submit requests in your individual capacity. If you  choose to submit requests in this manner, you are acting in your capacity as an ordinary citizen, and you have no  right to obtain confidential or privileged information. See, e.g., Tex. Gov’t Code § 552.101 et seq. Second, you  can submit requests in your legislative capacity. Tex. Gov’t Code § 552.008. But you can only use such  information for “legislative purposes,” id. § 552.008(a)—not for purposes of exercising any judicial power such  as impeachment, Ferguson v. Maddox, 263 S.W. 888, 890 (Tex. 1924) (describing the impeachment powers of  the House as “judicial in character”)—and any production of such information “does not waive or affect the  confidentiality of the information” and may be subject to additional confidentiality requirements, id. § 552.008(b).

STONE|HILTON PLLC 

Furthermore, while Attorney General Paxton may be temporarily suspended from office, he remains the  duly elected constitutional officer. The Office of the Attorney General is a statutory creation that solely exists to  assist the Attorney General in the discharge of his constitutional duties. Tex. Gov’t Code § 402.001 et seq. The  constitution does not discuss the Office of the Attorney General at all. See Tex. Const. art. IV, § 22. While it is  true that Attorney General Paxton is suspended from “exercising the duties of [his] office,” he has not been  removed from office, and the Governor’s provisionally appointed temporary officer is just that—temporary. Tex.  Const. art. XV, § 5. Accordingly, to the extent that you seek to obtain any purported waiver of any privilege or  protections from the Office of the Attorney General in order to speak with its employees or obtain its documents,  know that the Office has no authority whatsoever to waive any privilege that attaches to the duly elected  constitutional officer, including attorney-client, work product, and executive privileges. 

In light of the foregoing, there can be no doubt that your efforts to have ex parte contact with witnesses  are wholly improper. Your clandestine fact-gathering without the opportunity for the Attorney General’s  participation means that the Senate’s rules and process are being undermined before they have even been written. And as you know, Texas law provides strong protections to witnesses from wrongdoers who seek to meddle in  judicial processes. See, e.g., Tex. Penal Code § 36.04 (Improper Influence); id. § 36.05 (Tampering with Witness);  id. § 36.06 (Obstruction or Retaliation). 

But let us be direct. Despite your public statements to the contrary, you know that your investigation and  impeachment were concocted behind closed doors and without any public scrutiny, due process, or presentation  of evidence that would in any way detract from your Machiavellian political objective. You have chosen to wield  the awesome power of impeachment—and you purport to override the will of the voters—by means of a process  that is repugnant to the principles of justice and fairness and that makes an anti-democratic mockery of our State. 

Even as you hide behind these cowardly tactics, you are repeatedly claiming to the public that you believe  in a transparent process that affords the Attorney General an opportunity to defend himself. 

Prove it. 

Regards, 

/s/ Christopher D. Hilton 

Judd E. Stone II 

Christopher D. Hilton 

STONE|HILTON PLLC 

judd.e.stone@proton.me 

christopher.d.hilton@proton.me 

Counsel for the Attorney General 

CC: Tony Buzbee 

Dan Cogdell 

Forrest Brumbaugh 

Austin Kinghorn 

For Public Distribution