Ken Paxton cannot be forced to testify at his impeachment trial, Lt. Gov. Dan Patrick rules

From left: Attorney Tony Buzbee, suspended Attorney General Ken Paxton and attorney Dan Cogdell on the Senate floor on Sept. 5, 2023. The attorneys are part of the team defending Paxton in his Senate impeachment trial. (Juan Figueroa/Pool Via The Dallas Morning News, Juan Figueroa/Pool Via The Dallas Morning News)

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After Senators resoundingly rejected all of Attorney General Ken Paxton motions to dismiss articles of impeachment against him Tuesday morning, Lt. Gov. Dan Patrick handed Paxton a small victory by ruling that he cannot be forced to testify as a witness in his trial before the Texas Senate.

The Senate-approved rules for the trial gave Patrick, who is acting as the presiding officer, or judge, the power to issue subpoenas to compel the attendance of witnesses.

Paxton had stated that he would not testify in the trial, and his lead lawyer, Tony Buzbee said in a statement in early July that Paxton “will not dignify the illegal House action by testifying.”

His lawyers followed by filing a pretrial motion asking the Senate to excuse Paxton from testifying, arguing that the trial is a criminal proceeding, giving Paxton the same legal protections as a criminal defendant who would not be forced to testify.

House managers had opposed that motion, saying the trial rules provided no exception for Paxton. They also argued that Paxton must assert his Fifth Amendment right to refuse to incriminate himself in testimony from the witness stand.

Patrick said Tuesday that the rules adopted by the Senate apply many of the same rules reserved for criminal cases, including the requirement that Paxton plead guilty or not guilty, and House impeachment managers are required to prove their case beyond a reasonable doubt, a standard also used in criminal trials.

“The House managers have repeatedly compared actions of the House of Representatives to a grand jury as they prefer the articles of impeachment,” Patrick said as he granted the motion. “Grand juries are utilized only in criminal cases.”

Therefore, Paxton cannot be compelled to testify as a defendant in at his impeachment trial, Patrick concluded.

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