August 27, 2023      12:41 PM

Coppedge: The Elephant and the Ham Sandwich in the Room

“In light of Paxton's numerous public admissions and his sworn agreement to the securities board order, in this case, it would be easier for the ham sandwich to escape indictment than Paxton.”

This prescient story on Ken Paxton's self inflicted problems first appeared on May 19, 2014

(John Coppedge, M.D., a key player in Texas judicial races writes occasional columns for QR.  He is among a handful of folks most responsible for GOP domination of Texas appellate courts.  Rather than judicial races, today he turns his attention to the continuing criminal liability faced by one Republican runoff candidate for Attorney General…HK)

The Republican Primary Runoff for Texas Attorney General is problematic for Republican voters and for the Republican Party of Texas.  One candidate is asking Republicans to vote for him despite admitting that he recently admitted acts that under the State Securities Act are a felony -- and his possible criminal prosecution for that felony has yet to be addressed. 

That candidate is Ken Paxton who less than three weeks ago agreed to and signed a Disciplinary Order of Reprimand by the Texas State Securities Board.  As such, he acknowledged their finding that he had violated Section 12B of the Texas Securities Act.  He also agreed to pay a $1000  administrative fine.  That is underlined because the state securities board is not a criminal law enforcement agency, so their finding has not closed the book on the possibility of state criminal charges.

In fact, it is actually opening the door to that possibility.

And in finding #4 in the reprimand it states that he also solicited during the time that Mowery Capital Management was under federal instead of state supervision.   So the board itself is raising the prospect of federal issues.  The press has reported that a federal complaint against Paxton has also been filed. 

The law *(which Paxton has said he did not know about, even though he voted for it  in 2003) makes his act a felony and calls for a fine of up to $5000 and/or a minimum of 2 years up to a maximum of 10 years incarceration.

Paxton has tried to downplay all of this, of course, likening it to some minor clerical error.  Not so.  It is a felony.

Some interesting scenarios could come out of this if Paxton wins the runoff. 

Nobody who has been around Texas politics long would be surprised if a Democratic prosecutor would charge, indict and probably get a felony conviction of Ken Paxton if he is the Republican nominee for/or incumbent Republican Attorney General.  And the old saying about "a prosecutor can convince his Grand Jury to indict a ham sandwich"** comes to mind.  In light of Paxton's numerous public admissions and his sworn agreement to the securities board order, in this case, it would be easier for the ham sandwich to escape indictment than Paxton.

It only gets worse if the federal complaint reveals wrongdoing.   Then the Securities and Exchange Commission would enter the fray. 

None of these scenarios would be good for Texas, for Republicans or for the Office of the Texas Attorney General.  But the Democrats would love it.  And the press of course always likes to cover this sort of story. 

Eyes will now be turned on:

          (1)  Republican Leaders- do they sit on their hands or enter the fray to try to help Dan Branch, whose nomination would take all of this out of play?

          (2)  Democrats- do any who did not vote in the Democratic Primary cross over and vote in the Republican run-off to try to get Paxton nominated so they can use him as a whipping boy during the election cycle?

          (3)  Republican Voters- are they paying attention and/or do they care?

 

*SB1060- 2003 Legislative Session

See SB 1060 from the regular 2003 session, available at http://www.capitol.state.tx.us/tlodocs/78R/billtext/html/SB01060F.htm.

 

It adds the following language to Texas law:

Sec. 29. PENAL PROVISIONS. Any person who shall:

 

I.  Render services as an investment adviser or an investment adviser representative without being registered as required by this Act shall be deemed guilty of a felony and on conviction of the felony shall be sentenced to pay a fine of not more than $5,000 or imprisonment in the penitentiary for not less than two or more than 10 years, or by both the fine and imprisonment.

 

The vote appears at

http://www.journals.house.state.tx.us/hjrnl/78r/html/day60final.htm.  Look for record vote #448:

 

SB 1060 ON THIRD READING

(Marchant - House Sponsor)

 

SB 1060, A bill to be entitled An Act relating to enforcement of conduct and other matters concerning a security; providing a penalty.

 

A record vote was requested.

 

SB 1060 was passed by (Record 448): 142 Yeas, 0 Nays, 1 Present, not voting.

 

Yeas - Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

 

Present, not voting - Mr. Speaker(C).

 

Absent, Excused - Davis, J.; Isett; Oliveira.

 

Absent - Farabee; Noriega; Talton.

 

** This famous modern legal term began in New York. It was immortalized in the Tom Wolfe novel, Bonfire of the Vanities (1987). Solomon Wachtler (born April 29, 1930) is a New York State lawyer and former Chief Judge of the New York Court of Appeals, which is the highest position in the New York  State judiciary.  Wachtler famously observed that prosecutors have so much control over grand juries that they could convince them to "indict a ham sandwich." (although he later told the press that to be politically correct in New York, he should have said a pastrami sandwich)

By John Coppedge, MD

Copyright August 27, 2023, Harvey Kronberg, www.quorumreport.com, All rights are reserved