« Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger? | Main | "Between Cooperation and Conflict in Second Look Sentence Review" »

March 27, 2024

Texas justice?: how should deal cut by special prosecutors to end felony charges against Texas AG be described?

I have not followed closely any of the legal cases and dramas surrounding Texas Attorney General Ken Paxton, but the news of a deal to end long-running state criminal charges against him caught my eye in part because I am not quite sure how to describe it.  As detailed in this local article, headlined "Ken Paxton agrees to community service, paying restitution to avoid trial in securities fraud case," the resolution is not a plea deal because AG Paxton is not pleading guilty to anything.  And yet, AG Paxton is agreeing to serve a kind of sentence functionally and to being under the yoke of prosecutors for an extended period:

Prosecutors on Tuesday agreed to drop the securities fraud charges facing Attorney General Ken Paxton if he performs 100 hours of community service and fulfills other conditions of a pretrial agreement, bringing an abrupt end to the nearly nine-year-old felony case that has loomed over the embattled Republican since his early days in office.

The deal, which landed three weeks before Paxton is set to face trial, also requires him to take 15 hours of legal ethics courses and pay restitution to those he is accused of defrauding more than a decade ago when he allegedly solicited investors in a McKinney technology company without disclosing that the firm was paying him to promote its stock. The amount of restitution totals about $271,000, prosecutor Brian Wice said.

Paxton, who will not have to enter a plea under the terms of the agreement, faced the prospect of decades in prison if he had been convicted of fraud. His status as a felon, based in part on an opinion he issued himself, would have likely barred him from running for office in the future. Paxton attorney Dan Cogdell said the prosecutors “approached us” and Paxton was “happy to agree to the terms of the dismissal.”

“But let me be clear, at no time was he going to enter any plea bargain agreement or admit to conduct that simply did not occur,” Cogdell said in a statement. “There is no admission of any wrongdoing on Ken’s part in the agreement because there was no wrongdoing on his part.”

The deal is the second major win for Paxton in roughly the last six months, after the Republican-controlled Texas Senate acquitted him last fall of 16 impeachment charges centered on allegations that he accepted bribes and abused the authority of his office to help a wealthy friend and campaign donor....

Two of the charges — first-degree felonies — stemmed from allegations that Paxton persuaded investors, including a then-GOP state lawmaker, to buy at least $100,000 worth of stock in a tech startup, Servergy, without disclosing that he would be compensated for it. Paxton will have 18 months, the length of the pretrial deal period, to pay restitution to the former lawmaker, Byron Cook, and the estate of Joel Hochberg, a Florida businessman who died last year. Wice said he is “not necessarily opposed" to dropping the charges before the 18 months are up if Paxton makes the payments sooner. He said Paxton cannot use campaign funds to pay restitution....

Wice said he had been “besieged by a torrent of phone calls” from people who have “expressed their monumental displeasure with the fact that these cases are being resolved with a pretrial intervention.” Touting the restitution Paxton now owes to his alleged victims, Wice said it was more important to secure justice for them than to pursue prison time for Paxton, which he said should only be a priority if the defendant poses a threat to public safety....

Paxton will perform community service in Collin County, where he resides, with an "entity or organization" agreed upon by both sides, Wice said — likely a "food pantry or soup kitchen." He will also be required to check in with prosecutors every 60 days to ensure he is fulfilling the terms of the deal. The case could still resume and head to trial if Paxton fails to comply.

I think it would be fair to label this resolution a deferred prosecution agreement or maybe a non-prosecution agreement, though it appears the special prosecutor calls this a "pretrial intervention."  Whatever the right label, I wonder if this arrangement is unusual in Texas criminal justice arenas.  I also wonder whether folks view this resolution as true Texas justice or a kind of special Texas justice.

March 27, 2024 at 09:32 AM | Permalink


Harris County--run by the 'rat Kim Ogg, who by the by, belongs in prison for the rest of her life. Feels like this isn't a case of Paxton getting lenience.

Feels like Paxton is pretty slimy.

Posted by: federalist | Mar 27, 2024 10:22:23 AM

The very same Kim Ogg who has been fighting tooth and nail to preserve the wrongful conviction of Sandra Melgar.

I would be interested if Bill Otis, or for that matter anyone, has an answer to the problem of convictions that, when one digs into the evidence, are so obviously wrongful, yet the prosecutor keeps fighting to preserve it. [As Bill once pointed out, it tends to be a state prosecutor].

How does one change the incentives so they don't do that?

On the subject of Paxton, the only way this resolution could make sense is if it is unclear whether or not a jury would agree to his guilt beyond a reasonable doubt.

If they would agree, it is way too lenient on Paxton, who would absolutely need to give up his law license in any sort of fair resolution.

If they would not agree, it is way to harsh on him.

Posted by: William Jockusch | Mar 27, 2024 10:43:28 AM


I was thinking much the same, that in this case both are feeling significant doubt about their ability to sway a jury. Although given just how lenient this is, the feds apparently face a greater degree of doubt.

Posted by: Soronel Haetir | Mar 27, 2024 11:39:59 AM

Kim Ogg prosecuted the doctor who frantically tried to find people to vaccinate before the precious vaccines expired. She is a foul human being who should be in prison.

Posted by: federalist | Mar 27, 2024 12:52:43 PM

Here is some Biden justice:


Just let them in. His family has Secret Service protection.

Posted by: federalist | Mar 27, 2024 1:12:28 PM

Under Texas law, they call what Paxton got a "Pretrial Intervention Agreement". He could not afford to even make a diversion plea, where he would have had to acknowledge guilty under penalties of perjury, but receive diversion. Even so, given the nature of the charges and the fact that he is paying $300,000 of restitution, it is hard to imagine that Texas bar Association Disciplinary Counsel should not file disciplinary proceedings against him and seek suspension of his law license or disbarment. He and the prosecutors are playing a semantic game, but Disciplinary Counsel should call a spade a spade and go after him. I spent 8 years in Federal prison for a lot less than Paxton has done. My client lied to me, didn't tell me he had raised money from investors (he said it was his money) when he hired me to be his attorney. I refused to prepare the written agreements because there was no due diligence materials produced by the other side of the deal. I got fired by my clients for refusing to draft the documents and they did the deal on a handshake, wire transferred $400,000 offshore outside the U.S., without any written agreement. It's hard to watch a guy like Paxton get away with this Texas securities fraud, when he induced 3 people to invest $100,000 each in a business, without disclosing that he was being compensated (commissions) for their investments, which they apparently lost when the business failed.

Posted by: Jim Gormley | Mar 27, 2024 4:58:53 PM

Sounds like Bill Otis and I have similar reasons for hating Kim Ogg. Two different examples of her using the law against someone when that didn't need to be done.

Posted by: William Jockusch | Mar 27, 2024 6:59:43 PM

Doug, I don't think you can talk about "Texas" justice--prosecutions are local, and this decision is quintessentially local.

Posted by: federalist | Mar 28, 2024 10:06:38 AM

William Jockusch --

If later obtained evidence shows beyond any sensible doubt that the defendant is factually innocent, it would be unethical for a prosecutor to FAIL to move to vacate the conviction. A plainly erroneous conviction is a miscarriage of justice (just as is a plainly erroneous acquittal, although on this blog we don't tend to hear a lot about plainly erroneous acquittals).

Posted by: bill otis | Mar 28, 2024 4:51:47 PM


That's cause they don't let us seat all-white juries anymore LOL

Dictator on day one! MAGA

Posted by: MAGA 2024 | Mar 28, 2024 10:04:45 PM


What are you talking about?

Posted by: Bill Otis | Mar 29, 2024 3:16:28 AM

Bill -- I agree with you. It's unethical. Yet it happens all the time. I followed several such cases in detail. It seems like the prosecutors close their eyes and say "I can see no evidence".

A past example:

Joey Watkins did not kill Isaac Dawkins (Georgia). The short version is that cell phone evidence proved he couldn't have. The long version was covered in the Undisclosed Podcast years before Watkins was finally freed after a tooth-and-nail battle.

A semi-current example:
Adnan Syed did not kill Hae Min Lee (Maryland). The short version is that police investigating at the time had numerous opportunities to discover evidence that proved he didn't. They consistently ignored such avenues. They went out of their way to coach a witness (Jay Wilds) to testify that Adnan did it. They even had Wilds "lead" them to Lee's car, which they had already found. Again, attorneys for the state fought this tooth and nail for years and we are awaiting a decision from the Maryland Supreme Court, though Syed is now free.

And two current examples:
Barton McNeil almost certainly did not kill his daughter Christina (Illinois). This one is not beyond-all-doubt, but it's close. It is highly likely that the actual killer was Misook Nowlin. McNeil said from the start he thought Nowlin did it but was not allowed to argue that at his trial. She was later convicted of a different murder. A starting point is the tape of his 911 call (https://freebart.org/?p=845).

Sandra Melgar did not kill her husband Jim Melgar (Texas). As with the Syed case, the police averted their eyes from evidence that would have proved her innocence, for example not testing certain crime scene blood for DNA. Said DNA testing has now been done. It comes back to an unknown male. https://www.khou.com/article/news/crime/sandra-melgar-new-dna-evidence/285-30850e86-6336-4ae9-92e7-3e23aaf14711. Of course Kim Ogg's office is still fighting it.

The upshot is that I agree with you, it's unethical. Yet it happens all the time. The incentives need to be changed so that prosecutors don't make this unethical choice.

Posted by: William Jockusch | Mar 31, 2024 3:26:18 PM

Hi Bill:

You said "we don't tend to hear a lot about plainly erroneous acquittals". Used to be you'd hear a lot of inner city types whining about Emmett Till and the Baptist Church in Birmingham. And Rodney King. They burned down a whole city over that. But the L.A. Koreans were straight out of a Chuck Norris movie LOL

These days they get their pound of flesh and Derek Chauvin is sent to jail. And America just keeps getting worse.

Back on track with the big D in 2025! MAGA

Posted by: MAGA 2024 | Mar 31, 2024 7:54:18 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB