Friend of the Senate Brief for Paxton

Texas Constitutional Enforcement filed a friend of the Senate brief in the Paxton impeachment trial, today, by mailing it to Patsy Spaw, the Secretary of the Senate, who for the Paxton impeachment trial is also Clerk of the Court of Impeachment.

At this writing, we have not heard back as to whether the brief will be formally accepted and will become a formal record of the trial.

To read the brief in PDF form and with legal formatting, table of contents, list of authorities, etc., click here.

Here is the text of the heart of the brief:


One of the pillars of a republican form of government is found in the Texas Constitution, art. 1, § 2, reading in part:

All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.

The “prior-term doctrine” rests on this bedrock principle of the Texas Republic.  The doctrine is often referred to as the “forgiveness doctrine,” but is better described as the “voter-sovereignty doctrine.”  Because the doctrine implements a fundamental principle of our republic and our Bill of Rights, it should be applied to reject 19 of the 20 counts against Attorney General Paxton.

Nothing is more important in impeachment proceedings than following the rule of law.  Because the Texas House violated two procedural statutes in impeaching Ken Paxton, all of the impeachment articles are null and void and should be rejected by the Texas Senate.

No law is any good if not enforced, and the proper enforcer of the law violated in the impeachment of Ken Paxton is the Texas Senate, sitting as an impeachment court.

Specifically, the Texas House violated two statutes in their impeachment:

  • The Texas impeachment proceeding statute specifying the steps in impeachment. Gov’t Code §665.001.
  • The Texas statute requiring that all testimony in Texas House committees be sworn. Gov’t Code § 301.022.

The steps in an impeachment proceeding are to 1) file articles, 2) investigate, then 3) act.  The very word, “proceeding” implies a proper order to impeachment.  The Texas House violated that order by 1) investigating (in secret), 2) filing articles, then 3) acting.  This is not merely an aspirational goal.  Failure to follow the proper order of things is an injustice, just as a hanging first and then a trial would be.



The attorneys for Attorney General Paxton wrote a powerful brief in support of what they call the “prior-term doctrine,” calling for rejection of 19 of the 20 articles because the doctrine applies.

The purpose of this amicus is to point out that the prior-term doctrine is solidly based in Texas Constitution, art. 1, § 2, which says in part:

All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.

This principle is one of the two columns upon which the republic that is Texas is based.  In Texas, the voters are the boss.  The voters are sovereign.  That is why the doctrine should better be known as the “voter-sovereignty doctrine.”

The Paxton brief on the doctrine established the following about the doctrine:

1.  The doctrine is codified in original form in statute (Tex. Gov’t Code §665.081):

NO REMOVAL FOR ACTS COMMITTED BEFORE ELECTION TO OFFICE.  (a) An officer in this state may not be removed from office for an act the officer may have committed before the officer’s election to office.

2.  The Texas Supreme Court held regarding impeachment of a sheriff that the predecessor statute meant that the official “could not be removed from office during his second term for offenses committed during his first term.” Reeves v. State, 267 S.W. 666, 669 (Tex. 1924).

3.  The Supreme Court further opined that the statute did not apply to constitutional impeachments such as the one in question, but rather applied a modified version of the doctrine, i.e., “when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election.” In re Laughlin, 265 S.W.2d 805, 808 (Tex. 1954).

4.  The Supreme Court applied the doctrine twice again after that in constitutional judicial removal cases, once in In re Brown, 512 S.W.2d 317 (Tex. 1974) and again in In re Carillo, 542 S.W.2d 105 (Tex. 1976). While applying the doctrine to Judge Carillo, the Court recognized that the acts before his current term were not known to the public, and therefore acted to remove him.  In Brown, the Court said, “The rationale for the doctrine is the sound reason that the public, as the ultimate judge and jury in a democratic society, can choose to forgive the misconduct of an elected official.” Id. at 321 (emphasis added).

5.  As set forth in the Paxton brief, the Texas Senate, sitting as a Court of Impeachment has applied the doctrine three times, once to the impeachment of a statewide officer, a Land Commissioner.

The bottom line is that the voter-sovereignty/prior-term doctrine has been implemented multiple times by the Texas Senate and the Texas Supreme Court.  Their actions are anchored in one of the core principles of our republic and articulated in the Texas Bill of Rights.

We urge this Court to follow precedent, republican principles, and the Texas Bill of Rights by applying the voter-sovereignty/prior-term doctrine in this case.


The very first section of the Texas Government Code Chapter 665 called IMPEACHMENT AND REMOVAL, lays out the proper order for an impeachment proceeding:

Sec. 665.001.  IMPEACHMENT PROCEEDING.  In this subchapter, “impeachment proceeding” includes:

(1)  presenting an article of impeachment;

(2)  investigating a matter relating to a contemplated impeachment; and

(3)  acting on an article of impeachment.

            The very word, “proceeding” implies a proper order:  1) Present, 2) Investigate, 3) Act.

            The Texas House violated the statutory order of impeachment.  Its order was 1) Investigate (in secret), 2) Present, 3) Act.

Ready, aim, fire is very different from fire, ready, aim.  There are essential governmental reasons why a prior Texas Legislature wrote the statute to proceed in a certain order.  The order adds transparency.  The order provides due process.  The order insures that mistakes are not made.  And, the proper order results in a product worthy of consideration by the Texas Senate.

The Texas House violated the Texas statute on impeachment proceeding.  No law is any good without enforcement.  The proper enforcer of that statute on the Texas House is the Texas Senate.

The Texas Senate should find all articles of impeachment produced contrary to law and therefore null and void.


In the impeachment debate on the Texas House floor on Saturday, May 27, 2023, Representative Matthew Schaefer asked Representative Andrew Murr, Chairman of the General Investigating Committee, the following question:

Chairman Murr, do you know whether any witnesses that spoke to the investigators hired by the committee were placed under oath?

Chairman Murr replied:

No witnesses were placed under oath . . .  (emphasis added)

In the Texas Government Code Chapter 301. LEGISLATIVE ORGANIZATION., §301.022. TESTIOMONY UNDER OATH says:

   (a) All legislative committees shall require witnesses to give testimony under oath, subject to the penalties of perjury.

   (b) The oath required by this section may be waived by any committee except a general investigating committee. (emphasis added).

Those who try to remove the top law enforcement official in Texas from office after sovereign voters have put him in that office, should follow Texas law in doing so, basing its actions only on sworn testimony.

The Texas House violated a statute governing its own behavior, and the only body to enforce Texas law against this House lawbreaking is the Texas Senate.

All the articles of impeachment should be dismissed because they are null and void for lack of sworn testimony as required by Texas law.


For the foregoing reasons, this Texas Senate, sitting as a Court of Impeachment should dismiss all articles of impeachment against Ken Paxton.


Tom Glass

Date:  August 23, 2022


Showing 1 reaction

Please check your e-mail for a link to activate your account.
  • Tom Glass
    published this page in Blog 2023-08-23 15:44:01 -0500