Ken Paxton is channeling the ghost of Pa Ferguson in fighting his impeachment
The impeachment, conviction, removal from office, and disqualification of Governor James E. "Pa" Ferguson in 1917 set the precedent for how an officer like Paxton is removed
Ken Paxton, the Attorney General of Texas, is in big trouble. Of course, that could’ve been said at various points in his tenure as Attorney General—just a few months into his first term when he was indicted for securities fraud by state prosecutors, when some of his staffers accused him of breaking the law and he retaliated by firing them, or when federal prosecutors began investigating him—but he’s really in it now.
Last week, the Texas State House of Representatives’ General Investigating Committee voted to recommend Paxton’s impeachment. Its impeachment resolution spells out twenty different articles of impeachment. And today, Saturday, May 27, 2023, the State House has convened to consider whether to impeach Paxton. Most Republicans in the legislature have remained quiet about how they view the charges against him—though Paxton has assailed the impeachment against him as “illegal” and has tagged the bipartisan committee members pursuing the charges as “liberals.”
With Paxton’s (possible) impeachment looming, I wanted to walk through the impeachment and removal process in Texas, using the 1917 impeachment, removal, and disqualification of Governor James E. “Pa” Ferguson as a case study. The case study is apropos not just because Paxton is the first statewide elected official since Ferguson to face impeachment—but also because Paxton, like Ferguson, is making desperate, unsupported claims about the legality of the impeachment proceedings.
At the outset, I’ll note that this is a longer post than usual. Stick around to the end and you’ll get to see a 2019 picture that depicts magician Shin Lim performing a magic trick that involves Ken Paxton holding a card in his mouth while Jane Sullivan Roberts, Chief Justice John Roberts’ wife, watches.
Article XV of the Texas Constitution vests the State House with the “power of impeachment” and the State Senate with the power to remove state officials and to disqualify them from holding office in the future. Section 2 specifies the state officers who are eligible to impeachment: “the Governor, Lieutenant Governor, Attorney General, Commissioner of the General Land Office, Comptroller and the Judges of the Supreme Court, Court of Appeals and District Court.” The legislature has the power to expand which officers are eligible to impeachment—and it currently allows “a state officer,” “a head of a state department or state institution,” and “a member, regent, trustee, or commissioner having control or management of a state institution or enterprise” to be impeached.
So far, this looks similar to the process set by the U.S. Constitution. But that’s where the similarities end. Unlike the U.S. Constitution, which specifies the grounds for impeachment—“Treason, Bribery, or other high Crimes and Misdemeanors”—the Texas Constitution doesn’t. The decision by the drafters of the Texas Constitution to not list specific grounds is somewhat unusual. Most states list out specific grounds—and some are much more specific than the U.S. Constitution—but eight other states list no grounds.
Additionally, under the Texas Constitution, once the State House votes to adopt articles of impeachment against a state officer, they’re immediately suspended from office, and the Governor can make a temporary appointment to fill the office.
If Paxton is impeached, it would be the first impeachment since 1975, when Judge O. P. Carrillo was impeached and removed from office, and the first impeachment of a statewide elected officer since 1917, when Governor James E. “Pa” Ferguson was removed from office.
Ferguson’s impeachment was massively consequential—but many of its most interesting details have been lost to history. It elevated Ferguson’s wife, Miriam A. “Ma” Ferguson, who was twice elected to Governor in 1924 and 1932. Despite being disqualified from holding any further office in Texas, Pa Ferguson nonetheless ran for Governor again in 1918 and for President in 1920. He attempted to run for Governor again in 1924, challenging the constitutionality of his removal and disqualification from office, but both were affirmed by the Texas Supreme Court. The saga of Ferguson’s impeachment offers some lessons for how Paxton’s impeachment—and its possible fallout—might go.
Had Ferguson not been impeached, he could’ve emerged with a national reputation similar to that of Louisiana Governor Huey Long. Like Long, Ferguson attempted to create a statewide political machine to reward his supporters, had a unique brand of populism (“Fergusonism”) that appealed to his working-class supporters, and had national ambitions. Ferguson’s attempts to meddle at the University of Texas—trying to mess with the university appointment process and vetoing UT’s appropriations in 1917—ultimately got him removed from office.
After sparring with Ferguson during the legislative session earlier in the year, in July 1917, the Speaker of the House ostensibly convened the State House in a special session to consider Ferguson’s impeachment. At the time, Ferguson had also been indicted in Travis County on nine felonies—one count of embezzlement, one county of diverting a special fund, and seven counts of misapplication of public funds. While Ferguson initially challenged the constitutionality of the special session that the Speaker was trying to convene, he eventually acquiesced and called the legislature into a special session himself.
On August 24, 1917, the State House adopted twenty-one articles of impeachment, which alleged a host of corrupt acts on Ferguson’s part—as well as a handful of discretionary acts on Ferguson’s part (like Article 15, “veto[ing] or attempt[ing] to veto the entire appropriation for the University of Texas except the salary of one officer”) that the legislature disliked.
Once the articles of impeachment were transmitted to the Senate, Ferguson was suspended from office, elevating Lieutenant Governor William P. Hobby to the governorship—which he would hold temporarily either until Ferguson was acquitted or through the end of the term if Ferguson was convicted. Hobby then called a special session of the State Senate to consider the impeachment charges. On September 25, 1917, the Senate convicted Ferguson of the first, second, sixth, seventh, eleventh, twelfth, fourteenth, sixteenth, seventeenth, and nineteenth articles. As punishment, the Senate rendered a judgment declaring:
. . . that the said James E. Ferguson be and he is hereby removed from the office of Governor and be disqualified to hold any office of honor, trust or profit under the State of Texas.1
That wasn’t the end of it for Ferguson, however. Prior to the start of the impeachment proceedings, he had already announced his intention to seek a third term as Governor—and on September 24, the day before the Senate’s judgment was rendered, he resigned, claimed that he wasn’t bound by the disqualification, and reiterated his intention to seek a third term.
As promised, Ferguson filed to run against Governor Hobby in the 1918 Democratic primary. Ferguson’s candidacy was a proxy fight over the practical effect—and legality—of his disqualification from holding office. By the plain text of the judgment rendered by the Senate, Ferguson was permanently disqualified from holding any state office. However, there was no formal mechanism in Texas law at the time to allow Ferguson’s name to be struck from the ballot. The state legislature considered amending the election statutes to allow courts to issue an injunction against placing the name of any disqualified candidate on the ballot; the measure passed the State Senate but failed in the State House. One representative argued against the measure on the grounds that “Ferguson should have the right to come before the people and submit the question of whether he had done any wrong.” He had exactly that opportunity in the Democratic primary—and lost to Hobby in a landslide.
But Ferguson’s candidacy veered the state dangerously close to a constitutional crisis. What if he had won the primary—and then the general election—despite being disqualified from office? My best guess is that an election contest would’ve been initiated under the state constitution and state law. The 1879 Constitution, which is still in effect today, provides that contested elections “shall be determined by both houses of the legislature in joint session.” In effect, the constitution created a general process (the legislature decides) and kicked the specific questions of how the legislature would decide to the legislature itself. Though the legislature had codified a procedure for election contests in state statutes, this procedure said very little about how a statewide election would be contested. If Ferguson had won, the state legislature would’ve been in the unenviable position of either creating a removal procedure on the fly and removing the electorate’s preferred candidate or nullifying the practical effect of the disqualification, which would likely undermine its impeachment power in future cases.
Fortunately, in 1919, the legislature adopted the statutory amendment to the election code that it didn’t in 1918, which required all candidates to be “eligible to hold office under the Constitution of this State” and provided that an ineligible candidate’s name could not be placed on a general election ballot or certified as the nominee of any political party.
Accordingly, when Ferguson attempted to run for Governor in 1924, he faced a legal challenge as to his candidacy. He contested the legality of his removal and disqualification—but both were affirmed by the Texas Supreme Court in Ferguson v. Maddox. The court fully rejected Ferguson’s arguments, embracing a broad view of the legislature’s power. It noted that the Senate’s judgment “cannot be called in question in any tribunal whatsoever, except for lack of jurisdiction or excess of constitutional power.” While the Senate was required to “act[] within its constitutional jurisdiction”—for example, it couldn’t remove someone who hadn’t been impeached or exceed its powers—“its decisions are final.” The Senate “is a court of original, exclusive and final jurisdiction.” During the course of removal proceedings:
The Senate must decide both the law and the facts. It must determine whether or not the articles presented by the House set forth impeachable offenses, and it must determine whether or not these charges are sustained by the evidence produced. Its action with reference to these matters is undoubtedly within its constitutional power and jurisdiction. This is as it should be. The power reposed in the Senate in such case is great, but it must be lodged somewhere, and experience shows there is no better place.
With Pa Ferguson unable to run for Governor, his wife stepped in. She won the 1924 Democratic primary and the general election—though her victory in the general election, 59-41%, was much closer than the 80%+ landslides that Texas Democrats usually won at this time—becoming one of the first two women elected Governor. After a controversial (and possibly corrupt) term as Governor, she was defeated in the 1926 Democratic primary, unsuccessfully ran again in 1930, and won a second term in 1932.
The precedent of the Ferguson impeachment looms large over Paxton’s impeachment proceedings. Like Ferguson, Paxton asserts that the his impeachment is illegal. In Paxton’s case, the argument is that Section 665.081 of the Texas Government Code precludes state officers from being “removed from office for an act the officer may have committed before the officer’s election to office.” He held a press conference to denounce the charges and to encourage his supporters to show up—a veiled effort to perhaps create some January 6-like conditions for the Texas House. Predictably, Donald Trump has also tweeted posted on Truth Social his support for Paxton.
But the House General Investigating Committee, which drafted the articles of impeachment, squarely rejected Paxton’s argument. It correctly notes that the Texas Supreme Court has held that Section 665.081 doesn’t apply in this context. Recall that the Texas Constitution provides for the impeachment of some state officers but allows the legislature to expand the eligibility. The Texas Supreme Court has explained that the statutory impeachment procedures don’t apply to the offices named in the constitution—as a result, for those procedures “authorized by the Constitution,” the so-called statutory-forgiveness doctrine doesn’t apply.
Whether the State House will actually impeach Paxton—and whether the State Senate will actually remove him—remains to be seen. But so far, the process is proceeding a lot like Ferguson’s did. A controversial, deeply corrupt statewide official is facing impeachment by a legislature controlled by his own party, tired of his antics. And in responding to the impeachment, he is relying on baseless arguments in an effort to delegitimize the process.
It didn’t work for Ferguson. Paxton will hopefully fare no better.
Unfortunately, to the best of my knowledge, there isn’t a publicly available version of the State Senate proceedings to which I can link.