What happens if Ken Paxton is removed from office?

In short: a gubernatorial appointment, advice and consent from the State Senate, and a 2024 special election

On Saturday, Texas Attorney General Ken Paxton was impeached by an overwhelming—121-23!—and bipartisan vote of the Texas House of Representatives, queueing up a high-profile trial in the State Senate beginning in late August.

In the leadup to Paxton’s trial, there are a lot of outstanding questions. Will Paxton’s wife, State Senator Angela Paxton, participate in the proceedings? If so, she’ll likely become the first-ever spouse of an impeached official to vote on their removal from office. How far will efforts by leading Republicans like Donald Trump and Ted Cruz to protect Paxton go—and will they be effective? Will Paxton attempt to intimidate the senator-jurors? If the Senate convicts Paxton, will they disqualify him from holding office in the state?

But for both ambitious Texas politicians waiting in the wings and eagle-eyed election observers, one of the most important questions is likely who will succeed Paxton if he’s removed—and how they’ll be selected.

It’s worth noting at the outset that there are two vacancies to consider. The first vacancy occurred automatically upon Paxton’s impeachment. Under the state constitution, impeached officials are automatically suspended when they are impeached—and they either regain their office upon their acquittal or they never return. The second vacancy is speculative, and would only occur if Paxton is actually removed from office.

Let’s begin by considering the first vacancy. Under the Texas Constitution, upon an official’s impeachment, they “shall be suspended from the exercise of the duties of their office, during the pendency of such impeachment.” It strikes me that there might be a small conflict between the state constitution and state statutes on how the temporary vacancy is filled. Under constitution, “[t]he Governor may make a provisional appointment to fill the vacancy, occasioned by the suspension of the officer until the decision on the impeachment,” and state law provides that “the attorney general’s first office assistant shall perform the duties of the attorney general that are prescribed by law” “[i]f the attorney general is absent or unable to act.”

For the time being, Paxton’s First Assistant Attorney General, Brent Webster, is serving as the acting Attorney General. I assume that Webster would continue to serve as acting AG until (and unless) Governor Greg Abbott decides to make a provisional appointment. The best course of action for Abbott might be to keep Webster in charge—but if he decided to make a provisional appointment, I assume that Webster’s status as acting AG would yield to Abbott’s nominee.

Now the second vacancy—which would occur only if Paxton is actually removed.

Under the Texas Constitution, a vacancy in a “State office,” like Attorney General, is filled by a gubernatorial nomination made with the “advice and consent” of the Senate, and the nominee serves until the next general election. Owing to a 1991 constitutional amendment, there are lots of specific requirements for how this process plays out if the Senate is in recess—which may not actually come into play depending on when the Governor would make such an appointment. (That is, if the Senate was just in session for Paxton’s trial, it would make sense to then promptly consider the Governor’s Attorney General nominee.)

But whenever the Senate considers the nomination, the nominee can only be confirmed with a two-thirds vote. While many gubernatorial nominees in Texas are considered to be non-controversial—Secretary of State Jane Nelson was confirmed unanimously earlier this year, for example—Democrats might balk at an Attorney General nominee put forward by Abbott. They might very well insist that any such nominee serve in a caretaker capacity until the 2024 special election. (Of course, this assumes that (1) Texas Democrats in the Senate would actually hold their ground and (2) that any nominee palatable to them would actually be able to win a Republican primary anyway.)

In any event, a 2024 special election would be held to fill the remaining two years of Paxton’s term. Somewhat surprisingly, vacancies in statewide elected offices are fairly uncommon in Texas. Of the executive-branch offices, the Railroad Commission—which, for the uninitiated, doesn’t actually regulate railroads—has been the source of the vast majority of statewide special elections. In fact, there hasn’t been a special election for any other statewide office since 1862!

Unless the Senate’s trial of Paxton takes months and months, the 2024 special would play out just like any other general election would that year. The filing deadline for the 2024 election is December 11, 2023, and under state law, so long as the vacancy occurs “on or before the 10th day before the date of the regular deadline for candidates to file applications for a place on the general primary ballot”—so, by December 1, 2023—the office will see both a primary and general election unfold as normal. (And if the trial begins in late August 2023, I seriously doubt that it would take more than three months to resolve.)

The 2024 special election could give Democrats an opportunity they would otherwise miss out on until the office is up again in 2026—the matchup between Ted Cruz and his Democratic opponent (likely Colin Allred) represents one of Democrats’ few offensive opportunities in the U.S. Senate, and the AG election could serve as a marquee race, too, even if it’s an uphill slog.