Texas AG Ken Paxton does not have to testify in abortion suit, appeals court rules

Texas Attorney General Ken Paxton will not be required to testify in a lawsuit filed by a coalition of nonprofits that wants to resume helping pregnant Texans travel elsewhere for abortions, the 5th U.S. Circuit Court of Appeals ruled Monday.

Overturning a district court ruling that would've forced Paxton to testify as a witness, the federal appeals court decided Paxton's testimony is not necessary to clarify Texas' law on out-of-state abortions and that the case will proceed without it.

The decision, from three Republican-appointed judges, is the latest development in Paxton's exhaustive attempt to avoid giving testimony.

Five days before a Sept. 27 hearing in Austin, lawyers for the nonprofit abortion funds began working to ensure that Paxton was available to testify, eventually turning to subpoenas. Lawyers in Paxton's office, however, declined to accept the subpoenas on Paxton's behalf or set up an alternative form of service.

On the day before the hearing, the nonprofits sent a process server to Paxton's home in McKinney. Paxton, when confronted in the driveway, ran back in the house and later ran into a vehicle being driven by his wife, state Sen. Angela Paxton, ignoring the process server as they drove away, court documents said.

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The nonprofits want to place Paxton under oath and ask questions about statements he has made that lawyers say conflict with his court filings on whether the groups can coordinate and pay for Texans to get an abortion outside of the state.

Specifically, in June, after the U.S. Supreme Court ended a constitutional right to an abortion, Paxton vowed to pursue civil penalties and aid in the criminal prosecution of those who perform or induce an abortion, noting that his office considered abortion illegal for Texans — whether the procedure occurred in "Denver or Dallas, in Las Cruces or Lamesa."

Yet, in court filings, lawyers for Paxton's office suggested the attorney general does not consider out-of-state abortions illegal under Texas law.

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Wanting to square those pronouncements, U.S. District Judge Robert Pitman, after initially saying Paxton did not have to testify, changed his mind last month and said that only Paxton can address the conflicting messages.

"Given this contradiction," Pitman wrote in his order, "Paxton alone can testify as to which represents his position on out-of-state abortion care."

Pitman concluded that Paxton, in taking the time to tweet and give interviews about the abortion law, surely could find time to sit for a deposition.

But the appeals court disagreed. It suggested testimony about Paxton's statements can come from a lawyer in Paxton's office, but not Paxton himself, because, only in exceptional cases must a high-ranking official such as an attorney general provide testimony.

"This is not one of those rare cases," the court wrote.

The appeals court's decision comes one week after Paxton won reelection for a third term.

A motion to dismiss the nonprofits' suit filed by Paxton's office remains pending.

This article originally appeared on Austin American-Statesman: Texas Attorney General Paxton doesn't have to testify in abortion suit