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What Happens If Ken Paxton's Seat as AG Is Vacated?

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Marjorie Kamys Cotera/Texas Tribune
Attorney General Ken Paxton faces a maelstrom of legal proceedings in the case ahead of him, leading some Republicans to consider replacements for the AG, who's served less than a year.

Attorney General Ken Paxton has been in the headlines a lot as of recent. Not in the way his predecessor and current boss Greg Abbott used to (typically, by announcing that he was suing the federal government), but rather by vowing to fight against indictments on three securities fraud felonies for actions he took during his time as a state senator.

But, while Paxton’s camp battens down the hatches, rumors of replacement swirl ahead of what could be a lengthy trial-and-appeals process and a new poll shows 62 percent of Texas Republicans believe he should resign.

So, if there were a vacancy in his seat – whether by resignation or conviction – who would replace the AG, and how would the state go about doing so?

Paxton’s certainly not the only statewide official to stare down an indictment – he’s not even the only one to do so within the past year – but his case is different: He’s facing a trial that could last years and a potential sentence of up to 99 years. And the charges against him haven’t been couched as “politically motivated” near as often as they have been in ex-Gov. Rick Perry’s case, says Jim Henson of the Texas Politics Project.

Henson says Perry’s prosecution gave him “legal cover” because it took place in a political context, allowing fellow Republicans to rally around him. Despite the fact that Paxton’s case was instigated by a left-leaning group, the political aspect has been sidelined in the case of Paxton.

“I think it’s a possibility that, if this goes a certain way, he could be induced to step down largely as a result of pressure by other Republicans,” Henson says. “I don’t think we’re there yet, but I do think the circumstances of this legal problem don’t provide him the kind of legal cover that some people have had in these kinds of situations.”

That lack of us-versus-them has allowed for a fair bit of bet-hedging, though it’s pretty much gone unspoken.

If the AG were to resign, his predecessor would be chosen by Gov. Greg Abbott, per the Texas Constitution.

Article Four of the Texas Constitution allows the governor to appoint a successor to a vacated statewide seat. So, if Paxton steps down, or on the far-off chance that he’s convicted during his term, Abbott will choose his successor.

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If the legislature’s in session at the time, that appointment will go to the Senate for a two-thirds vote of approval. Recess appointments, however, allow the appointee to hit the ground running and immediately hold the seat, though the Senate can confirm the appointment during the next legislative session.

That appointment extends until the next general election.

In the case of Paxton, there are plenty of names floating around for replacements – the Twitter-famous Texas Supreme Court Justice Don Willett, fellow Justice Eva Guzman and ex-Chief Justice Wallace Jefferson are rumored to be some of the frontrunners to take over the mantle, should Paxton resign.

But, Henson says, though there may be many waiting in the wings for a potential resignation, they’re not going to break party line to pitch their qualifications to Abbott, at least not publicly.

“As far as being a possible successor, it’s a subtle and difficult game, if you’re one of those people,” he says. “Because you don’t want to poison the well by presuming that this would happen. I don’t think people are really in a position to express their willingness to serve, under the circumstance.”

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