Lawyers for Texas Attorney General Ken Paxton have filed an appeal arguing that the AG was indicted by a rigged grand jury for a crime that does not exist.

Paxton’s defense team has filed an appeal, called a petition for discretionary review, in the highest criminal court in Texas.

In a statement obtained by Breitbart Texas, Dallas-based lawyer William B. Mateja said, “This petition was filed with the Court of Criminal Appeals to not only correct the lower court’s mistake but to end this improper prosecution … Ken Paxton has been charged with a crime that simply doesn’t exist, using a grand jury that was improperly impaneled.”

Paxton was indicted by a Collin County grand jury last summer for two counts of securities fraud and one count for failing to register with the Texas State Securities Board. Breitbart Texas has reported about the substance of the charges, the parties and witnesses involved, and the re-indictments after special prosecutors asked for a dismissal of two indictments. The charges are all felonies.

Lawyers for Paxton filed applications for writ of habeas corpus but they have been denied in lower court proceedings. Houston lawyer Philip Hilder told Breitbart Texas, “The prior court ruling did not go to the merits of guilt or innocence, rather to the timing of raising pre-trial issues not being ripe for decision. We believe being indicted for an action that is not a crime must be dealt with at the earliest possible time and are confident that the Court of Criminal Appeals will take a hard look at the meritorious issues that we have raised.”

Paxton now appeals from the Dallas Court of Appeals and files a petition for discretionary review in the Texas Court of Criminal Appeals.

Paxton’s lawyers are challenging the formation of the grand jury that returned all three indictments. Philip Hilder told Breitbart Texas, “These criminal charges came out of a specially-selected grand jury that allege a crime that does not even exist under law.”

They have argued that the trial court judge, Judge Chris Oldner acted beyond the scope of proper legal authority by asking potential grand jurors during the jury selection process for those who would be “willing to serve” and “volunteer.” The judge told potential grand jurors he wanted “to save everybody a little time.” The Texas Legislature abolished the “pick-a-pal” system in 2015, Paxton’s lawyers note. The intermediate appellate court in Dallas found that Paxton could not challenge this error in a pre-trial writ. The Court did not decide the issue on the merits. Paxton’s attorneys have also urged during the case that the judge acted improperly by going into the grand jury room when the grand jurors were deliberating about the evidence.

As reported by Breitbart Texas, Collin County Judge Chris Oldner, recused himself from the case on July 29, 2015, after his wife Cissy Collier Oldner, was reported to be communicating about the Paxton indictments that were still sealed. The alleged breach of grand jury secrecy by the judge resulted in his wife’s discussing the grand jury’s indictment with Susan Fletcher, a Collin County commissioner.

The judge’s wife has been accused of engaging in telephone conversations about the subject days before the indictments were made public. There are also defense counsel exhibits showing Cissy Oldner sending text messages to the commissioner about Paxton prior to the indictments. In those messages, she acknowledged “gloating” about Paxton’s criminal legal problems. Even after her communications about Paxton caused a public controversy, Cissy Oldner made a comment about Paxton on a Facebook post posted by a Dallas Morning News reporter, as reported by Breitbart Texas. Oldner suggested a legal remedy against his communications staff for what the journalist said was failure to timely communicate with her.

Judge Oldner did not run for office in Collin County again but chose instead to run statewide for the Texas Court of Criminal Appeals, Place 2. Oldner came in last place in the Republican primary with 25.15 percent of the vote. He garnered 20.80 percent in Collin County. Three candidates were running for the position.

Another argument brought in the petition relates to the statute under which Paxton is charged, i.e., the law that relates to allegedly acting as an unregistered investment adviser representative. Paxton’s lawyers argue that the statute is unconstitutionally vague, and therefore, invalid, having been preempted by the federal securities laws. In short, they argue that Paxton has been charged with a crime that does not exist.

The intermediate appellate court found that this argument could not be brought by a pre-trial writ of habeas corpus. Paxton’s lawyers argue that the high court should correct this error because Paxton should not be consigned to stand trial for a non-existent crime under an invalid statute where there are also no fact issues and the issues can be determined as a matter of law. The petition (attached below) sets out the various legal arguments and statutory law in support of their arguments. The opinion of the Dallas Court of Appeals is also attached. Counsel argues that a pre-trial writ can be used to challenge whether a defendant has been charged under a valid statute.

Paxton’s lawyers also argue that the Court of Appeals erred in holding that the statute under which Paxton was charged does not require a culpable mental state. They argue that the securities law statute requires a guilty mindstate if he was required to register and did not register, and this issue can be addressed in a pre-trial writ.

Paxton pleaded not guilty to indictments that many have called a political witch-hunt, as reported by Breitbart Texas. The issue of whether Paxton had failed to register as an investment advisor representative was raised by Dan Branch, Paxton’s opponent in the Republican Party primary for attorney general. Rep. Bryon Cook (R-Corsicana) and businessman Joel Hochberg are complaining witnesses in the indictments. Cook is chairman of the powerful State Affairs Committee and is said by opponents to be a close lieutenant to Speaker Joe Straus. Hochberg is a close business associate of Chairman Cook. Paxton ran against Straus as speaker before he was a Texas state senator.

After Paxton beat Dan Branch in the primary runoff election, a left-of-center “watchdog” group associated with requests for investigations and indictments against then-Governor Rick Perry, and former U.S. House Majority Leader Tom Delay, asked the Travis County District Attorney’s Office to investigate then-Republican Party AG nominee Paxton. The executive director of Texans for Public Justice sent a letter to the Travis County DA asking for an investigation three months before the November 2014 elections. The Austin-based nonprofit is funded by the Rockefeller Family Fund and a foundation whose top political recipient was reported to be the Ready for Hillary PAC.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.

Ken Paxton Petition for Discretionary Review