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Judge reverses course and orders Texas attorney general to testify in abortion lawsuit

<i>Joe Raedle/Getty Images</i><br/>A federal judge who quashed subpoenas for Texas AG Ken Paxton to testify in an abortion rights lawsuit is now reversing course and ordering the state's top law enforcement official to provide testimony. Paxton is seen here in February 2021.
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Joe Raedle/Getty Images
A federal judge who quashed subpoenas for Texas AG Ken Paxton to testify in an abortion rights lawsuit is now reversing course and ordering the state's top law enforcement official to provide testimony. Paxton is seen here in February 2021.

By Ashley Killough, CNN

A federal judge who quashed subpoenas for Texas Attorney General Ken Paxton to testify in an abortion rights lawsuit is now reversing course and ordering the state’s top law enforcement official to provide testimony.

Paxton made headlines last week when he allegedly fled his home while a process server attempted to serve subpoenas requiring Paxton to testify at a federal hearing in Austin.

US District Judge Robert Pitman had quickly quashed the subpoenas after Paxton argued they had been served at the last minute, and that as a high-ranking government official, Paxton could not be compelled to testify in a hearing, as it would create undue burden.

But in a new ruling on Tuesday, Pitman noted that Paxton’s office failed to disclose the plaintiffs had sent repeated emails attempting to serve Paxton in previous days. Pitman wrote that he issued his motion to quash last week on “incomplete facts.”

Pitman agreed with the plaintiffs that Paxton should testify, writing that Paxton is the only person capable of explaining his position on the policy at hand in the lawsuit. He ordered all parties to decide by October 11 on whether the attorney general’s testimony will be delivered by deposition or at a hearing.

CNN has reached out to Paxton’s office for comment.

The lawsuit was filed in August by several abortion funds, as well as by an individual abortion provider, seeking to block Texas officials from bringing cases under Texas’ abortion bans for conduct that happened out of state or before Roe v. Wade was overturned.

The plaintiffs want Paxton to testify and provide clarity over whether the state would prosecute those who fund and facilitate out-of-state abortions, saying his public statements on the issue are unclear and contradicting.

While Paxton argued that testifying would be a constant distraction and render him unable to perform his public duties, Pitman wrote that he “possesses unique, first-hand knowledge” about how he would enforce this issue. “Courts have repeatedly found that even the highest-ranking officials should testify when they have personal knowledge of relevant facts.”

In the order, Pitman seemed to agree with the plaintiffs that Paxton’s contradictory statements on whether he would enforce penalties has caused confusion and created a chilling effect among groups seeking to facilitate out-of-state abortions.

“If their fears are unwarranted, then that will become clear during the course of his testimony,” Pitman wrote. “But the Court will not sanction a scheme where Paxton repeatedly labels his threats of prosecution as real for the purposes of deterrence and as hypothetical for the purposes of judicial review.”

Since Paxton has repeatedly tweeted and given interviews on the so-called trigger ban, rather than leaving it up to his office to issue official statements, then he “alone is capable of explaining his thoughts and statement,” Pitman wrote.

Pitman also pushed back at Paxton’s complaint that testifying would create a demand on the attorney general’s time.

“It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his statements,” the order states.

“To the extent Paxton is burdened by his testimony, it is because both he and his office have declined to take a clear stance on the legality of out-of-state abortions while issuing statements suggesting they are illegal.”

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