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A federal judge who revoked Texas Attorney General Ken Paxton’s subpoenas to testify in an abortion rights case is now reversing course and ordering the state’s top law enforcement official to testify.
Paxton made headlines last week when he allegedly fled his home while a process server tried to serve subpoenas requiring Paxton to testify at a federal hearing in Austin.
U.S. District Judge Robert Pittman quickly quashed the subpoenas after Paxton said they were served at the last minute and that as a high-ranking public official, Paxton could not be compelled to testify in a hearing because that would create an undue burden.
But in a new ruling Tuesday, Pittman noted that Paxton’s office did not disclose that the plaintiffs had sent repeated emails trying to serve Paxton in the previous days. Pittman wrote that he issued his motion to quash last week on “incomplete facts.”
Pittman agreed with the plaintiffs that Paxton should testify, writing that Paxton was the only person capable of explaining his position on the policy at issue in the case. He ordered all parties to decide by Oct. 11 whether the attorney general’s testimony will be given 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 an individual abortion provider seeking to prevent Texas authorities from suing under Texas abortion bans for conduct that occurred outside the state or before Roe v. Wade was cancelled.
The plaintiffs want Paxton to testify and clarify whether the state will prosecute those who fund and facilitate out-of-state abortions, saying his public statements on the issue have been vague and inconsistent.
While Paxton argued that testifying would be a constant distraction and make him unable to fulfill his public duties, Pittman wrote that he “possesses unique first-hand knowledge” of how he would press the issue. “Courts have repeatedly found that even the highest-ranking officials must testify when they have personal knowledge of the relevant facts.”
In the order, Pittman appeared to agree with the plaintiffs that Paxton’s conflicting statements about whether he would impose penalties had caused confusion and created a chilling effect among groups seeking to facilitate out-of-state abortions.
“If their fears are unfounded, that will become clear during the testimony,” Pittman wrote. “But the Court will not sanction a scheme in which Paxton repeatedly labels his threats of prosecution as real for purposes of deterrence and as hypothetical for purposes of judicial review.”
Because Paxton has repeatedly tweeted and given interviews about the so-called trigger ban, rather than letting his office issue official statements, then “he alone is able to explain his thoughts and statement,” Pittman wrote.
Pittman also dismissed Paxton’s complaint that testifying would take up the attorney general’s time.
“It is challenging to dispel the notion that Paxton has time to give interviews threatening prosecution 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 refused to take a clear position on the legality of out-of-state abortions while issuing statements suggesting they are illegal.”
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