State Attorney General Ken Paxton will be tried twice over charges of securities fraud and violation of federal securities regulations on Thursday, according to special prosecutors.
“There’s nothing in common except the defendant,” special prosecutor Kent Schaffer said. “So, for people who are sitting on a jury, it’s a much more confusing situation.”
Special prosecutors made the announcement during Paxton’s pre-trial. Paxton’s attorneys were expecting only one trial set for May 1 combining the allegations, but the special prosecutors said the third-degree felony of failing to register with the U.S. Securities and Exchange Commission demands a separate trial as it is more complex than the two first-degree securities fraud charges.
“That either doubles or triples the expense to Collin County,” Dan Cogdill, one of Paxton’s attorneys, said to WFAA. “I think from a judicial resources standpoint, given the fee structure that’s in place in this case, that’s absurd. We are not opposed and indeed we request that they be tried together.”
Paxton was indicted on two criminal charges on the state level, one for allegedly persuading investors to invest in Servergy, Inc., which he allegedly received shares from as compensation. The other charge was for not registering as an investment adviser with the state.
On the federal level, the same allegations were levied against him as civil charges. The SEC said registering as an investment adviser discloses any conflict of interest between an investment adviser and the company they represent to those they are advising.
Paxton has pleaded not guilty on all accounts.
“I don’t think anybody’s above the law,” Paxton said on Wednesday. “But everybody deserves the protection of the law, and that’s all I would ever ask.”
In October 2016, a federal judge threw out Paxton’s federal civil charges, saying the SEC did not provide enough evidence that he violated its regulations by encouraging investors to invest in Servergy, Inc. The SEC later re-filed its complaints, thus reviving the federal case.
James Spindler, UT law and business professor, specializes in legalities surrounding securities fraud.
“If (Paxton is) not an investment adviser, he would not have any obligation to disclose his compensation to these investors,” Spindler said. “If he is an investment adviser, then things are different.”
Spindler said people often violate state regulations because they can give advice but are not official investment advisers. Spindler said Paxton facing criminal charges and potential jail time, each criminal charge carrying 99 years, is unusual.
“People fall afoul of the investment adviser registration provisions all the time, and it’s fairly common to see civil lawsuits filed about that,” Spindler said. “It’s pretty uncommon to see a criminal lawsuit occur unless someone’s been engaging in a pattern of bad behavior over a period of time.”
In general, Spindler said people do not have to disclose anything if they are not official investment advisers, which Spindler said Paxton may argue.
“We have some sort of basic claim of fairness that it’s not fair to throw somebody in jail if they didn’t even suspect he was doing something wrong,” Spindler said. “He could also say that he wasn’t actually offering investment advice in return for compensation.”
