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Judge rules Texas attorney general does not have to appear at hearing on abortion lawsuit after affidavit alleges he ran from person serving subpoena

<i>Brandon Bell/Getty Images</i><br/>Texas Attorney General Ken Paxton
Getty Images
Brandon Bell/Getty Images
Texas Attorney General Ken Paxton

By Taylor Romine and Tierney Sneed, CNN

A Texas judge ruled Tuesday that state Attorney General Ken Paxton does not have to appear at a hearing related to abortion access lawsuit after an affidavit alleged that he ran away twice from a person who was serving him a subpoena related to the lawsuit.

The subpoena was part of a lawsuit 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 affidavit says two subpoenas were issued for Paxton, one under his professional title as attorney general and another addressed to him individually.

Paxton’s office filed a motion to quash the subpoenas saying they were not proper and had not been effectively served. Paxton refused to engage a person trying to serve him at his home Monday morning, according to the motion. On Tuesday, a Texas judge granted Paxton’s request to quash and seal the subpoena to appear at the hearing.

“Top executive officials should not be called to testify absent extraordinary circumstances,” according to the motion, obtained by CNN, and claim the “entire reason” he is named as a defendant is because he is a high-ranking government official. The motion also notes that as an individual, Paxton has no information relevant to the plaintiff’s claims.

On Monday morning, Ernesto Martin Herrera served the subpoenas to Paxton at his home, the affidavit says. Herrera knocked on the front door and a woman opened it, where he shared that he was there to give Paxton important legal documents, the affidavit continues. She said that Paxton was on the phone and that he was in a hurry to leave, so Herrera left his card and went to sit in his car to wait.

Almost an hour later, a car drove into the home’s garage and Paxton exited the vehicle, the affidavit says.

“I walked up the driveway approaching Mr. Paxton and called him by his name,” the affidavit says. “As soon as he saw me and heard me call his name out, he turned around and RAN back inside the house through the same door in the garage.”

Later, his wife, State Senator Angela Paxton, started the truck, according to the affidavit. Several minutes later Ken Paxton ran out the door and into the car, trying to avoid Herrera, the affidavit says. Herrera says that he once again yelled Paxton’s name, saying that he had legal documents, but that Paxton continued towards the truck.

When Herrera determined Paxton was not going to take the subpoenas from his hand, the affidavit says he yelled to Paxton that he was serving him with legal documents and left it on the ground.

Paxton left in the truck and left the documents on the ground, Herrera said in the affidavit.

Paxton responded to the allegation in two tweets from his verified account, saying he is being attacked for trying to “avoid a stranger lingering outside my home.”

“This is a ridiculous waste of time and the media should be ashamed of themselves,” the first tweet reads. “All across the country, conservatives have faced threats to their safety — many threats that received scant coverage or condemnation from the mainstream media.”

“It’s clear that the media wants to drum up another controversy involving my work as Attorney General, so they’re attacking me for having the audacity to avoid a stranger lingering outside my home and showing concern about the safety and well-being of my family,” the second tweet said.

Judge Robert Pitman, the judge who granted Paxton’s request to quash the subpoena, also granted Paxton’s emergency motion to seal the documents.

“Plaintiff’s actions have caused a serious security risk” for Paxton because the process server was “unidentified” and “loitered at the Attorney General’s home for over an hour, repeatedly shouted at him, and accosted both the Attorney General and his wife, a Senator in the Texas legislature,” according to the motion. He feared for his safety and “refused to engage with the strange man who was lurking outside of his home and repeatedly shouting at him,” said the motion.

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

This story has been updated with additional details.

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CNN’s Chris Boyette contributed to this report.

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