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An attorney for Texas Attorney General Ken Paxton, who argued in a state appeals court Wednesday, insisted that Paxton could not be sued by four former senior officials who were fired after accusing him of accepting bribes and related crimes to have.
The Austin-based third appellate court will decide whether to continue a whistleblower lawsuit filed by former officials who say they were wrongly dismissed last year in retaliation for reporting the allegations.
The Texas Whistleblower Act is designed to protect civil servants from retaliation in the workplace after reporting credible crimes to appropriate investigators.
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But Attorney General Judd Stone II, Paxton’s chief appellate attorney, argued Wednesday that the lawsuit must be dismissed as Paxton is immune to complaints from whistleblowing staff.
“The Whistleblower Act removes immunity for claims based on reports that affect only public employees, appointed officials, or an employed government agency. But Attorney General Ken Paxton is not one of them,” Stone told the court. “He’s an elected officer.”
State law does not allow whistleblower lawsuits against elected officials, from nationwide leaders to school board members, argued Stone, adding that officials face other “strong controls of wrongdoing” including impeachment, unfavorable press coverage and electoral removal.
An attorney for the fired officers, Joseph Knight, urged the appeals court not to pass such a “gaping exception,” arguing that the exemption of all elected officials from whistleblower claims has never been recognized since the Whistleblower Act came into effect three decades ago .
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In addition, Knight said, Paxton was his agency’s chief politician, so his actions were tantamount to those of the attorney general – and government agencies can be sued under the law.
“Any act we are complaining about here is one that Mr. Paxton committed in his official capacity as attorney general,” Knight told the court. “We’re not complaining about something Mr. Paxton did in his spare time, in the privacy of his own home.”
Paxton went to the 3rd Court of Appeals after a district judge in Austin denied his motion to dismiss the case in March.
Wednesday’s arguments were the first in person before the 3rd court since the pandemic began, with the proceedings being streamed on the court’s YouTube channel as viewer seats were limited for security reasons.
All three judges on the court’s panel are Democrats – presiding judge Darlene Byrne and judges Gisela Triana and Chari Kelly. You don’t have time to make a decision that can be challenged in the Texas Supreme Court, where all eight members are Republicans, with one vacancy.
Paxton charged with wrongdoing
In late September 2020, eight high-ranking officials reached out to the FBI, Texas Rangers, and Travis County District Attorneys alleging criminal conduct on behalf of Austin real estate investor Nate Paul.
All eight resigned or were released within two months. Four sued under the Whistleblower Act, arguing that their extensive legal and law enforcement experience reinforced their conclusion that Paxton was breaking the law:
• James Blake Brickman, who was released on October 20, served as Assistant Attorney General for Political and Strategic Initiatives.
• David Maxwell, who was released on November 2, served 38 years in the Texas Department of Public Safety, including 24 years as a Texas Ranger, director of the agency’s law enforcement department.
• Mark Penley, a former federal attorney, served as Assistant Attorney General for Criminal Justice until his November 2 release.
• Ryan Vassar served as Assistant Attorney General for Legal Aid and served as the Agency’s Chief Legal Officer until his release on November 17.
The whistleblower lawsuit alleges that Paxton illegally used his office in 2019 and 2020 to aid Paul in exchange for benefits including remodeling Paxton’s Austin home, hiring Paxton’s lover, and receiving a political donation of $ 25,000.
More:Ken Paxton asks the judge to block the redistribution lawsuit, saying it is “wrong about Texas law”.
Paul had reached out to the Attorney General’s office with a complaint that state and federal investigators improperly searched his home and business in 2019.
Paxton has adequately defended his actions, saying that Paul’s allegations are grave and deserve investigation. He also described the whistleblowers as “rogue collaborators” who tried to prevent this investigation.
The allegations against Paxton
Four key allegations were made against Paxton in the whistleblower lawsuit:
• That he improperly tampered with an open file application by Paul who wanted access to an unedited FBI document and state investigation files when Paxton “never personally entered into any of the 30,000-40,000 open record rulings the OAG each Year, interfered, “said the lawsuit.
• That he intervened in a dispute between Paul and a charitable foundation after his agency refused to intervene.
• That he pushed for an unusually quick legal opinion, issued at 2am on a Sunday in August 2020, that limited public foreclosures due to the pandemic – days before one of Paul’s properties was scheduled for foreclosure.
• That he had overridden Maxwell and Penley, who concluded that Paul’s allegations of wrongdoing by investigators were unfounded, from hiring an outside attorney to investigate Paul’s allegations.
The lawsuit charged Paxon with crimes such as bribery, perjury, forgery of government records, abuse of office and obstruction of a criminal investigation.
Last month, the Attorney General’s Office issued an unsigned report that said an internal investigation into some of the allegations concluded that Paxton did not break any law in any official act related to Paul.
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