Best mugshot ever
In an 85-page brief filed Tuesday with the 3rd Court of Appeals, Paxton’s lawyers argue that under state law, a whistleblower must believe someone has broken the law, but the aides only reported that “they expected laws might be violated.” As a result, they argue, the court should overturn a trial court decision denying the Office of the Attorney General’s plea to dismiss because the court doesn’t have the jurisdiction to hear the case. The lawyers have repeatedly argued Paxton cannot be sued under the Whistleblower Act because he is not a public employee.
This appellate brief was made public hours before Texas Land Commissioner George P. Bush is expected to announce at an event that he will run against Paxton for attorney general. Bush has made the allegations of Paxton’s former aides and separate felony securities fraud charges against Paxton a line of attack as he prepares to announce his run.
In particular, the brief states that at a March 1 hearing on the case, one of the whistleblowers who is not a plaintiff in the suit, former First Assistant Attorney General Jeff Mateer, would not specifically state that he saw Paxton commit a crime.
“Instead, he explained he ‘had potential concerns,’ and that he and his colleagues concluded that ‘had they gone down this path, would be in a position to assist and/or cover up with what … would be a crime,’” the brief states.
“… Speculative concerns about potential future illegal activity do not fall within the [Whistleblower] Act’s narrow scope,” it states.
Mateer did not immediately respond to a request for comment. In a statement, Carlos Soltero, the attorney representing appellee David Maxwell, said the four aides are “far from ‘rogue.'”
“They did exactly what Texans would hope their public servants would do,” Soltero said. “They reported corruption to the FBI and the Texas Rangers. Now, after Paxton lost his first appeal, lost at the trial court again, he brings yet another appeal to avoid testifying like he has something to hide.”
[…]
The brief argues the plaintiffs have not provided specific proof of a bribe by Paxton or Paul, but only speculated they “might” have had business dealings.
“None of these allegations of perfectly lawful conduct come close to making out a claim for bribery,” the brief states.
See here for the update. What Paxton is claiming is that these attorneys, his former top assistants, that he fired do not have any grounds to sue him under the Whistleblower Act because they didn’t have proof that he was committing a crime at the time. They only had serious concerns that he was committing a crime, and that’s not good enough. I guess the average news consumer doesn’t have the wherewithal to understand the finer points of the legal arguments being made – in the end, if he wins he’s just going to claim he was being railroaded by a bunch of whiny liberal losers anyway – but if one tries to parse the lawyerese, it sure doesn’t paint him in the most flattering light. This isn’t a full-throated assertion of innocence, it’s a “well, actually, you can’t prove any of that, so I win”. You play the hand you’re dealt, I suppose. We’ll see what the Third Court makes of it.
BRIEF COVERAGE BY THE MEDIA
It’s hard to argue that this isn’t newsworthy but it is nevertheless vexing that AG Paxton gets free publicity and an exposition of this litigation position when the response to this filing isn’t due for 30 days, and cannot therefore be included in the write-up.
There is obviously a good reason why the appellate rules provide for so much time (not to mention that extensions are also routinely granted). The legal arguments are typically very sophisticated, and if they depend on specific facts, the record of proceedings in the trial court must be inspected. That record is not publicly posted on the court of appeals website, and the Travis County District Clerk (unlike the clerks of Harris, Fort Bend, and Dallas County, and others) does not even provide free public access to trial court filings. Based on the record references in the appellate brief, there are hundreds of pages in this case.
Paxton’s L’état, c’est moi Impunity
But one of the issues in this interlocutory appeal is whether merits and evidence can be considered at all. That’s because the procedural vehicle used in the trial court to assert Paxton’s supposed sovereign immunity was a Rule 91a motion, which is resolved by looking at the pleadings and treating the factual allegations therein as true (similar to a motion to dismiss in federal court).
So, if the only source document for news coverage is Paxton’s appellant’s brief – which is by definition an advocacy piece – we don’t get even-handed coverage because the opposing brief, and critique of the appellant’s position and arguments, doesn’t yet exist. And the cites to the trial court record in the appellant’s brief cannot be verified in the absence of that record.
Even if the plaintiffs’ attorney or attorneys are invited to comment, that isn’t an adequate substitute, for they themselves will need time to digest the legal arguments that have just been made by a team of lawyers on the other side. [And in OAG cases, there is much legal talent readily available at public expense. Lanora C. Pettit, who litigated election cases with former SG Kyle Hawkins last year, has since been promoted to “principal” deputy solicitor general and is one of the AG attorneys in this appeal.]
Hopefully, the appellees’ brief will be given commensurate treatment by the Trib. when it is filed. We might see an argument to the effect that what the AG characterizes as a the denial of a plea to the jurisdiction was the denial of a motion to dismiss under Rule 91a, and should be treated as the latter, not the former. It may not destroy interlocutory appellate jurisdiction, but could still make a technical procedural difference.
Here is the link to the docket:
https://search.txcourts.gov/Case.aspx?cn=03-21-00161-CV&coa=coa03 [Paxton’s brief is designated as “SEALED” on the docket, but it is not actually sealed as of 6/3/2021 10am].
Trial Court Case: D-1-GN-20-006861, Brickman v. Ken Paxton, pending in Travis County District Court (Austin, Texas)
Trail Court Judge: Honorable Amy Clark Meachum
TEXT OF ORDER AT ISSUE IN APPEAL:
ORDER DENYING RULE 91A MOTION TO DISMISS
On this date, the Court considered Defendant’s Motion to Dismiss Pursuant to Rule 91a in the above-entitled and numbered cause, the response, the Plaintiffs’ pleadings, and the Court finds that it should be and is hereby DENIED.
Signed this 23rd day of March, 2021.
__________________________________________
AMY CLARK MEACHUM
Honorable District Judge Presiding
Also see prior appellate proceedings in the Austin Court of Appeals:
In re Office of the Attorney General, No. 03-21-00096-CV (Mar. 12, 2021) (Petition for writ of mandamus denied, temporary stay, ordered on March 1, 2021, lifted)
Office of the Attorney General of Texas v. Brickman, No. 03-21-00101-CV (Mar. 12, 2021)(Dismissing premature appeal for lack of jurisdiction).