Alas.
Still a crook any way you look
Attorney General Ken Paxton will not have to sit for a deposition in a longstanding lawsuit filed by four former senior aides who said he improperly fired them after they reported him to the FBI, the Texas Supreme Court ruled Friday.
It is a victory for Paxton, who has managed to avoid testifying about allegations of corruption, bribery and abuse of office despite this civil lawsuit, an impeachment trial and a federal criminal investigation.
The whistleblowers sought to question under oath Paxton and three of his current top deputies: First Assistant Brent Webster, chief of staff Lesley French and senior adviser Michelle Smith. But the Supreme Court overturned a trial court order scheduling those depositions.
The justices said since the attorney general’s office has agreed not to contest the lawsuit, which alleges that Paxton violated the state’s Whistleblower Act, their sworn testimony is unnecessary.
“While we agree with the former employees that OAG’s concessions do not preclude all discovery, we agree with OAG that the trial court abused its discretion in ordering the depositions of these four witnesses without considering that the only fact issue on which those witnesses are likely to provide information — OAG’s liability under the Whistleblower Act — is now uncontested,” the opinion states.
[…]
The whistleblowers sued Paxton in November 2020, alleging their dismissals were illegal under state law. Paxton disagreed but offered to settle the suit and pay the whistleblowers $3.3 million. To fund that settlement, however, Paxton needs an appropriation from the Legislature.
When he asked the Texas House in 2023 for the money, lawmakers wanted him to publicly answer questions about why Texas taxpayers should foot the bill. The House’s ethics committee began investigating him.
[…]
The whistleblower lawsuit remains, however. Paxton in January said he would no longer contest the facts of the case — despite the fact that the allegations by the whistleblowers were similar to the ones his lawyers had vigorously disputed during the impeachment trial.
See here and here for the previous updates – you can follow the links back from there if you need to know more – and here for a copy of the Court’s opinion. For a hot minute back in January, it had appeared that Ken Paxton would finally, finally be forced (under penalty of perjury) to answer questions about the whole Nate Paul situation and why he fired multiple formerly trusted advisors who had become concerned about the way he was doing his business during that time. Paxton’s countermove was to say “fine, I will no longer argue with anything you say, now stop asking me questions”, and on that point he has succeeded. My main takeaway from this is that greased pigs should come to Ken Paxton for advice on how to be more slippery.
I’ve read the SCOTx opinion and I don’t find anything terribly objectionable about it. It’s a bunch of legalistic argle-bargle, but there’s no obviously flawed logic or excessively strained application of existing law that I see. To that end, and to whatever extent the whistleblowers still have matters to work out in court, and then ultimately the Legislature, to get their settlement, I would suggest they lean all the way into Paxton’s insistence, now twice committed to written legal documents, that he doesn’t contest anything they say. Because, as I think it’s clear both from this opinion and from everything we know about Ken Paxton, he’s going to do everything he can to try to have it both ways. From the opinion:
Shortly after the Court denied that petition, however, OAG amended its answer in the trial court. OAG now “affirmatively answers that it elects not to dispute the Plaintiffs’ lawsuit as to any issue and consents to the entry of judgment.” Although the amended answer contains numerous affirmative statements that refute the factual allegations in the live petition and insist that plaintiffs’ claims are “baseless and they would fail,” OAG’s answer nevertheless states that it “consent[s] to the entry of judgment in this matter to the extent of the statutory limitations of the Texas Whistleblower Act.”
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Second, plaintiffs contend that without this discovery, they will be unable to obtain “effective” relief. As they correctly note, collection of a money judgment in their favor will require an appropriation from the Legislature. See Tex. Dep’t of Hum. Servs. v. Green, 855 S.W.2d 136, 145 (Tex. App.—Austin 1993, writ denied) (noting that a successful Whistleblower Act plaintiff “must still request a legislative appropriation to collect the damages awarded him”). According to plaintiffs, the Governor and members of the Legislature have expressed a desire to hear from these witnesses before deciding whether to appropriate funds. But discovery requested as part of the litigation process is not proper simply because it might be used for legislative purposes. See Morath v. Tex. Taxpayer & Student Fairness Coal., 490 S.W.3d 826, 853 (Tex. 2016) (“Courts should not sit as a super-legislature.”). Information is discoverable if it is relevant to pending litigation, and a discovery request must be directed at information that “will aid the dispute’s resolution”—i.e., the dispute before the court. If, as plaintiffs assert, the Legislature will be unsatisfied with the trial court’s judgment and whatever evidence was presented in support of that judgment, the Legislature has at its disposal the means to obtain additional information.
So as the first paragraph notes, Paxton has already been telling the court one thing and everyone else the exact opposite. I say hammer away at Paxton’s admission that everything the plaintiffs say in their briefs is the unvarnished truth, and the first time he says something outside of court claiming that he’s right and they’re lying, make a motion to have him testify about that in court. It’ll probably fail, but at least you can make his lawyers respond to that.
As for the Legislature, I don’t know how much appetite there will be to fight this out. The 2023 Lege didn’t want to fund that $3.3 million settlement, but it was never clear to me if that meant Paxton would try to stiff the plaintiffs or if that money would have to come out of his office’s budget. My advice here is again to make it clear at every opportunity that Paxton has fully conceded on what the truth is, so by his own admission anything else he says is a lie. I can’t guess what the Legislature will do with that, but at least they’ll have to face it. That may be the best that can be done. The Chron has more.