News item: Texas laws protecting whistleblowers don’t apply to Attorney General Ken Paxton, his agency argues in bid to quash lawsuit. Who among us didn’t already know that Ken Paxton doesn’t think the law applies to him?
Best mugshot ever
The Texas Attorney General’s Office is attempting to fight off efforts by four former aides to take depositions and issue subpoenas in their lawsuit claiming they were illegally fired after telling authorities they believed Attorney General Ken Paxton was breaking the law.
The agency is arguing that Paxton is “not a public employee” and thus the office cannot be sued under the Texas Whistleblower Act, which aims to protect government workers from retaliation when they report superiors for breaking the law.
Four former Paxton aides claim they were fired in retaliation for telling authorities they believed Paxton had done illegal favors for a political donor, Austin real estate investor Nate Paul. The whistleblowers’ allegations have reportedly sparked an FBI investigation.
In seeking reinstatement and other financial damages, the whistleblowers want to question Paxton himself under oath, as well as Brent Webster, his top deputy at the attorney general’s office, and Brandon Cammack, a Houston lawyer Paxton hired to investigate complaints made by Paul in what aides say was a favor to the donor. They also issued subpoenas to Paul’s company and a woman alleged to have been Paxton’s mistress.
[…]
The whistleblowers sought to question Paxton, Webster and Cammack under oath as soon as next week. Michael Wynne, an attorney for Paul, accepted the subpoenas for both World Class and the woman, court documents show. She could not be reached for comment and Wynne did not return a request for comment.
But in a filing last week, the attorney general’s office asked the judge to quash the depositions and the subpoenas, and prevent the whistleblowers from conducting any discovery.
“The OAG is doing everything they can muster to avoid having Ken Paxton answer basic questions under oath about the facts,” said Carlos Soltero, an attorney for one of the whistleblowers.
Instead, the agency said, the Travis County judge should dismiss the case entirely on procedural grounds.
The Texas Whistleblower Act — the basis for the lawsuit — is designed to provide protection for public employees who, in good faith, tell authorities they believe their superiors are breaking the law. But the attorney general’s office claims the agency cannot be sued under the law because Paxton is an elected official.
“The Attorney General is neither a governmental entity nor a public employee and, thus, the Whistleblower Act does not extend protection to reports of unlawful conduct made against the Attorney General personally,” the agency argued. “The Act does not apply… for reports made about actions taken personally by the elected Attorney General.”
Comparing Paxton’s authority to that of the president of the United States, the agency claimed that the attorney general had the right to fire the employees, despite their claims of retaliation.
Under that theory, “he’s saying that elected officials aren’t accountable” for violating the Whistleblower Act, said Jason Smith, a North Texas employment attorney who has handled whistleblower cases.
“It appears that General Paxton is trying to get off on a technicality that doesn’t exist,” he added.
See here and here for the background. I don’t have anything clever to add here, just that I hope this defense is as successful as his lawsuit to overturn the Presidential election was.
THE KING IS TORT-IMMUNIZED
The problem is much bigger than just AG Paxton asserting immunity.
Immunizing the agents of the State has been a law-making project pursued for more than 2 decades by a joint venture between the Office of the Attorney General (OAG) an the judicial branch of the Texas GOP.
Be reminded that Greg Abbott previously headed the OAG, and also served on the SCOTX. And there is a pattern here. John Cornyn likewise served as AG and on the Court. For years, there has been close collaboration between the two institutions. In effect, the AG’s Office has been doing the GOP’s “dirty” work, not just defending state actors, but providing them with immunity and impunity.
OPEN COURTS ?
The Texas Constitution provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
If the injury is inflicted by the agents of the State, however, you are out of luck. How is that? — Because the Republican Court had graced us with a Republican version of imperial doctrine that the King and his minions can do no wrong. That’s because in a monarchy, the King is the sovereign
(As a reminder, in a democracy all power comes from the people (“demos”), a principle known as popular sovereignty).
The OAG has an army of very capable litigators to push the envelope on IMMUNITY & IMPUNITY front further and further. So don’t be surprised if Paxton gets absolved without even so much as a trial on the merits.
Litigators from the OAG submit draft doctrine to the Supreme Court, which the Court then ratifies and issues as binding caselaw. They establish common-law precedent for the proposition that the State cannot be sued (sovereign immunity), then build on that in various scenarios of facts and claims. The Court itself self-referentially justifies the quashing of suits against state actors with reference to its prior decisions, perpetuating the original sin indefinitely under the hallowed doctrine of “stare decisis.”
As a matter of common law inherited from the King’s court, the Supreme Court has made it almost impossible to hold governmental officials accountable for wrongdoing.
The Legislature can override the Republican immunity jurisprudence, and has done so through the Tort Claims Act, the Whistleblower Act, the Texas Commission on Human Rights Act, and other statutes.
But the Judicial Republicans have done their level best (their level-worst, you might say) to hollow out and sabotage those statutorily-authorized causes of actions and remedies through various procedural and statutory construction rulings through which they impose their view of the what the law should be, and therefor is.
Farming out the legal defense of the whistleblower claims against Paxton to a private provider doesn’t change the basic dynamic, except that it provides an opportunity for patronage.