Best mugshot ever
The 3rd Court of Appeals on Friday denied a petition from Texas Attorney General Ken Paxton’s office to stop a trial court hearing in a suit filed by whistleblowers who claim they were wrongfully terminated after reporting Paxton to law enforcement for alleged bribery and other public corruption.
Attorneys for the office did not immediately respond to a request for comment, but they are likely to appeal the decision to the Texas Supreme Court.
“We were pleased, but not surprised, by the 3rd Court’s ruling,” said Carlos Soltero, who represents David Maxwell, the agency’s former director of law enforcement who was fired in November. “This brings us closer to being able to move forward and present our case on the merits, which we are looking forward to doing.”
[…]
A Travis County trial court on March 1 heard a motion by Paxton’s attorneys to dismiss the case. When the judge left the issue under advisement and continued on to entertain an injunction hearing in the case, Paxton’s attorneys appealed, arguing she needed to first rule on the motion to dismiss before proceeding. The appellate court temporarily stayed all further action in the case; the stay was lifted with Friday’s order.
We know about the whistleblower lawsuit. Paxton’s response to the charges against him are that the Office of the Attorney General is not subject to the state’s whistleblower laws and thus this lawsuit is moot and should be dismissed. Travis County judge Amy Clark Meachum denied the motion to dismiss the lawsuit on March 1, and when she attempted to proceed to the next phase of the suit, which involved hearing from the plaintiffs, Paxton’s lawyers objected:
Bill Helfand, an outside lawyer hired to represent the agency in the whistleblower case, argued that the motion to dismiss raised questions about the appropriateness of the lawsuit that needed to be addressed before any other matters could be considered.
Meachum noted that she had made no ruling that could be appealed, but Helfand insisted that “diving into the substantive issues” of the case was no different from issuing a ruling denying the motion to dismiss, allowing him to file an appeal that should have ended matters until the 3rd Court of Appeals could rule.
Meachum disagreed and opened the second hearing, where for the first time a court heard from two of those who accused Paxton of misconduct.
The first was Jeff Mateer, the former second-ranking executive at the attorney general’s office who resigned Oct. 2, two days after joining six other top executives in telling FBI agents that he believed Paxton was misusing the powers of his office to help Austin businessman Nate Paul.
Mateer, a lawyer, said he stood by his accusations against Paxton, but when he was asked to discuss them, he was interrupted by repeated objections from Helfand, who said providing details would violate attorney-client privilege and get into internal office deliberations that could not be discussed in court.
Mateer also testified that the two executives who want to be reinstated to their jobs — David Maxwell, former director of the agency’s Law Enforcement Division, and Ryan Vassar, former deputy attorney general for legal counsel — had performed their jobs well when he ran the office.
The court also heard from Vassar, who was fired in November and testified that he had received no criticism of his job performance or reprimands before speaking to FBI agents last year. Vassar was in the early stages of his testimony and was set to resume Tuesday morning.
The Third Court of Appeals initially ruled for Paxton and halted any further testimony until it issued a decision. This was the decision, which will now be appealed to the Supreme Court. Remember how every little thing in the securities fraud case against Paxton got appealed all the way up to the Court of Criminal Appeals before anything could be done, which is why that case is more than five years old now? Yeah, that’s the likely situation here as well. The FBI can’t arrest his ass fast enough.
Comment on: “Attorneys for the office did not immediately respond to a request for comment, but they are likely to appeal the decision to the Texas Supreme Court.”
There were two rulings by the Austin Court of Appeals (COA) last Friday:
(1) Denial of mandamus relief
The COA offered zero reasons, which makes this “opinion” resolving the AG’s mandamus petition really lame. At the minimum, they could have said that there was no urgency, and that therefore there was no need for the COA to get involved at this stage of the game. So-what if some testimony is taken prior to a ruling on the jurisdictional matter, the substance of which, by the way, could (and likely would) be of great public interest. Malfeasance and abuse of power in the executive branch of state government? Is there an more obvious example of a matter of public concern? Nay, paramount public concern.
The AG’s keep-it-under-wraps pitch goes like this: “The hearing threatens to irreversibly disclose confidential communications regarding the contents of high-level discussions about legal positions the OAG has taken. These harms require this Court’s immediate intervention.”
(2) Dismissal of Appeal
The AG also filed an interlocutory appeal, again claiming that merely doing so froze everything in the trial court, but there was no actual order denying his jurisdictional challenge to appeal. The Third COA accordingly dismissed the OAG’s appeal for lack of appellate jurisdiction (DWOJ).
So, if this is going to be “appealed” to the SCOTX, the argument would presumably have to be that the COA was wrong in concluding that it lacked jurisdiction to review the correctness of an order than had not been signed, or not yet been signed. The Supremes could get creative and “deem” or “impute” an order into existence, contrary verbal conduct by the trial judge notwithstanding. It’s not like this sort of thing hasn’t happened before. It might be thought of as jurisprudential “void filling”. If it’s not there – no problem — it can still be extemporized for the occasion.
The other “appeal” option to the SCOTX would not be an appeal-qua-appeal, but a second original mandamus proceeding in the high court, with a rehash of the same argument that weren’t successful in the Third COA.
Something along the lines of: “The trial court implicitly denied a plea to the jurisdiction filed by the Office of the Attorney General by proceeding to a temporary injunction hearing regarding the merits of plaintiffs’ claims, including potentially permitting testimony from individuals who formally held some of the most senior positions in OAG.”
What? – Sunshine and Transparency? God forbid. Can’t have Paxton’s dirty unmentionables laundered in public. Beans, milk, and ink once spilt, can’t be recovered. No adequate remedy here. Gives us that writ!
Links to both cases here:
https://search.txcourts.gov/Docket.aspx?coa=coa03&FullDate=03/12/2021
Cites:
In re Office of the Attorney General, No. 03-21-00096-CV (Tex.App.-Austin, March 12, 2021)(orig. proc.)(mem. op.) – Disposition: Writ Denied
Office of the Attorney General of Texas v. James Blake Brickman, J. Marl Penley, David Maxwell, and Ryan M. Vassar, No. 03-21-00101-CV (Tex.App.-Austin, Mar. 12, 2021, no. pet. h.)(mem. op. by Byrne, CJ) – Disposition: Dismissed for Want of Jurisdiction