Three whistleblowers suing Texas Attorney General Ken Paxton, alleging they were fired after reporting to the FBI and Texas Rangers that their boss was abusing the power of his office to benefit a campaign donor, recently asked the Texas Supreme Court to pause the lawsuit in light of settlement negotiations.
But the fourth former-top-aide-turned-whistleblower, James Blake Brickman, did not join in the motion to abate with his former colleagues, J. Mark Penley, David Maxwell and Ryan M. Vassar.
Penley, Maxwell and Vassar filed the motion to abate on Jan. 26, the same day Brickman filed a response in opposition to the request. Brickman told the court he’s not engaged in any settlement negotiations so even if the other parties do settle, his claim will still need adjudication.
“Respondents filed this lawsuit in the trial court on November 12, 2020 — more than two years ago,” Brickman told the court. “OAG immediately filed a challenge to the jurisdiction of the court, which the trial court denied, and this case has been in the appellate court system, with the trial court proceedings stayed, ever since. There is no basis for abating this case. The other parties seek abatement only because they intend to mediate this case.”
Brickman’s three colleagues and the OAG told the court in their joint motion to abate that mediation in the dispute is tentatively planned to take place Feb. 1. The lingering uncertainty as to whether the Texas Supreme Court will grant the petition for review OAG filed in January 2022 is a “material factor in the parties’ negotiations,” they told the court.
“Should the parties reach a settlement, they anticipate moving for disposition of the case pursuant to Texas Rule of Appellate Procedure 56.3,” the motion reads. “The parties therefore respectfully ask this court to abate consideration of the petition until Feb. 9, 2023 at 5 p.m. Should negotiations appear fruitful but require additional time, the above-captioned parties may jointly request an additional limited abatement.”
The four former top aides to Paxton sued his office alleging they were fired or put on leave for their belief that Paxton improperly used the resources of his office to interfere with litigation involving Austin real estate developer Nate Paul.
Paxton has repeatedly argued that, as an elected officer, the Whistleblower Act doesn’t apply to him.
OAG filed a petition for review with the Texas Supreme Court in January 2022, after a Travis County District Court and the Third Court of Appeals determined the lawsuit shouldn’t be dismissed early and should proceed.
Gov. Greg Abbott and Lt. Gov. Dan Patrick each filed amicus letters with the court in April asking the state’s high court to hear the case. Abbott argued it deserved to be heard “by a court with statewide jurisdiction, not by a regional court like the Austin Court of Appeals.”
Patrick agreed in his letter.
“Regardless of the outcome of the case, this case relates to the interpretation of Texas law and the people of Texas deserve that a case of this importance be considered and reviewed by the highest court in the state,” he wrote.
The four attorneys who brought this lawsuit are among eight who left the office in October 2020 after accusing Paxton of wrongdoing that included bribery and tampering with government records.
Brickman is represented by Thomas A. Nesbitt and William T. Palmer of DeShazo & Nesbitt.
Penley is represented by Don Tittle and Roger Topham of Law Offices of Don Tittle.
Maxwell is represented by T.J. Turner of Cain & Skarnulis.
Vassar is represented by Joseph R. Knight of Ewell Brown Blanke & Knight.
OAG is represented by solicitor general Judd E. Stone II, Lanora C. Pettit and William F. Cole of the Office of the Solicitor General and William S. Helfand and Sean O’Neal Braun of Lewis Brisbois Bisgaard & Smith.
The case number is 21-1027.