The Office of the Attorney General told the Texas Supreme Court in a response filed late Monday that the four former top aides who are now suing Ken Paxton under the Whistleblower Act shouldn’t be granted their request to lift an abatement in the lawsuit.
Nothing has changed since the parties agreed to abate the case last month while they finalized a mediated settlement agreement, OAG argued, telling the court the office has continued in good faith to “work toward fulfilling its obligations” to see the $3.3 million settlement agreement — that includes an apology from Paxton — finalized.
“As former members of OAG’s senior staff, respondents knew and should have known that such approval would likely be controversial and could take at least one additional legislative session,” OAG argued. “After all, even apart from multi-million-dollar appropriations, important pieces of legislation often must be proposed before session and can take multiple sessions to pass. And respondents also should have known that large settlements or judgments can lead to disputes: at least one high profile example of such a dispute arose during the tenures of at least three of the respondents.
OAG made three other noteworthy arguments in the response:
- The whistleblowers have possibly broken “the confidentiality of settlement discussions” with allegations they made in the motion to lift the abatement.
- There is no funding deadline in the settlement agreement the whistleblowers signed.
- The whistleblowers “appear to be coordinating with the media” in a public-relations campaign to influence settlement discussions “rather than focus their efforts on securing funding for the [mediated settlement agreement].”
Earlier this month, the whistleblowers — James Blake Brickman, J. Mark Penley, David Maxwell and Ryan Vassar — told the court that OAG was refusing to include in a formal agreement that the Legislature must approve their proposed settlement before the current legislative session ends in May.
The four former aides, who allege they were fired in retaliation for reporting to the FBI and Texas Rangers their belief that Ken Paxton was abusing the power of his office to benefit campaign donor Nate Paul, had requested the abatement in the case in February, noting the $3.3 million settlement agreement.
But in the March 8 motion they told the court if the case remains abated OAG would reap “all the benefits of a settlement, and respondents achieve none.”
“In oral communications with respondents, OAG contends that it has maneuvered respondents into a gotcha position. If funding approval is not achieved this session, OAG says the case should remain abated until the 89th Legislature considers it in 2025,” the whistleblowers argue. “And if that Legislature refuses to approve it, OAG says the abatement should remain in place until the following session. And so on in perpetuity. OAG tells respondents the case will never resume; they have given up their claims forever, even if legislative approval is not forthcoming.”
That reference to the differences in oral and written communications was called out by OAG in its response Monday as a possible breach of the confidentiality of settlement discussions.
“At no time has OAG suggested that it wishes to delay funding the settlement while simultaneously abating this litigation,” OAG argued, noting Texas law forbids the office from using public resources to influence the passage or defeat of any legislation. “Beyond that, it is plaintiffs’ responsibility — as it has been that of many plaintiffs before them — to lobby in favor of legislation they would like to see passed, in this case funding a settlement, which can take more than one session.”
In a Feb. 16 order the court granted the joint motion to abate and removed the case from its active docket until April 3, when the parties are required to file either a status report or a motion to dismiss.
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 rejected that argument, 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.
James Blake Brickman is represented by Thomas A. Nesbitt and William T. Palmer of DeShazo & Nesbitt.
J. Mark Penley is represented by Don Tittle and Roger Topham of Law Offices of Don Tittle.
David Maxwell is represented by T.J. Turner of Cain & Skarnulis.
Ryan 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.
The case number is 21-1027.