The Texas attorney general is not a “public employee” and therefore isn’t subject to the state’s Whistleblower Act, the Texas Supreme Court was told in a brief filed Wednesday trying to end a lawsuit alleging Ken Paxton abused the power of his office to benefit a campaign donor.
So far, Travis County District Judge Amy Clark Meachum and a panel of the Third Court of Appeals in Austin have rejected attempts to dismiss the lawsuit brought by Paxton’s former top aides — James Blake Brickman, J. Mark Penley, David Maxwell and Ryan M. Vassar.
Those four attorneys sued the Office of the Attorney General, rather than Paxton directly, alleging they were fired or put on leave after reporting to the FBI and the Texas Rangers their belief that Paxton was improperly using the resources of the 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. In Wednesday’s brief, the office characterized the Whistleblower Act’s sovereign-immunity waiver as “limited and narrow” and said the plaintiffs have failed to allege any conduct by the Office of the Attorney General that would amount to a violation of law.
“Instead, plaintiffs emphasize their belief that Attorney General Paxton allegedly engaged in misconduct,” the brief argues. “Plaintiffs attempt to bridge this gap by arguing that Attorney General Paxton’s individual conduct is attributable to OAG under principles of agency law. That argument fails as a matter of elementary principal-agent law: Attorney General Paxton is not OAG’s agent.”
Carlos Soltero of Soltero Sapire Murrell, who represents Maxwell, said Thursday that four judges have already rejected the exact same arguments OAG made in the merits brief to the Texas Supreme Court.
“I’ve never believed there was any merit in their positions, and nothing about their filing yesterday changes my mind about that,” he said.
Kimberly Hubbard, a spokeswoman for the OAG, in response to written questions from The Texas Lawbook Thursday said the “so-called whistleblowers” will either lose at the Texas Supreme Court or in the trial court on the merits.
“AG Paxton is not a public employee,” she said. “He is an elected officer against whom the Texas Whistleblower Act does not apply. … The so-called whistleblowers will lose on this issue and all other issues.”
The OAG filed a petition for review with the Texas Supreme Court on Jan. 5 and has been granted three extensions by the court for filing various documents. Soltero also said the extensions requested and received in the case, in his estimation, are an attempt by OAG “to drag this out as long as possible.”
The case also has received unusual amicus attention from both Gov. Greg Abbott and Lt. Gov. Dan Patrick, who in their respective April 25 letters urged the Texas Supreme Court to take the case.
Abbott said the case deserved to be decided “by a court with statewide jurisdiction, not by a regional court like the Austin Court of Appeals.”
Patrick echoed that sentiment.
“Regardless of the outcome of the case, this case relates to the interpretation of a 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,” Patrick’s letter said.
Hubbard said “the support from the governor and lieutenant governor demonstrates their alignment with our cause.”
The four attorneys bringing this lawsuit are among the eight attorneys who left the office in October 2020 after accusing Paxton of wrongdoing, including bribery and tampering with government records.
Hubbard said Thursday “their departure dramatically improved the performance, morale and effectiveness of OAG.”
“The state of Texas is much better off with them gone,” she said.
Separately, Paxton still is under indictment on three felony securities fraud charges in a case that is currently pending before the Court of Criminal Appeals because of a fight over where the case could be litigated.
According to court documents, briefing in the whistleblower case is scheduled to be completed by the end of August.
Brickman is represented by Thomas A. Nesbitt, Scott F. DeShazo and Laura J. Goodson of DeShazo & Nesbitt and T.J. Turner of Cain and Skarnulis.
Penley is represented by Don Tittle and Roger Topham of Law Offices of Don Tittle.
Maxwell is represented by Carlos R. Soltero, Matthew Murrell and Gregory Sapire of Soltero Sapire Murrell.
Vassar is represented by Joseph R. Knight of Ewell Brown Blanke & Knight.
The 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 cause number is 21-1027, in the Texas Supreme Court.