By Nolan D. McCaskill
Dallas Morning News
Reprinted – by Texas Metro News
AUSTIN — Attorney General Ken Paxton does not have to sit for questioning under oath by whistleblowers who accused him of accepting bribes and misusing the power of his office, the Texas Supreme Court ruled Friday.
The ruling canceled a lower-court order requiring Paxton and three senior officials to be deposed.
Four fired officials of the attorney general’s office sued the agency in November 2020, saying their terminations after reporting Paxton to the FBI violated the Texas Whistleblower Act, which prohibits retaliation against public employees who report a violation of law in good faith.
The attorney general’s office argued the depositions were not necessary because the agency agreed in January to end its opposition to the lawsuit, leaving no issues in dispute.
The only unresolved issue is the amount of damages for the plaintiffs, for which depositions would not be germane, the agency said.
The Supreme Court agreed in an unsigned opinion.
“While we agree with the former employees that OAG’s concessions do not preclude all discovery, we agree with OAG that the trial court abused its discretion in ordering the depositions of these four witnesses without considering that the only fact issue on which those witnesses are likely to provide information — OAG’s liability under the Whistleblower Act — is now uncontested,” the ruling said.
Justice Evan Young did not participate in the decision.
A Travis County trial judge in January granted the whistleblowers’ request to depose Paxton, First Assistant Attorney General Brent Webster, Paxton chief of staff Lesley French Henneke and Paxton senior adviser Michelle Smith.
The agency responded by telling the courts that it had stopped fighting allegations that the four former executives were improperly fired and would accept any damages awarded by the judge.
Paxton’s office asked District Judge Jan Soifer to rescind her deposition order, but the judge refused, prompting the appeal leading to Friday’s decision by the Supreme Court.
The whistleblowers argued that Paxton and his top advisers needed to be questioned because the attorney general’s office continued to contest their claims and never admitted fault. Depositions also would help them obtain damages, they argued.
The Supreme Court found the arguments unconvincing.
“But the legal effect of the answer in this lawsuit is clear: OAG no longer disputes liability on any issue alleged by plaintiffs and consents to the entry of a judgment in plaintiffs’ favor,” the court wrote.
The whistleblowers were among eight top officials with the attorney general’s office who told FBI agents and other law enforcement in September 2020 that they believed Paxton had misused his office to help Austin real estate investor Nate Paul, a friend and campaign contributor who was under federal investigation at the time.
In return, they alleged, Paul employed a woman with whom Paxton had a personal relationship and paid for a remodeling project at Paxton’s Austin home.
The eight executives notified Paxton and the agency of their reports in October 2020, and all were fired or resigned within weeks. Four filed the whistleblower lawsuit — James “Blake” Brickman, Paxton’s former policy director; David Maxwell, former head of law enforcement; Mark Penley, former head of criminal justice; and Ryan Vassar, former deputy attorney general for legal counsel.
Paxton’s office initially disputed the whistleblowers’ petition before the opposing sides entered mediation and agreed to settle the lawsuit in early 2023. Paxton agreed to apologize for calling the fired executives “rogue employees,” and his agency agreed to pay the whistleblowers $3.3 million.
The payment required approval by the Legislature, prompting the House General Investigating Committee to look into the whistleblowers’ allegations and leading the committee to recommend Paxton be impeached for bribery, abuse of office and other allegations.
Twenty articles of impeachment were approved by 61 House Democrats and 60 Republicans, but after a two-week trial before the Senate, Paxton was acquitted last year in a series of largely party-line votes.
The whistleblowers have said the requested depositions would help them make their case to the Legislature about future payments for damages.
The Supreme Court said Friday that discovery “is not proper simply because it might be used for legislative purposes.”
“If, as plaintiffs assert, the Legislature will be unsatisfied with the trial court’s judgment and whatever evidence was presented in support of that judgment, the Legislature has at its disposal the means to obtain additional information,” the court said.
Thomas Nesbitt, a lawyer for one of the whistleblowers, said the Texas Supreme Court endorsed what he called Paxton’s “act of malpractice and self-interest.”
“Ken Paxton is trying to stipulate to entry of a huge money judgment against his own client, the people of Texas,” Nesbitt said. “He is doing so for one reason: to save himself from having to give testimony about his own corruption.”
“We will soon have a hearing in which a judge determines the full extent of the damage done to the lives and careers of these outstanding individuals,” said Don Tittle, another whistleblower attorney. “After that, it will be up to the Texas Legislature to do the right thing.”
This story, originally published in The Dallas Morning News, is reprinted as part of a collaborative partnership between The Dallas Morning News and Texas Metro News. The partnership seeks to boost coverage of Dallas’ communities of color, particularly in southern Dallas.
