The senior officials claim that Paxton has used his authority as the state’s top attorney to benefit Austin real estate investor Nate Paul in a variety of ways.
While the lawsuit was originally filed in November, the case has progressed slowly.
The OAG has sought to dismiss the case, arguing that the Whistleblower Act does not apply to the particular circumstances. After the Travis County court sided with the former employees and let the case continue, the OAG appealed the decision to Texas’ Third Court of Appeals.
In the new filing, the OAG rehashes many of the arguments it laid before the trial court but also emphasized comments from Jeff Mateer, the former first assistant attorney general.
Mateer was the first of the whistleblowers to resign, but he was not among those who joined the lawsuit against the OAG.
In a press release, the OAG said that Mateer “swore under oath that Paxton committed no actual crime.”
The OAG purported in the filing that Mateer “and his colleagues concluded that ‘had they gone down this path, would be in a position to assist and/or cover up with what . . . would be a crime.”
“[B]are allegations of hypothetical future problems aren’t enough to blow the proverbial whistle,” stated the agency. “[S]peculation about or unfounded fears over what might happen — especially when any doubts could have been alleviated by asking a few questions — isn’t enough under Texas law, and certainly isn’t enough to justify what these former aides did.”
In addition to the new argument based on Mateer’s comments that there was no alleged violation in law but only a concern about potential future violations, the OAG spends a bulk of the brief arguing that the “waivers of immunity” granted under the Whistleblower Act — that is, opening up government officials and agencies to lawsuits — does not apply to the current situation.
“The Act allows suits based on complaints of violations by an agency itself or by a public employee, defined to include employees and appointed officials. Whatever the merits of such a limitation as a policy matter, Texas’s five elected constitutional officials are neither mentioned nor included,” argues the OAG.
But the attorneys for the former employees have argued — and undoubtedly will argue again — that the statewide officials are not exempt from the Whistleblower Act.
“Not only is there nothing in the statute that dictates this result, but other whistleblower suits have proceeded to trial in Travis County arising from complaints of alleged criminal conduct by the elected officials who were the incumbent elected officials of state agencies,” argued the whistleblowers’ attorneys at the trial court.
“The OAG’s argument is repugnant to the very purpose of the Texas Whistleblower Act and would create a non-statutory exception for the very people who should be held most accountable for abiding by the law and most responsible for violating it,” they said.
It is not the first time that the core arguments between the two sides have been argued in court and it may not be the last. After a decision from the appellate court, either party could bring the standing of the case up to the Texas Supreme Court before it is finally dismissed or returns to the trial court.
“As I said when this unfortunate drama first broke, the seven political appointees who launched an unsubstantiated smear campaign against me were rogue,” said Paxton in the press release.
“They have failed in the their [sic] desperate bid. They’ll lose in court too, and my Office will take these claims as far as necessary to ensure Texas law is upheld.”
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.