JudicialPaxton Lawsuit Hearing Focuses on Applicability of Whistleblower Act to Attorney General

Judges honed in on the Office of the Attorney General’s claims that elected officials are protected from the Whistleblower Act.
September 22, 2021
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On the crisp Austin morning that kicked off the start of a new season, Texas’ Third Court of Appeals met to have their first in-person hearing in over a year since the pandemic began.

The first item on their docket was related to the whistleblower lawsuit raised against the Office of the Attorney General (OAG) by four former senior aides: Blake Brickman, Mark Penley, David Maxwell, and Ryan Vassar.

Alongside a few other top attorneys in the OAG, the four plaintiffs made criminal allegations against Attorney General Ken Paxton a year ago, claiming that he abused his position to benefit a personal friend, Austin real estate developer Nate Paul.

The OAG and Paxton have disputed their allegations, though, contending that the specific complaints from the plaintiffs do not amount to abuse of office but rather how Paxton as an elected official decided to run it.

Thus, according to the OAG, the plaintiffs’ ultimate departure from the office was because of internal policy differences and not in retaliation for their allegations.

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But the hearing on Wednesday didn’t get into the details surrounding the allegations against Paxton or of the plaintiffs’ claims that they faced retaliation from the OAG for blowing the whistle.

Those arguments could eventually be heard in the Travis County district court where the case originated, but right now, the OAG is disputing the lower court’s decision to move forward with the case because they argue the plaintiffs do not have standing to sue under the Texas Whistleblower Act.

At the hearing, Texas Solicitor General Judd Stone argued on behalf of the OAG, while attorney Joe Knight spoke on behalf of the plaintiffs.

A three-judge panel presided over the hearing that included Chief Justice Darlene Byrne, Justice Gisela Triana, and Justice Chari Kelly.

Stone began speaking first but didn’t get far into laying out his arguments against the plaintiffs before the justices intervened with questions to hone in on one particular claim the OAG made: that the Whistleblower Act does not apply to Paxton since he’s an elected official.

As pointed out by Stone, the Whistleblower Act applies to employees, appointed officers, and governmental entities.

The OAG argues that the whistleblower suit is invalid because the plaintiffs’ claims focus on Paxton, and they contend that as an elected officer, Paxton does not fall under any of those categories.

Each of the judges on the panel pressed Stone specifically about this point, asking if that argument would extend to other elected officials.

Stone did not shy away from claiming that all elected officials enshrined in the state constitution — from statewide officials to local officials and everything in between — could not be challenged with the Whistleblower Act.

Sitting in the center of the judges’ panel, Byrne went so far as to ask if a chief justice could sexually harass a subordinate and leave no remedy under the Whistleblower Act.

Stone said that in that hypothetical situation or others like it, other remedies are in place that act as a check on the elected official, but the Whistleblower Act was not one of them.

Knight was able to present more of his oral arguments without being pressed by the appellate judges, but Byrne still asked for a response to the Stone’s claim that they honed in on.

He did not dispute the categories that the Whistleblower Act applies to and conceded, “I don’t think that we could sue the elected official directly,” but the plaintiffs’ suit wasn’t filed against Paxton; they filed it against the OAG.

Knight claimed that it was a “dangerous argument” to contend that there was a “narrow, gaping” exception that would allow evasion of a key check against abuses.

He argued that under the circumstances, even though Paxton is an elected official, his authority over the OAG is expansive to the point that he was acting as the governmental entity.

On other points that were argued in the OAG’s petition to the appellate court, Knight reiterated the plaintiffs’ previous written claims that the OAG “mischaracterized” comments from another former senior official and contended that the four plaintiffs could sue together under the Whistleblower Act since their complaints stemmed from the same event.

A recording of the oral arguments is available here.

The hearing ended without indication of when the judges may issue an order on the case, which has the potential to drag on for quite some time.

It could perhaps even last throughout the upcoming election cycle, which as Stone remarked, is the ultimate check on elected officials.

Amidst the lawsuit and allegations, Paxton will have his share of challengers to square off against at the polls, many of whom are using the ongoing debacle in their campaign rhetoric.

In the Republican primary, Paxton will face three notable candidates: Land Commissioner George P. Bush, former state Supreme Court Justice Eva Guzman, and state Rep. Matt Krause (R-Fort Worth).

Democrats in the race to challenge the Republican nominee include civil rights attorney Lee Merritt and former Galveston Mayor Joe Jaworski.

Update: This article was updated to include a link to a recording of the oral arguments.

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Daniel Friend

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.