JudicialStatewide NewsTexas Attorney General Whistleblower Lawsuit Moves Again to Appellate Court

Before the whistleblower lawsuit against the Office of the Attorney General can move forward, appellate judges will need to weigh in on the plaintiffs’ ability to sue under the Whistleblower Protection Act.
March 25, 2021
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The ongoing whistleblower lawsuit against the Office of the Attorney General (OAG) will continue to face delays, despite a recent court order knocking down a petition from the OAG to dismiss the case.

Last fall, a number of senior officials in the department raised allegations of bribery and abuse of office against Attorney General Ken Paxton, and all were subsequently fired or resigned from their positions.

Four of them — Blake Brickman, Mark Penley, Ryan Vassar, and David Maxwell — filed a lawsuit against the OAG in November, contending that they faced a hostile work environment and the employment terminations in retaliation for raising the alarm on Paxton.

Paxton previously denied that the firings were because of the allegations, saying that “some of them had legitimate issues unrelated” to him.

But the OAG’s arguments in court have largely side-stepped the issue of why the whistleblowers were fired or resigned, and instead focuses on the applicability of the Whistleblower Protection Act to the senior officials who were all political appointees under Paxton.

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The OAG contends that the concerns raised by the whistleblowers were a matter of differing legal positions rather than a matter of criminality.

In January, William Helfand, the outside attorney representing the OAG, filed a motion to dismiss the case based on the lack of subject matter jurisdiction under Rule 91a of the Texas Rules of Civil Procedure.

“[W]hen a political appointee reaches a point where they do not agree with or cannot support an action by their elected official, the appropriate thing to do is resign, as political appointees do not have independent authority outside their elected official,” states the filing.

It continues, “Plaintiffs in this case have taken a position that would require elected officials to retain political appointees that do not align with or support positions taken by their elected official who appointed them.”

Those “action[s] by their elected official” that the whistleblowers point back to are a list of several things Paxton did in his capacity as attorney general that benefited Austin real estate developer, Nate Paul.

While Helfand pushed for the Travis County district court to prioritize the motion to dismiss the case, attorneys for the plaintiffs sought a temporary injunction that would allow the whistleblowers to be reinstated to their posts.

When the court heard arguments for the motion to dismiss and then proceeded to hear arguments about the temporary injunction without ruling on Helfand’s motion, the OAG brought the case to an appellate court demanding mandamus relief.

“OAG’s sole issue should be overruled because its notice of appeal is but a sham to avoid a long-scheduled injunction hearing and interfere with the trial court’s discretion to manage its docket,” argued the plaintiffs’ attorneys in their response to the petition.

The appellate court placed a stay on any further hearings, but ultimately struck down the petition to weigh in on the motion to dismiss, pointing out that they needed to wait for a ruling on the motion.

That ruling came on Tuesday evening when in a brief, one-page order without any detailed explanation, the court struck down the OAG’s motion to dismiss.

Immediately, the OAG then turned around to bring the case back to the appellate court, halting any further progress on the case at the trial court level.

Regardless of which way the appellate court lands on the case, it could foreseeably be appealed again by one of the parties to the Supreme Court of Texas.

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Daniel Friend

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.