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Texas AG’s office pushes for dismissal of whistleblower suit on immunity grounds

Discovery in the case could shed light on the whistleblowers’ claims that Texas Attorney General Ken Paxton accepted bribes from a campaign donor.

AUSTIN, Texas (CN) — The Texas Attorney General’s Office urged an appellate court Wednesday to toss a lawsuit by four former employees who claim they were fired because they reported to the FBI they believed the attorney general had committed the crimes of abuse of office and bribery.

Reviled by Democrats and adored by fellow Republicans who are loyal to President Donald Trump, Texas Attorney General Ken Paxton is a walking paradox.

The state’s chief law enforcement officer since January 2015, his tenure has been clouded by his three-count felony securities fraud indictment arising from his sale of a Texas software company’s shares. That case has been delayed by pretrial motions for more than six years.

He has now deployed his agency’s top litigator, Solicitor General Judd Stone, to squelch a lawsuit brought by four high-level staffers who claim they were fired last autumn after they reported to the FBI and Texas Rangers that Paxton had used his office to interfere with criminal investigations into his campaign donor, Austin real estate investor Nate Paul.

Discovery in the case could shed light on the whistleblowers’ claims that Paul bribed Paxton. They allege Paul’s company remodeled Paxton’s $1.2 million Austin home and gave a job to Paxton’s mistress. The FBI is investigating the allegations.

Stone argued before a three-judge panel of the Texas Third Court of Appeals on Wednesday that sovereign immunity shields Paxton from the ousted employees’ claims.

Stone said the Texas Whistleblower Act only allows claims based on reports of misconduct by public employees, appointed officials or the government entity that employed the whistleblowers.

“But Attorney General Ken Paxton is none of these,” Stone said. “He’s an elected official. The plaintiffs therefore have not pleaded a claim within the Act’s narrow sovereign immunity waiver.”  

He added he believes this immunity extends to all elected officials in Texas – from members of city councils, school boards and county government to the state Legislature and Supreme Court.

The appellate court’s Chief Justice Darlene Byrne interjected: “So any of the Supreme Court justices could sexually harass their employee and be immune from anything other than getting in the paper and the voters voting them out of office?”

Stone argued the harassed employee would not have any recourse under the Texas Whistleblower Act. But he said they could bring claims against the elected justice through “a variety of potential avenues for relief,” and the Legislature can impeach and remove elected officials from office.

Lead plaintiff James Brickman served as the Texas Office of Attorney General’s deputy attorney general for policy and strategic initiatives from February 2020 until he was fired in October. He is represented by Joseph Knight of the Austin firm Ewell Brown Blanke & Knight.

Knight said the Office of Attorney General, or OAG, is asking the appellate court to construe too broadly who is entitled to sovereign immunity.

“OAG is asking for a gaping exception that’s never been recognized before in the three decades this law has been on the books, that exempts the apex public officials at every level of government, thousands of them,” Knight argued.

He attacked the assertion the whistleblowers’ case should be dismissed because their allegations are against Paxton, not the OAG, and he has immunity as an elected official.

“We alleged unlawful conduct by both the OAG, as the employing governmental entity, and by Mr. Paxton as a public employee,” Knight said.

“Every act we have complained about here, Mr. Paxton took in his official capacity as the AG. We’re not complaining about something Mr. Paxton did on his own time, in the privacy of his own home,” he added.

In support of their contention Paxton is an OAG employee, the whistleblowers note he is listed as such in the state’s retirement system, the agency pays his $153,000 salary and its records list Paxton’s date of employment —his first day on the job—as Jan. 5, 2015.

In rebuttal, Stone, the state solicitor general, countered Paxton’s pay stubs do not change the fact he is “the final constitutional officer entitled to represent the state of Texas” and nobody supervises him.

“So he can’t possibly be an employee,” Stone said.

Ultimately, Stone said, it is up to voters to hold Paxton accountable. “That is the ultimate check, so to speak, on any allegations of misconduct and the ultimate verdict on them,” he concluded.

Chief Justice Byrne was joined on the panel by Justices Chari Kelly and Gisela Triana. They did not say when they would issue a ruling.

The Attorney General’s Office released a 374-page report last month claiming to have found no evidence of bribery or a quid pro quo relationship between Paxton and Paul.

Paxton narrowly defeated Democrat Justin Nelson, a partner with the law firm Susman Godfrey, in his last reelection bid in 2018.

Nelson’s campaign ads focused on Paxton’s indictment and he accused Paxton of dodging the issue by refusing to square off in any campaign debates.

Paxton, who has received Trump’s endorsement, will be running for his third term in the March 2022 Republican primary where analysts say he’ll face his hardest challenge yet against two formidable opponents: Commissioner George P. Bush - the nephew of President George W. Bush and grandson of President George H. W. Bush – and former Texas Supreme Court Justice Eva Guzman.

Civil rights attorney Lee Merritt, a Black Democrat, is also running for the office. Merritt is known for representing the families of Black people killed by police, including Botham Jean, Ahmaud Arbery and Atatiana Jefferson.

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