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Appeals court appears skeptical about Paxton’s whistleblower defense

As well they should be.

Best mugshot ever

A panel of Texas 3rd Court of Appeals justices expressed skepticism of an argument from Attorney General Ken Paxton’s lawyers on Wednesday that he is exempt from the state’s whistleblower act because he’s not a public employee and a case against him should be thrown out.

Former Paxton deputies in the Office of the Attorney General claim in a whistleblower lawsuit that they were fired for reporting alleged crimes by Paxton to law enforcement. Paxton’s lawyers are trying to get the case dismissed and asked the appeals court to throw out the case on the grounds that Paxton is not subject to the whistleblower law. A lower court denied Paxton’s motion to dismiss the case in March.

Barely a minute into oral arguments, Justice Chari L. Kelly began questioning Solicitor General Judd E. Stone II, who is representing Paxton in the suit.

“Isn’t the action of every employer at the OAG’s office an action by the employee governmental agency?” Kelly said.

Justice Gisela D. Triana questioned Stone’s argument that all elected officials are exempt from the whistleblower law and Chief Justice Darlene Byrne asked whether his interpretation would give Texas Supreme Court justices immunity from sexual harassment claims from their employees.

Stone said employees filing sexual harassment claims would have other avenues for relief outside the whistleblower law, but argued that the attorney general as an elected official cannot be sued under the law, which covers public employees, appointed officials and governmental entities.

[…]

Stone argued that barring the attorney general from firing employees when they disagree with legal positions or have lost his trust would be an infringement on the elected official’s power.

But Kelly questioned that argument and nodded to claims by the whistleblowers’ lawyers that Paxton is a public employee because he receives checks from the state and participates in its retirement system, and that he acts as the entity because he is its titular head.

“If he can go in and change any decision internally … If he truly has the power to have the last say on anything that comes out of the agency. How is he not the agency?” she asked.

Stone said the justices should interpret the law as it was written, which did not include elected officials in the text of those who can be sued on whistleblower claims.

But Joe Knight, who argued for the whistleblowers’ lawyers, blasted the idea that the Legislature wrote a statute meant to ensure public employees complied with the law and then exempted elected officials without explicitly saying so. He said the drafting of the law in such a way would be “strange and unlikely,” and said the “Legislature does not hide elephants in mouseholes.”

In briefings to the court, the whistleblowers’ lawyers said when lawmakers intend to exempt elected officials from being labeled as public employees, they do so in the text of the law. The Texas Whistleblower Act does not.

The whistleblowers’ lawyers said exempting the attorney general would rob the law of its purpose to protect public employees reporting wrongdoing by government entities.

Stone also argued in briefs that the former officials did not make the reports to law enforcement authorities required to invoke whistleblower protection, and that even if they had, they reported only potential crimes, not crimes that had actually happened.

The whistleblowers’ lawyers attacked that argument, saying their clients reported their concerns to the Travis County District Attorney’s Office, the FBI, the Texas Rangers and the attorney general’s human resources office.

The lawyers also said their clients believed Paxton had already abused his office, tampered with government records, taken bribes and obstructed justice through his interactions with Paul when they brought their concerns to law enforcement.

See here, here, and here for some background. It must be noted that all three appellate court justices are Democrats, so their opinions will carry limited weight before the Court of Criminal Appeals, no matter how ridiculous Paxton’s arguments are. That’s just how it is, I don’t make the rules. No indication when the court may rule, but the initial suit was filed last November, the motion to dismiss was denied in March, and the appeal to the Third Court was made in June, so as far as that goes, we’re moving at a decent pace.

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One Comment

  1. Kibitzer Curiae says:

    This is a civil case, so any further appeal will go the SCOTX, not the CCA. SCOTX will not doubt find a way to back Paxton.

    Here is a different take on it:

    The client always the right to dump his or her attorney for good reason or no reason. So here, the people of Texas can fire the chief lawyer for the state (which in theory has been established by the people) in the next election. The AG has been installed by the people, and the people can deny him re-election to hold him accountable. Hey, even the GOP primary electorate can do it.

    Admittedly, this takes us out of immunity law and construction of the WBA, but it’s still a good argument, at least a political one. In short, the remedy is political, not a lawsuit.

    Wonder if any of the justices thought about it.

    It’s not totally irrelevant to the legal squabble and here is way: If the top lieutenants are at-will employees of the state/OAG, they can be fired for no reason. If the remedy sought under the WBA is reinstatement to the same position (not some equally well-paid one some place else in the agency), it really defeats the at-will nature of the relationship. This would be argument that works in Paxton’s favor. That he can’t be effective having the court foist upon him people that he now considers his nemesis.

    But here is the twist: If the case drags on long enough, and Paxton is deposed either in GOP primary or in the general election, the reinstatement remedy becomes potentially viable if the successor is willing to take on the fired lieutenants. So, if AG-to-be Eva Guzman, who has quickly morphed into a fire-brand GOPPER is in sync with the plaintiffs and would be interested in having them serve in her litigation cabinet, the reinstatement remedy wouldn’t create the same problems as it would were a court order Paxton/OAG to take back former executive-level underlings who are now his enemies. That couldn’t go well.

    In any event, the SCOTX may not even reach the merits of reinstatement remedies and such. More likely they will find a way immunize the AG from any internal rebellion or disloyalty by executive-level and section head underlings. Former colleague Guzman would also benefit from such a holding.