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Where are we with the Paxton whistleblower lawsuit?

We are in the familiar position of waiting for the drawn-out appeals process to conclude. Pull up a chair and make yourself comfortable.

Best mugshot ever

The appeals process has grown a bit longer in state Attorney General Ken Paxton’s effort to dismiss a whistleblower lawsuit by four top agency officials who claim they were improperly fired in 2020 after accusing him of accepting bribes and other misconduct.

Paxton turned to the Texas Supreme Court 7½ months ago after two lower courts rejected his bids to toss out the lawsuit.

Last month, the Supreme Court told Paxton and the whistleblowers to provide justices with a deeper dive into the legal issues involved, kicking off a second round of legal briefing that was recently extended when the court granted Paxton’s request for an extra month to file his expanded brief.

Paxton’s brief is now due July 27, and although the court told Paxton that additional extensions aren’t likely to be granted, the move means the final brief isn’t due until Aug. 31 at the earliest.

That moves the case into election season as Paxton seeks a third four-year term against a Democrat, Rochelle Garza, who has made questioning Paxton’s ethics a campaign centerpiece. Three opponents tried the same tactic against Paxton in this year’s GOP primaries without success.

The timing also puts the case close to the two-year anniversary of when eight top officials of the attorney general’s office met with FBI agents and other investigators to relate their suspicions that Paxton had misused the powers of his office to help a friend and political donor, Austin real estate investor Nate Paul.

See here and here for the most recent updates. Paxton’s argument is that as an elected rather than appointed official, he doesn’t count as a “public official” under the Texas Whistleblower Act, so the employees who fired him have no grounds to sue. He has other arguments, but that’s the main thing that will be of interest to the Supreme Court. I’m sure you can surmise what I think, but if you want to dig deeper you can click the Texas Whistleblower Act tag link and review other posts in this genre.

Just as a reminder, we are also waiting for the FBI to take some kind of action in their investigation of the Ken Paxton-Nate Paul dealings, the State Bar complaint against Paxton for his attempt to overthrow the 2020 election should have a hearing sometime later this summer, and of course there’s the granddaddy of them all, the original state charges that Paxton engaged in securities fraud, which are now eight years old. He’s sure been a busy boy, hasn’t he?

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One Comment

  1. Kibitzer Curiae says:

    BREAKING SCOTX NONNEWS: EXPANDED BRIEF DELAY AFTER BRIEF BRIEF

    The extension on merits briefing is totally unremarkable. And it wasn’t even opposed. Routine. And the “expanded brief” is the merits brief. Appellate cases are commenced with a petition for review, which looks like a mini brief (“brief brief” if you will), but is technically a petition and so denoted. Unsurprisingly, the word count limit is lower.

    In brief, this is a good example of non-news.

    That said, it’s sometimes interesting to read the motion for extension because the general convention is to brag about other cases that keep the movant’s attorney too busy to attend to the current matter at hand.

    So, since the Solicitor General signs the briefs in the Supreme Court, you get a sample of other high-stakes litigation that’s ongoing. One of the items on the SG’s TO-DO list is a response to a Petition for Rehearing En Banc in Twitter v. Paxton, No. 21-15869, which was filed in the U.S. Court of Appeals for the Ninth Circuit (U.S. Court of Appeals in California) on May 24, 2022.

    You can read the 9th Cir. opinion affirming dismissal here:
    https://scholar.google.com/scholar_case?case=9184948241867767716&hl=en&as_sdt=6,44&scfhb=1

    “After the events at the U.S. Capitol on January 6, 2021, Twitter banned President Donald Trump for life. Soon after Twitter announced the ban, the Texas Office of the Attorney General (OAG) served Twitter with a Civil Investigative Demand (CID) asking it to produce various documents relating to its content moderation decisions. Twitter sued Ken Paxton, the Attorney General of Texas, in his official capacity, arguing that the CID was government retaliation for speech protected by the First Amendment. The district court dismissed the case as not ripe. We affirm.”

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