The Texas Supreme Court has sided with former top deputies of Attorney General Ken Paxton and cleared the way for their whistleblower lawsuit to move forward.
The all-Republican Supreme Court on Friday rejected Paxton’s request to dismiss the lawsuit after the case had been on pause pending a possible settlement with the whistleblowers. The decisions came four days after the whistleblowers asked the court to reinstate the case — and about two weeks after Paxton was acquitted in his impeachment trial before the Texas Senate.
The lawsuit will return to a Travis County trial court.
“We are looking forward to obtaining a trial setting and to preparing this case for trial as soon as possible,” the whistleblowers’ lawyers said in a statement.
The Supreme Court provided no explanation for its decision Friday, noting only that Paxton’s petition for review was denied with Justice Evan Young not participating.
The case reached the Texas Supreme Court in early 2022, after a state appeals court and the trial judge rejected pretrial attempts by Paxton’s agency to dismiss the lawsuit.
The Texas Whistleblower Act protects state workers from retaliation by other employees for reporting potential crimes to law enforcement. Paxton has argued his agency acted properly because it has the right to fire employees “at will” and because the whistleblower law does not apply to Paxton because he is an elected official, not a “public employee.”
“Like the Governor, the Lieutenant Governor, and members of this Court, he is an elected officer, chosen by the people of Texas to exercise sovereign authority on their behalf,” Paxton’s office said in its petition for review to the Supreme Court.
A bit of history here: The whistleblowers filed their lawsuit in November 2020, shortly after the election. In March 2021, the Travis County district court rejected Paxton’s motion to dismiss, and in October 2021 the Third Court of Appeals upheld that ruling, which allowed the case to proceed. Paxton appealed that to the Supreme Court in January 2022, getting a boost from his buddies Greg Abbott and future impeachment trial judge Dan Patrick in April 2022. The settlement agreement was announced in February 2023, and as noted the whistleblowers went back to SCOTx to ask for a ruling on the appeal this past Monday. I think you’re familiar with what happened in between those last two events.
So now we go back to Travis County and have a trial on the merits of the complaint. I expect there will be a hearing in the next week or two to set a schedule, and we’ll go from there. If this does go all the way to a verdict – another settlement is always possible, of course – then it will be appealed, with SCOTx eventually getting to have the final word. As you know, I think Paxton’s defense is hogwash, but it’s not my opinion that matters. Someday, perhaps, another Legislature may get the question of whether or not to approve a budget item to pay for a judgment won by the whistleblowers. That’s far enough out and with enough complex variables in its path as to not be worth worrying about, but given how we got here I at least had to mention it. So settle in for another long courtroom battle with Ken Paxton as the main character. Someday, too, we will see the end of all this. The Chron, Reform Austin, and the Press have more.