Law professor Quinn Yeargain points out something I’ve not seen discussed elsewhere.
A crook any way you look
But for both ambitious Texas politicians waiting in the wings and eagle-eyed election observers, one of the most important questions is likely who will succeed Paxton if he’s removed—and how they’ll be selected.
It’s worth noting at the outset that there are two vacancies to consider. The first vacancy occurred automatically upon Paxton’s impeachment. Under the state constitution, impeached officials are automatically suspended when they are impeached—and they either regain their office upon their acquittal or they never return. The second vacancy is speculative, and would only occur if Paxton is actually removed from office.
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Under the Texas Constitution, a vacancy in a “State office,” like Attorney General, is filled by a gubernatorial nomination made with the “advice and consent” of the Senate, and the nominee serves until the next general election. Owing to a 1991 constitutional amendment, there are lots of specific requirements for how this process plays out if the Senate is in recess—which may not actually come into play depending on when the Governor would make such an appointment. (That is, if the Senate was just in session for Paxton’s trial, it would make sense to then promptly consider the Governor’s Attorney General nominee.)
But whenever the Senate considers the nomination, the nominee can only be confirmed with a two-thirds vote. While many gubernatorial nominees in Texas are considered to be non-controversial—Secretary of State Jane Nelson was confirmed unanimously earlier this year, for example—Democrats might balk at an Attorney General nominee put forward by Abbott. They might very well insist that any such nominee serve in a caretaker capacity until the 2024 special election. (Of course, this assumes that (1) Texas Democrats in the Senate would actually hold their ground and (2) that any nominee palatable to them would actually be able to win a Republican primary anyway.)
In any event, a 2024 special election would be held to fill the remaining two years of Paxton’s term. Somewhat surprisingly, vacancies in statewide elected offices are fairly uncommon in Texas. Of the executive-branch offices, the Railroad Commission—which, for the uninitiated, doesn’t actually regulate railroads—has been the source of the vast majority of statewide special elections. In fact, there hasn’t been a special election for any other statewide office since 1862!
Unless the Senate’s trial of Paxton takes months and months, the 2024 special would play out just like any other general election would that year. The filing deadline for the 2024 election is December 11, 2023, and under state law, so long as the vacancy occurs “on or before the 10th day before the date of the regular deadline for candidates to file applications for a place on the general primary ballot”—so, by December 1, 2023—the office will see both a primary and general election unfold as normal.
I skipped the discussion of the first appointment, as Greg Abbott has since installed former SOS John Scott into that position; Yeargain’s post was written prior to that. What interests me is what might happen in the event that Paxton is convicted by the Senate. Forget the odds of that for a minute and just go along with this. I knew that Abbott would appoint a replacement, and I’ve discussed the opportunity for Dems that could provide. What I hadn’t thought about before I read this was that Abbott’s appointed AG would still need to be confirmed by the Senate, with a two-thirds vote. Which means at least two Dems would have to support whoever he picks, or else he has to pick again.
At least, that’s my reading of the relevant Constitutional text, which quickly gets bogged down in numerous scenarios involving whether or not the Senate is in recess or a special session, which is where we are now. For sure, this person would be on the ballot in 2024, and would have to make it through a primary if they wanted the job fulltime. Whether Dems should agitate for a caretaker or try to influence Abbott’s pick in some other way is a question we can defer for now, but I feel reasonably confident that they will be unified. There’s no Eddie Lucios in this Senate, so while there may be some differences of opinion on strategy, no one is going to just embrace whoever Abbott picks.
Moving on, that settlement agreement that Paxton had with those whistleblowers is almost certainly toast now.
To a layperson it might seem obvious that if the Legislature declined to approve the payment outlined in the settlement agreement and voted to impeach Paxton instead, in part because the OAG made the agreement for shysterish reasons, then the settlement agreement is no longer in effect. Surely there’s some fancy legal principle that shoots down the OAG’s argument. Nullus felix equus cacas, perhaps? We put that question to two lawyers with expertise in employment and whistleblower law, and while our Latin is iffy and tasteless, the principal is clear: The settlement agreement is dead.
Settlements are contracts, Austin Kaplan with the Kaplan Law Firm told us. If the settlement is contingent upon money being paid but none is forthcoming, then the settlement agreement is no longer in effect. In this case, “the Legislature says no, no, and hell no, and impeaches the attorney general,” then obviously the contingency included in the settlement agreement hasn’t been met.
Michael Maslanka, an associate professor at the UNT-Dallas College of Law, said much the same: “The settlement agreement was contingent upon the Legislature, therefore the settlement agreement is off, full-stop.”
Maslanka said it’s a rule in law that courts give a “reasonable interpretation” of the language in contracts in order to achieve the intent of making the agreements. In this case the intent was to settle the case now, “not in 2040.”
If the Supreme Court agrees that the settlement agreement is no longer in effect, then it’s free to rule on the OAG’s original appeal, the one that put the brakes on the case. In it, the OAG argues that Texas’ Whistleblower Act, intended to protect government employees who report wrongdoing by their bosses from retaliation, applies only to actions by state agencies themselves and public employees. Whatever bad things Paxton might have done weren’t done by the agency itself, the OAG’s argument goes, and Paxton is a different species of fish. He’s an elected official, no mere public employee, an argument Maslanka described as “a distinction without a difference.” (A non-lawyer might simply ask, “So where’s ol’ Ken drawing his paycheck from, then?”)
Judge Karin Crump of the 250th District Court in Austin, where the original case was filed, rejected the OAG’s argument about the scope of the Whistleblower Act, as did the 3rd District Court of Appeals in Austin.
“We decline to adopt the interpretation of the Act proposed by the Office of the Attorney General of Texas (OAG), which would have the effect of stripping whistleblower protections from employees who might report misconduct by the thousands of elected officials throughout the State — particularly by those who direct and lead the agencies of this State,” the appellate court wrote.
Kaplan said the notion that the Whistleblower Act was not intended to apply to the very people with the most power to both commit bad acts and punish those who report them “would make absolutely no sense … If the law were to protect anything, it would apply to these set of circumstances.”
See here and here for a bit of background on the matter still pending before SCOTx. Suffice to say, I agree with this interpretation of the Texas Whistleblower Act and have written as much in the past. The main point here is that Paxton’s days of fighting this in court will resume, and may continue on for some time barring a bad ruling from the Supremes. If that happens, whatever the outcome in the Senate, I wouldn’t count on any further settlement offers.
And finally, just a reminder, there’s no evil billionaire like an evil Texas billionaire.
Political activists financed by two billionaire oilmen — famous for backing right wing Republicans — are riding like cavalry to save suspended Attorney General Ken Paxton from a scalping in the Texas Senate.
Billionaires Tim Dunn and Ferris Wilks are arguably the most influential donors to right wing candidates and causes in Texas, funneling tens of millions of dollars to political action committees and candidates that espouse their religious-right and anti-public-school agenda.
Dunn, CEO of drilling company CrownQuest Operating, and Wilks, who sold his fracking company, are the largest donors to Defend Texas Liberty PAC, one of Paxton’s largest campaign financiers, according to public records. The billionaires gave the PAC more than $10 million of the $11 million it has raised from 2020-2022. The PAC passed $1.25 million of that money, along with a loan for $750,000, to Paxton.
Dunn, Wilks and Defend Texas Liberty together also gave former state Rep. Bryan Slaton $223,000 as three of his four largest donors. The Texas House expelled Slaton last month for plying a 19-year-old staffer with alcohol and having sex with her.
Defend Texas Liberty is managed by former state Rep. Jonathan Stickland, who, alongside Republican Party of Texas Chair Matt Rinaldi, was a founding director of another PAC called Texans for Fiscal Responsibility. That group, which is not required to disclose donors, was founded by conservative activist Michael Quinn Sullivan, long considered the enforcer of right wing orthodoxy in Austin. Dunn and Wilks are widely reported to finance Sullivan’s activities.
These are the people who give deplorables a bad name. Read the rest if you feel the need to make yourself angry.
UPDATE: Since I drafted this, there have been some reports that have claimed to identify Ken Paxton’s alleged mistress. I’m queasy enough about the sourcing of this to not want to include her name here, but those reports are out there and I figure someone will mention them in the comments if I don’t at least acknowledge their existence. Do what you will with this information.
