Ken Paxton could face public trial in whistleblower lawsuit after judge’s ruling

Attorney General Ken Paxton sits between his attorneys Tony Buzbee, left, and Mitch Little, right, during final prosecutor arguments as both sides have rested in the suspended Attorney General's impeachment trial September 15, 2023 in Austin.
Attorney General Ken Paxton sits between his attorneys on Sept. 15, 2023 during his Senate impeachment trial in Austin. Paxton was acquitted and his suspension from office was lifted. Credit: Bob Daemmrich for The Texas Tribune

Texas Attorney General Ken Paxton could face a potentially expensive and uncomfortable jury trial to defend himself against former deputies after a Travis County judge declined Wednesday to end the case in the whistleblowers’ favor without a trial.

The decision by Judge Catherine Mauzy means that Paxton, who announced that he won’t contest the facts behind the case, may have to be questioned on the record in open court about the allegations made by four former top deputies — something he would have avoided had Mauzy ruled in his favor.

It also means that the deputies’ attorneys could be allowed to present their evidence that Paxton improperly fired them — which they have yet to do in the three years the suit has been litigated.

Attorneys representing Paxton declined to say whether they’d appeal the decision, nor did they offer any additional comment Wednesday.

The former aides filed the lawsuit in 2020, alleging Paxton fired them for reporting him to the FBI for allegedly abusing his office to help a wealthy friend and political donor, Nate Paul. Their claims were the basis for Paxton’s impeachment by the Texas House last year. He was acquitted by the Senate after a trial in September.

Earlier this month, Paxton sought to stave off the depositions by announcing he would no longer contest the facts of the case and accept any judgment. But his stunning move did not sway the whistleblowers, who pressed forward with seeking the depositions of Paxton and three aides: Michelle Smith, Brent Webster and Lesley French Henneke. A judge sided with the whistleblowers last week and ordered the depositions to be taken on Feb. 1.

Then on Tuesday, the all-Republican Texas Supreme Court issued an order staying the depositions and giving the parties until Feb. 29 to respond with their broader legal arguments. The decision was made public within hours of Paxton’s top political ally — former President Donald Trump — calling on the court to end the case.

Paxton’s decision to stop fighting the lawsuit drew fire from one Senate Republican who had voted in September to acquit Paxton of several impeachment charges brought against him by the Texas House.

Paxton’s reversal in the suit was especially striking because one of the articles of impeachment that he was acquitted on alleged that he violated the Texas Whistleblower Act. Retiring state Sen. Drew Springer, R-Muenster, asked Lt. Gov. Dan Patrick — the acting “judge” in the Senate trial and a staunch, vocal critic of the impeachment — to reopen the case after what he characterized as an admission of guilt by the attorney general.

On Wednesday, Paxton’s attorneys argued that it was within his rights to avoid a lengthy, costly trial by asking for it to be over, declining to argue over the facts presented by the plaintiffs, accept whatever damages the judge decides, and declining to appeal or contest the final ruling.

And he’s allowed by law to do that while denying the allegations at the heart of the the case, attorney Bill Hefland told Mauzy during the 40-minute hearing.

Given that, he said, there was no reason for the lawsuit to go forward — unless the plaintiffs wanted to either run up attorneys fees or use the lawsuit for their own investigations.

“We’re totally through the looking glass,” Hefland said in the hearing. “You don’t need a trial, you don't need evidence. I’m here to tell you my client concedes to the entry of judgment today, and my client waives any right to appeal that judgment. So what in the world would a trial do? What is the legitimate reason for pursuing this lawsuit and not taking the judgment? I would submit there is no legitimate reason.”

One reason, plaintiff attorney TJ Turner responded, is that it would be impossible for the judge to even determine the damages without hearing any of the evidence in their case.

Another, he said, is that Paxton is trying to “have his cake and eat it, too” by vigorously denying what the former deputies are alleging while also trying to avoid any public airing of their arguments by suggesting he won’t argue with them about it.

“We still have to put on our case,” Turner said. “This is just the latest parlor trick in Office of the Attorney General’s quiver so that they avoid what the A.G. fears the most, and that’s testifying under oath.”

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