Whistleblowers: Texas Supreme Court must reject Ken Paxton's 'scheme' to delay depositions

Once again in front of the Texas Supreme Court, embattled Attorney General Ken Paxton is asking the state's highest civil court to toss out his pending, court-ordered deposition or at least greatly limit the scope of what can be asked of him under oath by four former agency employees who argue they were wrongfully terminated after approaching the FBI to report Paxton's possible misconduct in helping a campaign donor.

Responding to Paxton's motion to the Supreme Court on Thursday, attorneys for the whistleblowers laid out a litany of arguments to derail what they said was Paxton's "repugnant ploy" to keep delaying the proceeding in hopes to avoid addressing the whistleblowers' claims on the record for the first time since the issue arose in 2020.

While Paxton argues the Travis County state District Court ruling mandating his sworn testimony is unnecessary after he filed a motion stating he wouldn't challenge the facts in the case and would accept any judgment, the whistleblowers maintain that there remains a dispute in the case and that Paxton is not immune under any legal statute to evade the ordered deposition.

"The trial court did not abuse its discretion; it kept OAG (Office of Attorney General) from abusing the judicial system," the whistleblowers' attorneys wrote. "The court refused to endorse OAG’s disloyal scheme to orchestrate a judgment against the state of Texas just so the attorney general and a few of his close colleagues can avoid depositions."

In January, Paxton had also sought the high court's intervention to delay his deposition, resulting in a divided ruling forcing Paxton and three of his deputies to comply with the lower court's order.

In dissenting from the majority of the court, Justices John Phillip Devine and Jimmy Blacklock said they would have granted Paxton's request to block his deposition along with those of First Assistant Attorney General Brent Webster, Paxton's chief of staff Lesley French Henneke and senior adviser Michelle Smith.

The justices "would instruct the district court to reconsider the necessity for, and scope of, those depositions only after depositions of lower-ranking officials have taken place," the brief ruling stated.

More: Texas Supreme Court sides with Attorney General Ken Paxton, halts deposition

This time around, however, Paxton has altered his request, arguing that a motion to unequivocally accept a final judgement in the case negates the need for the depositions, and if the testimonies were to continue, they should focus on a future settlement and not on the events leading the whistleblowers to approach law enforcement.

"This case then took an extraordinary turn when plaintiffs refused to take “yes” for an answer," Paxton's attorneys wrote to the court last month. "Although OAG has both consented to and moved for entry of judgment against itself, plaintiffs have remarkably opposed entry of judgment in their favor."

Paxton's current appeal paused the depositions that were previously scheduled to begin with Paxton on Feb. 9.

The Legislature last year rejected a $3.3 million request from Paxton's office to fund a settlement agreement with the whistleblowers. Instead, the Texas House opened an investigation into the whistleblowers' allegations and ended up overwhelmingly voting to impeach him on 20 charges, including bribery and abuse of office. Ultimately, the Senate cleared Paxton of wrongdoing.

Paxton attorneys have said the attorney general is willing to agree to a new settlement issued by the court.

But the whistleblowers — across the current and previous court filings — argue that a ruling in the case cannot be issued while Paxton is maintaining his innocence on one hand and admitting guilt on the other.

More: Whistleblower lawsuit against Ken Paxton can continue, Travis County judge rules

"Unable to construe OAG’s pleading as an admission that OAG violated the Whistleblower Act, the trial court cannot lawfully find such a violation until plaintiffs prove it," the lawyers wrote in advocating for the unencumbered depositions.

The attorneys are also taking issue with Paxton seeking the Supreme Court's assistance after the Legislature rejected funding his previous settlement.

"It would be inequitable for the state’s judicial branch to assist its executive branch in engineering a judgment that its legislative branch views as a sham," the attorneys wrote.

Additionally, the whistleblowers on Thursday pointed out several areas of a potential settlement that are yet to be addressed, including the possibility of reinstating the employees with full compensation and benefits, forcing Paxton to amend "retaliatory" personnel and investigation records, and ensuring Paxton refrains from further retaliation against the four whistleblowers.

In closing, the whistleblowers asked that the high court enforce the deposition order, which Paxton had appealed for that court's intervention twice in January. Paxton's second, and current request, seeking to stop the depositions came one day before Travis County state District Court Judge Catherine Mauzy ruled to allow the case to continue.

"From a litigation perspective, this case is—or at least should be—over," Paxton's attorneys, led by Bill Helfand, argued. "Faced with no other way to end a disruptive and expensive lawsuit, OAG has made the decision not to further contest Plaintiffs’ case, and thus filed an amended answer electing not to contest liability, damages, or reasonable attorneys’ fees on Plaintiffs’ sole claim under the Texas Whistleblower Act."

Helfand and Paxton's office did not respond to an American-Statesman request for comment. Attorneys for the whistleblowers declined to comment on the latest filing.

One of the lingering issues with tossing out the case and Paxton's deposition, the whistleblowers argue, would be a chilling effect on state employees that may be faced with a future decision of whether to report a superior's inappropriate conduct.

"OAG’s ploy is repugnant to the guarantees of our civil justice system and the purposes of the Whistleblower Act," the attorneys wrote. "Ending litigation over Plaintiffs’ objections and without discovery will send a dark message to future whistleblowers: Don’t bother."

This article originally appeared on Austin American-Statesman: Whistleblowers call on Texas Supreme Court to make Ken Paxton testify