Paxton concedes whistleblower lawsuit

The ongoing whistleblower case against Attorney General Ken Paxton could now be on track to conclude after the Office of the Attorney General (OAG) filed a new brief essentially pleading no contest to the allegations against him by four former employees.

“[M]y office acted to end this wasteful litigation by filing an amended answer that — consistent with the previous decision to settle this case — will enable the trial court to enter a final judgment without any further litigation,” Paxton said in a statement following the announcement.

“By taking this action, the OAG has put an end to the plaintiffs’ long-running political stunt and re-committed the entirety of agency expertise and resources to our urgent legal initiatives, including our era-defining immigration lawsuits against the Biden Administration.”

Filed on Thursday, the brief announces the intention to concede, saying, “In many ways, this very case has already gone to trial in the Senate, where almost the entirety of the testimonial and documentary evidence admitted went to the question of whether there was any basis to the Plaintiffs’ claims in this case. Tested before a jury selected by the people of Texas themselves, Attorney General Warren Kenneth Paxton, Jr. was acquitted, and OAG was fully vindicated.”

It adds that testimony given during the impeachment trial from Jeff Mateer, the former first assistant attorney general who was the first to resign and allege misconduct, disproves the whistleblowers’ claims that they were fired after they made the allegations.

“Former OAG First Assistant Jeffrey Mateer’s testimony at the September 2023 impeachment trial conclusively shows that the Attorney General intended to fire two of the Plaintiffs — Mark Penley and David Maxwell — for serious workplace misconduct before anyone made any allegation of illegal activity,” the brief reads.

Tom Nesbitt, the attorney for whistleblower Blake Brickman, said, “The lawsuit is not over. This is but another desperate stunt by Ken Paxton to try to avoid a court order compelling him to answer questions about his grimy behavior.”

The Senate acquitted Paxton on all 16 charges in September with only two Republicans voting to convict on some of the charges.

The case has been lingering since late 2020 when multiple top aides to Paxton resigned, and four others who didn’t — Penley, Maxwell, Brickman, and Ryan Vassar — were fired and then filed a lawsuit under the Texas Whistleblower Act. 

Early last year, the two sides announced a $3.3 million settlement with various conditions — including that Paxton retract his description of the four as “rogue employees” and reinstate them to the positions they held before the firing. That settlement became the basis of the House’s impeachment inquiry, and the settlement itself fell apart when the lower chamber balked at paying the sum.

Costs for the impeachment inquiry and trial have exceeded the initial settlement. The House announced in December that its costs for legal fees and other expenses before and during the trial reached $4.3 million. Paxton reported $2.3 million in legal fees in his most recent campaign finance report and has previously said his costs exceeded $4 million.

Following Paxton’s acquittal, the Texas Supreme Court allowed the case to be resumed and an appeals court greenlit depositions of the attorney general and three top aides. Paxton and the OAG asked the Supreme Court to quash the depositions and enforce the original settlement, an appeal the court dismissed late on Friday afternoon.

Paxton’s maneuver here would expedite a ruling from the district court with the defendant no longer contesting the allegations.

The filing rehashed arguments the attorney general has long made about the allegations and their disputed veracity both before and during the impeachment trial.

“The Attorney General was acquitted, and OAG vindicated because of the abject falsity of Plaintiffs’ politically motivated allegations demonstrated by the overwhelming evidence. Indeed, the trial was a second renunciation by the voting public of Plaintiffs’ accusations,” the filing states. 

“Despite significant media attention to the Plaintiffs’ claims prior to the most recent statewide election — reflecting the worst of modern yellow journalism — a significant majority of Texas voters, a jury consisting of the entire voting public, reelected the Attorney General in November 2022.”

The filing doubles down on describing the four whistleblowers as “rogue employees” and adds that discretion on when and how to pay for the judgment will be left entirely to the Legislature, should the judge accept the no contest position.

Meanwhile, the whistleblowers will likely advise the court to ignore the filing and carry on with the depositions as planned — which are supposed to occur by February 9.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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