After long fight, Texas AG Paxton could soon be forced to break silence in court

by Saul Elbein - 01/30/24 6:00 AM ET

Texas Attorney General Ken Paxton (R) is making a last-ditch effort to avoid publicly testifying Thursday in the lawsuit that led to his impeachment last summer.

The attorney general’s voice was conspicuously absent during that spectacle, which ended with his acquittal in the highly conservative Texas Senate.

But if he fails to convince the state’s highest court to let him maintain his silence — as he has on two prior attempts — Texans will soon have an opportunity to hear him break it.

Last week, a Texas appellate court ruled Paxton would have to testify in a lawsuit pursued by four whistleblowers who allege his office improperly fired them after they confronted him about accusations he misused his office to defend political donors.

The ruling marked a serious setback to Paxton, who has fought to avoid addressing the claims in an official forum — even offering in the appeal currently before the Texas Supreme Court not to contest the former employees’ allegations if it keeps him off the stand.

Those allegations were at the core of Paxton’s impeachment trial, where the four former employees of the attorney general’s office argued that its actions had become difficult to disentangle from Paxton’s own business relationships and grievances.

The attorney general himself was never called to answer the charges during the trial, however. Before it began, Lt. Gov. Dan Patrick (R) ruled the embattled attorney general would not have to testify in the case that centered on him.

Texas Lt. Gov. Dan Patrick, top center, talks with defense and prosecution attorneys during the impeachment trial for suspended Texas Attorney General Ken Paxton in the Senate Chamber at the Texas Capitol, Thursday, Sept. 14, 2023, in Austin, Texas. (AP Photo/Eric Gay)

Patrick is a political ally of Paxton’s, and his campaign received $3 million from a right-wing PAC supporting the attorney general in the days before the trial began. The campaign declined to comment on the donation at the time, citing the state Senate’s rules, though the lieutenant governor did promise not to take any further donations.

Patrick’s decision meant that as members of the dueling Republican factions controlling the state House and Senate fought last summer over allegations that Paxton had misused his office to benefit an Austin real estate developer — and fired the deputies in his own office that tried to stop him — the attorney general himself remained a silent presence around whom all else revolved.

Paxton has sought to continue that official silence as the lawsuit has dragged on in the months since his September acquittal.

The attorney general has argued his testimony would conflict with his defense of the Texas southern border against “Joe Biden’s open-borders doctrine” and “cripple the state’s ability to settle lawsuits” and has called the suit itself a “long-running political stunt” and a “bad-faith effort to prolong legal proceedings.”

After an all-Republican state Supreme Court panel denied Paxton’s push to dismiss the lawsuit entirely earlier this month, the attorney general’s office attempted another tack to avoid his having to testify at trial: unconditional surrender.

“In the best interests of the State of Texas, the Office of the Attorney General is moving on,” the office wrote in an appeal to a Travis County court.

It argued that the facts of the former employees’ lawsuit had been resolved in the impeachment trial, and by Paxton’s own victory in the elections of November 2022.

That electoral victory had come “despite significant media attention to the Plaintiffs’ claims prior to the most recent statewide election— reflecting the worst of modern yellow journalism,” the office wrote.

That filing argued to the court that Paxton’s office could still win — if it wanted to. Instead, it wrote, the attorney general’s office, or OAG, “settled this lawsuit months ago in an effort to better allocate OAG’s resources.”

“But OAG also settled this lawsuit to stop the self-aggrandizing political weaponization of our state’s courts by rogue employees who have what seems to be a monomaniacal goal to undermine the will of the voters,” it continued.

To avoid these purported dangers, Paxton’s office told an Austin trial court he would rest his defense, declining to contest the evidence offered by his opponents, and accept the trial court’s judgement based on the information it already had.

As such, his office wrote, the attorney general “had instructed its counsel not to contest this lawsuit.”

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Paxton foes claimed victory. Following that filing, state Rep. Andrew Murr (R) who had managed the House impeachment effort, argued in a statement that the attorney general had just “admitted to what many in the Texas House have known in our hearts to be true: he flagrantly broke the law, violated the Whistleblower Act and betrayed the trust placed in him by retaliating against his own team, those who bravely reported his illegal actions.”

But the former employees suing Paxton didn’t take him up on his offer to rest his defense if it kept him off the stand.

“There is clearly no length to which Ken Paxton will go to avoid putting his hand on a bible and telling the truth,” TJ Turner, attorney for whistleblower David Maxwell, told KXAN earlier this month.

Such truthful testimony, per Turner, would include “confessing to violating the Whistleblower Act and opening up the state’s coffers to an uncontested judgment,” referring to Paxton’s rejected demand that the Texas Legislature foot the bill for a $3.3 million settlement he agreed to pay the former employees.

Last week, the Austin court denied the filing from the attorney general’s office, ordering Paxton to appear at a deposition this Thursday, Feb. 1.

His office wrote that the ruling was “recklessly disregarding legal precedent, abusing the litigation system, and displaying shocking bias” and made the same argument in an appeal to the state’s 3rd District Court of Appeals — which also ruled he had to testify.

On Monday, the office took a final swing by appealing to the state’s all-Republican Supreme Court.

Paxton’s office argued he had a right to avoid having to “defend an expensive and time-consuming case in a biased and unfavorable trial court, as defendants routinely do.”

“In seeking review, the OAG will ask the Supreme Court simply to treat the OAG the same as any other litigant who chooses not to contest a lawsuit,” the office wrote.

Such a decision would free the office to focus “on work that matters to all 30 million Texans, and not the personal crusade of four former employees,” it said.

The Texas Supreme Court has already denied Paxton’s office’s attempts to stop first the trial and then his own testimony, however. And he’s unlikely to be let off the hook by the former employees, who have long demanded his testimony in addition to payment for what they characterize as their improper firing.

“When does Ken Paxton go under oath? When does he come give a press conference to any media members who want to show up and ask direct question?” asked former employee Mark Penley following Paxton’s September acquittal.

“We stand behind our testimony, and what we want is justice,” he continued.

“Ken Paxton has never answered questions about his illegal and corrupt conduct,” said one of the plaintiff’s attorneys, Tom Nesbitt, earlier this month.

“[Paxton] is clearly terrified of doing so — even if it means taking a different position now about him breaking the law than he did at his impeachment trial.”

The Hill and KXAN are both owned by Nexstar Media Group.

Tags Dan Patrick Ken Paxton