Ken Paxton can’t be deposed under oath in whistleblower lawsuit, Texas Supreme Court says

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Attorney General Ken Paxton will not have to sit for a deposition in a longstanding lawsuit filed by four former senior aides who said he improperly fired them after they reported him to the FBI, the Texas Supreme Court ruled Friday.

It is a victory for Paxton, who has managed to avoid testifying about allegations of corruption, bribery and abuse of office despite this civil lawsuit, an impeachment trial and a federal criminal investigation. It's also a blow to the whistleblowers, who have sought for years to question Paxton under oath.

"​Ken Paxton is offering to stick his own client, the people of Texas, with an unlimited money judgment," said Tom Nesbitt, who represents former deputy attorney general Blake Brickman. "He's doing it for one reason, to avoid having to give testimony about his own personal corruption. That is an act of malpractice so brazen it could have only sprung from the mind of Ken Paxton, and today the Supreme Court endorsed it."

Paxton's office, in a statement, called the ruling a "major win" against "wasteful, politically-motivated litigation."

The whistleblowers sought to question under oath Paxton and three of his current top deputies: First Assistant Brent Webster, chief of staff Lesley French and senior adviser Michelle Smith. But the Supreme Court overturned a trial court order scheduling those depositions.

The justices said since the attorney general’s office has agreed not to contest the lawsuit, which alleges that Paxton violated the state’s Whistleblower Act, their sworn testimony is unnecessary.

“While we agree with the former employees that OAG’s concessions do not preclude all discovery, we agree with OAG that the trial court abused its discretion in ordering the depositions of these four witnesses without considering that the only fact issue on which those witnesses are likely to provide information — OAG’s liability under the Whistleblower Act — is now uncontested,” the opinion states.

The decision was unanimous, although Justice Evan Young did not participate.

The four whistleblowers — Brickman, Mark Penley, David Maxwell and Ryan Vassar — were among a group of senior advisers who reported Paxton to the FBI in September 2020, concerned about what they viewed as his increasingly bizarre and inappropriate behavior with a friend and Austin real estate investor named Nate Paul. In the days and weeks after their meeting with federal agents, which they reported to Paxton, the attorney general fired them.

The current status of the federal criminal investigation is unknown, but court documents from the 5th U.S. Circuit Court of Appeals show that in June Justice Department lawyers were trying to secure testimony from witnesses in a grand jury investigation involving Paxton.

The whistleblowers sued Paxton in November 2020, alleging their dismissals were illegal under state law. Paxton disagreed but offered to settle the suit and pay the whistleblowers $3.3 million. To fund that settlement, however, Paxton needs an appropriation from the Legislature.

When he asked the Texas House in 2023 for the money, lawmakers wanted him to publicly answer questions about why Texas taxpayers should foot the bill. The House’s ethics committee began investigating him.

In May of that year, the Texas House impeached Paxton on corruption and bribery charges based heavily on the whistleblowers’ testimony. They alleged Paxton abused his office to do favors for Paul, including by hiring an outside lawyer to investigate claims made by Paul, providing Paul confidential law enforcement documents, intervening in a lawsuit involving a charity and two of Paul’s companies and issuing an opinion Paul’s lawyers used to delay foreclosure sales of several properties.

In return, House investigators claimed that Paul paid for renovations at an Austin home owned by Paxton and his wife and also employed a woman with whom Paxton was having an extramarital affair.

After a two-week, high-profile trial, the Texas Senate acquitted Paxton of 16 charges and dismissed the remaining four.

The whistleblower lawsuit remains, however. Paxton in January said he would no longer contest the facts of the case — despite the fact that the allegations by the whistleblowers were similar to the ones his lawyers had vigorously disputed during the impeachment trial.

Paxton said he was eager to end the “wasteful litigation” and would “not allow my office to be distracted by these disgruntled former employees and their self-serving sideshow." He said the settlement should not be construed as an admission of guilt.