Ken Paxton fired five of his senior assistants in 2020. Four of those five then filed suit alleging whistle blowing. I wrote then that it appeared to be a classic case of whistle blowing. Whistle blowing occurs when a worker reports a violation of criminal law by the employer and then suffers reprisal from that same employer. See my prior post here. It appears the AG’s office filed a plea to the jurisdiction. A plea to the jurisdiction is like a motion for summary judgment or motion to dismiss. The plea claims the plaintiffs lack sufficient proof to justify taking the case to trial.
It appears one piece of that evidentiary issue concerns Jeff Mateer, one of the senior assistants who was involved in the whistle blowing. Mr. Mateer resigned. He was not fired. And, he did not join the lawsuit. So, that would make him a critical witness. He probably knows things, but he lacks financial interest in the lawsuit. The AG’s office claims Mateer said in his deposition that he did not see any violation of law by Paxton. But, the lawyers for the whistle blowers argue the press release and the appeal filed by the AG’s office takes Mateer’s words out of context. What he said was that three months prior to contacting the FBI, he did not see any criminal activity by Paxton. But, he definitely believed and still believes Paxton based his office. See Texas Tribune report here.
Yes, it turns out the AG’s office filed a Plea to the Jurisdiction and lost. Now, they have appealed that denial to the Third Court of Appeals in Austin. The AG’s office has the right to an interlocutory appeal when a plea to the jurisdiction is denied. That means they can delay the lawsuit, even if the appeal is weak or frivolous.
The AG’s office offers several argument. But, the key substantive argument is that the seven senior assistants complained to the FBI and Human Resources that the AG had asked them to commit illegal acts. The AG’s office seems to argue that since those seven employees refused to commit those illegal acts and, instead reported them, then no illegal act occurred. See here for access to their appeal brief. But, the whistle blower act does not require that the employee first agree to perform an illegal act before blowing the whistle.