Well, AG Ken Paxton lost another court hearing. I wrote about his loss at the district court level here. AG Paxton appealed that decision to the Third Circuit Court of Appeals in Austin. That court affirmed the denial of the motion to dismiss. Four senior level employees at the AG’s office complained to the FBI, the Texas Rangers and other law enforcement agencies. They were then fired weeks later. Those facts should amount to a cut-and-dry whistle blower lawsuit.

Not a Public Employee

On appeal, the Office of Attorney General argued that as Attorney General, Mr. Paxton is not a “public employee” or a “governmental entity” for purposes of the Texas Whistleblower Act, Tex. Govt. Code §554,011, et seq. But, as the court notes, it was the Office of the Attorney General which fired the four employees. The OAG employees acted at Paxton’s direction. As such, it was an act carried out by the OAG. Remarkably, the OAG also argued that the actions of Paxton cannot be viewed as actions of the Agency. The court then notes long-time principles of agency law to dispense with those weak arguments. There may be more silly arguments to make on appeal, but I cannot imagine what they would be.

The court then explains further how illogical it is to suggest that senior level executives of the a particular state agency are not the agency itself. State agencies, notes the court, act through persons. Those persons act on behalf of the state agency. It would be non-sensical to hold the second-in-command liable for sex harassment or whistleblower reprisal, but not the most senior employee himself.

Violations of Law

The court also addresses the argument that Jeff Mateer did not report violations of law. He only reported possible, speculative violations of law. The court disregarded Mateer’s deposition testimony. The court found theAG’s  motion to dismiss was filed under Rule 91a, which is based on pleadings only, not on extrinsic evidence. Mateer’s deposition testimony does not matter for a Rule 91a motion to dismiss. The court noted that the plaintiffs’ petition does indeed allege violations of law, not possible or speculative violations. The plaintiffs reported that Paxton appeared to violate the Open Records Act, that Paxton helped Nate Paul with an AG’s opinion regarding foreclosures, and Paxton used the AG’s office to hammer opponents of Nate Paul.

These acts had already occurred when the plaintiffs observed Paxton’s “bizarre” behavior. At that point, it became clear Paxton was using the AG’s office to benefit himself and Nate Paul. These allegations included bribery, falsification of government records, obstruction of criminal investigations, tampering with witnesses, all of which they reported to law enforcement agencies. It does not matter, said the court, that the plaintiffs could not identify a specific bribe or the details of a quid pro quo arrangement.

See the opinion in OAG v. Brickman, Et Al, No. 03-21-00161 (Tex.App. Austin 10/21/2021) here. Now, AG Paxton will surely appeal to the Texas Supreme Court, The Supreme Court is generally a very friendly venue for defendants. But, this defendant may find tough going there.