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Whistleblower lawsuit against Texas attorney general's office can continue, judge rules

Chuck Lindell
Austin American-Statesman
Texas Attorney General Ken Paxton speaks at the Austin Police Association on Thursday September 10, 2020.

A state judge has rejected a bid to dismiss a whistleblower lawsuit filed by four former executives at Attorney General Ken Paxton's office who said they were fired in retaliation after accusing their boss of misconduct.

In a brief order issued Tuesday evening, state District Judge Amy Clark Meachum gave no reasons for allowing the lawsuit to continue.

Shortly after the ruling, however, the attorney general's office notified Meachum that it had filed an appeal, halting further action on the case, including a planned April 5 hearing on a request by two of the whistleblowers to be reinstated to their jobs.

Lawyers for one of the fired executives praised the ruling.

"Ken Paxton must think he is above the law he took an oath to protect," lawyers Tom Nesbitt and TJ Turner said in a statement. "Paxton asked the court, without any legal support, to rewrite the Whistleblower Act to exempt Paxton from it. He lost. Now he'll use taxpayer money to appeal so he can delay and hide."

During a March 1 hearing on the motion to dismiss, Bill Helfand, an outside lawyer hired to defend the attorney general's office, argued that there was no basis to sue because Paxton was allowed to fire the employees for any reason.

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"Texas employees of any elected official always serve at the pleasure of the elected official," Helfand told Meachum.

"These plaintiffs, like most employees in Texas, have always been employees at will. And therefore ... those at-will employees could have quit or — perhaps more importantly for our circumstances here — been fired with or without prior notice with, quote, a good reason, a bad reason or no reason at all," he added.

But lawyers for the executives argued that such firings cannot violate the law. "It is illegal to retaliate or fire public whistleblowers," Carlos Soltero said.

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Nesbitt added: "Public servants standing up to corruption, going to outside law enforcement agencies — protecting public servants from retaliation for that is exactly what the Texas Whistleblower Act is designed to prevent."

Meachum's ruling on the motion to dismiss was delayed by an earlier appeal from Helfand, who objected when Meachum called a second hearing on March 1 — to consider whether to reinstate the jobs of two whistleblowers — without ruling on his motion to dismiss.

Helfand argued that no further action could be taken until his motion was ruled upon because it questioned whether Meachum had jurisdiction to hear the lawsuit. Meachum  disagreed, held the second hearing, heard from two witnesses and recessed the hearing for the night, but her plans to resume March 2 were blocked by the 3rd Court of Appeals while it considered Helfand's appeal.

The appeals court rejected that appeal on March 12, leading to Meachum's ruling Tuesday. 

The former executives claim they were improperly fired after meeting with FBI agents last year to report allegations that Paxton was misusing the powers of his office to help Austin businessman Nate Paul.

Paxton has denied wrongdoing and blamed "rogue employees" for trying to block an investigation into Paul's complaint that federal authorities improperly searched Paul's Austin home and businesses as part of an unrelated investigation. 

In total, eight top executives of the agency accused Paxton of impropriety, and all eight later resigned or were subsequently fired.