Ken Paxton won't testify in whistleblower lawsuit, Texas Supreme Court rules
AUSTIN, Texas - Texas Attorney General Ken Paxton won't testify under oath in a lawsuit filed by former office employees turned whistleblowers, the state's Supreme Court said Friday.
The court on Friday granted Paxton's request for a writ of mandamus, an order that would require a trial court to vacate its order that would have forced Paxton and three top employees – Brent Webster, Lesley French Henneke and Michelle Smith – to testify under oath in a lawsuit claiming the whistleblowers were fired in retaliation for reporting Paxton to the FBI.
Paxton agreed not to contest the lawsuit and the court determined that with the office's liability no longer contested, the depositions were 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 justices wrote.
Thomas Nesbitt, attorney of whistleblower James Brickman, said Paxton was trying to change the stipulations of the whistleblowers' lawsuit and settlement.
"He is doing so for one reason: to save himself from having to give testimony about his own corruption," Nesbitt said. "That is an act of malpractice and self-interest so pathetic it could only have sprung from the mind of Ken Paxton. And today the Texas Supreme Court endorsed it."
The whistleblowers — Brickman, David Maxwell, Mark Penley and Ryan Vassar — were among a small group of top Paxton deputies who had first-hand knowledge of his relationship with real estate investor Nate Paul. At Paxton’s impeachment trial they each testified about their growing concerns in 2020 that Paxton was illegally using his office to help Paul, a friend and political donor, as the real estate investor’s faltering business empire faced an FBI investigation, looming bankruptcies and a litany of related lawsuits.
The whistleblowers sued Paxton for wrongful termination and retaliation and reached a settlement for $3.3 million.
When Paxton asked the state legislature to use taxpayer money to pay for the settlement, the Texas House of Representatives opened an investigation that resulted in 21 articles of impeachment.
Paxton beat the impeachment in the Senate and was acquitted of the 16 articles he was eventually tried on, which included allegations of bribery and abusing his office on behalf of his friend and campaign donor Nate Paul.
Paul goes to trial for felony financial crimes on Feb. 19, 2025.
In January, Paxton called the lawsuit a "waste of taxpayer resources" since it argued many of the same points that were brought up during his impeachment trial.
Court records indicate that the federal criminal investigation into Paxton and the attorney general's office is still ongoing as of June 2024.
The agency was denied a petition to prevent grand jury testimony under attorney-client privilege in June when the Fifth Circuit Court of Appeals stated they had failed to show a "clear and indisputable right" to end the testimony.