Soon after his acquittal in an impeachment trial last weekend, Texas Attorney General Ken Paxton released a statement that lambasted the proceedings but also spelled out his plan to continue challenging Biden administration policies now that he was being reinstated in office.
“Now that this shameful process is over, my work to defend our constitutional rights will resume,” the statement read.
“Now it is back to work!”
With his reinstatement, Paxton will return to his job overseeing an office of nearly 4,000 employees who handle thousands of legal cases every year — many of them connected to state agencies facing lawsuits.
But an investigation published this month by ProPublica and The Texas Tribune found Paxton denied requests for representation at least 75 times. That included instances in which Paxton refused to defend agencies fighting lawsuits connected to policies he’s publicly opposed, like affirmative action and gay marriage, according to records the news organizations obtained through public information requests.
[Texas AG Ken Paxton’s habit of refusing to defend state agencies cost taxpayers]
Paxton did not respond to questions from ProPublica and the Tribune about these denials. Neither did the attorney general’s office, other than to say it has approved the vast majority of solicitations for help. The bulk of the denials, the attorney general’s office has said, were because the agencies preferred to hire their own lawyers. In other cases, the attorney general’s office said, it may refuse a request for help because defending an agency would conflict with state law or with positions the attorney general has taken in other lawsuits.
First Assistant Attorney General Brent Webster told state lawmakers during a legislative hearing in February that Paxton’s office had “never prevented someone from defending themselves. There’s no precedent for that.”
However, a week earlier, the attorney general’s office had effectively done just that, withholding a decision on whether or not to represent the University of Texas System in a case, but also refusing to give the school a green light to hire outside counsel.
ProPublica and the Tribune have compiled a list of instances in which the attorney general’s office refused requests for representation. The reason the office said was most commonly cited — agencies wanting their own lawyers — did not factor into most of the examples detailed below.
Public universities
The news organizations found numerous examples of Paxton’s office refusing to represent public universities that receive state funding.
Requester: University of Houston-Clear Lake
Request date: Nov. 30, 2021
Denial date: Nov. 30, 2021. The attorney general’s office said in a letter that the request was “not suitable for representation by our office.” A spreadsheet provided to the news organizations by the state Legislative Budget Board said the case conflicted with positions the attorney general’s office had taken in other litigation.
Case: Two students and Ratio Christi, a Christian organization that defends and shares its faith on college campuses, sued the university on Oct. 25, 2021, after it refused to recognize a new chapter. According to the lawsuit, the university wouldn’t recognize the chapter because it believed the organization’s requirement that leaders be Christian ran afoul of the institution’s anti-discrimination policy.
Ratio Christi was represented by Alliance Defending Freedom, a nonprofit legal firm that works to expand Christian practices in public schools and government as well as to outlaw abortion and same-sex relationships. Alliance Defending Freedom senior counsel Caleb Dalton said the case was important to pursue because “the bottom line is that student organizations, whether they are Christian, Muslim, conservative or liberal, should be able to require their leaders to actually believe what the organization is about.”
What happened after the denial: University spokesperson Chris Stipes said this was the first time the attorney general’s office had rejected representing the University of Houston in a lawsuit. As a result, the university’s Office of General Counsel took on the case. It settled the lawsuit in February 2022, before it was scheduled to respond to the allegations in court. The university agreed to allow student groups to “limit officers to those members who subscribe to the tenets of that organization.” The university also agreed to pay the plaintiffs $26,200 in attorneys fees and damages. Asked whether the outcome of the case would have been different had the attorney general’s office represented the school, Stipes said any response “would be purely speculative.”
Response: Stipes said the university’s Office of General Counsel devoted time and resources to the case, but he was unable to provide an exact amount. Paxton and the attorney general’s office did not answer questions about this case.
