Ken Paxton and aides ordered to answer questions under oath in whistleblower case

Dec. 20, 2023

"Ken Paxton and aides ordered to answer questions under oath in whistleblower case" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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A Travis County district judge has ordered Attorney General Ken Paxton and three top aides to sit for depositions in the 3-year-old whistleblower lawsuit against him.

At a hearing Wednesday in Austin, Judge Jan Soifer granted the whistleblowers’ motion to compel the depositions of Paxton; Brent Webster, the first assistant attorney general; Lesley French Henneke, chief of staff at the agency; and Michelle Smith, Paxton’s longtime political aide.

Paxton himself was coincidentally served earlier in the day at a restaurant in Austin, according to a whistleblower lawyer, Tom Nesbitt.

“In this case, I believe the plaintiffs have shown good cause that these four people have unique and superior knowledge of discoverable information,” Soifer said from the bench, adding that the four people were “not just figureheads” but people who knew about issues “at the heart” of the case.

The whistleblowers asked the court last month to force Paxton and his aides to sit for depositions. They said their filing was a last resort after they could not reach an agreement with lawyers for the Office of the Attorney General.

On Friday evening, Paxton appealed the ruling, arguing the court's decision would hurt the state's ability to settle lawsuits. The attorney general's office said in a statement announcing the appeal that the case has already been settled and the trial court was ignoring the agreement reached between the agency and its former employees by allowing the "unlimited and unprecedented discovery" to move forward.

“They lost badly,” Nesbitt told reporters after the hearing. “I don’t put anything past Ken Paxton. There’s no limit to the amount of taxpayer money he will spend to hide from accountability, so I’m sure they’ll try some kind of appeal.”

The whistleblowers are four former top deputies — Blake Brickman, Ryan Vassar, David Maxwell and Mark Penley — who sued Paxton in 2020, arguing he improperly fired them after they reported him to the FBI. They alleged he was abusing his office to help a wealthy friend and donor, Nate Paul.

They came close to settling with Paxton for $3.3 million in February, but the Texas House balked at using taxpayer dollars for the figure and decided to investigate the underlying claims. That triggered Paxton’s impeachment by the House in May. The Senate acquitted him after a trial in September.

The whistleblowers sought to restart their lawsuit after the impeachment verdict, and the Texas Supreme Court cleared the way for them to do so. But Paxton’s office quickly fought the revived lawsuit in Travis County, suing the whistleblowers in neighboring Burnet County to block it.

Paxton’s lawyers lost in Burnet County and have since abandoned that lawsuit.

Soifer ruled against Paxton’s side earlier in the hearing, rejecting their motion to enforce the tentative settlement agreement. It had been their latest effort to effectively shut down the case in Travis County by arguing it was already settled.

They have made that argument despite the Legislature still not approving the $3.3 million, one of the provisions of the agreement.

“It says [it] in plain English,” Soifer said.

When it came to the depositions, Nesbitt argued Paxton’s testimony was especially relevant. His office has publicly said Paxton is the “decision-maker” for the hiring and firing of employees.

“Ken Paxton made these decisions,” Nesbitt said, telling Soifer that it is virtually unheard of for someone to argue in an employment case that the “decision-maker … somehow doesn’t have special knowledge, doesn’t have unique knowledge.”

Helfand argued the four people were protected by the apex doctrine, a legal doctrine that seeks to protect high-level executives from overzealous litigants. Helfand told Soifer she should order the whistleblowers to seek depositions from other people first, and if those do not yield the information they want, they could then address the question of deposing Paxton and the three aides.

Helfand appeared to anticipate an unfavorable ruling and proactively asked Soifer that if she were to order the depositions, they should be “severely limited” in time and scope. He also said he would want to depose the plaintiffs first because they carry the burden of proof in the case.

Soifer appeared to reject both requests in her ruling, saying she would allow the depositions by the whistleblowers first and was “not inclined to put any limitations on these depositions.”

The timing of the depositions remains to be seen. After the ruling, Helfand asked the judge if the depositions could wait until after the third week of January, citing personal scheduling conflicts. Nesbitt said their side was OK with that.

As for Paxton's deposition, Nesbitt said it was a coincidence that he was served on the same day of the hearing.

"We’ve been trying to find him for a long time," Nesbitt said. I mean, the dude hides. ... And so we finally found him. We got a tip that he was going to be at a restaurant at a particular time."

Nesbitt did not name the restaurant where Paxton was served. He said Paxton was having "some kind of little holiday lunch" when it happened.

William Melhado contributed to this story.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/12/20/ken-paxton-whistleblower-lawsuit/.

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