Texas AG Paxton Says Since He's Elected, the Whistleblower Act Doesn't Apply to Him

Texas Attorney General Ken Paxton wants his fellow Republicans to lay off, a big ask given all his controversies.
Texas Attorney General Ken Paxton wants his fellow Republicans to lay off, a big ask given all his controversies. Screenshot
Beleaguered Texas Attorney General Ken Paxton’s representatives argued in court this week that Paxton shouldn’t be considered a “public employee,” and therefore should be immune to a whistleblower lawsuit filed against him by former colleagues he fired after they accused their old boss of corruption.

Meanwhile, Paxton’s been filing a number of lawsuits against Texas school districts who told their students and staff to wear face masks during a pandemic (and, strangely, some that haven’t). He’s also filed yet another lawsuit against President Joe Biden’s administration, arguing that the Biden regime has unfairly attacked Texas by requiring states to let transgender residents use the bathrooms at their workplaces that align with their gender identities.

If Paxton wasn’t already busy enough, he’s also now fending off yet another Republican primary challenger seeking to take his job in 2022. His newest GOP foe is state Rep. Matt Krause (R-Fort Worth), a former Paxton ally and fellow far-right Tea Partier who thinks his old friend doesn’t deserve to keep his gig.

A group of justices from Texas’ 3rd Court of Appeals heard oral arguments on Wednesday in a whistleblower lawsuit against Paxton’s office, filed by former Paxton employees who claim they were fired for reporting crimes Paxton may have committed related to inappropriately using his office to benefit a wealthy donor.

The group of ex-Paxton allies are claiming that Texas’ whistleblower act should have protected them from losing their jobs for exposing potential wrongdoing from Paxton, who’s exactly the kind of government employee with the clout to retaliate against his subordinates that whistleblower laws are designed to cover in the first place.

But in a wild assertion Wednesday, Paxton’s legal team argued the Texas whistleblower law only explicitly provides protection for government workers who speak out against “public employees,” as well as government entities and appointed officials. Since Paxton is technically an “elected official,” his lawyers said he shouldn’t be considered a public employee and should therefore be immune from being held accountable by the whistleblower act, according to the Texas Tribune.

The judges were reportedly incredulous of the Paxton team’s claim — “If he truly has the power to have the last say on anything that comes out of the agency,” Justice Chari Kelly asked, “how is he not the agency?”

Joe Knight, a lawyer for the whistleblowers, mocked Paxton’s allies for putting forth the notion that just because the whistleblower act didn’t specifically include the words “elected official” its protections shouldn’t apply to politicians like Paxton. “[The] Legislature does not hide elephants in mouseholes,” Knight said, according to the Tribune.

The FBI is still investigating Paxton over the claims made by these whistleblowers to see if Paxton committed any federal crimes. And over all these other cases and investigations hangs the cloud of Paxton’s indictment over alleged securities fraud from six years ago, which still hasn’t been settled thanks to years of legal maneuvering and procedural wrangling from Paxton and his allies.

Earlier this week, Paxton sued the Biden administration over a requirement issued in June by the Equal Employment Opportunity Commission to require employers “to allow exceptions on the usage of bathrooms, locker rooms, showers, dress codes and even personal pronouns” based on the gender identities of their employees. The federal government’s guidance was made to allow transgender employees of U.S. companies to use the facilities and follow the dress codes that align with their gender identities.

In his latest bout of baseless fearmongering that transgender people — in particular, transgender women — are somehow out to get cisgender Texans, Paxton argued that “States should be able to choose protection of privacy for their employers over subjective views of gender, and this illegal guidance puts many women and children at risk.” Paxton’s remarks echoed the anti-trans rhetoric surrounding 2017’s “bathroom bill” debate, when Paxton and Lt. Gov. Dan Patrick argued that allowing transgender women to use women’s restrooms would somehow lead to a flood of men impersonating women in order to enter female restrooms with sinister motives.

Paxton’s also playing offense in another slate of lawsuits against Texas school districts his office claims are flouting Gov. Greg Abbott’s executive order that tried to block schools from requiring masks on campuses. After previously claiming only county district attorneys could enforce Abbott’s anti-mask order, Paxton sued six school districts for requiring masks in early September. Last week, he sued nine more districts including, perplexingly, two Waco-area districts that claim they don’t enforce mask wearing at their schools to begin with.

According to the Tribune, one of those two districts, Midway ISD, has a rule in place that its campuses can issue temporary mask directives that encourage masking if COVID-19 cases get high, but still doesn’t formally enforce mask use in those cases.

The other district, McGregor ISD, used to require masks if case counts grew too quickly, but its Superintendent James Lenamon told the Tribune it specifically stopped enforcing that rule to not run afoul of Paxton. Paxton’s office hasn’t publicly explained its reasoning for suing these two districts in particular.

Claiming that the legal controversies swirling around Paxton make him the candidate least suited to keeping the attorney general job in the red column come 2022, two of his primary foes — Texas Land Commissioner George P. Bush and former Texas Supreme Court Justice Eva Guzman — have recently called on Paxton to resign. Paxton’s newest intraparty rival Krause hasn’t gone that far, but has argued he’s a “faithful conservative fighter” who doesn’t come with all of Paxton’s legal baggage, which he claims gives him the best chance of beating a Democratic challenger in the general election.

When Paxton was asked by conservative Dallas radio host Mark Davis last week about why so many Republicans — including Krause, who Davis referred to as “our buddy” — felt the need to challenge him, the incumbent argued his three challengers were putting their egos ahead of the good of the Texas GOP.

“I think it’s just individual cases of personal ambition. I personally think we’ve got enough trouble running against the Democratic party and being indicted.”

It sure seems like an odd strategy to highlight your own controversial legal challenges as a reason why your partisan political team should rally to support you. But Paxton clearly thinks that line of reasoning will work.

In today’s Donald Trump-ified state GOP, maybe he’s right — Paxton was able to secure Trump’s coveted endorsement, after all.
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Schaefer Edwards is a staff writer at the Houston Press who covers local and regional news. A lifelong Texan and adopted Houstonian, he loves NBA basketball and devouring Tex-Mex while his cat watches in envy.
Contact: Schaefer Edwards