The Texas Supreme Court will soon decide whether state Attorney General Ken Paxton and three of his top assistants must sit for depositions in the wrongful termination lawsuit brought by four former employees — a lawsuit that is, for all intents and purposes, over.
That lawsuit dates to 2020, when four former high-ranking political appointees in the Texas attorney general’s office sued the agency, alleging they were fired in violation of the state’s whistleblower law for reporting Paxton to the FBI; the former employees claimed the AG had misused his office to help a friend and campaign donor. The lawsuit’s allegations would later be included in the impeachment charges filed against Paxton, on which he was acquitted by the Texas Senate.
Last Thursday, the attorney general’s office opted to no longer fight the case and filed a motion for judgment to be entered in favor of the four former employees. But rather than take a victory lap, the plaintiffs’ attorney emailed the Travis County court and complained that the AG’s office was not cooperating in efforts to set the previously ordered depositions of the attorney general, first assistant attorney general, the AG office’s chief of staff, and a senior adviser to the attorney general. The Travis County judge presiding over the case ordered those depositions to proceed on Feb. 1, 2, 7, and 9, respectively.
The attorney general’s office sought reconsideration of that order, initially noting that the court had failed to provide it with an opportunity to respond to the motion. Had the court allowed a response, the AG’s office continued, it would be clear that there was no longer a need for the depositions as it was not challenging the plaintiffs’ factual claims and had agreed to the entry of judgment in favor of the former employees. The Travis County judge denied the motion, and the state appellate court refused to intervene.
Monday morning, the Texas attorney general’s office filed a petition with the state Supreme Court seeking an order directing Travis County Judge Jan Soifer to vacate her order directing Paxton and his three high-level assistants to sit for the depositions. In a 6-2 decision, the Texas Supreme Court previously rejected efforts by the attorney general’s office to halt or limit the depositions, but at that time the office was still fighting the case.
In Monday’s petition to the Supreme Court, the attorney general’s office stresses that since it has opted to concede the case, the depositions serve no legitimate purpose. Or, as the attorney general’s petition put it, “Plaintiffs refused to take ‘yes’ for an answer. Although [the attorney general’s office] has both consented to and moved for entry of judgment against itself, Plaintiffs have remarkably opposed entry of judgment in their favor.” At most, the attorney general’s office argues, the only remaining issue is damages — something Paxton and his assistants have no relevant knowledge of which to testify.
With the first deposition scheduled for Thursday, the Texas Supreme Court will need to weigh in soon on the issue. But then again, what would the Travis County judge do if Paxton’s office ignored the court-ordered discovery? When a party in a civil case refuses to provide discovery, the ultimate sanction is judgment being entered for the opposing party. The Texas attorney general’s office already consented to judgment being entered for the plaintiffs, though, which illustrates perfectly why the depositions are not needed.
Of course, forcing Paxton to sit under oath for a deposition — something the attorney general surely wants to avoid — serves other political purposes. Why else would you seek to question the AG and his top assistants when they have conceded the case?
The politics at play, however, extend much beyond an attempt to relitigate Paxton’s impeachment acquittal. Given the attorney general’s current battles with the Biden administration, keeping Paxton and his top assistants buried in depositions and continuing litigation will only further sandbag the office, much as the various cases against Donald Trump seek to tie him down during the campaign season.
While Trump has yet to receive a reprieve from any of the courts, Paxton may fare better before the Texas Supreme Court. We should know soon.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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