TRAVIS COUNTY, Texas (Nexstar) — A Travis County judge has ordered Attorney General Ken Paxton to testify under oath in a three-year-old wrongful termination lawsuit from his former top deputies.
Judge Jan Soifer ordered Wednesday that Paxton and three other top aides in the Office of Attorney General must sit in deposition, sworn testimony that Paxton has sought to avoid for years. Soifer ruled from the bench after a two-hour hearing in Austin.
Along with Paxton, she is compelling deposition from Brent Webster, the first assistant attorney general; Lesley French Henneke, chief of staff at the agency; and Michelle Smith, Paxton’s longtime political advisor.
Bill Helfand — outside counsel hired to represent the state — did not answer reporters' questions after the hearing about if they plan to appeal this order. But Tom Nesbitt, a lawyer for one of the whistleblowers, said he expected the OAG to try and fight Paxton's deposition.
"This isn't some earth shattering thing. This is what happens in civil litigation," Nesbitt told reporters. "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."
What prompted the whistleblower lawsuit?
In 2020, eight high-ranking OAG employees went to the FBI to share their concerns about Paxton's relationship with Nate Paul — an Austin real estate investor. They allege Paxton was abusing his office to help Paul, a friend and campaign donor.
Paxton had previously reached a deal with the whistleblowers — his former top aides who were fired after reporting the attorney general's alleged misconduct to federal authorities. Paxton has maintained that they were terminated for other reasons. The former aides suing are Blake Brickman, David Maxwell, Ryan Vassar and Mark Penley.
Both parties agreed to pay the whistleblowers $3.3 million in February, but the Texas House did sign off on Paxton's request for using additional taxpayer dollars for the legal dispute. State representatives asked the attorney general to testify to the Appropriations Committee to answer their questions about the settlement, but Paxton did not accept the invitation. This prompted the House General Investigating Committee to quietly begin looking into Paxton's legal troubles in March, which led to his May impeachment. The Senate later acquitted Paxton on all articles of impeachment following the September trial.
The battle over resuming, or shutting down, the lawsuit
After the impeachment trial, the whistleblowers began the process of trying to get their lawsuit back on the active docket. After back and forth in the courts, the Texas Supreme Court ultimately paved the way for the suit to resume. Paxton's lawyers attempted to kill the case by suing the attorney general's former aides in Burnet County — but lost and dropped that separate Burnet lawsuit.
Last month, Paxton's former employees asked the court to compel the depositions after their attorneys said they could not come to an agreement with OAG lawyers.
"The only thing that could increase the cost to Texans would be attorney fees," Helfand said Wednesday, asking for the settlment to be enforced.
Helfand argued that the lawsuit settlement still stood, and there were no time constraints on when the whistleblowers should be paid. The judge, however, denied the OAG's request to enforce the settlement agreement.
He also argued Wednesday that deposition from Paxton and his current top aides is not necessary and that they are protected by the apex doctrine, which offers legal protection to high-ranking officials and executives to shield them from frivilous lawsuits. Nesbitt argued that Paxton is the "decision maker" when it comes to the hiring and firing of OAG employees.
Soifer agreed with Nesbitt, saying sworn testimony from Paxton and his three deputies is critical, considering their "unique and superior knowledge of discoverable information," in the case.
The attorney general was also coincidentally served a subpoena earlier Wednesday, according to Nesbitt. He said it happened at an unnamed restaurant in Austin, where Paxton was apparently having a "little holiday lunch."
No dates were set for when the depositions will take occur, but the judge agreed it will take place after the New Year.