Judge pauses Ken Paxton whistleblower lawsuit

Whistleblower Ryan Vassar sits in the Senate gallery on the ninth day of Attorney General Ken Paxtons impeachment trial at the state Capitol in Austin, Texas, on Sept. 15, 2023. (Julius Shieh/The Texas Tribune, Julius Shieh/The Texas Tribune)

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The whistleblower lawsuit against Attorney General Ken Paxton has once again been put on pause, this time by a judge who had not been previously involved in the case.

The Texas Supreme Court agreed to jumpstart the case in late September after the state Senate acquitted Paxton in an impeachment trial that centered on the whistleblower claims. But on Tuesday morning, Paxton’s office asked a Burnet County judge, Evan Stubbs, for an emergency temporary restraining order, claiming the whistleblowers violated the tentative settlement they reached in February by asking the Supreme Court to reinstate the case, which had been filed in Travis County. Stubbs agreed within hours, ordering the whistleblowers to halt their litigation for at least a week.

Stubbs set a Nov. 14 hearing on Paxton’s petition for a temporary injunction.

“This lawsuit is Ken Paxton’s latest cowardly attempt to avoid testifying under oath,” TJ Turner and Tom Nesbitt, lawyers for two of the whistleblowers, said in a statement. “Just like he hid out during his impeachment trial, sheltered from giving testimony, he’ll do anything to avoid accountability.”

Responding to the order, Paxton’s office said the whistleblowers “continue to seek to have their settlement funded by the legislature, while simultaneously seeking to litigate their claims.”

"Texas law is clear that settlement agreements should be enforced,” Paxton said in a statement. “If plaintiffs are allowed to disregard their settlements with the State, the important work of my office, and litigation for state agencies across Texas, would be significantly impaired."

It is the latest twist in the long-running whistleblower case, which involves four former top deputies of Paxton who say they were improperly fired for reporting him to the FBI in 2020. They alleged he abused his office in service of a wealthy friend and donor, Nate Paul.

The whistleblowers — Blake Brickman, Ryan Vassar, David Maxwell and Mark Penley — nearly settled with the attorney general’s office for $3.3 million earlier this year. But the Texas House, concerned about using taxpayer dollars for the settlement, started investigating the underlying claims and initiated Paxton’s impeachment.

After the Senate acquitted Paxton in September, the whistleblowers asked the state Supreme Court to effectively jumpstart the case. The court sided with them, sending the case back to Travis County district court for trial.

In its filing Tuesday, Paxton’s office accused the whistleblowers of breaching the settlement agreement by “seeking to resume discovery” last week in the case. The whistleblowers gave notice they planned to subpoena impeachment records and take depositions, according to Paxton’s office.

The filing did not directly name the people the whistleblowers wanted to depose, but it did ask Stubbs to specifically shield Paxton; Brent Webster; the first assistant attorney general; Lesley French Henneke, chief of staff at the office; and Michelle Smith, Paxton’s longtime political aide.

In issuing the temporary restraining order, Stubbs said there is “good cause to believe [the whistleblowers] have engaged, are engaged, and will continue to engage in acts and practices inconsistent with the Mediated Settlement Agreement.”

In that agreement, Paxton said he would apologize and his office would pay the $3.3 million. But the Legislature, which must approve settlements of that size, declined to authorize the payment during this year’s regular session. Paxton then attempted to have the case dismissed, but the state Supreme Court rejected his request.

Court records show Paxton’s office filed its lawsuit at 9:32 a.m. and Stubbs issued the temporary restraining order less than four hours later. Nesbitt said the whistleblowers’ attorneys were not given a chance to respond or appear before the judge.

Paxton’s office said it made its filing in Burnet County — a small rural county bordering Travis County — because one of the whistleblowers, Maxwell, lives there. The rest of the whistleblowers live in Austin or Dallas, which are in larger counties with judges that are heavily Democratic.

Zach Despart contributed reporting.