AUSTIN, Texas — (THE TEXAS TRIBUNE) 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 deposition. They said their filing was a last resort after they could not reach an agreement with lawyers for the Office of the Attorney General.
It remains to be seen if Paxton’s side will further fight the depositions. His office’s attorney, Bill Helfand, declined to comment to reporters as he left the courthouse.
“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.”
This article originally appeared in The Texas Tribune.
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