Whistleblowers ask judge to order Ken Paxton, aides to sit for depositions

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Lawyers for the Ken Paxton whistleblowers are moving forward with their lawsuit in Travis County after another judge cleared the way, asking the Austin-based court to force the attorney general and his top aides to sit for depositions.

The whistleblower lawyers filed a motion Tuesday to compel the depositions, calling it a last resort after they could not reach an agreement with lawyers for the Office of the Attorney General.

“OAG’s effort to resist these straightforward depositions is nothing more than a continuation of OAG’s cynical effort to deny Plaintiffs their right to access to the justice system,” the whistleblower lawyers wrote.

The whistleblower lawyers specifically want to take depositions from 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. The lawyers proposed a schedule where Paxton is deposed Dec. 12, Webster on Dec. 14, Henneke on Dec. 18 and Smith on Dec. 20.

A lawyer for Paxton’s office did not immediately respond to a request for comment.

The whistleblower lawyers filed the motion a week after a district court judge in Burnet County gave the green light for the Travis County lawsuit to continue. Lawyers for Paxton’s office had sued the whistleblowers in nearby Burnet County to try to stop their lawsuit in Travis County, arguing they were breaking the terms of a tentative settlement agreement they struck in February. While the Burnet County judge, Evan Stubbs, first agreed to temporarily halt the Travis County case, he sided with the whistleblowers at the Nov. 14 hearing and allowed the case to proceed again.

The whistleblowers — Blake Brickman, Ryan Vassar, David Maxwell and Mark Penley — 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.

The whistleblowers almost settled with Paxton for $3.3 million in February, but the Texas House balked at using taxpayer dollars for it and decided to investigate the underlying claims. That led to Paxton’s impeachment in the House in May.

The Travis County lawsuit came back to life in September after the Texas Senate acquitted Paxton in his impeachment trial, which centered on similar claims of corruption by former top deputies in his office. After the acquittal, the whistleblowers asked the Texas Supreme Court to reinstate the case and it did, sending it back to Travis County for trial.

Shortly after the whistleblowers sought to restart work on the case in Travis County — giving notice they planned to take depositions of Paxton and the three aides — Paxton’s office filed suit in Burnet County.

In their latest filing, the whistleblowers’ lawyers say the Burnet County lawsuit was just the latest delay tactic by Paxton’s side in the 3-year-old case. The lawyers asked the Travis County court to compel the depositions so that the whistleblowers “may at long last pursue justice.”

If the whistleblowers’ motion is granted, it would be the first time Paxton would be required to answer questions under oath related to the allegations of bribery and corruption made against him. Paxton did not take the stand in his Senate trial in September.

While the Burnet County judge, Stubbs, allowed the Travis County case to restart last week, the more recent lawsuit in his court remains pending. Stubbs set a Dec. 14 hearing on a motion by the whistleblowers to change the venue to Travis County.

With the Travis County case revived, the whistleblowers have also asked for the court to assign it to a single judge. Their lawyers made the request in a filing last week, citing the “unusual characteristics” and “high-profile facts” involved.

Paxton's side has not made any recent filings in the Travis County case other than to submit a copy of the tentative settlement agreement. Lawyers for Paxton's office have been arguing that the case is already effectively resolved and that any further litigation goes against that.

The whistleblower lawyers made clear to the Travis County court in a second filing Tuesday that they strongly disagree. They noted the settlement depends on a number of things that still have not happened, including legislative approval of the $3.3 million.

"This case is not settled," the filing said, "and as the third anniversary of its filing has recently passed, the time has come to prepare the case for trial."