Texas Tribune / Sergio Flores
Ken Paxton, who’s at present suspended from his submit as Texas legal professional basic, at a information convention in Austin final yr.
When Texas Legal professional Basic Ken Paxton held a information convention in Could decrying state lawmakers’ anticipated vote to question him, he framed the choice as not solely a risk to his political profession however as one which endangered the slew of lawsuits he’d filed in opposition to the Biden administration.
Paxton, who has since been suspended from workplace, faces an impeachment trial that begins immediately. He has lengthy positioned himself as one of many nation’s strongest conservative attorneys basic, relentlessly pursuing almost 50 lawsuits in opposition to the federal authorities on points that embody immigration, well being care and the surroundings. Such messaging raised Paxton’s nationwide profile, appealed to his base of conservative supporters and helped him tamp down political pushback stemming from allegations of wrongdoing which have dogged his eight-year tenure.
However as Paxton has aggressively pursued such lawsuits, he has repeatedly declined to do a important however much less glamorous a part of his job: symbolize state companies in court docket.
Regardless of his function as Texas’ lead legal professional, Paxton has denied illustration to state companies at the very least 75 occasions prior to now two years, in line with information obtained by ProPublica and The Texas Tribune. The denials compelled a few of these companies to imagine further, unanticipated prices as they scrambled to safe authorized help.
“Each time he backs out of one among these instances – and an company, a college has to get exterior counsel, in the event that they get the funding authorised – that is costing the taxpayers lots of more money, as a result of that is one of many principal causes the AG’s workplace exists, is to supply these fundamental authorized providers, fundamental authorized protection,” mentioned Chris Toth, former government director of the Nationwide Affiliation of Attorneys Basic.
Through the years, a few of Paxton’s illustration denials have turn into public. Amongst these is his longtime refusal to defend the state Ethics Fee in opposition to lawsuits filed by the now-disbanded Empower Texans, a political motion committee, and the PAC’s then-head Michael Quinn Sullivan. Empower Texans contributed tons of of 1000’s of {dollars} to his marketing campaign and loaned him $1 million, in line with marketing campaign finance stories. One other has been his alternative to not symbolize the State Fee on Judicial Conduct after it issued a public warning to a justice of the peace who refused to carry out same-sex marriages regardless of a U.S. Supreme Courtroom resolution that legalized the unions.
However the scope of the denials has not been absolutely identified. Neither have particulars of different occasions he has mentioned no to state companies looking for illustration.
In a single such occasion, Paxton declined to symbolize the College of Houston–Clear Lake after college students filed a lawsuit alleging the college wouldn’t acknowledge their group due to the group’s requirement that its officers be Christian. Till then, the legal professional basic’s workplace had by no means earlier than declined to symbolize the college in a case, mentioned college spokesperson Chris Stipes.
In one other occasion, Paxton’s workplace not solely held off on a call to symbolize the College of Texas System in an affirmative motion case, but additionally withheld a dedication on whether or not the college may rent exterior authorized counsel, forcing a number of delays. That alternative stands in distinction to Republican Gov. Greg Abbott’s resolution to symbolize the College of Texas at Austin in the same case 15 years earlier when he was the state’s legal professional basic.
Texas lawmakers in 2021 required the legal professional basic’s workplace to start reporting every time it declined to symbolize a state company. It’s unclear what prompted the mandate.
ProPublica and the Tribune obtained information documenting dozens of denials by means of a Public Info Act request, however the overwhelming majority don’t embody a transparent purpose for the selections. The legal professional basic’s workplace declined to supply specifics about its communications with state companies, together with those who occurred earlier than the reporting requirement went into impact, citing attorney-client privilege. The workplace additionally didn’t reply to a query about whether or not the company tracked these denials previous to 2021.
Lawmakers took further motion this yr, requiring the legal professional basic to start out giving causes for the denials starting Sept. 1.
Paxton’s workplace has claimed that the majority of these denials had been as a result of companies most well-liked to rent their very own attorneys or as a result of the workplace was statutorily prevented from representing them. Different requests, Paxton has mentioned, had been turned down as a result of they might have required his workplace to take a place reverse of what it had beforehand argued or as a result of he believed they might run opposite to the state’s structure.
An workplace spokesperson mentioned the legal professional basic approves the overwhelming majority of solicitations for assist, however neither the workplace nor Paxton responded to requests for interviews or to detailed questions on particular denials.
Such transparency is important, in line with former attorneys basic and authorized consultants, who say that Paxton’s denials replicate a broader polarization amongst attorneys basic throughout the nation, threatening the declare that they symbolize the rule of regulation.
“He definitely was a type of those that was main the best way of this concept that they do not need to implement or defend something they do not like,” Toth mentioned. “And that is not what AGs are elected to do. And it isn’t the brave factor to do both as a result of AGs need to do the suitable factor by the regulation, even when it isn’t fashionable.”
In 2014, Colorado’s then-Legal professional Basic John Suthers, a Republican, penned an opinion piece within the Washington Put up that warned in opposition to such politicization of the workplace. Within the piece, Suthers criticized three Democratic attorneys basic on the time, together with California’s Kamala Harris, now U.S. vice chairman, for refusing to defend their state’s ban on homosexual marriage forward of the Supreme Courtroom’s 2015 resolution legalizing the unions. “I worry that refusing to defend unpopular or politically distasteful legal guidelines will in the end weaken the authorized and ethical authority that attorneys basic have earned and rely on,” he wrote.
Suthers reiterated the identical concern about Paxton’s refusal to defend state companies in an interview with ProPublica and the Tribune.
“If you happen to determine for your self what legal guidelines must be defended, what companies must be defended on aside from dictates of the courts, you then come throughout as nothing however a completely political entity,” Suthers mentioned. “That is not the function that you simply’re purported to play within the system. Let the legislature and the governor be political. You are purported to be adhering to the rule of regulation.”
Rising prices
Throughout a legislative committee listening to in February, Mary González, a state consultant from the El Paso space, grilled Paxton about his selections to not symbolize state companies. She and different lawmakers had simply completed asking Paxton about his workplace’s settlement greater than every week earlier to pay $3.3 million to settle a whistleblower lawsuit with former staff who had accused him of bribery and retaliation.
González, a Democrat, requested Paxton if he had made an energetic resolution to have the legal professional basic’s workplace tackle the lawsuit filed in opposition to him. She famous that Paxton’s workplace may have declined to symbolize him in court docket the identical manner it had denied illustration to state companies.
“Finally, the legal professional basic is not doing his job,” González mentioned in an interview with the information organizations. “We must always care if any elected official isn’t doing their job.”
Paxton and his employees didn’t straight reply González’s query however raised the varied causes the workplace wouldn’t tackle a case, together with situations when it thinks an company’s argument violates the structure.
“If we’re given a case that seems to us clearly to be unconstitutional, they need us to take a place in opposition to the structure. That’s an actual drawback for me given my oath,” Paxton mentioned.
Two days later, Jacqueline Habersham, government director of the State Fee on Judicial Conduct, appeared earlier than the identical legislators to request $150,000 to assist cowl authorized charges over the subsequent two years. Paxton has refused to defend the fee in two ongoing lawsuits.
In late 2019, a justice of the peace in Waco, lower than two hours south of Dallas, sued the judicial fee in district court docket after it issued her a public warningbecause of statements she made to the media about disagreeing with and refusing to carry out same-sex marriages after they’d been legalized, casting “doubt on her capability to behave impartially.” The lawsuit argued that the fee’s public punishment of the justice of the peace constituted “a considerable burden” on her “free train of faith,” in line with court docket information.
Just a few months later, the county choose of Jack County, northwest of Fort Price, sued the judicial fee in federal court docket, arguing that he additionally was liable to being sanctioned as a result of he didn’t carry out same-sex marriages. An legal professional for the county choose declined to remark.
The instances, and the prices, are ongoing.
Even earlier than Habersham went to lawmakers for assist, the judicial fee had already spent $120,000 for out of doors counsel as a result of Paxton had declined to supply illustration. She mentioned the small company had beforehand not budgeted for such bills. With the fee having no technique to know if the legal professional basic will deny authorized assist once more, “we’re simply hoping that no different lawsuits are filed in opposition to us, the place the AG can even decline (to symbolize us) once more,” Habersham mentioned in an interview with ProPublica and the Tribune.
In 2015, after the U.S. Supreme Courtroom legalized homosexual marriage, Paxton issued an opinion that mentioned judges mustn’t need to carry out these ceremonies if they’ve non secular objections. Requested in 2020 about not representing the fee, an legal professional basic spokesman informed the Houston Chronicle, “We consider judges retain their proper to spiritual liberty after they take the bench.”
The assertion and Paxton’s resolution in opposition to defending the judicial fee “definitely has the looks that he is refusing to do it as a result of he disagrees with the Supreme Courtroom resolution, and subsequently he is making a political resolution and never a authorized resolution,” mentioned Suthers, the previous Colorado legal professional basic.
The plaintiffs in each lawsuits filed in opposition to the fee have sooner or later been represented by First Liberty Institute, a Plano-based conservative Christian regulation agency. The agency’s president and chief government, Kelly Shackelford, is a longtime good friend of Paxton and has contributed $1,000 to a authorized protection fund Paxton has used to combat an ongoing legal indictment for securities fraud. First Liberty board member Tim Dunn is amongst Paxton’s largest particular person donors, having given him $820,000 since he first ran for legal professional basic. Political motion committees related to Dunn have additionally donated greater than $950,000 mixed to Paxton. Neither Shackelford nor Dunn responded to a request for remark.
First Liberty’s government basic counsel, Hiram Sasser, who briefly labored for the legal professional basic’s workplace beneath Paxton, mentioned he doesn’t understand how donations would have affected the legal professional basic’s resolution.
However Sasser mentioned he would have been disenchanted had the legal professional basic chosen to symbolize the fee. He alleges that the fee is violating the Waco justice of the peace’s rights beneath the Texas Non secular Freedom Restoration Act, which limits authorities actions that considerably burden somebody’s skill to freely train their faith, and the Texas Structure as a result of it violates her freedom of speech and faith.
The judicial fee’s personal attorneys mentioned that the justice of the peace argued these factors earlier than the fee in 2019 however misplaced the case. They keep that she didn’t enchantment that case, so she has no proper to pursue a brand new lawsuit that claims the warning was invalid.
State regulation says the legal professional basic’s workplace shall symbolize the judicial fee in court docket at its request, which signifies Paxton has minimal wiggle room to refuse to defend them, mentioned Paul Nolette, director of the Les Aspin Middle for Authorities at Marquette College, who researches attorneys basic.
“This appears extra just like the AG selecting to undertake a sure constitutional interpretation after which saying, ‘Nicely, I consider it is unconstitutional, subsequently, I am not going to defend it.’ However it’s nonetheless ambiguous. It is not like an open and shut case.”
Contrasting authorized approaches
Whereas about 15 years aside, two instances in opposition to the College of Texas at Austin lay naked the completely different approaches taken by Paxton and Abbott, Paxton’s predecessor and now the state’s Republican governor.
Underneath Abbott’s management, the legal professional basic’s workplace defended UT-Austin in federal district court docket in opposition to a lawsuit filed by Abigail Fisher and one other pupil. Within the 2008 lawsuit, the scholars, who had been white, alleged that the varsity’s consideration of race in admissions prevented them from being accepted. The legal professional basic’s workplace argued that the college’s admission coverage was authorized as a result of Fisher had not confirmed it was adopted in unhealthy religion. The workplace additionally argued the coverage was narrowly tailor-made to realize wanted variety there.
Fisher appealed the district court docket’s resolution in favor of the college in 2009. Though Abbott didn’t symbolize the college all through all the appeals course of, he submitted an almost 50-page temporary in December 2011 when the case first went earlier than the Supreme Courtroom, urging the excessive court docket to reject the case. The legal professional basic workplace’s main argument was that Fisher, by then scheduled to graduate from one other college in 2012, may now not assert that she supposed to use to UT-Austin as a freshman or switch pupil.
Abbott didn’t reply to a request for remark.
In 2016, the Supreme Courtroom upheld UT’s affirmative motion insurance policies in a 4-3 resolution. (Justice Elena Kagan didn’t participate within the resolution and one seat was vacant on the time.)
In distinction, Paxton not solely withheld a call on representing the UT System in one other affirmative motion case earlier this yr, but additionally saved the company in limbo by holding off on permitting it to rent exterior authorized counsel.
On Jan. 12, a lawyer with the UT System despatched a letter to the legal professional basic requesting illustration after a person named George Stewart filed a federal lawsuitagainst six medical colleges that had rejected his purposes for admission. All however one of many colleges had been within the UT System. Stewart, who’s white, argued that the faculties had been “unlawfully discriminating in opposition to whites, Asians, and males.” Stewart and his attorneys declined to remark.
Over the subsequent a number of weeks, UT System attorneys contacted a deputy chief in Paxton’s workplace quite a few occasions. They known as. They emailed. The deputy chief informed UT attorneys that “decisionmakers” on the legal professional basic’s workplace had been conscious that submitting deadlines had been approaching however had been nonetheless contemplating the request, court docket paperwork present.
UT System attorneys ultimately had been compelled to ask the plaintiff’s lawyer for an extension, delaying the case.
Greater than a month handed earlier than the legal professional basic formally responded.
The legal professional basic’s workplace wrote in a letter that it agreed with the plaintiff’s argument that contemplating race and gender in pupil admissions was unlawful and that it was awaiting the result of different affirmative motion instances earlier than the Supreme Courtroom. The legal professional basic’s workplace additionally wrote within the letter that it had filed briefs urging the court docket to cast off affirmative motion as a result of it was “abhorrent to the Structure.”
“For these causes, we’re selecting right now to withhold a call in your request for
illustration and for out of doors counsel,” the letter mentioned.
UT may symbolize itself, the letter continued, however just for the aim of requesting extensions within the case. Though state companies like UT typically have their very own in-house basic counsel, the legal professional basic is formally their lawyer. The state company attorneys aren’t essentially litigators, or litigation could solely be a small a part of their job. Usually, their time is spent giving inner authorized recommendation, reviewing contracts or consulting on employment points. State companies smaller than UT could not even have attorneys on employees.
Catherine Frazier, a UT System spokesperson, wouldn’t touch upon the lawsuit or reply questions however mentioned that the varsity, like each state company, is required to ask the legal professional basic for illustration or exterior counsel. Each case is completely different, she mentioned, and the UT System has in the end been in a position to safe counsel.
Months later, the Supreme Courtroom would rule in a 6-3 resolution that consideration of race in faculty admissions violates the U.S. Structure. However neither the legal professional basic nor UT attorneys knew how the excessive court docket would vote when Stewart filed his lawsuit.
“The regulation was clear that affirmative motion was allowed (on the time),” mentioned Terry Goddard, a Democrat who was Arizona’s legal professional basic from 2003 to 2011. “I do not assume you get to attend for the subsequent spherical of Supreme Courtroom selections to make up your thoughts.”
Goddard’s strategy to the legal professional basic function, he mentioned, was that if he may make any constitutional argument in assist of a regulation, whether or not or not he agreed with it, “it was your job to take that argument and do the very best job you could possibly.”
“Now, that is not what we’re listening to immediately from individuals like Paxton,” Goddard mentioned. “He is principally saying, ‘Look, I am not gonna make the argument in any respect.’ He did not even take what I feel is the suitable fallback, which is, ‘I will not assist it. And the document will present that I am not supporting your place, however I will get you counsel.'”
A few month after Paxton was impeached by the Texas Home and suspended from his place, the legal professional basic’s workplace, whereas beneath the management of interim Legal professional Basic John Scott, lastly allowed the UT System to rent exterior attorneys within the affirmative motion case.
‘Enjoying favoritism’
Simply as Paxton has declined instances the place he has an opposing view, he has chosen to become involved with others with whom he’s aligned ideologically.
In 2020, Lucas Babin, a district legal professional in East Texas, obtained an indictmentagainst the streaming service Netflix for distributing the French movie “Cuties,” a documentary a couple of Senegalese immigrant who joins a kids’s dance troupe. The director has mentioned the movie critiques the sexualization of younger women, however critics centered on a few of the movie’s promoting depicting the women wearing tight, midriff-baring clothes or scenes exhibiting them dancing. Babin alleged the movie violated a state regulation that bans the “lewd exhibition of the genitals or pubic space of a clothed or partially clothed baby,” which Netflix has disputed.
Lower than two weeks earlier than Babin introduced the indictment, Paxton was one among 4 attorneys basic who signed a letter to Netflix “vehemently” opposing the continued streaming of the movie.
After an appellate court docket dominated in an unrelated case in 2021 that the lewd exhibition cost was unconstitutional, Netflix requested that Babin dismiss his indictment. Babin dropped that cost in March 2022 after he introduced 4 new indictments that alleged the movie violated state baby pornography statutes.
On March 3, 2022, Netflix filed a request for injunction in federal court docket, arguing Babin was “abusing his workplace” by bringing the brand new indictments in response to Netflix’s effort to get the primary indictment dismissed. The movie had gained awards, Netflix argued, and Babin was infringing on the corporate’s “constitutional rights.” (The Texas Tribune is amongst a bunch that has filed an amicus temporary in assist of Netflix in its case in opposition to Babin.)
The next day, Babin arrived in court docket, this time as a defendant, with a lawyer of his personal: an assistant legal professional basic from Paxton’s workplace.
Underneath Texas state regulation, the legal professional basic is obligated to symbolize state district attorneys beneath restricted circumstances, particularly when the case is in federal court docket and when the individual submitting the lawsuit is in jail.
It’s commonplace for a district legal professional to ask the legal professional basic’s workplace for assist, mentioned Nolette. What’s stunning, he mentioned, is that the state mentioned sure.
“This is not a case the place the DA mentioned, ‘Please assist me on this case to prosecute Netflix,’” Nolette mentioned. “It is that they are being sued by Netflix for basically prosecutorial misconduct. And but, the AG is getting concerned in a neighborhood problem the place this isn’t a state company.”
“It simply offers the notion, and clearly a few of that is particular to Paxton, that he is enjoying favoritism,” Nolette mentioned.
Neither Babin nor Netflix responded to a request for remark.
In November 2022, a federal choose granted Netflix’s request for a preliminary injunction, basically stopping Babin and his workplace from pursuing new indictments in opposition to the tech firm till the preliminary case is resolved. Babin has appealed that call.
The legal professional basic’s workplace, together with a personal legal professional, proceed to symbolize him.
Disclosure: The College of Texas at Austin, the College of Texas System and the College of Houston have been monetary supporters of The Texas Tribune, a nonprofit, nonpartisan information group that’s funded partially by donations from members, foundations and company sponsors. Monetary supporters play no function within the Tribune’s journalism. Discover a full listing of them right here.
This text initially appeared in The Texas Tribune.
The Texas Tribune is a member-supported, nonpartisan newsroom informing and fascinating Texans on state politics and coverage. Be taught extra at texastribune.org.
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