stLouISTThe Many Times Ken Paxton Refused to Defend Texas Agencies in Court
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Soon after his acquittal in an impeachment trial last weekend, Texas Attorney General Ken Paxton released a statement that lambasted the proceedings but also spelled out his plan to continue challenging Biden administration policies now that he was being reinstated in office.
“Now that this shameful process is over, my work to defend our constitutional rights will resume,” the statement read.
“Now it is back to work!”
With his reinstatement, Paxton will return to his job overseeing an office of nearly 4,000 employees who handle thousands of legal cases every year — many of them connected to state agencies facing lawsuits.
But an investigation published this month by ProPublica and The Texas Tribune found Paxton denied requests for representation at least 75 times. That included instances in which Paxton refused to defend agencies fighting lawsuits connected to policies he’s publicly opposed, like affirmative action and gay marriage, according to records the news organizations obtained through public information requests.
Paxton did not respond to questions from ProPublica and the Tribune about these denials. Neither did the attorney general’s office, other than to say it has approved the vast majority of solicitations for help. The bulk of the denials, the attorney general’s office has said, were because the agencies preferred to hire their own lawyers. In other cases, the attorney general’s office said, it may refuse a request for help because defending an agency would conflict with state law or with positions the attorney general has taken in other lawsuits.
First Assistant Attorney General Brent Webster told state lawmakers during a legislative hearing in February that Paxton’s office had “never prevented someone from defending themselves. There’s no precedent for that.”
However, a week earlier, the attorney general’s office had effectively done just that, withholding a decision on whether or not to represent the University of Texas System in a case, but also refusing to give the school a green light to hire outside counsel.
ProPublica and the Tribune have compiled a list of instances in which the attorney general’s office refused requests for representation. The reason the office said was most commonly cited — agencies wanting their own lawyers — did not factor into most of the examples detailed below.
Public UniversitiesThe news organizations found numerous examples of Paxton’s office refusing to represent public universities that receive state funding.
Requester: University of Houston-Clear Lake
Request date: Nov. 30, 2021
Denial date: Nov. 30, 2021. The attorney general’s office said in a letter that the request was “not suitable for representation by our office.” A spreadsheet provided to the news organizations by the state Legislative Budget Board said the case conflicted with positions the attorney general’s office had taken in other litigation.
Case: Two students and Ratio Christi, a Christian organization that defends and shares its faith on college campuses, sued the university on Oct. 25, 2021, after it refused to recognize a new chapter. According to the lawsuit, the university wouldn’t recognize the chapter because it believed the organization’s requirement that leaders be Christian ran afoul of the institution’s anti-discrimination policy.
Ratio Christi was represented by Alliance Defending Freedom, a nonprofit legal firm that works to expand Christian practices in public schools and government as well as to outlaw abortion and same-sex relationships. Alliance Defending Freedom senior counsel Caleb Dalton said the case was important to pursue because “the bottom line is that student organizations, whether they are Christian, Muslim, conservative or liberal, should be able to require their leaders to actually believe what the organization is about.”
What happened after the denial: University spokesperson Chris Stipes said this was the first time the attorney general’s office had rejected representing the University of Houston in a lawsuit. As a result, the university’s Office of General Counsel took on the case. It settled the lawsuit in February 2022, before it was scheduled to respond to the allegations in court. The university agreed to allow student groups to “limit officers to those members who subscribe to the tenets of that organization.” The university also agreed to pay the plaintiffs $26,200 in attorneys fees and damages. Asked whether the outcome of the case would have been different had the attorney general’s office represented the school, Stipes said any response “would be purely speculative.”
Response: Stipes said the university’s Office of General Counsel devoted time and resources to the case, but he was unable to provide an exact amount. Paxton and the attorney general’s office did not answer questions about this case.
Requester: University of Houston
Request date: Feb. 28, 2022
Denial date: March 10, 2022. The attorney general’s office said in a letter that the request was “not appropriate for representation by our office.” A spreadsheet the news organizations obtained from the Legislative Budget Board said the attorney general’s office thought the case conflicted with positions it had taken in other litigation.
Case: The group Speech First sued the university on Feb. 23, 2022, on behalf of three politically conservative students, arguing the university’s anti-harassment policy, which the lawsuit described as “restricting offensive speech about personal characteristics such as race, ethnicity or gender,” violated the First and 14th amendments.
What happened after the denial: The university retained outside counsel that represented it for free. In May 2022, the university amended its anti-harassment policy to specify that harassment must rise to the level of denying a student access to education by creating a hostile learning environment. In June 2022, the University of Houston settled the case by agreeing to officially adopt the amended policy and pay the plaintiffs $30,000 for attorneys fees.
Response: Stipes, the university spokesperson, said the attorney general’s denial in this case was surprising. The attorney general’s office has previously represented the university in similar cases, he said. “The OAG has done great work for UH in the cases we have had over the years.” Speech First did not respond to requests for an interview. Paxton and the attorney general’s office did not answer questions about this case.
Requester: Texas A&M University System
Request date: Sept. 13, 2022
Denial date: Oct. 13, 2022. The attorney general’s office said in a letter that the matter was “not suitable for representation by our office.”
Case: Richard Lowery, a professor at the University of Texas at Austin, sued Texas A&M University, arguing the school illegally used race and sex preferences in faculty hiring and compensation, after its Office for Diversity sent a memo announcing the allocation of $2 million for the institution’s Accountability, Climate, Equity and Scholarship Faculty Fellows Program. The program provides a 50% match of a base salary and benefits, up to a maximum contribution of $100,000, for new, mid-career and senior tenure-track hires from underrepresented groups. Lowery said in the lawsuit he was “able and ready” to apply for a job at Texas A&M, but argued the university’s program prevented him from competing equally with the other applicants. Texas A&M has said that Lowery did not have standing to bring a lawsuit because he had not applied for a job. It said that nothing in the memo Lowery cited “indicates that anyone has been hired under this program, nor that any applicant of any race or gender will be excluded from consideration once implemented.”
Lowery is represented by Jonathan Mitchell, the former solicitor general of Texas who has made a name litigating conservative causes, and by America First Legal, which was founded in 2021 by Stephen Miller, a former policy adviser to former President Donald Trump.
What happened after the denial: Texas A&M retained outside counsel. The university argued that the case should be dismissed as moot after Senate Bill 17 passed earlier this year, prohibiting public universities from giving preference to applicants for faculty positions based on their race, sex, color, ethnicity or national origin. But Lowery has argued that the university cannot be trusted to follow the law. The case is ongoing.
Response: Texas A&M, which has been denied representation by the attorney general at least three other times since 2021, according to records, did not respond to requests for an interview or questions. Mitchell and America First Legal did not answer questions about the case. Paxton and the attorney general’s office did not answer questions about this case.
Requester: University of Texas System
Request date: Jan. 12
Denial date: In its Feb. 14 response, the attorney general’s office did not deny the university system representation but withheld a decision on whether to represent the system and withheld a decision on whether or not it could retain outside counsel.
Case: In January, a man named George Stewart sued six medical schools that had rejected his applications for admission. All of the schools were in the UT System, except one that was part of the Texas Tech University System. Stewart, who is white, argued that the schools were “unlawfully discriminating against whites, Asians, and men.” The attorney general’s office told the UT System in a letter it agreed with the plaintiff’s argument that considering race and gender in student admissions was illegal and that it was awaiting the outcome of other affirmative action cases before the U.S. Supreme Court. The attorney general’s office also wrote in the letter that it had filed briefs urging the court to do away with affirmative action because it was “abhorrent to the Constitution.” UT could represent itself, the letter said, but only for the purpose of requesting extensions in the case. In a court filing, the UT System said by withholding a decision on the denial, the attorney general’s office “could potentially deny the UT Austin Defendants any litigation counsel whatsoever.”
What happened after the denial: UT asked for at least two more deadline extensions in the case. Eventually, the attorney general allowed the UT System to hire outside counsel to represent it, while Paxton was suspended from office. The attorney general’s office is representing the Texas Tech University Health Sciences Center in the case, though it would not explain what differentiated one university from the other.
Response: A UT System spokesperson declined to discuss the case but said the school, like every state agency, is required to ask the attorney general for representation or outside counsel. The UT System has ultimately been able to secure counsel. The Texas Tech University Health Sciences Center did not respond to requests for comment. Stewart and his attorneys, Mitchell and America First Legal, did not answer questions about the case. Paxton and the attorney general’s office did not answer questions about this case.
Requester: University of Texas at Austin
Request date: Feb. 13
Denial date: March 6. The attorney general’s office denied the request, stating in a letter that the request was “not appropriate for representation by our office.” It provided no further explanation in the letter.
Case: Lowery, the same UT professor who sued Texas A&M in 2022, sued three University of Texas at Austin officials on Feb. 8, 2023. In this lawsuit, Lowery claims university officials engaged in “a campaign to silence (him) by threatening his job, pay, institute affiliation, research opportunities, academic freedom, and labeling his behavior as inviting violence or lacking in civility.” He claims university officials did this after he publicly criticized them for using diversity, equity and inclusion requirements to filter out competent academics with a differing viewpoint.
What happened after the denial: The attorney general’s decision delayed the case, said Del Kolde, a senior attorney at the Institute for Free Speech who is representing Lowery. Kolde wanted to request a hearing as soon as possible to obtain a court order for UT not to retaliate against Lowery, but UT officials asked for patience as they waited to hear whether the attorney general’s office would represent them, Kolde told the news organizations. On March 2, the university notified the court it had retained outside counsel and asked for more time to respond to the lawsuit, a request the judge granted. Kolde would have preferred the representation decision be made more quickly. “In my personal experience dealing with public-entity defendants in various jurisdictions, the decision about who would represent the UT defendants took longer than what I’m used to seeing,” he said. “I do not, however, know why it took so long.”
The case is ongoing.
“I am sure that it is costing the taxpayer more to have an outside law firm handle this than a salaried employee of the office of the attorney general,” Kolde said.
Response: The university did not respond to requests for an interview or answer questions. Paxton and the attorney general’s office did not answer questions about this case.
Small State AgenciesThe news organizations found instances in which Paxton’s office refused to represent smaller agencies with little to no budget to pay for private attorneys. Some smaller state agencies have general counsel on staff, but those attorneys may not have the experience or bandwidth to handle litigation.
The news organizations found one small agency that the attorney general’s office hasn’t represented in court for years and another that Paxton’s office said it would represent — but it wouldn’t use what could have been one of the best defenses available.
Requester: Board of Disciplinary Appeals
Request date: March 30
Denial date: May 2. The attorney general’s office said it would represent the agency but in a limited way.
Case: The Board of Disciplinary Appeals, made up of 12 attorneys appointed by the state Supreme Court, disciplines Texas lawyers. This year, a former lawyer sued board members who disbarred her in 2012 (none of the defendants still serve on the board). The attorney general’s office said it would represent the former board members, but conditionally: Specifically, it said it would not use as a defense a part of the Texas Rule of Disciplinary Procedure that says board members “are immune from suit for any conduct in the course of their official duties.” That decision surprised Kelli Hinson, the current board chair, who described the immunity defense as a “critical one that I would want asserted if it were me.”
Generally speaking, Hinson said, defending board members who make judicial decisions and asserting their immunity is important to make sure people want to continue serving in these kinds of volunteer roles. The whole basis of immunity is “that you shouldn’t be able to sue someone serving a judicial function for the decision that they make.”
What happened after the denial: The former board members ultimately chose not to be represented by Paxton’s office. Hinson is instead representing them, for free. The board does not have a budget for outside counsel, Hinson said. It has a total of three employees. “I didn’t feel like they should have to pay for a lawyer to defend them.” The former board members recently filed a motion asking the judge to dismiss the case against them.
Response: Hinson said she doesn’t know why the attorney general’s office declined to raise the immunity defense but believes the board members ultimately will prevail in court. “I’m confident that they’re going to win in the end. So it’s just, do you want five air arrows in your quiver or four? And I think you would want as many as you could get,” Hinson said. Paxton and the attorney general’s office did not answer questions about this case.
Requester: Texas Ethics Commission
Request date: Unknown
Denial date: Aug. 22, 2014, and Oct. 17, 2016
Case: Empower Texans, a conservative advocacy group that donated hundreds of thousands of dollars to Paxton over the years, and its leader Michael Quinn Sullivan, challenged the commission’s enforcement of state campaign finance and lobbyist registration laws as unconstitutional in cases now before the Texas Supreme Court.
One case stems from the commission finding in 2014 that Sullivan failed to register as a lobbyist, ordering him to pay a $10,000 fine. He appealed, arguing that registering restricts free speech and the state can’t show that being compensated for speech is corrupt. At the time, Gov. Greg Abbott was still attorney general. An August 2014 San Antonio Express-News story reported that the Ethics Commission decided to hire an outside law firm to represent it in this case. However, the Ethics Commission has said in legislative appropriations requests that the attorney general’s office declined to represent it.
The other case stems from the commission’s investigation of Empower Texans and Sullivan allegedly violating campaign finance provisions governing political action committees. The commission sued Empower Texans and Sullivan on Oct. 15, 2015, to get the group to turn over more information as part of an investigation into those alleged violations. The attorney general’s office, by this time under Paxton’s leadership, initially represented the commission. In September 2016, the attorney general’s office dropped the commission’s effort to get a judge to order Empower Texans and Sullivan to comply with its subpoenas for information. But the case remained alive because of Empower Texans’ and Sullivan’s counterclaim that the commission could not enforce campaign finance laws because it is part of the legislative branch of government. A short time later, the Houston Chronicle reported, commission leaders told staff of the state Legislative Budget Board that the agency needed money to hire outside lawyers because it couldn’t depend on Paxton’s office to defend the agency in the future. In October 2016, the attorney general’s office asked a judge if a private lawyer could take the place of someone in its office to represent the commission. The judge agreed.
What happened after the denial: The commission requested from the state Legislature an additional $150,000 per year for outside legal counsel to defend it in these cases, starting in 2016. The Legislature increased the amount the commission was authorized to spend on outside legal counsel in 2018 to $300,000 per year. As of Sept. 1, the commission has spent nearly $1.1 million for representation in these cases. The cases are ongoing. The Texas Supreme Court has said it will hear oral arguments in Empower Texans’ case on Nov. 30 and has requested more information about Sullivan’s case.
Response: The Ethics Commission declined to comment on the denial and the cases. The Empower Texans PAC dissolved in October 2020, records show. It stopped posting to its website in 2021. Sullivan did not respond to calls and emails requesting an interview or to questions about this case. Paxton and the attorney general’s office did not answer questions about this case, including whether Empower Texans’ financial contributions to him influenced the attorney general’s office’s decision not to represent the commission in this case. In 2018, a spokesperson for the attorney general declined to explain why he refused to represent the commission. He told the Houston Chronicle that the office takes its duty to defend agency enforcement actions seriously, but its “first obligation is to defend the Constitution and the basic rights it guarantees to each and every Texan.”
Agency: State Commission on Judicial Conduct
Request date: 2020
Denial date: 2020
Cases: In late 2019, Dianne Hensley, a justice of the peace in Waco, Texas, sued the judicial commission after it issued her a public warning because of statements she made to the media about disagreeing with and refusing to perform same-sex marriages after they’d been legalized, casting “doubt on her capacity to act impartially.” Hensley’s lawsuit argued that the commission’s public punishment of the justice of the peace constituted “a substantial burden” on her “free exercise of religion,” according to court records. A few months later, Brian Umphress, the county judge of Jack County, sued the judicial commission in federal court, arguing that he also was at risk of being sanctioned because he did not perform same-sex marriages. The attorney general’s office declined to represent the judicial commission in both cases. Both Hensley and Umphress are represented by Mitchell, the former solicitor general. The plaintiffs have also at some point been represented by First Liberty Institute, a Plano, Texas-based conservative Christian law firm. The firm’s president and chief executive, Kelly Shackelford, is a longtime friend of Paxton’s. First Liberty’s executive general counsel, Hiram Sasser, briefly worked for the attorney general’s office under Paxton. First Liberty board member Tim Dunn is among Paxton’s biggest individual donors.
What happened after the denials: The state judicial commission spent more than $120,000 to pay for outside counsel after the attorney general refused to represent it. Agency Executive Director Jacqueline Habersham successfully lobbied state legislators for an additional $150,000 to fund the commission’s legal representation over the next two years. The Texas Supreme Court will hear Hensley’s case in October. Umphress lost in federal district court but appealed to the U.S. Court of Appeals for the 5th Circuit. The 5th Circuit has yet to rule.
Response: Habersham said she hopes no one else files a lawsuit against the commission in which the attorney general’s office chooses not to represent it. Mitchell, Shackelford and Dunn did not respond to requests for comment. Sasser, who mainly has worked on the Hensley case, said in an interview he would have been disappointed had the attorney general chosen to represent the commission. Paxton and the attorney general’s office did not answer questions about this case.
