Government

TX AG Ken Paxton Faces Lawsuit Over Jan. 6 Records He Can't Share For REASONS

It's not every day a county prosecutor threatens to sue the AG!

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Ken Paxton

Texas Attorney General Ken Paxton is no stranger to legal troubles, so perhaps he’s unworried that the Travis County District Attorney’s Office is now threatening to sue him and his office for violating the state’s open records laws.

“After a thorough review of the Complaint, the TCDA’s office has determined that Paxton and the OAG violated Chapter 552 of the Texas Government Code,” Jackie Wood, Director of Public Integrity and Complex Crimes, wrote in a letter hand delivered to Paxton’s office yesterday. “The TCDAO will file an action against Paxton and the OAG for declaratory judgment and injunctive relief, if they do not cure the violations before the fourth day after the date they receive this notice. See Tex. Gov. Code 552.3215().”

The communications at issue took place in the days surrounding the January 6, 2021 Capitol Riot. Paxton, a fervent Trump supporter, filed a preposterous lawsuit seeking to toss out 18 million swing state votes, and then traveled to DC with his wife to address the rally on the Ellipse. For reasons unclear, he’s fighting like hell not to disclose texts and emails pertaining to this trip, in apparent defiance of the Texas Public Information Act.

He has variously claimed that the documents do not exist; or if they exist, then they are attorney-client privileged; or if they exist and are not privileged, then they are stored on his personal cell phone and are thus not subject to the TPIA.

In fact they do exist, if only because Dallas Morning News reporter Allie Morris created at least one such document when she texted Paxton’s person cell phone on February 12, 2021 asking why the state paid travel expenses for his aide Bruce Webster’s trip to DC, but not those for Paxton himself.

As for the privilege claim, when the paper shifted from asking for Paxton’s cell phone communications with Utah AG Sean Reyes to asking for Reyes’s communications with Paxton, the data became magically un-privileged. Which is weird in and of itself, and also presented fertile ground for yet another records query from Morris:

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The messages are a screen shot from someone else’s device. Why didn’t we receive a corresponding version of the messages with AG Paxton as the sender? In addition, how did the PDF you sent me come to be in the possession of the attorney general’s office? Lastly, who is the sender of the message in both text messages provided?

And the OAG’s own Public Information Act Handbook states that “the definition of ‘public information’ now takes into account the use of electronic devices and cellular phones by public employees and officials in the transaction of official business. The Act does not distinguish between personal or employer-issued devices, but rather focuses on the nature of the communication or document.”

So much for the OAG’s claim that “unsolicited and unwelcome text messages to personal phones do not fall under the records retention law.”

On January 4,  2022, editors at the Austin American-Statesman, The Dallas Morning News, the Fort Worth Star-Telegram, the Houston Chronicle and the San Antonio Express-News filed a public records complaint with the Travis County District Attorney’s Office, which is led by Democrat José Garza. As the Austin American-Statesman notes, open records complaints are usually be handled by the OAG’s office, but can go to the Travis County DA.

And that’s how a local Democratic prosecutor wound up threatening to sue the embattled Republican AG in an election year for records which will likely be subpoenaed by the January 6 House Select Committee.

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Everything’s bigger in Texas, including the messes.

Wood Letter
AG Ken Paxton must turn over Trump rally records or face lawsuit, Travis County DA says [Austin American-Statesman]

Liz Dye lives in Baltimore where she writes about law and politics.

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