A Letter from Austin #27: You Get What You Pay For
Ken Paxton Closes in on Another Term as Attorney General of Texas
Ken Paxton may not be the worst attorney general in the history of Texas, but he’s closing fast.
Former Democratic Attorney General Dan Morales, who held the office from 1991 through 1999, currently holds the fictional title of ATWAG (All-Time Worst Attorney General). While Morales beefed up enforcement efforts against “deadbeat dads,” a good thing, he earned his abysmal title by falsifying a contract in an attempt to bilk trial lawyers hired by the State of Texas out of some $520 million in fees, which he tried to funnel to a longtime friend.
Stealing money from trial lawyers is like pilfering bacon from a pack of wolves. The lawyers howled. Morales eventually pleaded guilty to mail fraud and filing a false income tax return and was sentenced to four years in a federal penitentiary. Even before he got there, he earned the contempt of federal judge Sam Sparks, who reviewed evidence indicating that Morales lied on loan applications pending his trial on the criminal charges. “This is beyond stupidity,” said Sparks, calling Morales “a financial danger to the community.
The attorney general is the state’s lead lawyer — a considerable distinction in a state with some 94,000 licensed attorneys (though as a matter of fact, the Texas AG does not have to be licensed to practice law). The attorney general represents the state and its agencies in all manner of civil disputes, approves public bond issuances, adjudicates public information requests, collects child support for the state, and provides legal counsel to the state’s public officials.
Texas has had 51 attorneys general in the state’s history. Some have been great — even inspirational. As a young lawyer, Dan Moody (1925–1927) successfully prosecuted four members of the Ku Klux Klan for brutalizing a white traveling salesman, striking one of the first big blows against the Klan’s influence in the state. As AG, Moody recovered hundreds of thousands of dollars in fraudulent payments for the state, and went on to serve as governor of Texas at the age of 34, still the youngest person ever elected to the office. Crawford Martin (1967–1972) prosecuted pharmaceutical companies for price fixing. His successor, John Hill (1973–1979), helped persuade the Texas Legislature to enact the Deceptive Trade Practices Act. Ham-fisted Jim Mattox (1983–1991), sometimes known as the “Fat Man,” was both hero and rogue. He was lauded for his consumer protection work but was also indicted in 1983 on commercial bribery charges — though he was later acquitted, after a lengthy trial.
We’ve had some duds as well. During Grover Seller’s term of office, from 1944 to 1947, an African-American man named Heman Sweatt applied for admission to the University of Texas Law School. Sellers opposed Sweatt’s admission, citing the “wise and long continued policy of segregation of races in the educational institutions of the state.” (After protracted litigation, Sweatt was eventually admitted to the law school, though he never graduated. Travis County’s courthouse is named after him.) Attorney General John Ben Shepperd (1953–1957) was an anti-corruption crusader in some respects but spent a good part of his tenure opposing the efforts of the National Association for the Advancement of Colored People, or NAACP, to bring some modicum of racial equality to the state. The success of these efforts was, he reflected, one of his greatest achievements in office.
Despite the misadventures of Sellers, Shepperd, and Morales — a low bar indeed — Ken Paxton has moved into the running for the title of ATWAG. Paxton holds the distinction, for example, of having served as the state’s attorney general for seven years while under indictment for securities fraud — charges he has so far been able to dodge and postpone through a series of legal pirouettes and arabesques that would make Mikhail Baryshnikov envious. Though the case is now almost eight years old, the state’s tough-on-crime attorney general has yet to face trial.
He has other issues as well. In a whistleblower lawsuit filed by four former high-ranking members of his staff, conservatives all, he has been accused of improperly acting as a sort of legal bodyguard for a wealthy friend and campaign donor, Austin real estate investor Nate Paul. The case is currently before the Texas Supreme Court, which is considering Paxton’s request to dismiss the case on the grounds that as an elected state official, he shouldn’t be subject to Texas’s whistleblower laws. There are indications that the FBI is looking into the matter as well. And there’s more. The State Bar has instituted disciplinary proceedings against Paxton for claiming, in a lawsuit filed in 2020, that there was substantial evidence of widespread fraud in the 2020 presidential election and that the election results in the states of Georgia, Arizona, Pennsylvania, and Michigan should be tossed due to procedural irregularities. Unsurprisingly, Paxton has failed to produce convincing evidence to back up the claims. The case was quickly dismissed by the U.S. Supreme Court on the basis that Texas had no standing to challenge the election results of another state — an important consequence of our federal system.
Paxton has never been deterred by a lack of facts. He spoke at the January 6 pre-riot rally at the Capitol and continues to spout the lie that Trump somehow won the 2020 presidential election. Sean Hannity and Tucker Carlson can trumpet nonsense like that. Lawyers aren’t supposed to. (Indeed, former Texas Attorney General John Cornyn declined to lend his approval to the suit, stating that he was “not convinced” by the logic of the case.) When an attorney signs a pleading, he is making a representation that the factual recitations contained therein are true. Paxton, Texas’s lead lawyer, didn’t have a factual basis for his claims. Thus, the State Bar’s administrative proceeding.
Paxton continues to put the concerns of Donald Trump above all else in his execution of his duties as Attorney General of the State of Texas. In late September, for example, Paxton filed a brief with the 11th Circuit Court of Appeals in Atlanta, asking the court to rule in favor of ex-President Donald Trump in connection with the dispute between Trump and the National Archives over Trump’s attempts to keep thousands of pages of official documents — some apparently highly classified — in his personal possession.
Neither Texas nor Texans are involved in this dispute. If your experience is similar to mine, you’ve never heard a single Texan say that Texas has a vital interest in making sure that Donald Trump gets to hold on to his letters from Kim Jong-un. Nevertheless, Paxton led a group of eleven state AGs in arguing that Biden has “weaponized” the Department of Justice, which has allegedly committed unpredictable and objectionable deeds in other litigation and is therefore not entitled to any credence in its appearances before the court in the document-pilfering case. There’s no novel interpretation of a case in Paxton’s brief, no recitation of late-breaking facts that would change the court’s normal analysis. It’s just a screed — basically, a Texas taxpayer-funded attempt to poison the well against the National Archives and its attempt to collect, catalogue, and maintain the nation’s property.
Notably, Paxton’s brief says nothing whatsoever about what Trump has allegedly done — i.e., pilfer documents — and how ridiculous his excuses in this matter are. It’s as one-sided and conclusory a piece of legal advocacy as has ever been written. The brief could have been farmed out to any semi-literate eighth grader, thus saving us all a lot of taxpayer money.
Also in September, a process server attempted to serve Paxton with a subpoena for testimony in a civil case relating to ambiguous statements the attorney general made regarding the possibility that his office would prosecute non-profit organizations that help pay for women to travel out of state to receive abortions. Serving and responding to subpoenas is part and parcel of the office for the state’s lead litigator. Nevertheless, Paxton reportedly hid from the process server and then, absurdly, ran away from him. He sprinted to a waiting vehicle, hopped in, and was driven away by his wife Angela, who just happens to be a state senator. Federal district judge Robert Pitman later ordered Paxton to testify pursuant to the subpoena anyway, so the whole odd exercise was just a waste of time. But it stands as another example of the odd, unethical, and unprofessional behavior of the state’s chief attorney. In what world is it normal for a state senator to help her husband the attorney general evade the apparently lawful service of process?
So how does Paxton do it? How does he stay in office despite his reportedly amoral behavior and legions of detractors? Paxton has no obvious charisma, has never been known as a particularly skilled lawyer, has uttered no memorable quips or inspirational exhortations. The answer seems to be money, the rocket fuel of Texas politics. Paxton has wealthy backers, including Tim Dunn of Midland and the Wilks brothers of Cisco, Dan and Faris, fracking industry billionaires who practice a fundamentalist faith as followers of the Assembly of Yahweh 7th Day Church. The Wilks brothers are apparently among the few Texans who support the total ban on abortion adopted by Texas — i.e., the prohibition against abortion from conception on, with no exception for pregnancies caused by either incest or rape. They support Donald Trump, and they want taxpayer money siphoned off from public schools in the form of vouchers to fund private education. One campaign finance watchdog states that Faris Wilks and his wife have donated some $175,000 to Paxton since 2015, while Dan Wilks and his wife have given $251,000. A campaign finance report Paxton filed in January reflects two $50,000 contributions from the Wilks brothers. These donations are in addition to contributions given by the Wilkses to conservative political action committees like Empower Texans and Defend Texas Liberty and then funneled to Paxton’s campaign war chest. The Wilkses are among Paxton’s biggest backers, and Paxton serves them well, regardless of what other Texans want or need.
While Paxton’s reelection contest against Democratic Party nominee Rochelle Garza is close, or close-ish, smart money says he’ll win again. That means he’ll continue to sit in his taxpayer-funded digs in downtown Austin, file specious pleadings in proceedings that have nothing to do with Texas, and beat the battle drum for Donald Trump. It’s nice work if you can get it, and you can’t blame Paxton for doing what his donors tell him to do as long as the state’s electorate tolerates the practice. But what does it say about us Texans that we continue to elect an indicted attorney general who evades service of process, is said by former employees to be unethical and possibly on the take, and files sycophantic, nonsensical briefs on behalf of a discredited former president on our dime?
That seems to be the question. I’m just not sure I want to know the answer.