Return of Paxton leads to questions
Texas Attorney General Ken Paxton returned to work last week, saying his staff “has redoubled our focus on countless issues facing the state.” Those issues include “defending election integrity” and “fighting for the rule of law against the Biden administration’s executive overreach.” All red-hot topics for the Republican attorney general that have garnered him national headlines.
But we hope our state’s top attorney will spend more time focusing on the far less flashy part of his job: defending state agencies in court.
Paxton has a constitutional and statutory mandate to defend any state agency or institution when sued, standing behind those entities’ vast regulatory, oversight and enforcement efforts. His own website even says so: “The OAG provides legal representation, counsel and assistance to fulfill the needs of the State of Texas and its authorized entities and employees, including state officers, state agencies and institutions of higher education.”
Unfortunately, Paxton has too often shirked his responsibility, particularly when those state agencies have been sued by political allies or found themselves in political hot water he would apparently not touch.
We’ve previously criticized Paxton for refusing to defend the Texas Ethics Commission and the State Commission on Judicial Conduct in several such cases. Those are two nonpartisan and important state agencies that hold public officials accountable for misconduct.
Both agencies asked the Legislature for more money this past session to cover the costs of hiring outside legal counsel to represent them in ongoing litigation. The ethics commission has been locked in a battle with Empower Texans, a political action committee and Paxton donor. And the judicial conduct commission has been sued by two judges in connection with their refusal to perform same-sex marriages.
Now a disturbing report by ProPublica and the Texas Tribune reveals that the problem is much more widespread. Their investigation found that at least 75 times in the last two years Paxton “denied representation” to not only the commissions but also other state entities.
For example, he refused to represent the University of Houston-Clear Lake, which was sued by a student group after the school refused to allow it to officially register because it requires that its leader be Christian.
Paxton’s office could not be reached to respond to our concerns, but he has said publicly that there are legitimate reasons why he has refused to defend state agencies. We question what reasons could justify such frequent denial of representation to state agencies.
A state law that went into effect Sept. 1 requires the attorney general to give a reason each time he refuses to represent a state agency or institution. We look forward to reading those reasons.
Meantime, we hope the attorney general, in getting back to work, will reconsider his previous decisions and provide important air cover for state employees and entities under attack for doing their jobs.