Travis County DA declines to sue Paxton

AUSTIN — The Travis County District Attorney’s Office will not proceed with a lawsuit against Attorney General Ken Paxton for refusing to release his communications around the time of the Jan. 6 Capitol attack on the U.S. Capitol.

Despite determining that the attorney general likely violated the state’s open records law, the district attorney’s office said it would not sue because journalists who requested Paxton’s records declined to testify in court to protect their sources.

The district attorney’s office launched its investigation of Paxton’s office after editors at Texas’ largest newspapers, including the San Antonio Express-News and Houston Chronicle, filed a complaint earlier this year alleging that the attorney general was breaking the state’s open records law.

In a letter hand-delivered to Paxton on Jan. 14, Jackie Wood, the district attorney’s director of public integrity and complex crimes, stated her office concurred with the allegations in the editors’ complaint and gave Paxton four days to cure the violations or face a lawsuit.

“We were encouraged that the district attorney agreed that Paxton’s office violated the law,” said Maria Reeve, executive editor of the Chronicle. “We hoped that those facts would be sufficient for a lawsuit to proceed — and that our reporters would not need to testify.”

Paxton’s general counsel, Austin Kinghorn, said the allegations were “meritless.”

Wood later asked the journalists if they’d be willing to testify in court about the roadblocks they encountered trying to obtain records from the Attorney General’s Office. The newspapers declined to do so over concerns that reporters could be forced to testify about their unnamed sources or newsgathering methods. If they refused to answer, they’d risk being found in contempt of court.

“Therefore, it is the decision of this office not to proceed to seek declaratory and injunctive relief in order to bring Attorney General Ken Paxton and the Office of the Attorney General into compliance with the public information requirements of the Texas Government Code,” Public Integrity Unit Team Leader Rob Drummond wrote in a July 1 letter to Reeve.

Anyone can file a complaint with a local prosecutor if they believe a public agency is withholding information in violation of the Texas Public Information Act. In early January, editors from the Austin American-Statesman, the Dallas Morning News and the Fort Worth Star-Telegram, in addition to the Express-News and the Chronicle, sent the Travis County DA a letter raising three concerns about Paxton.

The editors wrote Paxton was “improperly withholding his communications” around the time of the Jan. 6 attack by claiming every message he sent or received fell under attorneyclient privilege. They also said the Attorney General’s Office had no policy for handling work-related records kept on personal devices or accounts, and raised concerns that Paxton was turning over other people’s communications in response to requests for his own texts.

In her letter to Paxton following the complaint, Wood said withholding all the communications during the week of Jan. 6 violated the law.

She noted the media had made a similar request for communications sent or received by First Assistant Attorney General Brent Webster during the same time frame, and the Attorney General’s Office released nearly 500 pages of communications — including some emails with Paxton as a recipient.

Paxton faces multiple legal challenges as he runs for reelection. In addition to active state securities fraud indictments, he also reportedly was under FBI investigation for allegedly using his office to help a campaign donor.