Shadow falls over open records law
Comptroller sees the light on corporate tax loophole move, but Paxton wallows in the dark.
Texans used to be so audacious. Consider the fast and furious response in the wake of the Sharpstown stock fraud and bribery scandal in the early 1970s that toppled the upper echelons of the ruling political establishment, from Democratic Party leadership to the governor’s mansion to the House of Representatives.
Voters threw the bums out, even some who had nothing to do with the shameful imbroglio, and elected honest leaders who helped pass the most significant ethics and open government legislation in Texas history, including our first open records law.
How far we’ve fallen. Texans have twice elected, and may do so again this year, an attorney general who despite his own long-hovering indictment and other scandals, has repeatedly made a mockery of the Texas Public Information Act.
Plenty of Ken Paxton’s predecessors took pride in enforcing it. Fellow Republican John Cornyn focused much of his first U.S. Senate campaign on his record championing Texas’ sunshine law and at least early on during his tenure as attorney general, Gov. Greg Abbott did the job admirably, too. Both Cornyn and Abbott were awarded the prestigious Freedom of Information Foundation of Texas’ James Madison Award.
Paxton’s lack of passion, and perhaps even disdain, for the public’s right to know has been so obvious that local governments and law enforcement agencies looking to hide documents or slow-walk records requests have found an ally in the attorney general. Even in cases where he’s defended the Texas Public Information Act against those looking to weaken it, including Boeing and the Greater Houston Partnership, he lost the cases.
And now, Paxton, the state’s top enforcer of Texas’ open records law, has been found to have violated it himself.
Last spring, five Texas newspapers, including the Houston Chronicle, asked Paxton’s office for all work-related texts and emails sent and received while he was in Washington on Jan. 6. Paxton, who remains one of the former president’s most ardent sycophants, was on the bill that ignominious morning, rousing the crowd as a Trump warm-up act during the White House rally a few hours before the Capitol invasion. His wife, state Sen. Angela Paxton, R-McKinney, stood beside him as he urged the crowd never to “quit fighting.”
The newspapers wanted to know whether Paxton was in communication with any of the rally’s organizers or whether he had been in touch with former President Donald Trump’s inner circle. Not surprisingly, the AG resisted the request.
Last week, Travis County District Attorney Jose Garza ruled that Paxton was in violation of the law and gave him four days to comply with the newspapers’ request. The DA is still waiting. While state law says the newspapers, on behalf of the public, have a right to the information, Paxton says, in effect, that his reputation, however tattered, trumps the public’s right to know.
The Texas Public Information
Act, once considered a model among state sunshine laws although it has been considerably eroded by the Legislature and unfavorable court rulings, is designed to make information available to the public, even if it’s information that officials keep on their phones or their online accounts. The attorney general’s duty to enforce the open records law — a classic fox-in-the-hen house scenario under this AG — has an exception when it comes to complaints that involve state agencies. They can either be handled by the attorney general or the Travis County district attorney. The newspapers filed their complaint with the Travis County DA, since their complaint was against the AG himself.
“The Travis County district attorney took an important step today by holding Attorney General Ken Paxton accountable for failing to release public records involving his office — records that we believe are important for the public to know,” Maria Reeve, the Chronicle’s executive editor, said last week. “The free flow of public information and records helps keep our democracy functioning, helps ensure transparency and keeps government leaders such as Mr. Paxton accountable to taxpayers.”
Although politicians and public officials invariably nose around for loopholes, the Texas Public Information Act and the Texas Open Meetings Act are relatively stringent. They’ve been on the books for more than 40 years. A Chronicle editorial last month underscored how open-government requirements are supposed to work.
The focus of the editorial was Chapter 313, a state program that allows wealthy corporations to keep a portion of their property values off school district tax rolls for a decade, when property values are often at their peak. The program, while benefiting some districts, has been a $10 billion boondoggle for the state overall.
Abbott and state Sen. Lois Kolkhorst, R-Brenham, were among state officials who were aware the program was rife with abuse, and, to their credit, had so acknowledged it before the Legislature killed it last session.
Chronicle reporters John Tedesco and Mike Morris also were aware. How? Because a paper trail of public records existed to prove it. It was a trail paved with disclosure forms that companies were required by law to submit to the Texas Comptroller’s Office.
But, as the Chronicle reported, after the Legislature passed a bill to phase out the wasteful Chapter 313 program, Comptroller Glenn Hegar proposed reducing information his office collects and makes publicly available on it. The news was troubling because companies were still flooding the office with applications. Reducing scrutiny by cutting off information in the program’s final days could be a prelude to reviving the program in a future session. Without robust, recent data, it would be hard for journalists and concerned lawmakers to push back.
Hegar, a former Republican state legislator from Katy, has been a largely estimable elected official — especially by Paxton’s standards — but on this issue he was wrong.
He’s also a politician open to reason — and the law. We were delighted to learn Friday when we checked in with him that he’s changed his mind about the rule curtailing access to Chapter 313 data.
“I’m not going to adopt it as proposed,” he told the editorial board. “We are working through trying to find a way of trying to make this process transparent but more efficient.” He said moving data collection online may help ease the burden on his staff but, bottom line: “The data that people are concerned about or want is still going to be available.”
Good move, Mr. Comptroller. Can you talk some sense into your fellow Republican in the AG’s office? We won’t hold our breath.
Even as Paxton resists the Travis County DA’s request, he’s dragging his feet on disclosing campaign donations from the past six months. It’s been more than a week since he was required to report them to the Texas Ethics Commission.
Paxton’s penchant for secrecy, and for disregarding the law, is a reminder that democracy is a participatory enterprise.
We, the people, choose our representatives and have a right to know how they govern. Maybe it’s a bother to public officials, but public information is an integral part of their jobs. We, the people, must be able to find out what they’re doing as they conduct business on our behalf.
Paxton may not know it, but that’s how democracy works.