AUSTIN, Texas — The Texas Third Circuit Court of Appeals has issued an opinion stating that the former employees of the Texas Office of the Attorney General (OAG) who accused Attorney General Ken Paxton of abuse of power and other legal violations are protected by the Texas Whistleblower Act. The court also affirmed a previous district court decision to deny Paxton's motion to dismiss.
The opinion states that the Legislature enacted the Texas Whistleblower Act to ensure lawful conduct by those who direct and conduct State business, to correct violations of the law by government employers that "harm the public good or society" and to protect public employees who promote those purposes.
In light of those purposes, the court stated that it declines to "adopt the interpretation of the Act proposed by the [OAG], which would have the effect of stripping whistleblower protections from employees who might report misconduct by the thousands of elected officials throughout the State – particularly by those who direct and lead the agencies of this State."
Four former senior aides for Paxton's office sued the OAG claiming they were fired in retaliation for telling authorities they believed Paxton had done illegal favors for a political donor.
Paxton's office had filed a motion to dismiss, arguing that the office's immunity from the lawsuit wasn't waived under the Texas Whistleblower Act because the appellees only claim to have reported unlawful acts "'committed personally by the Attorney General, who is neither the ‘employing governmental entity’ nor ‘a public employee,'" according to the opinion. The OAG said the whistleblowers had not alleged facts demonstrating that they "made a good-faith report of illegal conduct to an appropriate law-enforcement authority."
The court stated that the OAG asserts Paxton should be able to fire employees if he decides they are not sufficiently loyal or if he has “lost confidence” in them. The court affirmed that Texas is an employment-at-will state where employers can fire employees for virtually any reason.
However, the court states that the Texas Whistleblower Act provides an exception to that general rule: a government employer may not fire an employee who makes a good-faith report of illegal conduct because they made the report. Therefore, the Act provides that a State employer can't fire an employee because they report illegal conduct by the employer, "even when it is that act of reporting that causes the employer to lose confidence or feel the employee lacks loyalty."
The court holds that the whistleblowers' alleged facts bring their lawsuit within reach of the Act and affirms the trial court's order denying the OAG's motion to dismiss.
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