Texas Attorney General Sues Self To Stop Self From Releasing Documents He Says Can't Be Released

by Tim Cushing
Techdirt
Sep. 21, 2015

Texas Attorney General Ken Paxton has been in the news quite a bit lately. He tried to block the state from recognizing a common-law marriage between two women (who had been together for eight years), but had his efforts undone by a Travis County court.

Around this same time, a second convening of a grand jury managed to do what the first one couldn't: bring an indictment against Paxton for alleged financial fraud. Paxton apparently wasn't very forthcoming about what he stood to gain from the sale of $200,000 in Servergy stock to a couple of investors. The apparent sketchiness of Paxton's actions was compounded by an ongoing investigation of the company by the Securities and Exchange Commission.

Now, he's in the middle of another conflict. Texas legislators aren't too happy that the state's Department of Public Safety keeps asking for money, but failing to provide many details on how it's being spent.

When the DPS in March this year asked for another $123 million to help "secure the border," state Rep. Cesar Blanco blasted the DPS for taking credit for work done by the federal government, and failing to back up its claims with data.

"The state has nothing to show for its money," Blanco, D-El Paso, told El Paso Times on March 30.

According to the DPS, it was partnering with Customs and Border Patrol on a "surge" effort to stop illegal immigration and drug trafficking. The CBP, on the other hand, portrayed the so-called "partnership" as the DPS's attempt to do a little coattail-riding on an ongoing effort by the DHS agency. It claimed it had not participated in a joint effort with the state entity.

Two local newspapers started digging into the dubious claims the DPS was making to justify the need for more handouts. What they uncovered was some very dubious math.

"DPS merged Border Patrol's massive drug seizure statistics with its own to tout the operation's effectiveness," the American-Statesman reported in June, and when state lawmakers asked for "DPS-specific statistics," the DPS refused.

The newspaper continued digging for information, seeking receipts and other documents related to expenses racked up by scattered DPS agents sent ostensibly to "aid" the CBP in its border-securing efforts. The DPS apparently has no intention of handing over these records and has sued to keep them secret.

That's where things get really twisted. AG Ken Paxton has the final say on the release of public records by the DPS. To obtain an injunction, the DPS has to sue Paxton to prevent the release of documents. It has done so, claiming the usual stuff about "safety" and "terrorism."

Public records law requires the DPS to sue the attorney general if it wants to keep secret information the attorney general wants to release. It did sue him, on Tuesday, claiming the information could endanger state troopers' "physical safety" or create a "substantial threat of physical harm."

It also claims that the information is confidential because it involves "preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity."

The DPS asked a Travis County judge to exempt it from disclosure under the "common-law physical safety exception" and the Homeland Security Act.

And the twist? Another conflict of interest.

The DPS is represented, oddly, by Attorney General Paxton.

So, Paxton is suing Paxton to prevent Paxton from releasing documents Paxton claims (by proxy) can't be released for safety/terrorism reasons. However, Paxton must obtain a favorable ruling from a judge to force himself not to release documents he possibly feels shouldn't be released in the first place. It all comes down to Paxton, who can press either side of the argument, depending on his personal feelings.

This won't be the first time Paxton has basically sued himself. Courthouse News Service covered a similarly incongruous legal filing back in February.

The Texas Department of Public Safety sued Texas Attorney General Ken Paxton, claiming DPS information about anti-terrorism operations in its school marshal program is exempt from disclosure, in Travis County Court.

And, as if everything couldn't get any more conflicting/interesting, the Texas House voted in April to move the authority for prosecuting corruption allegations against state officials from the county's Public Integrity Unit to the Department of Public Safety -- which is represented by an attorney general currently facing securities fraud charges.

It appears the left hand indeed knows what the right hand is doing, at least in terms of the DPS and its various interests. This normally would be a good thing, as government entities often seem to operate as free agents, rather than as complementary parts of a cohesive whole. But in this case, the guy who has the final say on document releases has to sue himself to override his own decisions. On top of that, should Paxton decide to participate in any more (allegedly) fraudulent behavior, he'll be doing so as the legal representative of the agency charged with charging him.