AUSTIN — The Travis County district attorney has determined that
Attorney General Ken Paxton violated the state’s open records law by not
turning over his communications from last January, when he appeared at
the pro-Trump rally that preceded the attack on the U.S. Capitol.
The district attorney gave Paxton four days to remedy the
issue or face a lawsuit. The probe was prompted by a complaint filed by
top editors at several of the state’s largest newspapers: the Austin
American-Statesman, The Dallas Morning News, the Fort Worth
Star-Telegram, the Houston Chronicle and the San Antonio Express-News.
In a letter hand delivered to Paxton
on Thursday, the head of the district attorney’s public integrity unit
said her investigation showed the attorney general’s office broke state
law by withholding or failing to retain his own communications that
should be subject to public release.
“After a thorough review of the complaint, the (district
attorney’s) office has determined that Paxton and (his office) violated
Chapter 552 of the Texas Government Code,” wrote Jackie Wood, director
of the district attorney’s public integrity and complex crimes unit,
referring to the open records statute.
The district attorney’s office will take Paxton and his
agency to court if they do not “cure this violation” within four days,
Wood warned. For open-records complaints against state agencies, the law
says the Travis County district attorney or the attorney general must
handle them. The newspapers filed the complaint with the district
Paxton’s office did not immediately return a phone and email message.
José Garza, Travis County district attorney, is a
Democrat. Paxton is a Republican running for re-election this year. He
is currently facing the fiercest scrutiny of his decades-long career,
with several GOP challengers, three state criminal indictments,
allegations of an extramarital affair and a pending FBI bribery
Paxton has denied any wrongdoing.
Garza’s office declined comment, saying the letter speaks for itself.
Jim Hemphill, the immediate past president of the Freedom
of Information Foundation of Texas, said Paxton may take issue with the
DA’s investigations — or he could voluntarily choose to release this
and other records to the public.
“It’s a rare occurrence where a requestor actually has
tangible evidence,” Hemphill said. “It will be interesting to see how
the attorney general responds to this.”
The Texas Public Information Act guarantees the public’s
right to government records, even if those records are stored on
personal devices or public officials’ online accounts. The attorney
general’s office enforces this law, determining which records are public
and which are private.
On March 25, six news outlets jointly published a story that raised questions about whether Paxton was breaking open records laws.
On Jan. 4, five newspaper editors filed a complaint
asking the district attorney to investigate the alleged violations.
Anyone can file a complaint with a local prosecutor if they believe a
public agency is withholding information in violation of the Public
Wood’s notice to Paxton said the district attorney’s office concurred with the allegations in the editors’ complaint.
First, the editors raised concerns that Paxton’s office
was using attorney-client privilege to withhold every single email and
text message sent to or received by him around the time of the Jan. 6
rally, which preceded the attack on the U.S. Capitol. Paxton and his
wife were in Washington that day and appeared at the rally.
Wood said withholding all of Paxton’s communications
during that week violated the law. As evidence, she noted the attorney
general’s office released nearly 500 pages of communications sent to or
received by First Assistant Attorney General Brent Webster — including
some emails that included Paxton as a recipient.
The newspaper editors also said the attorney general’s
office had no policy for handling work-related records kept on personal
devices or accounts.
When a Morning News reporter sent Paxton a work-related
text message and another reporter requested all his messages that day,
Paxton’s office responded that no responsive messages existed. A
spokesman for Paxton later said the attorney general doesn’t have to
retain “unsolicited and unwelcome text messages to personal phones.”
Wood noted that the attorney general’s office stated in
the past that the communications of government officials were subject to
retention policies and the open records law.
Finally, the editors raised concerns that Paxton was
turning over other people’s communications in response to requests for
his own text messages.
The DA’s investigation agreed that Paxton had not
provided his own text messages with officials at the attorney general’s
office in Utah — where Paxton and his wife traveled during the February
freeze — and instead turned over a copy of another person’s text to
Paxton. The attorney general’s office did not explain why Paxton didn’t
provide his own version of the text exchange.
The newspaper editors who filed the complaint said they welcomed the outcome.
“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,” said Maria Reeve,
executive editor of the Houston Chronicle. “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.”
Bill Aleshire, an attorney and transparency expert, said
he could not recall an attorney general ever being accused of violating
open records laws to avoid releasing his own communications.
“When the public official responsible for enforcing
public records laws violates those laws himself, it puts a dagger in the
heart of transparency at every level in Texas,” Aleshire said.
“Why should other Texas officials be transparent with public information if the AG himself is not?”
Chuck Lindell with the Austin American-Statesman,
Allie Morris with The Dallas Morning News, Eleanor Dearman with the Fort
Worth Star-Telegram and Taylor Goldenstein with the Houston Chronicle
contributed to this report.