Travis County DA won’t sue Texas Attorney General Ken Paxton over Jan. 6 records

The Travis County district attorney’s office will not proceed with a lawsuit against Texas Attorney General Ken Paxton for refusing to release his communications around the time of the Jan. 6 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 had requested Paxton’s records declined to testify in court in order to protect their sources.

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

The district attorney’s office launched its investigation of Paxton’s office after editors at Texas’ largest newspapers filed a complaint earlier this year alleging that the attorney general was breaking the state’s open records law.

In a hand-delivered letter 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.

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, the Fort Worth Star-Telegram, the Houston Chronicle and the San Antonio Express-News sent the Travis County DA a letter raising three concerns about Paxton.

First, the editors wrote that Paxton was “improperly withholding his communications” around the time of the Jan. 6 attack on the Capitol by claiming every message he sent or received fell under attorney-client 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 that included Paxton as a recipient.

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