AG Ken Paxton must turn over Trump rally records or face lawsuit, Travis County DA says

The Travis County district attorney has determined that Attorney General Ken Paxton violated Texas' open records law by not turning over his communications from January 2021, 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, Dallas Morning News, Fort Worth Star-Telegram, Houston Chronicle and San Antonio Express-News.

In a letter hand delivered to Paxton on Thursday, the district attorney’s head of public integrity 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.

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“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 attorney.

Paxton’s office did not immediately return a phone and email message for comment.

José Garza, Travis County's 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 primary challengers, three state criminal indictments, allegations of an extramarital affair and a pending FBI bribery investigation.

Paxton has denied any wrongdoing.

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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.”

Texas open records law: How it works

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 of this year, 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 Texas Public Information Act.

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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 Dallas 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 other 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.

Travis County DA's ruling on Ken Paxton and open records law draws reaction

American-Statesman Executive Editor Manny García, one of the editors who filed the complaint, welcomed Thursday's action.

“We are heartened to see the district attorney agreeing with what we have long known: Ken Paxton's office is violating Texas public records law," García said. "These records belong to the public, not Paxton. The outcome also is a result of Texas' newsrooms banding together to fight secrecy on behalf of all Texans."

Bill Aleshire, an Austin lawyer 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, and Eleanor Dearman with the Fort Worth Star-Telegram contributed to this report.

This article originally appeared on Austin American-Statesman: Texas AG Ken Paxton violated open records law, Travis County DA finds