“Why did the Texas AG get into — and then out of — a controversial lawsuit in his home county?” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
For a feisty group of Plano activists, the news that Texas Attorney General Ken Paxton’s office had come out against them in a long-running, heated legal dispute was nothing short of a betrayal.
But the strike — which landed Nov. 19 in the form of a 17-page legal brief bearing the names of Paxton and two other top agency officials — wouldn’t smart for long.
The next day, the document was abruptly taken back — an act of equal betrayal to some members of the Texas legal community concerned that the state’s top lawyer had just put politics over justice.
The agency gave little reasoning for the about-face, writing in a new Texas Supreme Court filing that the brief had been “erroneously submitted.”
“The State of Texas regrets the error,” the agency wrote.
That was little explanation for a Plano community puzzled that a top state lawyer would — merely by accident? — submit a detailed legal brief in a lawsuit that had pit mostly conservative activists in Paxton’s home county against a city council criticized for changing the suburban community too quickly. Many were surprised that the Republican-led agency would back the city over the grassroots; others wondered why the agency had so quickly reversed itself. Withdrawing a brief in this way is essentially unheard of.
Was this a case of pre-Thanksgiving holiday miscommunication, of wires crossed within an agency of some 4,000 employees? Or was it — as some in town, including Paxton supporters, consider more likely — political influence taking precedence over legal judgment?
The Texas Attorney General’s Office did not respond to multiple requests for comment. For Plano City Attorney Paige Mims, it’s clear that Paxton put politics over the rule of law.
“[Local activists] politically pressured the attorney general, which is concerning. That’s something the attorney general has to address. But his supporters say that’s what happened,” Mims said.
“What are we going to do?”
The story begins more than three years ago, when the Plano City Council approved “Plano Tomorrow,” a new comprehensive development plan for the city, over the loud objections of some residents.
Local officials say Plano is already on an irreversible path, turning from a bedroom-community suburb to a small city in its own right. Longtime residents concerned over that change have centered their anxieties on the city planning document that helps enact the transition, in part by allowing for mixed-use developments in some neighborhoods.
Critics of the Plano Tomorrow plan, some of whom coalesced into a group called Smart Plano Future, argued that it would lead to too much high-density housing too quickly — to debilitated apartment buildings, to crowded, low-performing schools, to worsening traffic at an intersection near the Lexus dealership. Many fretted about apartments and the type of people who live in them.
“It’s an urbanization plan,” said Allan Samara, a leader within the Plano Future group. “The city has become very oriented towards pandering to the needs of a handful of developers.”
Top city officials consider the critics a vocal, troublesome minority. A Dallas Morning News columnist has dubbed them “The Angry Crowd.” They counter that they are merely a group of concerned citizens who want to preserve the character of Plano that drew them there in the first place.
They appeared at city council meetings, coordinated email campaigns, even spoke at the state Capitol. They ran candidates opposed to the Plano Tomorrow plan for city council, two of whom won last year.
And over a span of less than two weeks, they organized a petition drive against the development plan and submitted more than 4,000 signatures to the city council, demanding either a repeal or a referendum. But the city, taking the position that under state law, the matter is not subject to a public vote, never set a referendum. So in 2016, five Plano residents took them to court.
The city lost at a trial court and then again at a Dallas-based appeals court. In August, the Texas Supreme Court decided it would not hear the case, letting the city’s losses stand.
Still, Plano — which has asked the high court to reconsider hearing the case — had reason for optimism. Before that August denial, a lawyer in the Texas Attorney General’s Office had already told attorneys for the city that he hoped to file a brief supporting their side. The agency is a powerful ally to have in any legal fight; an amicus brief could prove influential. It was a sign, too, of the important implications the lawsuit had for state vs. city power, a perennial tug-of-war in Texas litigation; as the lawyer wrote in the amicus brief, a win for the Plano citizens could undermine state law.
The lawyer stayed in touch with the city’s counsel as he finalized the document and went through the approval process for filing it. On Nov. 13, he emailed Plano’s lawyers to let them know his brief had been approved and he’d file it early the next week.
The brief was filed the following Monday. Up in Plano, it landed like a brick. Activists were shocked that that an agency led by Paxton — a favorite son of the region, which sits in his former state senate district, his wife’s new state senate district, the community where he and his family live and attend church — had come down opposing them. The citizens’ lawyer forwarded along the brief, and word began to spread quickly.
“I was dumbfounded that that would happen,” said Jim Dillavou, a Plano resident who has helped organize efforts against the “Plano Tomorrow” plan. “I just couldn’t fathom that the attorney general would weigh in on their side.”
The matter wasn’t on the agenda for a Collin County GOP executive committee meeting that same Monday evening, but it came up informally after the close of official business. As people began to shuffle out, Matt Dixon, a precinct chair and a leader within Plano Future, arrived late — he’d been walking his poodle. He gathered about 10 Plano precinct chairs to spread the word. They were angry and surprised at a politician many of them saw as a close ally, according to accounts from a half-dozen attendees.
“The question was asked, ‘Why would they do this?’” Collin County GOP Chairman George Flint said, as was the question, “What are we going to do?”
The immediate feeling, Dixon said, was that Paxton himself could not possibly have known about the brief, or he wouldn’t have allowed it to be filed.
So some set about making him aware.
“A number of different people contacted people they knew who were on the staff of Mr. Paxton, with the same sort of disbelief: How did this happen? This doesn’t seem like something Mr. Paxton would do,” said Matt Dixon’s wife Sandy Dixon, a lawyer who has informally advised fellow Plano residents on the lawsuit. “More than one person notified staff members of Mr. Paxton. We thought perhaps he was on vacation and he didn’t know about it.”
The Dixons said they did not contact the attorney general themselves and could not say who did, but insisted “there were calls and emails.” In interviews, several other precinct chairs confirmed that overtures were made to the agency, though they declined to provide details.
“Contacting and alerting key persons”
On Tuesday, hours after the brief was filed, Kyle Hawkins — who was named Texas Solicitor General in September — put in a phone call to the Texas Supreme Court. Hawkins, who is the supervisor of the attorney who had filed the brief and whose own name appeared on the document, told the clerk the agency wanted to take it back.
At first, court staff assumed that meant the brief required a minor edit. That wouldn’t have been uncommon; court staff are accustomed to accommodating such requests.
“We said we’d be happy to substitute a corrected brief,” said Blake Hawthorne, the clerk of the Texas Supreme Court. “We came to understand that they wanted to withdraw it, not correct it.”
Hawthorne, who has been in his role 12 years, said he has never seen anyone withdraw an amicus brief from a case before the Texas Supreme Court.
Neither had many of the attorneys on the Plano side of the case, who called the withdrawal both unheard of and highly suspect.
For Mims, the city attorney, the move seemed the obvious result of citizen outcry — especially after Matt Dixon seemed to boast of just that at a Nov. 26 Plano City Council meeting.
“Within just a few hours, a tremendous group of nonpartisan citizens was alerted to this scheme,” Dixon told city officials during a public comment period. “They organized themselves and started contacting and alerting key persons, with the result that within 12 hours the AG had issued orders to withdraw the brief. The organization and speed with which the citizens reacted cannot be understated.”
In supporters’ eyes, pulling the brief was an act of political courage: Fresh off a re-election win, the attorney general took the unusual step of withdrawing a document that didn’t align with his values after it was finally brought to his attention.
“Fortunately, the attorney general is from Collin County,” said Lily Bao, a Republican precinct chair from Plano who ran an unsuccessful campaign for mayor last year with the slogan, “Keep Plano Suburban.” “He’s good, he’s courageous. We 100 percent support him. … We’re proud of them, we’re proud of the Paxtons to be from Collin County and to stand up for what Texas is about.”
Critics counter that Paxton was bending to political will from Republican residents of his political home turf.
“It’s not unexpected that they would call [Paxton]. It’s not unexpected that they would email him,” Plano Mayor Harry LaRosiliere said. “But he has to read that 17-page brief that his name is on and say, ‘I hear you. However, here’s our legal position.’”
“For whatever reason”
For Plano residents like the Dixons, the question is not why the brief was withdrawn but how it got filed in the first place.
The attorney general’s office did not respond to questions about how amicus briefs are approved and filed. It is a significant process; the agency has to take care that its positions in different cases, in different briefs written by different attorneys, don’t conflict with or undermine one another. Several former staff attorneys from the Solicitor General’s Office recalled clear protocols for drafting and seeking approval for such documents; in their experience, they said, the solicitor general if not someone higher up the organizational chart would sign off before such briefs were filed.
“I know the attorney general doesn’t read and personally sign on everything that comes out of the office,” said Mark Reid, a Republican precinct chair who opposes the “Plano Tomorrow” plan. “It somehow got back to this office that this was going on and I assume he looked into it.”
Then, “for whatever reason,” Reid said, it was withdrawn.
“We like to think it was because our argument was the proper argument,” he said.
- TX AG Plano Tomorrow lawsuit withdrawn amicus brief (166.9 KB) DOWNLOAD
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/12/04/texas-attorney-general-ken-paxton-reverses-course-plano-lawsuit/.
Texas Tribune mission statement
The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.