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The Texas Office of the Attorney General has unsuccessfully argued that a lawsuit filed against it should not proceed because the whistleblower bringing the case did not follow proper procedure.

The OAG alleged that whistleblower Ginger Weatherspoon should not be protected under the Texas Whistleblower Act because she only reported the violations of criminal law by a coworker, including abuse of official capacity, official oppression, and suborning perjury, to her employer, and not “appropriate law enforcement”.

Never mind that in Texas, the appropriate law enforcement to report such violations to is the OAG.

In its opinion filed June 16, 2014, the The Fifth Court of Appeals denied the OAG’s claims, explaining:

The OAG argues that Weatherspoon did not make her report to an appropriate law enforcement authority because she reported the alleged criminal violations only to her division head and others in the Child Support Division. It is undisputed that the Child Support Division does not address allegations against third parties of criminal fraud and abuse of office. It is also undisputed, however, that the Child Support Division is part of the OAG. The evidence  presented by Weatherspoon shows that the OAG, through its Office of Special Investigations, has the authority to investigate complaints not only of internal fraud and corruption, but also fraud and corruption by third parties. Furthermore, the OAG has concurrent jurisdiction with the consent of the local prosecutor to prosecute abuses of official capacity and official oppression by third parties.

The Court concluded that in fact Weatherspoon did exactly what she was supposed to do according to her office’s own policies and procedures, and the Whistleblowers Act.

The facts asserted by Weatherspoon in her lawsuit are damning if they’re true. She alleges that higher-ups in the Child Support Division of the OAG were trying to force her to sign a false affidavit that they intended to use against a local judge they wanted recused from their cases and disciplined. The Court recounts the facts as follows:

Weatherspoon began working for the OAG as an assistant attorney general in the Child Support Division in July 2006. According to Weatherspoon, on February 1, 2008, two senior regional attorneys with the OAG, James Jones and Harry Monck, ordered her to report her recent interactions with a district judge. In response, Weatherspoon sent them an e-mail containing facts about a conversation with the judge. Four days later, Weatherspoon received an e-mail with an attached affidavit for her to sign concerning her conversation. A managing attorney with the OAG, Paula Crockett, told her they intended to use the affidavit as evidence to have the  judge recused from hearing cases involving the OAG. The affidavit was also going to be used to support a judicial misconduct complaint against the judge.

Weatherspoon refused to sign the affidavit stating that she believed it misrepresented various facts regarding her conversation with the judge and mischaracterized the tone and nature of the conversation. According to Weatherspoon, on February 11, Jones sent Weatherspoon an e-mail ordering her to sign the affidavit. Weatherspoon responded that the affidavit was false as written and asked if she could revise it. Jones rejected Weatherspoon’s request and Weatherspoon again refused to sign the affidavit. When Jones continued to insist that Weatherspoon sign the affidavit, Weatherspoon reported the matter to Crockett. Weatherspoon alleged that the next day, Jones ordered her to appear at the OAG administrative office to sign the affidavit. When Weatherspoon continued to refuse to sign, Jones began to yell and slammed his fist on the desk. Weatherspoon was then ordered into a separate room and was told she could not leave until she had prepared a written statement against the judge. Weatherspoon attempted to make a report about Jones’s conduct to his direct supervisor, but Jones prevented her from doing so. Weatherspoon was finally allowed to leave after she prepared a written statement concerning her conversation with the judge. According to Weatherspoon, the report she created was accurate. Weatherspoon stated that, immediately after being allowed to leave, she contacted Crockett to report Jones’s attempts to force her to sign the allegedly false affidavit.

Weatherspoon asserted that Jones was exerting pressure in his official capacity in violation of the Texas Penal Code provisions concerning abuse of official capacity and official oppression. Weatherspoon further asserted that Jones’s insistence that she sign a false affidavit constituted subordination of perjury in violation of federal law. Weatherspoon reported the same violations to her managing attorney, an attorney trainer, an attorney in the open records department, and to Alicia Key, the Child Support Director for the OAG, and Charles Smith, the Deputy Director of Child Support. Key told Weatherspoon that the Attorney General wanted Key to personally apologize for what happened and that “they would look into it and there would be a full investigation.” Key also told Weatherspoon not to discuss the matter with anyone.

Weatherspoon claims that after making her report, she was “retaliated against and eventually terminated from her position.”

The judge at the center of the controversy is Judge David Hanschen, who was allowing men to test their paternity before he ordered them to pay child support. According to the Dallas Observer, under Texas law, a man only has four years from when a child is born into his marriage to challenge the legal presumption that he is the father of the child through paternity testing.  The Observer reports:

Hanschen refuses to comment on specific cases, but says that in certain situations, a court’s denial of DNA testing may violate a father’s constitutional right to equal protection and the legal system itself may be condoning fraud. “In my court, the truth does not have a statute of limitations,” he says. “It’s just the truth, and if we have the means to know the truth, we should.”

Of course, this did not make the OAG a fan of Hanschen’s work:

His recent authorization of paternity testing may have been the last straw for the [Office of the Attorney General]. E-mails viewed by the Dallas Observer and interviews with assistant attorneys general reflect that in early February of this year, supervising attorneys within the office’s Child Support Division launched a concerted campaign to collect affidavits from nearly a dozen staff lawyers—in some cases exerting pressure on them—with the apparent goal of filing a complaint alleging judicial misconduct against Hanschen and possibly fellow family court Judge Lynn Cherry. (She sides with Hanschen on many of these issues.)

Despite the OAG’s latest attempt to shut down Weatherspoon’s charges of misconduct, the Fifth Court of Appeals’ ruling ensures her lawsuit will proceed.

Texas Attorney General Greg Abbott is now running for Governor of Texas.

 

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