Ever Notice That Ken Paxton Issues Political AG Opinions Faster Than Banal Ones?
Ken Paxton in July 2015.
Office of the Texas Attorney General
On Tuesday afternoon, four weeks to the day after Lieutenant Governor Dan Patrick asked his office to weigh in, Attorney General Ken Paxton opined that a Fort Worth ISD policy allowing students to use the bathroom consistent with their gender identity was illegal.
The AG opinion is a curious thing. Under state law, certain public figures (legislative committees, county auditors or district attorneys, heads of state agencies, the governor and a few others) can ask the AG's office to rule on a legal matter that is particularly confusing or contentious.
The resulting opinion is exactly that — an opinion, basically the AG's best guess of how a judge might rule on a matter. Unlike a judicial order, however, an AG's opinion isn't legally binding. Government officials are perfectly free to ignore the AG's advice unless and until a judge orders them to follow it.
Not that AG's opinions are worthless. They offer specialized legal research to entities that otherwise wouldn't be able to access it. It can offer a way to solve disputes without the cost and heartache of a going to court. And an AG's opinion carries with it a certain authority. It's not a trump card, but it can certainly tilt an argument in one direction or the other.
The vast majority of the matters the AG is asked to weigh in on are far too esoteric for normal human beings to care about. The day before Paxton offered his perspective on Fort Worth ISD's transgender bathrooms, he also issued an opinion on "whether a school district board of trustees may enter into a contract for legal services under a flat fee arrangement."
A week earlier, he opined on "the legal status of real property described by section 12.128 of the Education Code that is returned to the State from a charter school." Important questions, no doubt, but nothing to quicken the pulse.
Sometimes, though, as in the case of the transgender school bathrooms, the AG is asked to wade into a matter that a lot of people — generally, because of the composition of state government, these are grassroots Republican people — care about deeply. In these cases, the requests appear to be motivated less by confusion over a point of law as a desire to rally partisans on a hot-button issue. (A sure-fire way to identify this latter type: Look for requests filed by Patrick.)
This dynamic wasn't unknown when Governor Greg Abbott was in the AG's office. Abbott offered red-meat opinions on issues like Common Core education standards and whether, in a pre-Obergefell world, local governments could offer benefits to employees' domestic partners — both of which, it's worth noting, were opinions requested by Patrick.
But in his year-and-a-half in office, Paxton has taken the AG-as-political-hack role to another level. Like-minded politicians have teed up issue after issue that Paxton never fails but to drive straight and true. Just before December, he offered a friendly ruling to campus-carry advocates. Two weeks ago he declared that judges can indeed refuse to apply foreign (i.e. Sharia) law in Texas. In November, he concluded that police can indeed display "In God We Trust" on their patrol vehicles. A year ago, Paxton — again, responding to a request from Patrick — wrote (probably incorrectly) that county clerks with religious objections didn't have to issue marriage licenses to same-sex couples. In April, he went to bat for embattled University of Texas regent Wallace Hall, a thorn in the side of the old-guard lawmakers and university administrators who have long controlled the state's flagship university but a favorite in the Tea Party waters Paxton swims in.
Like his ruling in the Fort Worth transgender case, these opinions have been delivered with remarkable alacrity. It takes Paxton's office an average of 165 days — five-and-a-half months — after receiving a request to issue an opinion, according to a review of the 100 decisions Paxton has issued since taking office last January.
The Wallace Hall ruling took 22 days. The campus-carry decision took 23 days. "In God We Trust" was 30 days. Same-sex marriage was three. None of his other rulings took less than two months. Most took more than five.
This represents a sharp break with precedent. Abbott took his time on high-profile cases. Abbott's office took an average of six months to process opinions that were prominent enough to make the news between 2010 and 2014. The quickest, about an online program run by the lottery, took just under five months. A high-profile opinion on whether state law barred Planned Parenthood from participating in the state's Women's Health Program took 199 days.
Whatever the impact on the quality of opinion, and putting aside questions about how the politicization of an ostensibly nonpartisan function impacts the perception and effectiveness of the AG's office, Paxton's propensity for rushing high-profile decisions is a rational political choice. It's more advantageous for him to insert himself into a discussion while a matter is still relatively fresh. Prioritizing high-profile cases over the workaday matters of governance Paxton's office is typically asked to opine on ensures that he's able to do that.
It's also in keeping with his broader strategy for running his office, which is to try to distract everyone from the fact that he is accused of various breaches of ethics and is under indictme—"HEY LOOK OVER THERE IT'S A DUDE IN THE WOMEN'S RESTROOM!"
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