Paxton v. Commission for Lawyer Discipline
Dallas Court of Appeals, No. 05-23-00218-CV (April 18, 2024)
Justices Nowell (Opinion, linked
here), Miskel
(Dissent, linked here), and Kennedy
More fallout from failed
litigation regarding purported irregularities in the 2020
presidential election. A day after one panel of
the Dallas Court of Appeals unanimously affirmed summary judgment rejecting the State Bar’s disciplinary charges
against Sidney Powell—largely because of the Bar’s less-than-ideal briefing at
trial and on appeal—another divided panel of that same court found it lacked
jurisdiction to review a trial court’s denial of Ken Paxton’s plea to the jurisdiction regarding the
Bar’s disciplinary action against him.
The State Bar’s Commission for Lawyer Discipline alleged that Paxton made “‘dishonest’ representations to the Supreme Court [in his role as lead counsel for the State] in Texas v. Pennsylvania.” The Commission contended these alleged misrepresentations “constitute[d] professional misconduct and violate[d] Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct.” Paxton filed a plea to the trial court’s jurisdiction, asserting the Commission’s action violated the separation-of-powers doctrine and was barred by sovereign immunity. When the trial court denied that plea, Paxton sought appellate review pursuant to TCPRC § 51.014(a)(8), which authorizes interlocutory appeal from an order that “grants or denies a plea to the jurisdiction by a governmental unit” of the State or, by judicial extension, a plea by a State official sued in his or her official capacity. Paxton contended that, because Texas law directs only the Attorney General to “prosecute and defend all actions in which the state is interested,” the Bar Commission’s case was effectively leveled against him in his official capacity and the AG’s office itself; the denial of his plea, therefore, fell within § 51.014(a)(8).
But the Dallas Court disagreed. The Court noted that the Commission did not challenge the AG’s discretionary decision to file the Texas v. Pennsylvania lawsuit, but instead targeted specific alleged misrepresentations made by Paxton as counsel in that case. And the Commission sought no relief against the AG’s office or Paxton in his official capacity, but only against Paxton individually as an attorney licensed by the State of Texas. Therefore, the Court concluded, the trial court’s denial of Paxton’s plea to the jurisdiction did not fall within § 51.014(a)(8), and it had no jurisdiction to hear the interlocutory appeal.
Justice Emily Miskel dissented. A lot. She would have found jurisdiction for the appeal under § 51.014(a)(8) and reversed the trial court’s denial of Paxton’s plea to the jurisdiction, arguing the Commission’s action targeted Paxton in his official capacity and was barred by the separation-of-powers doctrine as well as sovereign immunity. She went on to contend the Commission’s complaint also was defective on the merits.
Last year—foreshadowing this case—the El Paso Court of Appeals rejected separation-of-powers and sovereign-immunity defenses in a similar disciplinary action brought by the Commission against First Assistant AG Brent Webster, also based on alleged misrepresentations in Texas v. Pennsylvania. Comm’n for Lawyer Discipline v. Webster, 676 S.W.3d 687 (Tex. App.—El Paso 2023). Webster filed a petition for review in the Supreme Court of Texas. The petition remains pending, with briefs on the merits having been requested and filed. So, there’s more to come in Webster and likely in the Paxton case, as well.
