Brent Edward Webster v. Commission for Lawyer Discipline

Supreme Court of Texas

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No. 23-0694

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Brent Edward Webster,

Petitioner,

v.

Commission for Lawyer Discipline,

Respondent

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On Petition for Review from the

Court of Appeals for the Eighth District of Texas

═══════════════════════════════════════

JUSTICE BOYD, joined by JUSTICE LEHRMANN, dissenting.

This disciplinary proceeding against Texas attorney Brent

Webster 1 could easily fail for many reasons. But the constitutional

1 Webster is a Texas licensed attorney who serves as the First Assistant

Attorney General, a position that is statutorily empowered to perform the

attorney general’s duties if the attorney general “is absent or unable to act.”

TEX. GOV’T CODE § 402.001(a). As with all the assistants who have been

delegated authority to act on the attorney general’s behalf, Webster has “no

constitutional or statutory authority that is not derived directly from

the Attorney General himself.” Pub. Util. Comm’n of Tex. v. Cofer, 754 S.W.2d

121, 123 (Tex. 1988); see also State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931

(Tex. Crim. App. 1994) (en banc) (“An assistant attorney general operates

under the direct supervision of the Attorney General and exercises no

independent executive power.”).

separation of powers is not one of them. This doctrine prohibits the

legislative, executive, and judicial “departments” from exercising “any

power properly attached to either of the others.” TEX. CONST. art. II § 1. 2

It does not separate powers that exist within a single department or

restrict the means by which a department may exercise a power it

properly possesses. 3 Perhaps some other legal doctrine could prohibit

the judicial branch from doing “collaterally” that which it can

indisputably do “directly” (to use the Court’s new-found terminology),

but the separation of powers between the branches does not. If (as the

Court concedes) the judicial branch has inherent power to discipline an

executive-branch attorney for engaging in professional misconduct, it

may—consistent with the separation-of-powers doctrine—discipline

that attorney through any lawful exercise of that power. The Court’s

freshly minted direct/collateral distinction is unheard of in separation-

of-powers jurisprudence. It lacks both legal support and logical sense. I

must respectfully dissent.

This case pits the executive branch’s power to represent the state

in litigation, as exercised through the attorney general and his

2 See generally City of Ingleside v. City of Corpus Christi, 469 S.W.3d

589, 591 (Tex. 2015); In re Dean, 393 S.W.3d 741, 747 (Tex. 2012); Gen. Servs.

Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001); Tex. Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); State Bd. of

Ins. v. Betts, 308 S.W.2d 846, 851 (1958).

3 See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000) (“[T]he

Constitution only guarantees the separation of the state legislative, executive,

and judicial branches of government.”); see also Clinton v. Jones, 520 U.S. 681,

699 (1997) (“The doctrine of separation of powers is concerned with the

allocation of official power among the three coequal branches of our

Government.”).

2

assistants, 4 against the judicial branch’s power to regulate the practice

of law, 5 as exercised (initially) through the state bar and the commission

for lawyer discipline. 6 In broad terms, the issue is this: If the executive

4 The Texas attorney general, an elected officer within the executive

branch of government, possesses the exclusive power “to represent the State in

civil litigation.” Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001); cf. TEX. CONST.

art. IV, §§ 1, 22; TEX. GOV’T CODE § 402.021. He (and, by delegation, his

assistants) have “broad discretionary power in carrying out his responsibility

to represent the State,” Perry, 67 S.W.3d at 92 (citing Terrazas v. Ramirez, 829

S.W.2d 712, 722 (Tex. 1991)), including “the right to investigate the facts and

exercise his judgment and discretion regarding the filing of a suit,” Agey v. Am.

Liberty Pipe Line Co., 172 S.W.2d 972, 974 (Tex. 1943) (citation omitted). The

judicial branch “cannot control his judgment,” for example, by requiring him

to file a suit he has determined should not be filed. Lewright v. Bell, 63 S.W.

623, 624 (Tex. 1901).

5 The judicial branch’s power to regulate the practice of law is one of its

“administrative powers, necessary to the preservation of the judiciary’s

independence and integrity.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245

(Tex. 1994). These are inherent constitutional powers the judicial branch “may

call upon to aid in the exercise of its jurisdiction, in the administration of

justice, and in the preservation of its independence and integrity.” Eichelberger

v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979) (describing the inherent

powers as “woven into the fabric of the constitution by virtue of their origin in

the common law and the mandate of TEX. CONST. Art. II, Sec. 1, of the

separation of powers between three co-equal branches”); see Brewer v. Lennox

Hearth Prods., LLC, 601 S.W.3d 704, 718 (Tex. 2020) (“Courts also possess

inherent powers that aid the exercise of their jurisdiction, facilitate the

administration of justice, and preserve the independence and integrity of the

judicial system.” (citing Eichelberger, 582 S.W.2d at 399)). They include the

power “to regulate the practice of law in Texas,” In re Nolo Press/Folk L., Inc.,

991 S.W.2d 768, 769 (Tex. 1999), including “the admission and practice of

Texas attorneys,” Gomez, 891 S.W.2d at 245.

6 The commission for lawyer discipline is a “standing committee of the

state bar” composed of members appointed by this Court and the bar’s elected

president. TEX. GOV’T CODE § 81.076(b). The commission’s chief disciplinary

counsel serves “as administrator of the state bar’s grievance procedure.” Id.

§ 81.076(g). In cooperation with district grievance committees, the chief

disciplinary counsel reviews and investigates complaints against attorneys

and decides on an appropriate sanction when “just cause” exists. Id.

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branch possesses the exclusive power to represent the state in litigation

and to exercise broad discretion “regarding the filing of a suit,” Agey, 172

S.W.2d at 974 (citation omitted), may the judicial branch discipline an

executive-branch attorney who violates a disciplinary rule in the

exercise of that discretion? The Court concedes the answer is Yes,

agreeing that the Texas Disciplinary Rules of Professional Conduct

“apply to all Texas lawyers, including the attorney general and his staff.”

Ante at 2.

I agree. To be sure, the judicial branch’s power is not unlimited. 7

But neither is the executive branch’s power, including that exercised by

the attorney general and his assistants. 8 As we just recently confirmed,

§ 81.075(a), (e). An attorney against whom a complaint is filed may elect to

have the matter determined through these disciplinary proceedings or through

litigation in a district court. Id. § 81.075(b)(2). In either case, the attorney has

a right to appeal ultimately to this Court. Id. § 81.0751. These disciplinary

procedures exist “[i]n furtherance of [this Court’s] powers to supervise the

conduct of attorneys.” Id. § 81.072(a). This process through which the

commission conducts disciplinary proceedings to address complaints of

attorney misconduct is what the Court refers to today as “collateral attacks”

and “targeting” of an attorney against whom a complaint is filed. Ante at 3, 36.

7 The Texas Constitution “has always granted substantial authority to

the legislature to regulate important aspects of how the judiciary serves the

People of our State,” and “the separation of powers requires that we respect

the other branches’ checks on the judiciary and not just our checks on them.”

In re Dallas County, 697 S.W.3d 142, 162–63 (Tex. 2024).

8 The attorney general and his assistants, for example, cannot exercise

their authority to resolve a lawsuit in a way that usurps a legislative or judicial

power. See Perry, 67 S.W.3d at 93 (“[O]nly courts have the authority to

effectuate a valid congressional reapportionment plan unless or until the

Legislature acts.” (citing Terrazas, 829 S.W.2d at 720)); Cofer, 754 S.W.2d at

125 (“While the Attorney General has the right and duty to represent the state

agencies, he has no constitutional or statutory authority to exercise powers

4

their “authority to represent the state . . . does not necessarily include

the authority to independently decide whether to institute a suit on the

state’s behalf.” State ex rel. Durden v. Shahan, 658 S.W.3d 300, 303 (Tex.

2022) (per curiam). 9 Nor do they have unlimited power to decide what

to assert, or not assert, within a suit they file. 10 Both the legislative and

judicial branches may control the contents of the attorney general’s

pleadings by, for example, prohibiting claims and allegations that are

“groundless and brought in bad faith” or “groundless and brought for the

that belong to the Legislature or that have been delegated by the Legislature

to administrative agencies.”).

9 As we also just recently confirmed, the legislative and judicial

branches possess the power to regulate whether the attorney general may or

may not file a particular suit. See, e.g., State v. Zurawski, 690 S.W.3d 644, 659

(Tex. 2024) (noting the attorney general “has no authority to enforce the

Heartbeat Act”); In re Abbott, 601 S.W.3d 802, 812 (Tex. 2020) (noting the

attorney general lacks independent authority to bring criminal prosecution

against judges).

10 As the Court explains, we have “never drawn a line between” the

attorney general’s “authority to file suit and his authority to populate the suit

with the representations that give it force and led him to file it.” Ante at 29.

“To the contrary,” the Court explains, “both actions are privileged to the same

degree.” Id. As an obvious example, our pleading rules require that all petitions

contain “a statement in plain and concise language of the plaintiff’s cause of

action,” TEX. R. CIV. P. 45(b), “state the grounds therefor [and] the relief or

order sought,” id. at 21(a), include “a short statement of the cause of action

sufficient to give fair notice of the claim” and “a statement that the damages

sought are within the jurisdictional limits of the court,” id. at 47(a), (b), “state

the names of the parties and their residences, if known,” id. at 79, and “allege

in the first numbered paragraph of the original petition whether discovery is

intended to be conducted under Level 1, 2, or 3,” id. at 190.1. No one disputes

that the judicial branch may dictate the contents of the attorney general’s

pleadings by imposing these requirements, or that it may enforce these

requirements against the attorney general as it may against any private-sector

attorney.

5

purpose of harassment,” or “fictitious,” or “false.” TEX. R. CIV. P. 13; see

TEX. CIV. PRAC. & REM. CODE § 9.011. 11 As the Court agrees today, the

judicial branch can scrutinize the contents of the attorney general’s

pleadings and impose discipline if they are “objectionable, whether for

legal or ethical reasons.” Ante at 30. 12 In short, the separation of powers

does not prevent the judicial branch from regulating the pleadings an

executive-branch attorney files in a court.

But the Court announces today that the separation of powers

limits the means by which the judicial branch can perform such

regulation. According to the Court, the judicial branch may act through

11 This statute prohibiting frivolous pleadings and claims expressly

applies to “any party who is a claimant or defendant, including but not limited

to . . . the State of Texas.” TEX. CIV. PRAC. & REM. CODE § 9.002(b)(10) (emphasis

added).

12 The Court’s opinion contains other broad statements that could

appear to be inconsistent with this acknowledgement. The Court asserts, for

example, that the attorney general’s “judgment and discretion . . . will not be

controlled by other authorities,’” ante at 35 (citing Charles Scribner’s Sons v.

Marrs, 262 S.W. 722, 727 (Tex. 1924)), that “the attorney general’s

assessments in bringing suit are privileged at a constitutional level from

collateral review by the other branches,” id. at 27, and that the attorney

general’s “authority both to file petitions in court and to assess the propriety

of the representations forming the basis of the petitions that he files . . . cannot

be controlled by the other branches of government,” id. at 3. Yet the Court

ultimately acknowledges, as it must, that the “professional disciplinary (and

other) rules . . . apply to all Texas lawyers, including the attorney general and

his staff,” id. at 2, that the “judicial branch has the authority to demand

compliance with the rules of professional discipline attorneys[,] . . . including

those from the executive branch,” id. at 27–28, and that the judicial branch has

authority to “hold[] even the attorney general (and any other executive-branch

lawyer) to account for litigation conduct,” id. at 27. In short, the Court agrees

that—consistent with the separation of powers—the judicial branch can

control the attorney general’s judgment and discretion in the filing of

pleadings.

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its courts to engage in “[d]irect scrutiny within the judicial process”

without violating the separation of powers, id. at 28, 13 but may not act

through its commission to address misconduct by “collaterally”

reviewing pleadings filed by the attorney general or his assistants, id.

at 37. 14 Although the Court asserts that it merely “reaffirm[s] this core

13 See id. at 30 (“Instead, if the contents of the pleadings are

objectionable, whether for legal or ethical reasons, only direct scrutiny—that

is, by the court to whom the pleadings are presented—is permissible under the

separation-of-powers doctrine.”), 27 (explaining that because the attorney

general “can only act within the limits of the Texas Constitution and statutes,”

when he brings suit, “the authority of the court hearing the case naturally

includes holding even the attorney general (and any other executive-branch

lawyer) to account for litigation conduct” (quoting Del Rio, 67 S.W.3d at 92)).

14 See id. at 27 (“[T]he attorney general’s assessments in bringing suit

are privileged at a constitutional level from collateral review by the other

branches.” (second emphasis added)), 34 (“[T]he commission’s allegations are

at odds with our case law regarding who is constitutionally entitled to assess

the facts and the law that warrant bringing suit on behalf of the State.” (first

emphasis added)0, 34 (“[T]he attorney general’s determinations about whether

a lawsuit and its constituent parts are ‘supported by any charge, indictment,

judicial finding, and/or credible or admissible evidence’ are entrusted to the

attorney general—not the commission.” (emphasis added)), 36 (“[B]y targeting

the first assistant (or any other executive branch attorney exercising the

attorney general’s core constitutional powers), the commission threatens the

attorney general’s ability to run his office and therefore represent the State in

civil litigation altogether.” (emphasis added)).

Actually, the Court allows an exception to this rule, suggesting that the

separation of powers does not prevent the judicial branch from “collaterally”

regulating the practice of an executive-branch attorney if the attorney’s alleged

misconduct “was made in the [attorney’s] private (and thus unprotected)

capacity, or [if] it constituted criminal (and thus unauthorized and

unprotected) conduct, or [if] it was ultra vires (and thus was not action on

behalf of the State at all).” Id. at 36. But the Court fails to acknowledge or

address the fact that conduct that violates a judicially enacted disciplinary rule

is just as “unauthorized” as conduct that violates a legislatively enacted

criminal statute or exceeds the attorney general’s legal authority.

7

constitutional principle,” id. at 30, it cites no authority—from this Court

or any other—that has recognized the direct/collateral distinction it

describes today. That, of course, is because it can’t. 15 Until today, no

court has ever held that the separation of powers prohibits the judicial

branch from regulating the practice of law by one lawful means when it

permits the branch to have the same effect by another.

The Court asserts several justifications for its imaginative

invention of this new direct/collateral distinction, but none withstands

a separation-of-powers analysis. The Court says, for example, that the

separation of powers does not prohibit “direct scrutiny” because direct

15 The Court struggles to find support for its proposition in In re Texas

House of Representatives, 702 S.W.3d 330 (Tex. 2024), but its effort is futile. As

the Court explains, we held in that case that the separation-of-powers doctrine

prohibits the legislative branch from exercising its investigatory power “when

a legislative subpoena would have the effect of blocking a lawfully scheduled

execution.” Ante at 12 (citing Tex. House, 702 S.W.3d at 346–47). We held that

the separation of powers prohibits the legislative branch from exercising its

investigatory power in that circumstance because of the “effect” that exercise

would have on the other branches’ powers, not because of the means by which

the legislative branch sought to exercise its power See Tex. House, 702 S.W.3d

at 334 (holding separation of powers prohibits legislative branch from

exercising its investigatory power in “the face of a scheduled execution” when

doing so would “override the scheduled legal process leading to an execution”).

Under Texas House, the Legislature cannot exercise its investigatory power by

any means if doing so “would thwart the considered and long-planned work of

the other two branches.” Id. at 340. Here, the Court agrees that the judicial

branch may exercise its power to regulate the practice of law when the effect

of doing so prevents the executive branch from deciding whether to file a suit

or what to assert in its pleadings. Ante at 30. But the Court holds that the

separation of powers permits the judicial branch to exercise that power only

through one lawful means (“direct” scrutiny by courts), and not through

another lawful means (“collateral” scrutiny through an agency to which the

branch has delegated that power), even though the effect is the same in both

cases. Id. Neither Texas House nor any other precedent supports that holding.

8

scrutiny “accommodates the inherent authority and responsibility of the

judicial branch.” Ante at 28. But so does “collateral” enforcement of the

disciplinary rules through disciplinary proceedings. 16 Both are equally

16 The judicial branch exercises its inherent authority and responsibility

to regulate the practice of law in two different ways, both of which are equally

valid exercises of its inherent administrative powers. One way it does this is

through what the Court refers to today as “direct scrutiny” of an attorney’s

conduct. Id. at 2. “Trial courts are empowered to command respect and

decorum in courtroom proceedings and may exercise that authority by

sanctioning members of the bar who are pugnacious and indecorous.” Brewer,

601 S.W.3d at 729. The judicial branch may exercise this inherent power to

sanction an attorney’s bad-faith conduct “even when the offensive conduct is

not explicitly prohibited by statute, rule, or other authority.” Id. at 718 (citing

In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)).

Statutes, rules, and other authorities represent a second way courts

regulate the practice of law. See id. at 723. This Court has promulgated both

the Texas Disciplinary Rules of Professional Conduct to establish conduct

standards applicable to all Texas attorneys and the Texas Rules of Disciplinary

Procedure to govern the process for addressing alleged violations of those

standards through disciplinary proceedings. To “aid” the Court in this function,

the Legislature statutorily created the State Bar of Texas, the commission, and

other agencies and positions that exist within the judicial branch to assist the

courts in exercising their inherent power to discipline attorneys who violate

rules governing attorney conduct. The State Bar Act provides “a statutory

mechanism for promulgating regulations governing the practice of

law.” Gomez, 891 S.W.2d at 245; see TEX. GOV’T CODE § 81.011(c). But as the

Court confirms today, the Act “is not the source—much less the sum—of

judicial authority to regulate the practice of law.” Ante at 23. By its own terms,

the Act operates merely “in aid of the judicial department’s powers under the

constitution to regulate the practice of law, and not to the exclusion of those

powers.” TEX. GOV’T CODE § 81.011(b) (emphases added). The State Bar Act, in

other words, merely assists the Court as it exercises its inherent constitutional

powers. See Unauthorized Practice of L. Comm. v. Am. Home Assurance Co.,

261 S.W.3d 24, 33 (Tex. 2008) (“The Legislature has acknowledged that the

Court has exclusive authority to adopt rules governing admission to the

practice of law in Texas.”); Nolo Press, 991 S.W.2d at 770 (“The Court’s

inherent power under Article II, Section I to regulate Texas law practice is

assisted by statute, primarily the State Bar Act.”). Acting “on behalf of the

judicial department,” this Court exercises “administrative control over the

9

proper exercises of the judicial branch’s “inherent authority and

responsibility” to regulate the practice of law. See Nolo Press, 991

S.W.2d at 769; Gomez, 891 S.W.2d at 245.

Similarly, the Court asserts that “direct scrutiny” is permissible

because “[l]awyers who submit to a court’s jurisdiction subject

themselves to that court’s authority” to require their adherence to rules

of professional conduct. Ante at 2. But attorneys who never set foot in a

courtroom also subject themselves to the judicial branch’s authority to

ensure they comply with the disciplinary rules. The judicial branch’s

administrative power to regulate the practice of law exists for “both

conduct before the court and that beyond the court’s confines.”

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). “The distinction

between in-court and out-of-court contempts has been drawn not to

define when a court has or has not the authority to initiate prosecution

for contempt, but for the purpose of prescribing what procedures must

attend the exercise of that authority.” Young v. U.S. ex rel. Vuitton et

Fils S.A., 481 U.S. 787, 798 (1987). The judicial branch has inherent

authority to regulate the practice of every licensed attorney, not just of

litigators who appear in the courts. TEX. GOV’T CODE § 81.071 (“Each

attorney admitted to practice in this state . . . is subject to the

disciplinary . . . jurisdiction of the supreme court and the Commission

for Lawyer Discipline, a committee of the state bar.” (emphasis added));

Brewer, 601 S.W.3d at 723 n.76 (addressing the “processes, procedures,

and standards of review applicable to all attorneys” (emphasis added)).

state bar,” which exists only as “an administrative agency of the judicial

department of government.” TEX. GOV’T CODE § 81.011(a), (c).

10

Still, the Court insists, the judicial branch’s “direct scrutiny” of

an executive-branch attorney’s conduct differs from “collateral” review

through the disciplinary process because collaterally “targeting” the

attorney general’s pleadings poses a “great risk of usurping” executive-

branch authority. Ante at 36. But the Court fails to explain how

“collateral” review creates that risk any more than “direct” review.

Indeed, a court’s “direct” action addressing the attorney general’s

conduct “usurps” the very same powers to the same extent; it just

interferes and usurps “directly” instead of “collaterally.” If the United

States Supreme Court had decided to sanction Webster for filing the

pleading at issue here (as the Court concedes it could have done without

violating the separation of powers), its actions would have interfered

with Webster’s attempt to discharge his duties at least as significantly

as this “collateral” disciplinary proceeding. And the friction that occurs

when the commission reviews an attorney’s conduct is, of course, not

“unauthorized;” it is authorized by the Legislature and by this Court, in

the exercise of the inherent powers the Court concedes belongs to the

judicial branch.

According to the Court, though, the separation of powers

prohibits “collateral” scrutiny of the attorney general’s initial pleadings

unless a court refers the matter to the commission after the court’s

“direct observation of a disciplinary-rule violation.” Id. at 48. Of course,

courts that directly observe an attorney’s misconduct “can, and indeed

must, refer the matter [to the commission] for disciplinary proceedings.”

Brewer, 601 S.W.3d at 723 n.76. But the Court cannot even suggest that

the commission exercises the judicial branch’s inherent power to

11

regulate the practice of law only when it responds to a court’s referral. 17

The commission and the “collateral” disciplinary process through which

it investigates attorney misconduct exist only within the judicial branch

and only “[i]n furtherance of [this Court’s] powers to supervise the

conduct of attorneys.” TEX. GOV’T CODE § 81.072(a). Whether it acts in

response to a referral by a court or to a complaint by someone else, the

commission exercises the judicial branch’s inherent power to regulate

the practice of law.

Regrettably, the Court’s opinion seems to reflect a level of disdain

or distrust for the commission, or at least for the disciplinary rules and

processes that govern the commission’s role. The Court “doubt[s],” for

example, that the commission should ever be able to use Rule 8.04(a)(3)

“to scrutinize the contents of initial pleadings of any attorney,” ante at

2, and it is particularly troubled that the commission can initiate such

scrutiny based on a complaint filed by someone who “does not reside in

Texas,” is not an active Texas attorney, and “has no connection to the

underlying litigation,” id. at 4–5. Yet as the Court concedes, the

commission in this case followed the very process “prescribed by the

Texas Rules of Disciplinary Procedure,” id. at 5, which this Court

adopted. If we are dissatisfied with the process we ourselves created, we

17 The Court acknowledges this reality but declines to consider it

because “no referral to the commission occurred in this case.” Ante at 47.

Instead, it notes “only that a referral to the commission that is preceded by a

court’s direct observation of a disciplinary-rule violation would be an exercise

of the court’s inherent powers ‘to aid in the exercise of its jurisdiction, in the

administration of justice, and in preservation of its independence and

integrity.’” Id. at 47 (quoting Cofer, 754 S.W.2d at 124). But, of course, the

commission’s review of alleged misconduct based on a complaint rather than a

referral is also a valid exercise of those same judicial-branch powers.

12

should change it, not declare portions constitutionally inapplicable,

case-by-case, based on principles we make up as we go along. 18

And we certainly shouldn’t declare portions inapplicable based on

a fundamental yet clearly inapplicable constitutional doctrine like the

separation of powers. No doubt the commission does not possess all the

powers of this Court, or of any court. It possesses no jurisdictional

power 19 at all, and only such administrative powers as this Court has

delegated to it. But the powers it does possess are, as the Court concedes,

18 This Court can revise the disciplinary rules when needed—and we

have. Just last year, we approved an amendment to Disciplinary Rule 1.06 to

address the precise concern that so bothers the Court today. See Order of the

Supreme Court of Texas, Misc. Docket No. 23-9100 (Tex. Dec. 18, 2023); TEX.

RULES DISCIPLINARY P. R. 1.06, reprinted in TEX. GOV’T CODE, tit. 2, subtit. G,

app. A-1. As a result of this amendment, a grievance against a Texas attorney

can qualify as an actionable complaint only if the grievance is submitted by a

“person who has a cognizable individual interest in or connection to the legal

matter or facts alleged.” TEX. RULES DISCIPLINARY P. R. 1.06(G)(2)(f).

19 The judicial branch’s “jurisdictional power” is the power to resolve

individual cases and controversies by hearing and deciding them through the

issuance of legally binding judgments. Davis v. Zoning Bd. of Adjustment of

City of La Porte, 865 S.W.2d 941, 942 (Tex. 1993) (per curiam) (quoting

Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985)); see also Jones v. Hendrix,

599 U.S. 465, 487 (2023) (“[T]he authority to determine the facts and the law

in an individual case, and to render a final, binding judgment based on those

determinations, stands at the core of the judicial power.”); Tex. House, 702

S.W.3d at 342 (describing “the distinctly judicial duties of rendering judgment,

imposing sentence, and adjudicating any appellate or collateral challenges that

may be raised” in a particular lawsuit); Barshop v. Medina Cnty. Underground

Water Conservation Dist., 925 S.W.2d 618, 635 (Tex. 1996) (“[T]he power to

determine controverted rights to property by means of binding judgment” is

“vested in the judicial branch.” (citing Bd. of Water Eng’rs v. McKnight, 229

S.W. 301, 304 (Tex. 1921))). “Jurisdictional power” is “separate and distinct

from” the judicial branch’s “administrative powers.” Eichelberger, 582 S.W.2d

at 400. “The Court’s inherent powers, such as the power to regulate the practice

of law, are not jurisdictional powers.” Gomez, 891 S.W.2d at 245.

13

constitutional powers this Court has delegated to it, as a delegee of “this

Court’s inherent powers” to regulate the practice of law. Id. at 23. As the

Court concedes, “the commission’s work necessarily implicates

derivative judicial power.” Id. at 14. The commission’s power, though

limited, is the power of the judicial branch no less than Webster’s power

is the power of the executive branch. If the Court is dissatisfied with the

commission’s operations, it can of course alter its delegation by

appointing different members or revising our disciplinary-procedure

rules. But for purposes of determining the separation-of-powers

doctrine’s effect on the commission’s role, the commission’s power is as

much the power of the judicial branch as is our own. 20

Fortunately, despite the Court’s many broad statements about

the separation of powers, the Court’s powers, the commission’s powers,

and the attorney-discipline process, its actual holding in this case is very

20 The Court also suggests its holding is justified because allowing

“collateral” scrutiny of an executive-branch attorney’s professional conduct

would “risk the politicization and thus the independence of the judiciary.” Ante

at 3. I, too, am concerned about this risk, perhaps even more so today. But

“politicization” risks are not any more salient when the judicial branch

disciplines an executive-branch attorney than when the judicial branch decides

cases involving the executive branch—as it does regularly. And even if they

were, the risk of politically motivated scrutiny is no greater when the

commission “collaterally” regulates an attorney’s practice than when a court

does so “directly.” And we should at least be willing to admit that the risk that

the commission or a court will improperly act politically by pursuing discipline

against an executive-branch attorney is no greater than the risk that the

commission or a court will act politically by declining to pursue such discipline

(or, for that matter, by holding that the separation of powers prevents the

judicial branch from doing so). If fear of appearing to be acting politically were

sufficient to prevent the judicial branch from exercising its constitutional

powers, we shouldn’t be deciding this case at all. The judicial branch should

never allow the fear of appearing to be acting politically to serve as an excuse

for not fulfilling its constitutional duty to regulate the practice of law.

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narrow: Under “the narrow circumstance before us,” in which the First

Assistant Attorney General filed an original action in the United States

Supreme Court, the “separation of powers requires that violations of the

sort alleged here—based wholly on representations in initial

pleadings—must be addressed directly by the court to whom the

pleadings are presented, rather than on the commission’s purely

collateral review.” Id. at 43. By narrowing its holding in this manner,

the Court at least reduces the damage it causes today to the attorney-

discipline process on which this Court relies to aid its exercise of the

judicial branch’s inherent power to regulate the practice of law.

Unfortunately, it does not reduce the damage it causes to the separation-

of-powers doctrine.

I respectfully dissent. 21

21 Two final points seem worth mentioning. First, the Court devotes

significant discussion to the “merits” of the complaint filed against Webster

and of the commission’s construction of the disciplinary rules. See ante at 32–

39. The Court asserts that its consideration of the merits is appropriate

because the “facts underlying the merits” and the “facts underlying our

jurisdiction” are “intertwined.” Id. at 32. Even assuming our process for

resolving a jurisdictional challenge based on the separation of powers should

be similar to our process for resolving a jurisdictional challenge based on

sovereign immunity (an assumption the Court makes but does not support), a

finding that Webster did not violate the disciplinary rules says nothing about

whether the separation of powers prevents the commission from exercising its

delegated judicial-branch authority to investigate a complaint and impose

discipline if he did. My inability to join the Court’s judgment has nothing at all

to do with the merits of the complaint against Webster. As I stated above, in

my view, the commission’s proceeding against Webster could easily fail for

many different reasons—merits included—but the separation of powers is not

one of them.

Second, speaking of sovereign immunity, Webster argues that sovereign

immunity bars the commission’s proceeding against him even if the separation-

of-powers doctrine does not. The court of appeals rejected this argument. 676

15

Jeffrey Boyd

Justice

OPINION FILED: December 31, 2024

S.W.3d 687, 702 (Tex. App.—El Paso 2023). Because the Court concludes the

separation of powers bars the proceeding, it does not reach the issue. I conclude

that sovereign immunity does not bar the proceeding for the reasons the court

of appeals aptly explained. In any event, I dissent at least because the Court

does not reach the issue.

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