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

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Argued September 12, 2024

JUSTICE YOUNG delivered the opinion of the Court, in which Chief

Justice Hecht, Justice Devine, Justice Blacklock, Justice Busby, Justice

Bland, and Justice Huddle joined.

JUSTICE BOYD filed a dissenting opinion, in which Justice

Lehrmann joined.

In the aftermath of the 2020 presidential election, the State of

Texas moved for leave to invoke the U.S. Supreme Court’s original

jurisdiction to sue four other states. Attorney General Ken Paxton was

the counsel of record, and Brent Webster, the attorney general’s first

assistant, appeared on the initial pleadings. An individual with no

connection to the underlying litigation filed a grievance with the

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Commission for Lawyer Discipline, alleging that Webster’s participation

violated Texas Disciplinary Rule of Professional Conduct 8.04(a)(3). That

rule prohibits lawyers from “engag[ing] in conduct involving dishonesty,

fraud, deceit or misrepresentation.” The commission ultimately agreed,

identifying six statements in the initial pleadings that, it contends,

violate the rule. It filed a lawsuit seeking to hold Webster to account for

those statements. The district court dismissed the case on the ground

that exercising jurisdiction over the commission’s lawsuit would violate

the Texas Constitution’s separation-of-powers doctrine. The court of

appeals reversed. We agree with the district court and reinstate its

judgment of dismissal.

Generally, scrutiny of statements made directly to a court within

litigation is by the court to whom those statements are made. Such a court

has substantial authority and many tools to address alleged violations of

professional disciplinary (and other) rules, which apply to all Texas

lawyers, including the attorney general and his staff. Lawyers who

submit to a court’s jurisdiction subject themselves to that court’s authority

to compel adherence to the highest standards of professional conduct.

But this case involves no such direct scrutiny. The U.S. Supreme

Court neither imposed discipline on the first assistant nor referred him

(or anyone else) to the commission (or any disciplinary body). Rather, the

commission’s lawsuit arose from outside the litigation in which the

challenged statements were made. We doubt that its collateral use of

Rule 8.04(a)(3)—as opposed to direct review by the court to whom the

statements are made—is a proper way to scrutinize the contents of initial

pleadings of any attorney. What makes this case different from ordinary

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litigation, though, is its constitutional dimension. By second-guessing the

contents of initial pleadings filed on behalf of the State of Texas, under

the attorney general’s authority, the commission has intruded into

terrain that this Court’s precedent has described as belonging to the

attorney general.

Specifically, the Texas Constitution endows the attorney general

(and at his direction, his first assistant) with the authority both to file

petitions in court and to assess the propriety of the representations

forming the basis of the petitions that he files—authority that, as our

cases reflect, cannot be controlled by the other branches of government.

At the same time, the Constitution endows the Court with the judicial

power to discipline attorneys admitted to its bar. The potential for direct

scrutiny by a court to whom representations are made wholly

accommodates the legitimate interests of all branches of government.

Were we to hold otherwise and instead allow collateral attacks like the

commission’s lawsuit, we would improperly invade the executive branch’s

prerogatives and risk the politicization and thus the independence of the

judiciary. We decline to stretch the judicial power beyond its

constitutional boundaries.

Accordingly, the Chief Disciplinary Counsel was right to have

initially declined to pursue the matter, and the Board of Disciplinary

Appeals was wrong to have reversed course. Likewise, the trial court

was right to have dismissed the commission’s lawsuit, and the court of

appeals was wrong to have reversed that determination. We therefore

reverse the judgment of the court of appeals and reinstate the trial

court’s judgment of dismissal for lack of subject-matter jurisdiction.

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I

After the 2020 presidential election, the State of Texas moved for

leave to invoke the U.S. Supreme Court’s original jurisdiction. The bill of

complaint accompanying the motion alleged that non-legislative actors in

the Commonwealth of Pennsylvania and the States of Georgia, Michigan,

and Wisconsin altered state election statutes in violation of several

provisions of the U.S. Constitution. Texas also moved for a preliminary

injunction and a temporary restraining order or, alternatively, for a stay

and an administrative stay, and sought expedited consideration of its

pleadings. Webster, the First Assistant Attorney General of Texas,

appeared on the pleadings. His name was listed below that of Attorney

General Paxton, who signed the pleadings as counsel of record.

The State’s legal theories, however, were never tested on their

merits. Four days after Texas moved for leave, the Supreme Court

dismissed the case “for lack of standing”—albeit with two justices

stating that they would have granted Texas’s motion for leave. Texas v.

Pennsylvania, 141 S. Ct. 1230, 1230 (2020) (mem.); see id. (statement of

Alito, J., joined by Thomas, J.). The case garnered national attention

and fomented substantial public controversy. States across the Union

filed amicus briefs in support of both Texas and the defendant states.

In the wake of the filing, various individuals brought

“grievances”—i.e., “written statement[s], from whatever source,

apparently intended to allege Professional Misconduct”—against the

attorney general and the first assistant. See Tex. Rules Disciplinary P.

R. 1.06(R). Among the grievances was Brynne VanHettinga’s.

VanHettinga does not reside in Texas, is an inactive member of the State

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Bar of Texas, and has no connection to the underlying litigation.

Nevertheless, she faulted the first assistant for making “specious legal

arguments and unsupported factual assertions” in the initial pleadings.

The law has changed in one respect since VanHettinga filed her

grievance. If filed today, such a grievance would go nowhere because

VanHettinga lacked “a cognizable individual interest in or connection to

the legal matter or facts alleged in the grievance.” Tex. Gov’t Code

§ 81.073(a)(1)(B)(vi), (2)(B). The legislature added this cognizable-

individual-interest requirement last year. See Act of May 24, 2023, 88th

Leg., R.S., ch. 1020, § 1, sec. 81.073, 2023 Tex. Gen. Laws 3232, 3232–33

(codified at Tex. Gov’t Code § 81.073); see also Tex. Rules Disciplinary P.

R. 1.06(G) (amended in 2023 following the statutory enactment). But

this case applies the preexisting requirements, under which VanHettinga’s

irrelevance to the underlying litigation did not foreclose her ability to

invoke the process.

What then ensued—and, if brought in compliance with current

law, would ensue today—was prescribed by the Texas Rules of

Disciplinary Procedure. To begin, the Office of the Chief Disciplinary

Counsel (CDC) received the grievance and initially dismissed it for “not

alleg[ing] Professional Misconduct.” See Tex. Rules Disciplinary P.

R. 1.06(T); see also Tex. Gov’t Code § 81.074(1) (explaining that the CDC

shall “dismiss a grievance” that does not allege professional misconduct).

VanHettinga appealed that decision to the Board of Disciplinary Appeals

(BODA), which reversed. BODA determined that the grievance “allege[d]

a possible violation” of the Texas Disciplinary Rules of Professional

Conduct.

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BODA’s determination transformed the “grievance” into a

“complaint,” triggering further phases of the attorney-discipline process.

See generally Tex. Rules Disciplinary P. R. 2.10(B), 2.12. After the first

assistant responded to the allegations, see id. R. 2.10(B), the CDC

“investigate[d]” the complaint to determine whether to proceed, id.

R. 2.12(A). That led the CDC to schedule a hearing before a non-

adversarial investigatory panel, see id. R. 1.06(W), which concluded that

“there [was] credible evidence to support a finding of Professional

Misconduct.” The rules then put the first assistant to a choice: Accept the

panel’s recommended sanction, see id. R. 2.14(D), or have the complaint

“heard in a district court of proper venue, with or without a jury, or by an

Evidentiary Panel,” id. R. 2.15.

The first assistant chose the district court, so the CDC filed a four-

page disciplinary petition in Williamson County on behalf of the

commission. See generally id. R. 3.01–.03 (providing that the CDC “shall

promptly file the Disciplinary Petition” (emphasis added)). The

commission alleged that when the first assistant “filed” the initial

pleadings, he made “misrepresentations,” “false statements,” and

“representations [that] were dishonest.” It identified these six:

1. An outcome-determinative number of votes were tied

to unregistered voters.

2. Votes were switched by a voting-machine glitch.

3. State actors unconstitutionally revised their state’s

election statutes.

4. Illegal votes affecting the election’s outcome had been

cast.

5. Texas had uncovered substantial evidence that

raised serious doubts about the integrity of the

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election process in the defendant States.

6. Texas had standing to bring its claims before the U.S.

Supreme Court.

According to the commission, by appearing on a pleading containing

those statements, the first assistant violated Texas Disciplinary Rule of

Professional Conduct 8.04(a)(3), which provides that “[a] lawyer shall

not . . . engage in conduct involving dishonesty, fraud, deceit or

misrepresentation.” The six statements, the commission alleged,

contravened Rule 8.04(a)(3) because they were not “supported by any

charge, indictment, judicial finding, and/or credible or admissible

evidence.”

Also important is what the commission did not allege. It has never

suggested that the first assistant acted without authority (i.e., that he

acted ultra vires) or that he engaged in criminal conduct. And it is

undisputed that the Supreme Court did not sanction the first assistant

(or anyone else) for the challenged representations (or anything else).

That Court made no referral for discipline to any other body. Nor did any

party to the case raise any complaint about the pleadings.

After the commission filed its petition in the district court, the first

assistant filed a plea to the jurisdiction, arguing that the separation-of-

powers doctrine—or alternatively, sovereign immunity—rendered the

commission’s petition nonjusticiable. Following a hearing, the court

found that “the separation of powers doctrine deprive[d] [it] of subject

matter jurisdiction.”

The commission appealed. For docket-equalization purposes, this

Court transferred the case to the Eighth Court of Appeals, which

reversed. 676 S.W.3d 687, 691 (Tex. App.—El Paso 2023); see also id. at

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703 (Soto, J., concurring without separate opinion). The court of appeals

held that neither the separation-of-powers doctrine nor sovereign

immunity required dismissal. Id. at 691, 699, 702. It reasoned that these

disciplinary proceedings do not violate the separation of powers because

(1) the commission does not challenge the first assistant’s decision to file

suit; (2) the first assistant’s broad constitutional discretion (through the

attorney general) is limited by the rules of professional conduct; and

(3) exempting the first assistant from those rules is unnecessary for his

ability “to effectively exercise the Attorney General’s core powers.” Id. at

697–99. As to sovereign immunity, the court explained that (1) the

“petition targets Webster personally,” not the State; (2) discipline against

Webster would not amount to seeking to “control state action”; (3) there

was no risk of overdeterrence, as pursuing discipline in this context would

deter only violations of Rule 8.04(a)(3); and (4) there would be no harm to

the public fisc. Id. at 700–02. The court remanded to the district court

for proceedings on the merits. Id. at 703.

We granted Webster’s petition for review.

II

Whether a dispute is justiciable is a legal question that this Court

reviews de novo. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex.

2010).

A

Like the United States and our sister states, ours is a tripartite

system of government, whose powers are “divided into three distinct

departments”: legislative, executive, and judicial. Tex. Const. art. II, § 1;

see also id. arts. III–V. The People’s commitment to the separation of

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powers predates not just statehood but our days as a republic. The 1824

Constitution of Mexico and the 1827 Constitution of the State of Coahuila

y Tejas both contained separation-of-powers provisions that forbade the

unification or usurpation of power between or among the branches. See

1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 73, 426 (1898). The

very first provision of the Constitution of the Republic of Texas likewise

provided that “[t]he powers of this Government shall be divided into three

departments, viz: Legislative, Executive and Judicial, which shall remain

forever separate and distinct.” Tex. Const. of 1836, art. I, § 1. And

beginning in 1845, each Constitution of the State of Texas has contained

the following text:

The powers of the Government of the State of Texas shall

be divided into three distinct departments, each of which

shall be confided to a separate body of magistracy, to wit:

those which are Legislative to one, those which are

Executive to another, and those which are Judicial to

another; and no person, or collection of persons, being one

of these departments, shall exercise any power properly

attached to either of the others, except in the instances

herein expressly permitted.

Tex. Const. art. II, § 1; Terrazas v. Ramirez, 829 S.W.2d 712, 733 (Tex.

1991) (Cornyn, J., concurring) (noting that the separation-of-powers

clause “has been present in every Texas Constitution since 1845”).

Respect for this “fiat of the [P]eople”—the separation of

governmental powers—leads each branch to avoid stoking needless

friction with the other coordinate branches of government. See Lytle v.

Halff, 12 S.W. 610, 611 (Tex. 1889) (observing that the executive,

legislative, and judicial departments cannot “enlarge, restrict, or destroy

the powers of any one of th[em]”). True, some friction in tripartite

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government is inevitable and indeed salutary. Cf. Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)

(“[The U.S. Constitution] enjoins upon its branches separateness but

interdependence, autonomy but reciprocity.”). But as this Court has

confirmed, constitutional problems arise when one branch pushes beyond

the boundaries to interfere with another branch’s exercise of its

constitutional powers. Maud v. Terrell, 200 S.W. 375, 376 (Tex. 1918);

State Bd. of Ins. v. Betts, 308 S.W.2d 846, 851–52 (Tex. 1958).

If one branch seeks to seize power belonging solely to another, the

constitutional implication is obvious—the offending branch’s claim is

invalid. But “separation-of-powers disputes” often arise when “none of

the [competing constitutional] claims, at least when viewed in isolation,

is invalid.” In re Tex. House of Representatives, 702 S.W.3d 330, 340 (Tex.

2024) (emphasis added). Quite commonly, “[e]ach of the multiple claims

of power at issue” is “valid and entitled to respect,” requiring the Court

“to ensure that no branch is exercising its core authority in a way that

negates the ability of a coordinate branch to do so.” Id. at 340, 344. The

doctrines of constitutional avoidance and of presuming good faith on the

part of other governmental actors assist in this task. Both doctrines

manifest the judiciary’s commitment to the separation of powers, respect

for the other branches, and desire to prevent constitutional friction unless

and until unavoidable.

Our recent cases employ these constitutional principles. In In re

Turner, this Court weighed whether a gubernatorial veto “threaten[ed]

the Legislature’s ability to operate.” 627 S.W.3d 654, 656 (Tex. 2021).

Just one year later, in Van Dorn Preston v. M1 Support Services, L.P., the

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Court wrestled with “whether judicial review of military action in a suit”

interfered with the “Executive Branch’s constitutional authority over the

armed forces.” 642 S.W.3d 452, 455 (Tex. 2022). Later that year, in In re

Stetson Renewables Holdings, LLC, we considered “whether relators

ha[d] a judicially enforceable right to compel [an executive branch official]

to act” given scarce resources and an expiring statutory program. 658

S.W.3d 292, 295 (Tex. 2022). In each case, the ability of the courts to

proceed reduced to whether doing so would create unwarranted conflict

with the constitutional prerogatives of our co-equal branches.

Hence, in Turner, we recognized that we have a “duty to avoid

unnecessary constitutional issues,” which meant refraining from

exercising jurisdiction “to resolve disputes between the other two

branches that those branches c[ould] resolve for themselves.” 627 S.W.3d

at 660–61 (quoting Sullivan v. McDonald, 913 A.2d 403, 406 (Conn.

2007)). Even when the dispute is “one between the members of one

branch rather than one between the branches,” we will avoid exercising

jurisdiction out of respect for the separation of powers. Id. at 661.

We put these principles to practice in Van Dorn, where we

concluded that we had “constitutional jurisdiction to resolve the

dispute”—but only after assuring ourselves that doing so did not involve

or trespass into the executive branch’s “expertise or judgment.” 642

S.W.3d at 465. And in Stetson, we held that we could not compel the

comptroller—an executive-branch official—to act, because such an order

would unnecessarily pit the judicial department against the prerogatives

of the coordinate branches and risked invading the official’s “exercise of

discretion.” 658 S.W.3d at 296.

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The dissent suggests that the separation-of-powers doctrine cannot

“restrict the means by which a department [of government] may exercise

a power it properly possesses.” Post at 2 (Boyd, J., dissenting). To the

extent that cryptic statement means that each branch of government may

fulfill its constitutional duties by using the powers “properly” at its

disposal without another branch’s interference, we agree. But the use of

a given power—even one that, in a vacuum, is unquestionably proper—

can sometimes impair the work of another branch. When that happens,

the whole point of the separation-of-powers doctrine is to determine

whether one “means” rather than another is permissible.

Just last month, for example, we expressly held that “the

legislature’s authority to compel witness testimony is unquestionably

valid” and specifically that it was a proper means to achieve the

important legislative objective of gathering information. In re Tex. House

of Representatives, 702 S.W.3d at 346. But we simultaneously held that

this very means violated the separation of powers when a legislative

subpoena would have the effect of blocking a lawfully scheduled

execution. Id. at 346–47. To “accommodat[e] the interests of all branches

of the government,” we determined that there was no “judicially

enforceable right” to make use of what otherwise is an entirely lawful

means of proceeding—because compelling testimony under those

circumstances would “ru[n] up against equally valid powers of the other

branches.” Id.

Accordingly, in separation-of-powers cases involving competing

exercises of valid constitutional authority, it is rarely enough to conclude

that a branch of government possesses a particular “means” to achieve an

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appropriate goal of that branch. Rather, it is our duty to determine

whether a coordinate branch’s exercise of power—and especially our own

exercise of power—“rise[s] to the level of constitutionally forbidden

impairment of [another branch’s] ability to perform its [powers].” Clinton

v. Jones, 520 U.S. 681, 699–703 (1997); see also, e.g., In re Dallas County,

697 S.W.3d 142, 163 (Tex. 2024) (“[T]he separation of powers requires

that we respect the other branches’ checks on the judiciary and not just

our checks on them.”).

B

The separation-of-powers problem in this case involves two

specific powers, both of which are valid: the judiciary’s authority to

regulate the practice of law and the attorney general’s exclusive authority

to determine the arguments and assess the evidence that warrant

bringing suit on behalf of the State. “These powers do not exist in

isolation but converge in a particular context,” In re Tex. House of

Representatives, 702 S.W.3d at 340, which requires the Court to

accommodate both constitutional interests by preventing one from

swallowing up the other.

1

We begin by describing the commission and defining the judicial

power at issue in this case.

The commission is “a standing committee of the state bar,” Tex.

Gov’t Code § 81.076(b), which is “an administrative agency of the judicial

department of government,” id. § 81.011(a). The commission does not

resemble the judiciary and, instead of being staffed by judges, has six

lawyers and six public members (i.e., non-lawyers) who serve staggered

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three-year terms. See id. § 81.076(b), (c). “The president of the state bar

appoints the attorney members,” and this Court “appoints the public

members.” Id. § 81.076(b).

Although the commission’s work necessarily implicates derivative

judicial power, the commission does not purport to be a court or even a

substitute for a court. It does not claim the judicial power, for example,

to adjudicate cases or liquidate law—power that we have sometimes

called “our jurisdictional power.” See, e.g., Eichelberger v. Eichelberger,

582 S.W.2d 395, 400 (Tex. 1979). Rather, it and the state bar serve as an

“aid” to “the judicial department’s powers under the [Texas]

[C]onstitution to regulate the practice of law, and not to the exclusion of

those powers.” Tex. Gov’t Code § 81.011(b). We have referred to this kind

of judicial authority as falling within our “administrative powers.” State

Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (emphasis omitted).

However demarcated, the Constitution vests all “judicial power”

only in courts and, for present purposes, “in one Supreme Court.” Tex.

Const. art. V, § 1. The judicial power at issue here is of the administrative

kind and is among the Court’s “inherent power[s]” that are “not secured

by any legislative grant” and are “necessarily implied to enable the Court

to discharge its constitutionally imposed duties.” Gomez, 891 S.W.2d at

245. We have described this Court’s inherent powers as “woven into the

fabric of the [Texas] [C]onstitution by virtue of their origin in the common

law and the mandate of . . . the separation of powers between three co-

equal branches.” Eichelberger, 582 S.W.2d at 398 (citing Tex. Const. art.

II, § 1). Broadly, the inherent powers “enable our courts to effectively

perform their judicial functions and to protect their dignity,

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independence[,] and integrity.” Id. at 399.

As relevant to this case, we have held that the judicial power

necessarily includes the “power to regulate the practice of law in Texas

for the benefit and protection of the justice system and the people as a

whole.” In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 769 (Tex. 1999);

see also Unauthorized Prac. Comm. v. Cortez, 692 S.W.2d 47, 51 (Tex.

1985). Because bar admission and practice are “inextricably intertwined

with the administration of justice, the Court must have the power to

regulate these activities in order to fulfill its constitutional role.” Gomez,

891 S.W.2d at 245. Our early cases, for example, took it as a given that

this power is “necessarily inherent in all courts possessing . . . general

jurisdiction.” Scott v. State, 24 S.W. 789, 790 (Tex. 1894); see also Jackson

v. State, 21 Tex. 668, 673 (1858).

Denominating the judiciary’s authority to regulate the practice of

law as an “inherent power” is another way of stating that the original

public meaning of the “judicial power” created by the Texas Constitution

includes such authority. This aspect of the judicial power traces from

“the days of the Inns of Court in common law English jurisprudence,”

Eichelberger, 582 S.W.2d at 398–99, to the time the People adopted

article V, § 1 into the Texas Constitution in 1876.

As the English legal system developed within the common law, so

too did the “unity of interest between the courts and the legal profession.”

Thomas M. Alpert, The Inherent Power of the Courts to Regulate the

Practice of Law: An Historical Analysis, 32 Buff. L. Rev. 525, 529 (1983).

The courts, specifically, were “unique[ly]” interested in exercising

authority over the profession. Id. After King Edward I “ceded control

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over [the profession] to the justices of his courts,” id. at 530, “[t]he

attorneys’ branch was henceforth a closed profession, reserved for those

who had been educated to it, and admitted to it, in the official course”—

but always “under the direction of the court[s],” Theodore F. T. Plucknett,

A Concise History of the Common Law 217–18 (5th ed. 1956).

The “attorney,” eventually synonymous with the modern English

solicitor, was “an officer of the court,” a privilege that meant he was

directly “subject to its orders.” People ex rel. Karlin v. Culkin, 248 N.Y.

465, 472–73 (1928) (Cardozo, C.J.); see also Alpert, supra, at 530–31 &

n.26. Attorneys’ distinction as officers of the court made them, as

Blackstone recounted, “peculiarly subject to the censure and

animadversion of the judges.” 3 William Blackstone, Commentaries *26

(emphasis added); see also Culkin, 248 N.Y. at 475–76 (discussing the

English courts’ system “for a continuing inquiry into the [attorneys’]

conduct” and “with a view to their discipline and removal by a court of

civil jurisdiction”).

Unsurprisingly, like the English courts, colonial courts exercised

authority over the practice of law. See Charles Warren, A History of the

American Bar 86, 109, 113, 121, 123, 130 (1911) (noting the courts’ roles

in Massachusetts, Pennsylvania, New Jersey, the Carolinas, and

Connecticut). This continued after the ratification of the U.S. Constitution

and over the first century of American independence, including when

Texas joined the Union and ratified the current Constitution. Adhering

to common-law practice, the U.S. Supreme Court referred to attorneys

as “its officers.” Ex parte Secombe, 60 U.S. (19 How.) 9, 13 (1856); see also

Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530–31 (1824). Indeed, these

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“officers of the court” could “only be deprived of their [privileges]” or

admitted to practice through the “exercise of judicial power.” Ex parte

Garland, 71 U.S. (4 Wall.) 333, 378–79 (1866). State courts echoed these

sentiments throughout the nineteenth century. E.g., Ex parte Brown, 2

Miss. 303, 306–07 (Miss. Err. & App. 1836); People ex rel. Mulford v.

Turner, 1 Cal. 143, 150 (1850); State ex rel. Walker v. Mullins, 31 S.W.

744, 745 (Mo. 1895).

Most importantly, this Court did so, both before and after the

adoption of the present article V, § 1. See Scott, 24 S.W. at 790; Jackson,

21 Tex. at 673. The Court embraced the “officer of the court” concept from

the beginning. See, e.g., State v. Johnson, 12 Tex. 231, 238 (1854) (“The

District Attorney is not only an officer of the State, but also, in common

with other attorneys, an officer of the Court.” (emphasis added));

Richardson v. Wells, 3 Tex. 223, 227–28 (1848) (observing that “an

attorney” is “an officer of the court”).

References to “inherent” power in the context of attorney discipline

and admissions, in short, reflect that the original public meaning of the

judicial power in 1876 included the courts’ “inherent power” to regulate

the practice of law. See Nolo Press, 991 S.W.2d at 769; State v. Robinson,

26 Tex. 367, 371 (1862) (noting that the power to “disfranchise attorneys,

before and without conviction or indictment[,] . . . should be independent”

and “should be regarded as one of the inherent powers”). As one well-

known legal-ethics scholar observed in 1989, “[a] century or more ago the

predominant role of courts in regulating lawyers would have seemed

simply inescapable, natural, and inevitable to anyone.” Charles W.

Wolfram, Lawyer Turf and Lawyer Regulation—The Role of the Inherent-

17

Powers Doctrine, 12 U. Ark. at Little Rock L. Rev. 1, 5 (1989). It is this

jurisprudential history that animates statements like our observation

that “the Court [itself] must have the power to regulate” the practice of

law “to fulfill its constitutional role.” Gomez, 891 S.W.2d at 245.

At the same time, the three branches can and have worked

together in this context. For instance, to “aid” this Court in the exercise

of its judicial power “to regulate the practice of law,” see Tex. Gov’t Code

§ 81.011(b), the legislature enacted the State Bar Act, which simply

“provide[d] a statutory mechanism for promulgating regulations

governing the practice of law,” Gomez, 891 S.W.2d at 245. The legislature

explicitly disclaimed that the State Bar Act operated “to the exclusion of

[the judicial department’s] powers.” Tex. Gov’t Code § 81.011(b). And

“[t]he Legislature has acknowledged that the Court has exclusive

authority to adopt rules governing admission to the practice of law in

Texas.” Unauthorized Prac. of Law Comm. v. Am. Home Assurance Co.,

261 S.W.3d 24, 33 (Tex. 2008); see Tex. Gov’t Code § 81.061 (“Rules

governing the admission to the practice of law are within the exclusive

jurisdiction of the supreme court.”). Legislative willingness to assist the

judiciary without purporting to invade the judiciary’s inherent authority

is consistent with the Constitution’s use of the term “judicial power.”

The commission’s very existence concretely illustrates how the

branches have cooperated in this area. Some history provides context.

The commission was not officially created until 1991, replacing the then-

existing “grievance oversight committee.” See Act of May 23, 1991,

72d Leg., R.S., ch. 795, § 21, 1991 Tex. Gen. Laws 2794, 2801. The path

toward a more uniform and, at least from the courts’ perspective, less

18

burdensome disciplinary system was already well-trodden by then. In

1939, the first State Bar Act encouraged systematizing and simplifying

the disciplinary process by “empowering the Supreme Court to prepare,

propose, adopt[,] and promulgate rules and regulations for disciplining,

suspending[,] and disbarring attorneys at law.” See Act of Apr. 6, 1939,

46th Leg., R.S., ch. 1, 1939 Tex. Gen. Laws 64, 64.

Commentary from the very first issues of the Texas Bar Journal

highlighted how both the state legislature and the legal profession were

under public pressure to integrate the State Bar and “stream-lin[e] and

modernize” the disciplinary rules. E.g., Ben H. Powell, To the Members

of the Texas Bar Association, 1 Tex. B.J. 356, 356 (1938) (letter from the

then-president of the Texas Bar Association). Perhaps with some

exaggeration, one State Bar Act proponent observed that as things stood,

it was “virtually impossible to bar any lawyer from further practice

regardless of how reprehensible his actions may have been or how much

his unscrupulous and shady transactions may have hurt the legal

profession.” See F. E. Knetcsch, Have Lawyers ‘Slipped’ as Leaders? A

Legislator Says We Have, and Suggests a Remedy, 1 Tex. B.J. 357, 370

(1938). To “curb[] this evil,” “full time officers” within the then-voluntary

Texas Bar Association could assist the judiciary to more “promptly and

effectively disbar the [unscrupulous practitioners] from our ranks” should

the State Bar Act become law. Id.

It did become law, and ever since then, the State Bar Act and its

successive amendments have yielded many efficiencies. We need not

look further than our own docket to recognize the commission’s valuable

contribution to safeguarding Texas citizens from unscrupulous lawyers

19

while ensuring fairness and evenhandedness to lawyers subjected to

challenges. This Court could not do that job alone.

But the commission’s contributions are only the latest example.

Throughout Texas history, this Court disciplined, suspended, and when

necessary, disbarred attorneys admitted to practice in Texas. To

facilitate that authority, the Third Congress of the Republic of Texas

passed a law (exactly a century before the State Bar Act, as it happens)

that the State’s first legislature adopted in 1846—a statute “[t]o regulate

the License and Practice of Attornies and Counsellors at Law.” 2

Gammel, supra, at 1551–55; see id. at 136–39 (the 1839 enactment). The

statute provided that attorneys who are guilty of “any fraudulent or

dishonorable conduct, or of any mal-practice,” could be “suspended or

stricken from the roll of attornies at the direction of the court; and any

attorney who may be stricken from the roll, shall not afterwards be

allowed to practice in any court of the State, unless reinstated on appeal

to the supreme court.” Id. at 1553. The legislature provided that a Texas

attorney could be prosecuted “by motion or information of any two or more

practicing attornies of any court in which the party prosecuted may

practice, . . . and the motion or information shall be made and carried on

in the name of the State of Texas.” Id. at 1553–54; see also 3 Gammel,

supra, at 1562 (1854 amendments). Thus, the legislature has long

assisted the judicial branch in the discharge of its duties by providing

supplemental tools for streamlining discipline and using the bar—in

other words, other attorneys—to maintain discipline.

We disbarred at least one attorney with the aid of these provisions.

In Dillon v. State, an attorney sought a divorce for Mrs. Martha Ann

20

Walker after a mysterious “gentleman he did not know” supposedly

requested that he “bring the suit.” 6 Tex. 55, 58–59 (1851). It turned out,

however, that the attorney sought the divorce “without any authority

whatever from [Mrs. Walker].” Id. at 58. In response, two attorneys

invoked the statutory mechanism and moved for the trial court to order

the attorney to show cause for “why he should not be stricken from the

roll of practicing attorneys on a charge of malpractice.” Id. at 55. We

found the attorney’s story “altogether too improbable to be entitled to the

least possible credence.” Id. at 59. Rather, it was more likely that the

attorney “act[ed] in fraudulent collusion with the husband to procure the

divorce without the knowledge and consent of the wife.” Id. at 59–60.

Thus, the trial court was “fully justified . . . in revoking his license.” Id.

at 60.

A few years later, in Jackson, we confirmed that these early

statutory provisions facilitated but did not supplant the inherent

authority of the courts—they made discipline easier and more uniform,

but they did not make discipline possible or confine its administration

to new forms. The “power to enforce the forfeiture [of an attorney’s

professional franchise] must be lodged” in the courts, as “[s]uch a power

is indispensable to preserve the administration of justice.” Jackson, 21

Tex. at 672–73. There, we reversed a trial court’s decision to strike an

attorney from the rolls where nothing in the record supported the

judgment. See id. Several decades later, in Scott, we reversed the court

of civil appeals after it dismissed the judgment against an attorney that

“revok[ed] his license to practice law” and “str[uck] his name from the roll

of attorneys.” 24 S.W. at 789. This Court observed that the legislature

21

did “not expressly confe[r]” the “power to disbar attorneys” on the district

courts, but we reiterated that “[t]he power to disbar attorneys . . . is a

power necessarily inherent in all courts possessing such general

jurisdiction as is given to the district courts by the [C]onstitution.” Id. at

790; see also Robinson, 26 Tex. at 371.

Proceeding in these ways was laborious and at least risked a

perception of variation and inconsistency; the creation of the State Bar

and the various disciplinary bodies within it since 1939 has sought to

mitigate these problems. The current commission plays its role in this

effort in reliance on its relationship with this Court for its ability to

subject attorneys to scrutiny—potentially life-altering scrutiny, given the

consequences of discipline. Early on, we recognized that “proceeding to

disbar an attorney may be highly penal” because he may be “deprived of

the right to pursue and reap the profits of a profession, to fit himself for

which he may have spent years of toil, and upon which he is dependent

for a livelihood.” Scott, 24 S.W. at 789.

Our history and jurisprudence therefore reflect that the

commission has a significant but limited role in assisting this Court in

its duty to superintend the admission to the practice of law and the role

of attorneys within the judicial system. The importance of professional

discipline is unquestioned, and it is part of the judicial power itself for

courts to be able to demand that any attorney appearing before them

adhere to professional standards. Direct review of conduct before a

tribunal is part of this history.

The commission, by contrast, does not wield an identical version of

the courts’ disciplinary power in all contexts. Like the larger state bar

22

itself, the commission’s exercise of any authority is derivative of this

Court’s inherent powers and is to be deployed as an administrative aid to

the Court. Put to practice, this means that any exercise of power that

would have been improper or unauthorized for this Court to undertake

before the commission’s creation would necessarily be improper and

unauthorized for the commission to undertake now. The commission is

bound by these limitations on judicial authority even as it does not, and

indeed could not, remotely exercise the full judicial power. As we have

described, under the statute creating it, none of its members are active

judges, and the judiciary does not even select the majority of the

commission’s members—let alone control the statutory appointment

scheme set forth by the legislature. This case provides no occasion to

examine any tension that could arise between how the commission is

structured and its proper role as an administrative aid to this Court’s

exercise of its inherent powers. It is enough to recognize that while the

Court, the rest of the judiciary, the public, and the profession itself all

benefit from the State Bar Act, which creates the commission, the Act is

not the source—much less the sum—of judicial authority to regulate the

practice of law.

In addition to this and other inherent judicial powers vested in

this Court by article V, § 1 and reserved to the judicial department

under article II, § 1, the Constitution expressly imposes certain duties

on the Court, including the promulgation of rules of civil procedure and

judicial administration. See Tex. Const. art. V, § 31. This aspect of the

Court’s role is addressed in and facilitated by other chapters of the

Government Code and does not directly affect the case now before us.

23

2

Pitted against the commission’s derivative exercise of judicial

power is the first assistant, who “operates under the direct supervision of

the Attorney General.” 7 Tex. Jur. 3d Attorney General § 4; see also Tex.

Gov’t Code § 402.001(a) (“If the attorney general is absent or unable to

act, the attorney general’s first office assistant shall perform the duties

of the attorney general that are prescribed by law.”). Under our

Constitution, the attorney general is an executive-department officer

“whose primary duties are to render legal advice in opinions to various

political agencies and to represent the State in civil litigation.” Perry v.

Del Rio, 67 S.W.3d 85, 91 (Tex. 2001) (first citing Tex. Const. art. IV, §§ 1,

22; and then citing Tex. Gov’t Code § 402.021). Like the commission,

which derives its constitutional power from the judicial department, the

first assistant derives any authority that he may exercise from the

executive department—and specifically from the attorney general, whose

authority comes from the Constitution and from statutes. The degree to

which the commission and the first assistant exercise constitutional

powers, however, is far from the same.

Because all the “constitutional and statutory authority is vested in

one Attorney General,” the first assistant’s exercise of power is

intertwined with and can never exceed the attorney general’s. See PUC

v. Cofer, 754 S.W.2d 121, 123–24 (Tex. 1988) (noting that “the various

assistant attorneys general have no constitutional or statutory authority

that is not derived directly from the Attorney General himself ”). That

distinguishes him from the commission, which cannot exercise the full

judicial power. He instead must operate next to and in tandem with the

24

constitutional source of power. In other words, when the first assistant

acts under the direction of the attorney general, he does so as if the

attorney general himself had acted. Like other high executive-branch

officials elected by the People, the attorney general cannot exercise the

function of his office—or at least very little of it—without assistance from

those who work under his direction. The challenge posed by the

commission, therefore, is a challenge to the powers entrusted to the

attorney general.

Those powers have deep roots. We have observed that the office of

the attorney general “is one of ancient origin.” Charles Scribner’s Sons v.

Marrs, 262 S.W. 722, 727 (Tex. 1924). “This personage was the chief law

officer of the [English] Crown, and its only legal representative in the

courts.” John Ben Shepperd, Common Law Powers and Duties of the

Attorney General, 7 Baylor L. Rev. 1, 1 (1955). As such, he was subject to

the Crown’s wishes, but his office was also vested with substantial power,

discretion, and “exceptional privileges.” See 6 W. S. Holdsworth, A

History of English Law 468–69 (1924).

The Office of the Attorney General of Texas preexisted our

statehood and was incorporated into our first constitution. Shepperd,

supra, at 4–5. In relevant part, the current constitutional provision states

as follows:

The Attorney General shall represent the State in all suits

and pleas in the Supreme Court of the State in which the

State may be a party, and [he] shall . . . perform such other

duties as may be required by law.

Tex. Const. art. IV, § 22. By this text—and a related statute empowering

him to “prosecute and defend all actions in which the state is interested

25

before the supreme court and courts of appeals,” Tex. Gov’t Code

§ 402.021—the attorney general is “clothed with important powers and

responsibilities,” Marrs, 262 S.W. at 729. Like the common-law attorney

general, the Texas attorney general “is the chief law officer of the State.”

Agey v. Am. Lib. Pipe Line Co., 172 S.W.2d 972, 974 (Tex. 1943). He is

likewise subject to the will of the sovereign—no longer the Crown but now

the People. Still, his office’s duties remain “multifarious, neces[s]arily

involving at all times the exercise of broad judgment and discretion.”

Marrs, 262 S.W. at 727. A century ago, we resolved that this “judgment

and discretion . . . will not be controlled by other authorities.” Id.

(emphasis added).

That judgment and discretion includes not only bringing and

defending lawsuits but also, as we expressed in Agey, the “right to

investigate the facts and [to] exercise his judgment and discretion

regarding” the suits in which the State is an interested party. 172 S.W.2d

at 974. For example, his “filing of a suit,” id., depends on his

“examin[ation] into the facts of the alleged offense, and [his] find[ing] not

only that there is reasonable ground to believe that the statute has been

violated, but also that the evidence necessary to a successful prosecution

of the suit can be procured,” Lewright v. Bell, 63 S.W. 623, 624 (Tex. 1901).

Of course, every attorney can and should investigate the

underlying facts, assess the likelihood of procuring evidence to support

the potential claims, determine whether the facts and the law justify

bringing suit or asserting a defense, and otherwise exercise sound

judgment in whether and how to do so. This process captures the essence

of the profession, at least for those attorneys who practice litigation. And

26

yet we would not have needed to make those points so markedly in cases

like Agey, Lewright, and Marrs if the attorney general’s authority were

merely the same as every other attorney’s. Those decisions stand for an

entirely different point: that the attorney general’s assessments in

bringing suit are privileged at a constitutional level from collateral review

by the other branches.

At the same time, of course, the “powers of the office of Attorney

General are limited.” State v. Thomas, 766 S.W.2d 217, 224 (Tex. 1989)

(Hecht, J., dissenting); see also Florida ex rel. Shevin v. Exxon Corp., 526

F.2d 266, 276 (5th Cir. 1976) (Coleman, J., dissenting) (noting that while

a state attorney general is “the chief law officer of the realm, he does not

exercise [his] authority as an unlimited monarch, governed only by his

own judgment”). Though he has “broad discretionary power in carrying

out his responsibility to represent the State,” “the Attorney General can

only act within the limits of the Texas Constitution and statutes.” Del

Rio, 67 S.W.3d at 92. In suits brought by the attorney general, therefore,

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. This allowance is consonant with our

repeated observation that the coordinate departments cannot “enlarge,

restrict, or destroy the powers of any one of th[em].” Lytle, 12 S.W. at 611;

see also Del Rio, 67 S.W.3d at 91–92 (quoting Garcia v. Laughlin, 285

S.W.2d 191, 194 (Tex. 1955)).

* * *

The underlying interests of both branches are valid. The judicial

branch has the authority to demand compliance with the rules of

27

professional discipline from attorneys who invoke a court’s jurisdiction,

including those from the executive branch. The executive branch has the

authority to make determinations about the propriety of filing suit

without the other branches’ attempts at control. The question for this

Court, then, is whether one of these interests may trump the other or

whether—and how—they may both be accommodated in our

constitutional tradition of the separation of powers.

III

We do not find the call to be close. Direct scrutiny within the

judicial process accommodates the inherent authority and responsibility

of the judicial branch. A court that perceives or is alerted to a professional

violation may address it, always sensitive to a coordinate branch’s

authority, its entitlement to respect, and the presumptions of good faith

and regularity that it is owed. But the commission claims authority for

the judicial branch that the judiciary lacks: a free-ranging power to

second-guess the attorney general’s and his first assistant’s exercise of

discretion in making initial filings that is wholly divorced from and

collateral to the litigation in which those filings are made. This claim of

authority creates unauthorized friction between the judicial and

executive departments. Exercising jurisdiction to reach the merits of the

commission’s lawsuit would violate the separation-of-powers doctrine.

A

All appear to agree that the commission may not collaterally

scrutinize the attorney general’s (or the first assistant’s) decision to file

a lawsuit, no matter how controversial or problematic the suit may be.

Instead, the commission argues that all our precedents concerning the

28

attorney general’s core constitutional powers pertain only to that choice—

his ultimate decision to file a suit. E.g., Lewright, 63 S.W. at 624

(examining “the duty of the attorney general to institute suits”); Marrs,

262 S.W. at 727 (describing the attorney general’s judgment and

discretion in “bringing suits”); Agey, 172 S.W.2d at 974 (same “regarding

the filing of a suit”); cf. Thomas, 766 S.W.2d at 219 (assessing the attorney

general’s ability to “take action ‘in the courts’ ” (citation omitted)). From

that premise, the commission contends—and the court of appeals

agreed—that filing a suit is wholly distinct from making the

representations within it. It then asserts that this case only targets the

latter—the six alleged misrepresentations. So, it concludes, the

disciplinary proceedings in no way “challenge the Attorney General’s

decision to file the suit” in the Supreme Court. 676 S.W.3d at 698.

We agree with the commission to an extent. The decision to file a

case is at least in some respects distinct from the specific content of the

case. An entirely defensible lawsuit may be infected with wholly

indefensible allegations. But we disagree with the commission on a more

important level. When referring to the attorney general’s broad

constitutional discretion, this Court has never drawn a line between these

two actions—his authority to file suit and his authority to populate the

suit with the representations that give it force and led him to file it. To

the contrary, to the extent that they are privileged at all, both actions are

privileged to the same degree.

The commission’s argument is therefore foreclosed by our

precedents. See supra Part II.B.2. In Agey, for example, we recognized

the attorney general’s responsibility “to institute in the proper courts

29

proceedings to enforce or protect any right of the public that [was]

violated,” which of course depended on his “investigat[ion] [of] the facts.”

172 S.W.2d at 974. On other occasions, when addressing the attorney

general’s ability to “elec[t]” whether to bring suit, Marrs, 262 S.W. at 728,

or to “examine into the facts of the alleged offense,” Lewright, 63 S.W.

at 624, we referred to his broad constitutional discretion to select legal

arguments, assess the available facts and evidence, and then make the

ultimate decision about whether to file suit. The attorney general’s

understanding of the facts and the law, of course, is what generates the

content of the original petition—the allegations and representations

made to the court.

In other words, it does not matter that the decision to file can be

distinguished in a theoretical sense from selecting the contents of the

filing. Those two activities are also integrally connected, which is why

our cases treat them with an identical level of constitutional protection.

We reaffirm this core constitutional principle today: When filing suit on

behalf of the State without any allegation of criminal or ultra vires

conduct, the attorney general (and hence the first assistant) is not

subject to collateral review of either the choice to file a lawsuit or the

representations in the suit’s initial pleadings. 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.

Our considerable case law is far from “no authority,” see post at

7–8, for our application of the law. See also infra Part III.B.3 (further

examining the relevant cases). Those cases explain the nature of the

30

constitutional conflict at issue. They provide the foundation for both

principles: that direct review by a court of the attorney general’s initial-

filing decisions cannot be foreclosed without sacrificing the core judicial

power of compelling adherence to the disciplinary rules and that

collateral review must be foreclosed in this context to avoid sacrificing

the authority that our cases unambiguously afford him.

B

The foregoing analysis nearly resolves the case, but there is a bit

more for us to do. Having refused to divorce the first assistant’s decision

to file the pleadings from the representations within them, we proceed

to analyze whether the district court could exercise subject-matter

jurisdiction over the commission’s petition. We do so by reviewing the

commission’s “pleadings and factual assertions” that implicate the

attorney general’s exercise of constitutional powers delegated to the first

assistant. Cf. City of Elsa, 325 S.W.3d at 625. We proceed in three steps:

first, by defining the scope of our review; second, by analyzing the

commission’s specific allegations and its theory of the case; and third,

by weighing the court of appeals’ holding against our precedents.

1

At the outset, the commission argues that our review is limited.

Specifically, it says that we cannot examine the alleged misrepresentations

because doing so would prematurely address the merits of the

disciplinary proceedings against the first assistant. This argument

echoes the view of the court of appeals, under which the first assistant’s

defense of his alleged misrepresentations “ha[d] no bearing on the

jurisdictional question before [it].” 676 S.W.3d at 698 (finding his

31

arguments “inappropriate”). Instead, all that mattered was that the

commission’s “petition meets all requirements of a disciplinary petition

filed in a district court, including ‘[a] description of the acts and conduct

that gave rise to the alleged Professional Misconduct’ and ‘[a] listing of

the specific [disciplinary] rules . . . allegedly violated by the acts or

conduct.’ ” Id. at 695–96 (quoting Tex. Rules Disciplinary P. R. 3.01).

This approach would be proper for a purely private action, but it

fails to account for how the “facts underlying the merits” and the facts

underlying our jurisdiction can be “intertwined” in the context of a

governmental plea to the jurisdiction. E.g., City of Fort Worth v. Pridgen,

653 S.W.3d 176, 182 (Tex. 2022); see also Van Dorn, 642 S.W.3d at 458–

59 (applying “separation of powers principles to determine whether

jurisdiction existed” while discussing “disputed jurisdictional fact issues

intertwined with the merits”). Sometimes, as here, that intersection is

“unavoidabl[e],” at least in part. See Chambers–Liberty Counties

Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019) (citing Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex.

2004)). Our analysis of the separation-of-powers problem before us

requires a review of the purported misrepresentations, especially where

the constitutional injury the first assistant alleges is the commission’s

scrutiny of his representations filed in the U.S. Supreme Court. This

analysis implicates but of course does not resolve the underlying merits

of whether the first assistant violated Texas Disciplinary Rule of

Professional Conduct 8.04(a)(3). Cf. id. at 349. Our holding, after all, is

that reaching the merits is what a court may not do in these

circumstances.

32

2

We conduct our review by “constru[ing] the pleadings liberally” in

the commission’s favor and “look[ing] to [its] intent.” Miranda, 133

S.W.3d at 226. That review reveals, from the face of the commission’s

petition, that the specific allegations—whether well-founded or

otherwise—impermissibly seek to challenge the first assistant’s legal

determinations and assessments of the available facts and evidence at

the time he filed the initial pleadings in the Supreme Court. The theory

of the commission’s case against the first assistant is that he is liable for

having “engage[d] in conduct involving dishonesty, fraud, deceit or

misrepresentation,” Tex. Disciplinary Rules Prof’l Conduct R. 8.04(a)(3),

because his six alleged misrepresentations were not “supported by any

charge, indictment, judicial finding, and/or credible or admissible

evidence.” Eschewing any limiting principle, the commission commits

to a reading of Rule 8.04(a)(3) that it says is “broa[d] in scope” and that

denotes “a lack of honesty, probity, or integrity in principle” as well as a

“lack of straightforwardness.”

This unbounded reading of Rule 8.04(a)(3) belies the commission’s

suggestion that it is simply attempting to hold the first assistant to the

same standards of professional conduct as all other Texas-licensed

attorneys. The deployment of Rule 8.04(a)(3) at the pleadings stage is

particularly problematic. Demanding such things as “judicial findings”

and “credible or admissible evidence” at the time the first assistant filed

the bill of complaint raises a host of concerns—some that would apply

whether the challenged attorney was in private practice or in public

office, and some that are specific to the attorney general’s authority.

33

For one thing, the commission’s view of Rule 8.04(a)(3)’s demands

is—at best—in tension with the minimum pleading standards for filing a

federal complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding

that “[t]o survive a motion to dismiss,” a claim must have “facial

plausibility,” meaning “more than a sheer possibility that a defendant has

acted unlawfully”), as well as the commentary to our own disciplinary

rules, see, e.g., Tex. Disciplinary Rules Prof’l Conduct R. 3.01 cmt. 3

(noting that “[a] filing or contention” is “not frivolous . . . merely because

the facts have not been first substantiated fully or because the lawyer

expects to develop vital evidence only by discovery” (emphasis added)).

We have some doubts, therefore, that the commission’s charges under

Rule 8.04(a)(3) would be permissible to scrutinize initial pleadings even

in purely private litigation, but we need not resolve that question today.

Suffice it to say that when a court holds a lawyer—any lawyer—to

account under Rule 8.04(a)(3), whether directly or collaterally, it should

do so with caution after giving that rule a careful reading.

More importantly, the 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. As we

have reiterated, the 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. See supra Parts

II.B.2, III.A.

We confronted an analogous situation in Marrs, where we issued a

writ of mandamus directing the state superintendent to perform “the

34

ministerial acts required of him” by statute. Marrs, 262 S.W. at 723, 728.

The relator had entered a contract to sell and furnish textbooks to the

State, and the superintendent declined to observe the contract or perform

“according to its terms.” Id. at 728. But the attorney general, not the

superintendent, was “the officer authorized by law to protect the interests

of the state in matters of this kind, and to determine whether or not suits

shall be brought . . . to test the validity of its contracts, or to annul them.”

Id. at 727. Such determinations, we said, are cloaked with political

nuance. See id. at 728. For example, even supposing the contract in

Marrs was procured by “fraud or collusion,” the attorney general could

still “elect” whether to bring suit, as “[i]t may be that the state would

desire the benefits of [such] a contract.” Id.

The commission here, like the superintendent in Marrs, seeks “to

determine whether or not suits shall be brought,” see id. at 727, and

more, it attempts to second-guess the attorney general’s judgment and

discretion in populating the suit with the representations that gave it

force. Yet “independent of [the commission’s] judgment as to the wisdom

of ” the State’s bill of complaint, the attorney general’s “judgment and

discretion . . . will not be controlled by other authorities.” Cf. id. at 727–

28 (emphasis added)). This principle would mean little if it did not bar

subsequent second-guessing of the attorney general’s decision, which is

what we call collateral review.

The U.S. Supreme Court, of course, has full authority to discipline

any attorneys appearing before it. It is the federal judicial system’s court

of last resort; lawyers appearing before it must be admitted by that Court

to its own bar, over which it has exclusive control. For initial pleadings

35

filed in that or any other court by the attorney general, however, purely

collateral review by Texas state authorities under Rule 8.04(a)(3) is

impermissible because of its great risk of usurping the authority

entrusted to the attorney general. Indeed, by 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. Cf. Cofer, 754 S.W.2d at 124 (noting the utility of

the attorney general’s ability to “not be personally involved in every case”

and to “delegate his duties to his assistants”).

In other words, the face of the commission’s petition eliminates any

authorized basis for subjecting the first assistant to discipline and

represents an especially egregious invasion of the attorney general’s

authority. The petition only alleges impermissible grounds for discipline—

it does not allege, for example, that the filing was made in the first

assistant’s private (and thus unprotected) capacity, or that it constituted

criminal (and thus unauthorized and unprotected) conduct, or that it was

ultra vires (and thus was not action on behalf of the State at all). The

first assistant accepts, and so we assume without the need for decision,

that the commission would have collateral authority over him under such

circumstances, which are not alleged and thus not at issue.

We have not previously needed to distinguish between direct and

collateral disciplinary review—but that is because, as far as we can see,

this case is the first one we have seen involving collateral review. To

date, the commission has provided this Court with no precedents for

disciplining any public attorney for allegedly violating Rule 8.04(a)(3)

36

based on representations at the pleadings stage. To its credit, in a post-

submission letter brief, the commission has acknowledged finding only

one other disciplinary matter that relied exclusively on Rule 8.04(a)(3)

involving any “alleged misrepresentations to a court in pleadings or

otherwise.” Even that one matter, however, involved a private rather

than a public lawyer, and it primarily involved out-of-court conduct

rather than statements in judicial filings.

We have found no other such examples ourselves. Our research

shows that of 148 instances where a state or federal court has cited Texas

Disciplinary Rule of Professional Conduct 8.04, not one provided even a

historical example of the commission deploying Rule 8.04(a)(3) against an

executive-branch attorney for representations made in initial pleadings.

This lack of precedent strikes us as unsurprising because the primary

way to address alleged violations of disciplinary (and other) rules in

initial pleadings is our system’s normal way—to take it up with the court

to whom the pleadings are presented. Collaterally disciplining an official

like the first assistant for statements made in initial pleadings—

particularly when a filing involves a politically sensitive lawsuit—creates

a serious risk that the judicial branch will venture into, or be dragged

into, the contentious arena of political disputes. This Court has time and

again refused to do so. See, e.g., Stetson, 658 S.W.3d at 297.

It is true that even direct review might impose some such risks,

and it is also true that the judiciary does not flinch from performing its

task merely because the subject matter might involve controversial topics

that courts would gladly avoid. But the theory underlying the

commission’s case against the first assistant maximizes such a risk,

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including by opening up the process to anyone, anywhere, who for his own

reasons—whether good or bad—desires to harness the judicial power of

this State and to unleash that power in response to decisions of the

executive branch that a complainant opposes. Construing Rule 8.04(a)(3)

to bear such a broad application—any accusation of “a lack of honesty,

probity, or integrity in principle” or a “lack of straightforwardness”—

raises significant separation-of-powers concerns because it is easy to

characterize disagreement in such ways when passions rise. The

commission, like the judiciary that it serves, instead has the duty to

extend to the first assistant—a member of a coordinate branch—a

presumption of regularity, good faith, and legality. See, e.g., United

States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926) (“The presumption

of regularity supports the official acts of public officers, and, in the

absence of clear evidence to the contrary, courts presume that they have

properly discharged their official duties.”); Borgelt v. Austin Firefighters

Ass’n, 692 S.W.3d 288, 303 (Tex. 2024) (“[W]hen courts scrutinize the

other branches’ actions or enactments, we start with the presumption

that the rest of the government, no less than the judiciary, intends to

comply with the Constitution.”).

Accusations like a “lack of straightforwardness” or “integrity in

principle” as bases for subjecting an executive-branch attorney’s initial

pleadings to collateral review under Rule 8.04(a)(3) are therefore doubly

problematic. Such accusations are comparatively vague compared to

other disciplinary rules, e.g., Tex. Disciplinary Rules Prof’l Conduct

R. 1.11 (providing that “a lawyer shall not represent a private client in

connection with a matter in which the lawyer participated personally and

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substantially as a public officer or employee”), and they constitute as

direct an impingement on the presumptions each branch owes to the

others as one can imagine. Accordingly, especially in the context of initial

pleadings, a minimally narrow rather than a maximally broad reading of

Rule 8.04(a)(3) is necessary to avoid undue constitutional friction. And

here, although the commission disclaimed any allegation of bad faith at

oral argument, its view of Rule 8.04(a)(3) in this case suggests the

opposite. By neither giving the first assistant the good-faith presumption

nor recognizing the attorney general’s authority to determine the

arguments and assess the evidence that warrant bringing suit on behalf

of the State, the commission’s unbounded construction of Rule 8.04(a)(3)

forcefully pits the judicial department against the executive.

All that to say, it is insignificant that the commission relabeled the

assessments and determinations that informed and populated the initial

pleadings as “misrepresentations.” Whatever the label, the challenged

statements are part and parcel of the attorney general’s (and first

assistant’s) “investigation of the case, and [his] determination” that “the

evidence necessary to a successful prosecution of the suit can be

procured.” Lewright, 63 S.W. at 624.

3

The court of appeals went a step further. It invoked this Court’s

admonition that the attorney general, and thus the first assistant, “can

only act within the limits of the Texas Constitution and statutes.” Del

Rio, 67 S.W.3d at 92 (emphasis added). Seizing on “and statutes,” the

court of appeals reasoned that “though the Texas Disciplinary Rules of

Professional Conduct are not statutory, they ‘should be treated like

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statutes.’ ” 676 S.W.3d at 698 (quoting O’Quinn v. State Bar of Tex., 763

S.W.2d 397, 399 (Tex. 1988)). It then concluded that the first assistant’s

constitutional discretion “is plainly limited by adherence to the

disciplinary rules.” Id.

All that is true as far as it goes. The first assistant, for his part,

does not dispute that he is bound by the disciplinary rules, which indeed

bind all lawyers. But that the first assistant, like all lawyers, is subject

to the applicable disciplinary rules does not address how the rules apply

in a context laden with constitutional authority or how they are to be

enforced if the violation allegedly springs from initial pleadings. We

think that the court of appeals got the matter backwards. “The

legislature cannot by statute abrogate the Attorney General’s

constitutional grant of power.” Thomas, 766 S.W.2d at 219. If the

legislature could not by statute abrogate our holdings regarding the

attorney general’s authority to assess the facts and law incident to filing

a case, rules (no matter how much “like statutes” they are) certainly may

not do so by authorizing collateral review that the Constitution forbids.

Our decisions in Cofer, Lewright, and Stetson punctuate the point.

In Cofer, we addressed whether a trial court erred in exercising its

inherent powers to preclude the attorney general from “represent[ing]

both the [Public Utility Commission] and a state agency that [was]

appealing [the PUC’s] decision” on the grounds that his “representation

of opposing agencies created a[n] [irreconcilable] conflict of interest.”

754 S.W.2d at 122 (emphasis added). After all, under the disciplinary

rules, being on both sides of a dispute is impermissible. See id.; see also,

e.g., Tex. Disciplinary Rules Prof’l Conduct R. 1.06(a) (“A lawyer shall

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not represent opposing parties to the same litigation.”). But there, the

attorney general’s statutory duty trumped the rules—the attorney

general could represent the State, even though the State’s interests were

divided. Cofer, 754 S.W.2d at 125. Also at play was an even more

fundamental principle: that a disciplinary rule could not “depriv[e] the

Attorney General of a power he clearly possesse[d]”—i.e., the

constitutional “duty to represent the state agencies” and make all the

discretionary decisions that representation entails. See id.; Tex. Const.

art. IV, § 22. The constitutional failsafe, of course, was the court before

which the attorney general appeared. Cofer, 754 S.W.2d at 125. “[I]n

the unlikely event” that the attorney general or his subordinates acted

outside their constitutional authority or acted unlawfully, the court

could deal with that conduct in due course through direct review. Id.

Our decision in Lewright, in turn, confirms that even statutory

duties cannot trump the attorney general’s constitutional authority.

There, we rejected an attempt to superintend via statute the attorney

general’s constitutional discretion. See Lewright, 63 S.W. at 623–24. We

concluded that we could not issue a writ of mandamus that would have

commanded the attorney general “to institute a suit in the name of the

[S]tate.” Id. at 623. True, a statute gave the attorney general the “duty”

to “institute a suit” under the circumstances described in the petition, but

the People entrusted the attorney general to avoid engaging in “vexatious

litigation” or “profitless suits.” See id. at 623–24. He therefore had

broad discretion to “examine into the facts of the alleged offense,” find

“that there [was] reasonable ground to believe that the statute ha[d]

been violated,” and conclude “that the evidence necessary to a successful

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prosecution of the suit c[ould] be procured.” See id. at 624. Accordingly,

the Court refused to “control [the attorney general’s] judgment” or to

“determine his action.” Id. Our recent decision in Stetson similarly

refused to instruct the comptroller regarding how to allocate scarce

resources, which—despite a mandatory duty—was a determination for

the comptroller to make. 658 S.W.3d at 297.

The commission distinguishes our case law by arguing that these

disciplinary proceedings punish the first assistant for past conduct and

so do not control his judgment or determine his future action. But our

precedents are not so thin. Just like the parties in Lewright and Cofer,

the commission threatens the attorney general’s clear constitutional

authority and asks the Court to endorse judicial second-guessing of his

selection of legal arguments, his assessment of the facts and evidence,

and the ultimate decision to file suit based on those determinations.

Cofer, 754 S.W.2d at 125; Lewright, 63 S.W. 623–24. And like in Stetson,

we cannot fashion a “judicial remedy against the executive branch” where

doing so would “interfere in [its] administration of the state government”

and “exercise of discretion.” 658 S.W.3d at 297. Our decision today

adheres to these precedents.

C

The commission makes one last argument: that finding a lack of

subject-matter jurisdiction in this case would not solve, but create, a

separation-of-powers problem. According to the commission, the first

assistant seeks an “exemption” from the rules governing all other lawyers

and thus invades this Court’s prerogative to insist that all lawyers—

public and private—comply with the rules. Again, however, the first

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assistant seeks no such exemption, and we offer none. The commission

then relies on out-of-state or federal case law, but those cases ultimately

support our holding or are inapposite to the purely collateral proceedings

the commission seeks to maintain here. Finally, it argues that the courts

and private attorneys are defenseless against executive-branch attorneys

who may flout the disciplinary rules without concern for professional

liability. We think, however, that the commission’s argument overlooks

the many existing safeguards against the risk of unscrupulous

government lawyers and provides no excuse for the commission’s own

unprecedented actions.

First—and to reiterate yet again—the first assistant claims no

entitlement to violate any disciplinary rule. We authorize no such

entitlement, either. All lawyers are bound by the rules. The judiciary

remains fully capable of vindicating breaches in any context. In the

narrow circumstance before us, however, we conclude that 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. The substance and application of

the rules remains fully intact, and so does our separation-of-powers

precedent.

Second, the commission’s invocation of out-of-state authority fares

no better. It relies on Messameno v. Statewide Grievance Committee,

where the Supreme Court of Connecticut rejected the state attorney’s

extraordinarily broad argument that he could not be disciplined because

“any and all grievance proceedings pertaining to prosecutors” are “a

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violation of the separation of powers.” 663 A.2d 317, 337 (Conn. 1995)

(emphasis added). The state supreme court unsurprisingly rejected such

a broad assertion, but it nonetheless observed that “a prosecutor subject

to investigation [in a grievance proceeding] may be able to allege that,

because of separation of powers principles, different substantive or

procedural rules appl[ied] to him or her than to the average attorney.”

Id. at 336. That is because “particular aspects of the prosecutorial

function”—including weighing “the strength of the evidence”—are

“generally [not] well suited for broad judicial oversight.” Id. We do not

decide today whether even a private lawyer would be subject to the

“substantive” rule that the commission advances—but we agree that if so,

the attorney general and his lawyers are entitled, “because of separation

of powers principles,” to a “different . . . procedural rul[e],” id., in the

sense that the commission may not collaterally attack initial pleadings

made before a court. This principle long predates the Connecticut

Supreme Court’s, or this Court’s, observation. Cf. 6 Holdsworth, supra,

at 468 (noting that the king’s attorney was not “subject to [the court’s]

discipline in the same way as the ordinary attorney”).

We again note that the first assistant does not dispute that a court

can sanction him and other executive-branch lawyers for conduct that

occurs before that court and that violates the Texas Disciplinary Rules of

Professional Conduct. Without opining on the general correctness of the

commission’s other cited cases, they do not advance the commission’s

argument here. E.g., Chilcutt v. United States, 4 F.3d 1313, 1327 (5th

Cir. 1993) (observing that “to restrict a district court’s power to fashion

appropriate sanctions, simply because the transgressor is a member of

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the executive or legislative branch, would violate the separation of powers

doctrine” (footnote omitted)). Likewise, our dissenting colleagues have

offered no helpful authority. They have not cited a single case involving

collateral review of initial filings by the attorney general or his senior

officials. Indeed, their cases do not involve scrutiny of the attorney

general’s conduct at all. See, e.g., post at 5 & n.9 (quoting State ex rel.

Durden v. Shahan, 658 S.W.3d 300, 303 (Tex. 2022), which involved

assessing the authority of county attorneys).

In our view, the commission’s attempt to leverage experience in

other states only confirms our decision. If there were an established

practice of subjecting public lawyers—and especially state attorneys

general—to catch-all provisions like Rule 8.04(a)(3) for alleged

misrepresentations in initial pleadings, we would expect a host of

authorities rather than the silence that we instead find. That silence

reflects the judiciary’s duty to refuse invitations to interfere with

coordinate-branch decisions that are ultimately political. The

commission’s approach risks allowing the judiciary to be commandeered

by adversaries—political or otherwise—who wish to leverage the

disciplinary process in service of deeply felt views of policy or politics

that are best addressed outside the disciplinary process. “Placing the

Constitution’s entirely anticipated political arm wrestling into

permanent judicial receivership does not do the system a favor.” United

States v. Windsor, 570 U.S. 744, 791 (2013) (Scalia, J., dissenting). While

it is of course possible that referrals to the commission could be made

cynically or in bad faith, the greater risk may well be complaints that are

made in good faith—because the complainant genuinely believes in the

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righteousness of his position. In this case, for example, an out-of-state,

inactive Texas attorney believed that “in the middle of a deadly pandemic

and economic recession,” the first assistant “exacerbated” the Union’s

“unprecedented loss of life” and “loss of public cohesion” when he “aided

and abetted” unnamed “malignant, power-deranged political hacks[’]

attempt[s] to disenfranchise voters and subvert democracy.”

The rule this Court announces today protects the prerogatives of

the courts as much as it protects those of the attorney general. “The

hydraulic pressure inherent within each of the separate Branches to

exceed the outer limits of its power, even to accomplish desirable

objectives, must be resisted.” INS v. Chadha, 462 U.S. 919, 951 (1983).

By avoiding the temptation to engage in processes that exceed judicial

bounds, courts protect their very nature as judicial entities. Our decision

applies our well-settled doctrine; it certainly does not fashion a restriction

on the judicial branch’s inherent power out of whole cloth. See post at 8.

Third, we are confident that the normal adversarial system

provides a powerful safeguard against executive-branch authorities who

may violate the Texas Disciplinary Rules of Professional Conduct over the

course of litigation. Once a case has been filed, the opposing party has

every incentive—and indeed obligation—to identify any problems, ethical

or otherwise, with the government’s case or its filings. One of our

disciplinary rules, for example, provides that a lawyer with “knowledge

that another lawyer has committed a [disciplinary rule] violation . . . that

raises a substantial question as to that lawyer’s honesty, trustworthiness

or fitness as a lawyer in other respects, shall inform the appropriate

disciplinary authority.” Tex. Disciplinary Rules Prof’l Conduct R. 8.03(a)

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(emphasis added). One such “appropriate disciplinary authority” is

unquestionably the court overseeing the conduct that gave rise to the

alleged rule violation. And the court does not have to await the opposing

party’s call; if it perceives breaches of the rules or other sanctionable

conduct, the court is empowered to investigate and impose consequences.

See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 723 n.76

(Tex. 2020).

The exercise of such direct review requires sensitivity to a

coordinate branch’s authority and entails the presumptions of good faith

and regularity that we have repeatedly described. See supra pp. 10, 28,

38. But the courts must have the authority to subject any attorney’s

litigation conduct to direct review. Our decision in Cofer, for example,

confirmed that courts possess such direct-review authority over

government attorneys for disciplinary purposes, while acknowledging

that substantive separation-of-powers concerns could arise there as in any

context. 754 S.W.2d at 123. As in Cofer, however, “we need not explore

[those concerns] here,” id. at 124, where no direct review has occurred.

While our precedent suggests that a judge “must” refer unethical

conduct to disciplinary proceedings, Brewer, 601 S.W.3d at 723 n.76, no

referral to the commission occurred in this case, and we have no occasion

to resolve any dispute concerning the proper extent of such a referral. We

note 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.” Cofer, 754 S.W.2d at 124. It is enough to recognize the

47

distinction between a referral to the commission by the presiding court

and a commission activated on its own motion or by any party foreign to

the litigation forming the basis of a grievance.

Fourth, the first assistant has readily agreed that in other

circumstances, the commission—and not just a court—may institute

disciplinary procedures. The first assistant cites private representations

(such as of family members), actions that constitute criminal conduct

(hence the Court’s prior acceptance of a former attorney general’s

resignation in lieu of discipline after he pleaded guilty to federal crimes),

or ultra vires conduct. Yet again, we have no occasion here to address

these or other examples.

Fifth, various political mechanisms serve as additional checks on

the attorney general’s (and by extension, the first assistant’s) conduct.

The attorney general’s client is ultimately the People of the State, who

are empowered to renew his engagement, or not, every four years. As

then-Justice Willett observed, it is this electoral process that prescribes

the strongest medicine for “an obdurate and vengeful Attorney General

Javert.” City of Galveston v. State, 217 S.W.3d 466, 481 (Tex. 2007)

(Willett, J., dissenting). The legislature, moreover, possesses powers for

expressing its disapproval of the attorney general’s conduct. Its devices

include how his office is funded or regulated; or, if necessary, by formal

censure as provided by the Constitution.

Finally, in addition to the other checks on executive-branch

violations of our rules, this Court’s inherent power to discipline (or even

disbar) public and private attorneys alike remains the ultimate failsafe.

See Scott, 24 S.W. at 790; Cofer, 754 S.W.2d at 125. After all, as part of

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its inherent authority, the judiciary policed professional misconduct in

litigation long before the commission was created. See supra Part II.B.1;

Dillon, 6 Tex. at 58–59. That inherent authority remains intact today.

This Court, moreover, will remain the final check if courts

improperly impose or, in egregious cases, refuse to impose discipline. See

Jackson, 21 Tex. at 672–73. The worthy goal of the State Bar Act and its

many revisions is to streamline and systematize the disciplinary system

such that resort to the courts’ inherent authority becomes less and less

necessary. But the authority itself remains. The judicial branch, and this

Court, remain fully capable of redressing whatever concerns may arise

that would otherwise threaten the independence, integrity, or impartiality

of the judiciary. Vindicating our power to “regulate the practice of law in

Texas for the benefit and protection of the justice system and the people

as a whole,” Nolo Press, 991 S.W.2d at 769, does not depend on allowing

the commission to bring lawsuits like the one it initiated here.

IV

Because we conclude that the commission’s case is nonjusticiable

under the separation-of-powers doctrine, we do not reach the first

assistant’s alternative sovereign-immunity argument. The court of

appeals’ judgment is reversed. We reinstate the trial court’s judgment

dismissing the case for lack of subject-matter jurisdiction.

Evan A. Young

Justice

OPINION DELIVERED: December 31, 2024

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