Warren Kenneth Paxton, Jr. v. Commission for Lawyer Discipline

Dismissed and Opinion Filed April 18, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00128-CV

WARREN KENNETH PAXTON, JR., Appellant
V.
COMMISSION FOR LAWYER DISCIPLINE, Appellee

On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-02574-2022

MEMORANDUM OPINION
Before Justices Nowell, Miskel, and Kennedy
Opinion by Justice Nowell
The Commission for Lawyer Discipline filed a disciplinary action against

Warren Kenneth Paxton, Jr.; Paxton is the Attorney General of Texas. In response,

Paxton filed a plea to the jurisdiction asserting the Commission’s suit violates the

separation-of-powers doctrine and is barred by sovereign immunity. The trial court

denied Paxton’s plea to the jurisdiction, and Paxton filed this interlocutory appeal

pursuant to Texas Civil Practice and Remedies Code Section 51.014(a)(8). The

Commission then filed a motion to dismiss on the ground that this Court lacks
jurisdiction to consider the appeal. We agree. We dismiss Paxton’s interlocutory

appeal for lack of jurisdiction.

A. Jurisdiction over Interlocutory Appeals
Jurisdiction is a question of law we review de novo. Tex. A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). The civil practice and remedies code

permits an appeal from an interlocutory order that “grants or denies a plea to the

jurisdiction by a governmental unit as that term is defined in Section 101.001.” TEX.

CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). Paxton is not a “governmental unit

as that term is defined in Section 101.001.” See id. § 101.001. However, the supreme

court has concluded that when a state official is sued in their official capacity, they

may appeal from an interlocutory order that denies a plea to the jurisdiction in the

same manner as their employing governmental unit. See Koseoglu, 233 S.W.3d at

844–45 (discussing TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)). The

supreme court explained:

When a state official files a plea to the jurisdiction, the official is
invoking the sovereign immunity from suit held by the government
itself. It is fundamental that a suit against a state official is merely
“another way of pleading an action against the entity of which [the
official] is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct.
3099, 87 L. Ed. 2d 114 (1985) (quoting Monell v. Dep’t of Social Servs.
of City of New York, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L. Ed.
2d 611 (1978)); see also Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d
575, 581 (Tex. 2001). A suit against a state official in his official
capacity “is not a suit against the official personally, for the real party
in interest is the entity.” Graham, 473 U.S. at 166, 105 S.Ct. 3099
(emphasis in original). Such a suit actually seeks to impose liability
against the governmental unit rather than on the individual specifically
named and “is, in all respects other than name, . . . a suit against the
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entity.” Id.; see also Tex. Natural Res. Conservation Comm’n v. IT–
Davy, 74 S.W.3d 849, 855–56 (Tex. 2002).

Koseoglu, 233 S.W.3d at 844.

Therefore, to resolve whether we have jurisdiction over this interlocutory

appeal, we must determine whether the Commission’s suit against Paxton is, for all

practical purposes, a suit against the Office of the Attorney General itself. Paxton

argues the Commission’s disciplinary action is an act against him in his official

capacity; the Commission disagrees.

B. Commission’s Allegations against Paxton
The Commission’s Original Disciplinary Petition states the Commission

brings the disciplinary action against Paxton pursuant to the State Bar Act, the Texas

Government Code, the Disciplinary Rules of Professional Conduct, and the Texas

Rules of Disciplinary Procedure.

The Commission alleges Paxton filed a case styled State of Texas v.

Commonwealth of Pennsylvania, State of Georgia, State of Michigan, and State of

Wisconsin in the Supreme Court of the United States on December 7, 2020 (“Texas

v. Pennsylvania”). In Texas v. Pennsylvania, the State of Texas allegedly asked the

Supreme Court to enjoin the “Defendant States’ use of the 2020 election results for

the Office of President to appoint presidential electors to the Electoral College” and

sought to prevent those states from “meeting for purposes of the electoral college

pursuant to 3 U.S.C. §5, 3 U.S.C. §7, or applicable law pending further order.”

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The Commission’s petition alleges Paxton made “dishonest” representations

to the Supreme Court in Texas v. Pennsylvania. Those alleged misrepresentations

are that: “1) an outcome determinative number of votes were tied to unregistered

voters; 2) votes were switched by a glitch with Dominion voting machines; 3) state

actors ‘unconstitutionally revised their state’s election statutes’; and 4) ‘illegal votes’

had been cast that affected the outcome of the election.” The Commission claims the

“allegations were not supported by any charge, indictment, judicial finding, and/or

credible or admissible evidence, and [Paxton] failed to disclose to the Court that

some of his representations and allegations had already been adjudicated and/or

dismissed in a court of law.” Further, the Commission’s petition alleges, Paxton

“misrepresented that the State of Texas had ‘uncovered substantial evidence . . . that

raises serious doubts as to the integrity of the election process in Defendant States,’

and has standing to bring these claims before the United States Supreme Court.”

The Commission pleads that Paxton’s actions in Texas v. Pennsylvania

constitute professional misconduct and violate Rule 8.04(a)(3) of the Texas

Disciplinary Rules of Professional Conduct. The petition alleges venue is proper in

Collin County, Texas, pursuant to Texas Rule of Disciplinary Procedure Rule 3.03

because Collin County is the county of Paxton’s principal place of practice. The

Commission requests a judgment of professional misconduct be entered against

Paxton.

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C. Attorney Discipline
The Supreme Court of Texas supervises the conduct of attorneys admitted to

practice in Texas. TEX. GOV’T CODE ANN. § 81.072(a). To advance this power, the

Texas Legislature enacted the State Bar Act, which, among other things, created the

State Bar of Texas to aid the supreme court in regulating the practice of law,

including overseeing attorney discipline. See id. §§ 81.001–.0156.

The Commission is a standing committee of the State Bar that administers

the Texas attorney-discipline system. See id. § 81.076. Every attorney admitted to

practice in Texas, including those representing a government agency, is subject to

the Texas Disciplinary Rules of Professional Conduct and Texas Rules of

Disciplinary Procedure, both promulgated by the Texas Supreme Court. See id.

§ 81.072(b), (d); see also id. § 81.071 (“Each attorney admitted to practice in this

state . . . is subject to the disciplinary and disability jurisdiction of the supreme court

and the Commission for Lawyer Discipline, a committee of the state bar.”). The

Texas Rules of Disciplinary Procedure state “minimum standards of conduct below

which no lawyer can fall without being subject to disciplinary action.” TEX.

DISCIPLINARY R. PROF’L CONDUCT Preamble: A Lawyer’s Responsibilities (7).

D. Analysis
The Commission asserts Paxton is an attorney licensed by the State Bar of

Texas, and his conduct, as an attorney, is subject to the Texas Rules of Disciplinary

Procedure and the Texas Disciplinary Rules of Professional Conduct. See Comm’n

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for Law. Discipline v. Hall, No. 07-18-00336-CV, 2020 WL 4299115, at *1 (Tex.

App.—Amarillo July 23, 2020, no pet.) (order on rehearing); see also TEX. GOV’T

CODE ANN. §§ 81.071, 81.072(d). The Commission alleges Paxton violated Rule

8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct, which provides

that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation. TEX. DISCIPLINARY R. PROF’L CONDUCT 8.04(a)(3), reprinted in

TEX. GOV’T. CODE ANN., tit. 2, subtit. G, app. A. The Commission’s petition lists

the alleged misrepresentations that Paxton, acting as a licensed attorney, made in

violation of Rule 8.04(a)(3).

The Commission’s role as the administrator of the Texas attorney-discipline

system coupled with the substance of the Commission’s allegations demonstrate

Paxton, individually, is the subject of the lawsuit; the Commission’s suit does not

seek to impose any penalty on the Office of the Attorney General of Texas. See

Comm’n for Law. Discipline v. Webster, 676 S.W.3d 687, 701 (Tex. App.—El Paso

2023, pet. filed). For example, the Commission seeks “a judgment of professional

misconduct” against Paxton, “something that affects only his license to practice law

in Texas and has no effect on the State” and would not control state action. See id.

Further, the Commission filed its petition in the county of Paxton’s principal place

of practice in accordance with Rule 3.03 of the Texas Rules of Disciplinary

Procedure. See TEX. RULES DISCIPLINARY P. 3.03, reprinted in TEX. GOV’T CODE

ANN., tit. 2, subtit. G, app. A-1.

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The focus of the Commission’s allegations is squarely on Paxton’s alleged

misconduct—not that of the State. In the Commission’s disciplinary proceeding

against Paxton, the State is not the real party in interest. See Koseoglu, 233 S.W.3d

at 844. The Commission’s suit does not seek to impose liability against the

governmental unit; it seeks disciplinary measures against Paxton individually as a

licensed attorney for alleged misrepresentations made to the Supreme Court of the

United States. See id. The Commission’s suit cannot be considered a “suit against

the entity,” the Office of the Attorney General, in any respect. See id.

In his brief, Paxton argues the Commission seeks to discipline him for filing

Texas v. Pennsylvania and asserts “the decision to file Texas v. Pennsylvania was a

core (albeit controversial) exercise of the Attorney General’s sole prerogative to

represent the State in civil matters before a court of last result.” He contends he could

have filed the pleadings in Texas v. Pennsylvania only as a member of the Attorney

General’s office and, thus, the Commission’s disciplinary action arises from his

“exercise of his discretionary constitutional and statutory authority to file a lawsuit

in the State’s name that he believes to be in the State’s best interest” and from his

“assessment of the facts, evidence, and law at the time he filed the lawsuit,” at issue.

We disagree. The Office of the Attorney General’s discretion to file a suit is not at

issue in this action; nothing in the Commission’s disciplinary proceedings challenges

Paxton’s decision to file the suit. See generally Webster, 676 S.W.3d at 698. Instead,

the Commission’s allegations relate to specific alleged misrepresentations within the

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Texas v. Pennsylvania pleadings, which the Commission contends violate Rule

8.04(a)(3). See id.

Regulating the practice of law in Texas and maintaining minimum standards

of conduct for its attorneys does not control state action or implicate the sovereign’s

liability for filing any particular suit, including Texas v. Pennsylvania. Nor does such

regulation and maintenance restrain the attorney general’s or his office’s

performance of official duties that are within their legal authority and discretion. The

question here is not whether Paxton acted without legal authority or beyond the

discretion afforded to him under the government code in filing suit or in framing the

State’s pleading; it is whether Paxton’s alleged conduct—intentionally

misrepresenting facts to a court as an officer of the court—fell below the minimum

standards applicable to all attorneys under the Disciplinary Rules of Professional

Conduct.

The Disciplinary Rules apply to all lawyers in Texas, specifically including

government lawyers such as the attorney general. The Rules expressly state that they

do not abrogate the attorney general’s authority. See TEX. DISCIPLINARY RULES

PROF’L CONDUCT, preamble ¶ 13. The Rules further state that compliance depends,

in part, on enforcement through disciplinary proceedings when necessary. See id.

¶ 11. Subjecting Paxton to disciplinary proceedings does not violate separation of

powers; immunizing him does.

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The substance of the Commission’s claims and the relief sought demonstrate

the disciplinary action is not against Paxton in his official capacity. Rather, it is

against Paxton in his capacity as a Texas-licensed lawyer and an officer of the legal

system; a legal system that obliges lawyers to maintain the highest standards of

ethical conduct but subjects them to discipline when they fall below certain

minimum standards necessary to preserve an open society founded on the rule of

law. Paxton “is not exempt from the judiciary’s constitutional obligation to regulate

the practice of Texas attorneys simply because he serves” as the Attorney General.

Webster, 676 S.W.3d at 699. We agree with the court in Webster: “No amount of

discretion in representing the State in civil litigation would permit an executive-

branch attorney to bypass the Commission’s disciplinary process if he engaged in

alleged professional misconduct.” Id. at 698.

E. Conclusion
We conclude the Commission’s suit is against Paxton in his individual rather

than official capacity. Accordingly, we lack jurisdiction to consider Paxton’s appeal

from an interlocutory order denying his plea to the jurisdiction because the civil

practice and remedies code does not expressly permit his interlocutory appeal. We

dismiss the appeal for lack of jurisdiction.

/Erin A. Nowell//
230128f.p05 ERIN A. NOWELL
J. Miskel, dissenting JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

WARREN KENNETH PAXTON, On Appeal from the 471st Judicial
JR., Appellant District Court, Collin County, Texas
Trial Court Cause No. 471-02574-
No. 05-23-00128-CV V. 2022.
Opinion delivered by Justice Nowell.
COMMISSION FOR LAWYER Justices Miskel and Kennedy
DISCIPLINE, Appellee participating.

In accordance with this Court’s opinion of this date, the appeal is
DISMISSED for want of jurisdiction.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 18th day of April, 2024.

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