Brent Edward Webster v. Commission for Lawyer Discipline

Supreme Court of Texas
══════════
No. 23-0694
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Brent Edward Webster,
Petitioner,

v.

Commission for Lawyer Discipline,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Eighth District of Texas
═══════════════════════════════════════

JUSTICE BOYD, joined by JUSTICE LEHRMANN, dissenting.

This disciplinary proceeding against Texas attorney Brent
Webster 1 could easily fail for many reasons. But the constitutional

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

Attorney General, a position that is statutorily empowered to perform the
attorney general’s duties if the attorney general “is absent or unable to act.”
TEX. GOV’T CODE § 402.001(a). As with all the assistants who have been
delegated authority to act on the attorney general’s behalf, Webster has “no
constitutional or statutory authority that is not derived directly from
the Attorney General himself.” Pub. Util. Comm’n of Tex. v. Cofer, 754 S.W.2d
121, 123 (Tex. 1988); see also State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931
(Tex. Crim. App. 1994) (en banc) (“An assistant attorney general operates
under the direct supervision of the Attorney General and exercises no
independent executive power.”).
separation of powers is not one of them. This doctrine prohibits the
legislative, executive, and judicial “departments” from exercising “any
power properly attached to either of the others.” TEX. CONST. art. II § 1. 2
It does not separate powers that exist within a single department or
restrict the means by which a department may exercise a power it
properly possesses. 3 Perhaps some other legal doctrine could prohibit
the judicial branch from doing “collaterally” that which it can
indisputably do “directly” (to use the Court’s new-found terminology),
but the separation of powers between the branches does not. If (as the
Court concedes) the judicial branch has inherent power to discipline an
executive-branch attorney for engaging in professional misconduct, it
may—consistent with the separation-of-powers doctrine—discipline
that attorney through any lawful exercise of that power. The Court’s
freshly minted direct/collateral distinction is unheard of in separation-
of-powers jurisprudence. It lacks both legal support and logical sense. I
must respectfully dissent.
This case pits the executive branch’s power to represent the state
in litigation, as exercised through the attorney general and his

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

589, 591 (Tex. 2015); In re Dean, 393 S.W.3d 741, 747 (Tex. 2012); Gen. Servs.
Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001); Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); State Bd. of
Ins. v. Betts, 308 S.W.2d 846, 851 (1958).
3 See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000) (“[T]he

Constitution only guarantees the separation of the state legislative, executive,
and judicial branches of government.”); see also Clinton v. Jones, 520 U.S. 681,
699 (1997) (“The doctrine of separation of powers is concerned with the
allocation of official power among the three coequal branches of our
Government.”).

2
assistants, 4 against the judicial branch’s power to regulate the practice
of law, 5 as exercised (initially) through the state bar and the commission
for lawyer discipline. 6 In broad terms, the issue is this: If the executive

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

branch of government, possesses the exclusive power “to represent the State in
civil litigation.” Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001); cf. TEX. CONST.
art. IV, §§ 1, 22; TEX. GOV’T CODE § 402.021. He (and, by delegation, his
assistants) have “broad discretionary power in carrying out his responsibility
to represent the State,” Perry, 67 S.W.3d at 92 (citing Terrazas v. Ramirez, 829
S.W.2d 712, 722 (Tex. 1991)), including “the right to investigate the facts and
exercise his judgment and discretion regarding the filing of a suit,” Agey v. Am.
Liberty Pipe Line Co., 172 S.W.2d 972, 974 (Tex. 1943) (citation omitted). The
judicial branch “cannot control his judgment,” for example, by requiring him
to file a suit he has determined should not be filed. Lewright v. Bell, 63 S.W.
623, 624 (Tex. 1901).
5 The judicial branch’s power to regulate the practice of law is one of its

“administrative powers, necessary to the preservation of the judiciary’s
independence and integrity.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245
(Tex. 1994). These are inherent constitutional powers the judicial branch “may
call upon to aid in the exercise of its jurisdiction, in the administration of
justice, and in the preservation of its independence and integrity.” Eichelberger
v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979) (describing the inherent
powers as “woven into the fabric of the constitution by virtue of their origin in
the common law and the mandate of TEX. CONST. Art. II, Sec. 1, of the
separation of powers between three co-equal branches”); see Brewer v. Lennox
Hearth Prods., LLC, 601 S.W.3d 704, 718 (Tex. 2020) (“Courts also possess
inherent powers that aid the exercise of their jurisdiction, facilitate the
administration of justice, and preserve the independence and integrity of the
judicial system.” (citing Eichelberger, 582 S.W.2d at 399)). They include the
power “to regulate the practice of law in Texas,” In re Nolo Press/Folk L., Inc.,
991 S.W.2d 768, 769 (Tex. 1999), including “the admission and practice of
Texas attorneys,” Gomez, 891 S.W.2d at 245.
6 The commission for lawyer discipline is a “standing committee of the

state bar” composed of members appointed by this Court and the bar’s elected
president. TEX. GOV’T CODE § 81.076(b). The commission’s chief disciplinary
counsel serves “as administrator of the state bar’s grievance procedure.” Id.
§ 81.076(g). In cooperation with district grievance committees, the chief
disciplinary counsel reviews and investigates complaints against attorneys
and decides on an appropriate sanction when “just cause” exists. Id.

3
branch possesses the exclusive power to represent the state in litigation
and to exercise broad discretion “regarding the filing of a suit,” Agey, 172
S.W.2d at 974 (citation omitted), may the judicial branch discipline an
executive-branch attorney who violates a disciplinary rule in the
exercise of that discretion? The Court concedes the answer is Yes,
agreeing that the Texas Disciplinary Rules of Professional Conduct
“apply to all Texas lawyers, including the attorney general and his staff.”
Ante at 2.
I agree. To be sure, the judicial branch’s power is not unlimited. 7
But neither is the executive branch’s power, including that exercised by
the attorney general and his assistants. 8 As we just recently confirmed,

§ 81.075(a), (e). An attorney against whom a complaint is filed may elect to
have the matter determined through these disciplinary proceedings or through
litigation in a district court. Id. § 81.075(b)(2). In either case, the attorney has
a right to appeal ultimately to this Court. Id. § 81.0751. These disciplinary
procedures exist “[i]n furtherance of [this Court’s] powers to supervise the
conduct of attorneys.” Id. § 81.072(a). This process through which the
commission conducts disciplinary proceedings to address complaints of
attorney misconduct is what the Court refers to today as “collateral attacks”
and “targeting” of an attorney against whom a complaint is filed. Ante at 3, 36.
7 The Texas Constitution “has always granted substantial authority to

the legislature to regulate important aspects of how the judiciary serves the
People of our State,” and “the separation of powers requires that we respect
the other branches’ checks on the judiciary and not just our checks on them.”
In re Dallas County, 697 S.W.3d 142, 162–63 (Tex. 2024).
8 The attorney general and his assistants, for example, cannot exercise

their authority to resolve a lawsuit in a way that usurps a legislative or judicial
power. See Perry, 67 S.W.3d at 93 (“[O]nly courts have the authority to
effectuate a valid congressional reapportionment plan unless or until the
Legislature acts.” (citing Terrazas, 829 S.W.2d at 720)); Cofer, 754 S.W.2d at
125 (“While the Attorney General has the right and duty to represent the state
agencies, he has no constitutional or statutory authority to exercise powers

4
their “authority to represent the state . . . does not necessarily include
the authority to independently decide whether to institute a suit on the
state’s behalf.” State ex rel. Durden v. Shahan, 658 S.W.3d 300, 303 (Tex.
2022) (per curiam). 9 Nor do they have unlimited power to decide what
to assert, or not assert, within a suit they file. 10 Both the legislative and
judicial branches may control the contents of the attorney general’s
pleadings by, for example, prohibiting claims and allegations that are
“groundless and brought in bad faith” or “groundless and brought for the

that belong to the Legislature or that have been delegated by the Legislature
to administrative agencies.”).
9 As we also just recently confirmed, the legislative and judicial
branches possess the power to regulate whether the attorney general may or
may not file a particular suit. See, e.g., State v. Zurawski, 690 S.W.3d 644, 659
(Tex. 2024) (noting the attorney general “has no authority to enforce the
Heartbeat Act”); In re Abbott, 601 S.W.3d 802, 812 (Tex. 2020) (noting the
attorney general lacks independent authority to bring criminal prosecution
against judges).
10 As the Court explains, we have “never drawn a line between” the

attorney general’s “authority to file suit and his authority to populate the suit
with the representations that give it force and led him to file it.” Ante at 29.
“To the contrary,” the Court explains, “both actions are privileged to the same
degree.” Id. As an obvious example, our pleading rules require that all petitions
contain “a statement in plain and concise language of the plaintiff’s cause of
action,” TEX. R. CIV. P. 45(b), “state the grounds therefor [and] the relief or
order sought,” id. at 21(a), include “a short statement of the cause of action
sufficient to give fair notice of the claim” and “a statement that the damages
sought are within the jurisdictional limits of the court,” id. at 47(a), (b), “state
the names of the parties and their residences, if known,” id. at 79, and “allege
in the first numbered paragraph of the original petition whether discovery is
intended to be conducted under Level 1, 2, or 3,” id. at 190.1. No one disputes
that the judicial branch may dictate the contents of the attorney general’s
pleadings by imposing these requirements, or that it may enforce these
requirements against the attorney general as it may against any private-sector
attorney.

5
purpose of harassment,” or “fictitious,” or “false.” TEX. R. CIV. P. 13; see
TEX. CIV. PRAC. & REM. CODE § 9.011. 11 As the Court agrees today, the
judicial branch can scrutinize the contents of the attorney general’s
pleadings and impose discipline if they are “objectionable, whether for
legal or ethical reasons.” Ante at 30. 12 In short, the separation of powers
does not prevent the judicial branch from regulating the pleadings an
executive-branch attorney files in a court.
But the Court announces today that the separation of powers
limits the means by which the judicial branch can perform such
regulation. According to the Court, the judicial branch may act through

11 This statute prohibiting frivolous pleadings and claims expressly
applies to “any party who is a claimant or defendant, including but not limited
to . . . the State of Texas.” TEX. CIV. PRAC. & REM. CODE § 9.002(b)(10) (emphasis
added).
12 The Court’s opinion contains other broad statements that could
appear to be inconsistent with this acknowledgement. The Court asserts, for
example, that the attorney general’s “judgment and discretion . . . will not be
controlled by other authorities,’” ante at 35 (citing Charles Scribner’s Sons v.
Marrs, 262 S.W. 722, 727 (Tex. 1924)), that “the attorney general’s
assessments in bringing suit are privileged at a constitutional level from
collateral review by the other branches,” id. at 27, and that the attorney
general’s “authority both to file petitions in court and to assess the propriety
of the representations forming the basis of the petitions that he files . . . cannot
be controlled by the other branches of government,” id. at 3. Yet the Court
ultimately acknowledges, as it must, that the “professional disciplinary (and
other) rules . . . apply to all Texas lawyers, including the attorney general and
his staff,” id. at 2, that the “judicial branch has the authority to demand
compliance with the rules of professional discipline attorneys[,] . . . including
those from the executive branch,” id. at 27–28, and that the judicial branch has
authority to “hold[] even the attorney general (and any other executive-branch
lawyer) to account for litigation conduct,” id. at 27. In short, the Court agrees
that—consistent with the separation of powers—the judicial branch can
control the attorney general’s judgment and discretion in the filing of
pleadings.

6
its courts to engage in “[d]irect scrutiny within the judicial process”
without violating the separation of powers, id. at 28, 13 but may not act
through its commission to address misconduct by “collaterally”
reviewing pleadings filed by the attorney general or his assistants, id.
at 37. 14 Although the Court asserts that it merely “reaffirm[s] this core

13 See id. at 30 (“Instead, if the contents of the pleadings are
objectionable, whether for legal or ethical reasons, only direct scrutiny—that
is, by the court to whom the pleadings are presented—is permissible under the
separation-of-powers doctrine.”), 27 (explaining that because the attorney
general “can only act within the limits of the Texas Constitution and statutes,”
when he brings suit, “the authority of the court hearing the case naturally
includes holding even the attorney general (and any other executive-branch
lawyer) to account for litigation conduct” (quoting Del Rio, 67 S.W.3d at 92)).
14 See id. at 27 (“[T]he attorney general’s assessments in bringing suit

are privileged at a constitutional level from collateral review by the other
branches.” (second emphasis added)), 34 (“[T]he commission’s allegations are
at odds with our case law regarding who is constitutionally entitled to assess
the facts and the law that warrant bringing suit on behalf of the State.” (first
emphasis added)0, 34 (“[T]he attorney general’s determinations about whether
a lawsuit and its constituent parts are ‘supported by any charge, indictment,
judicial finding, and/or credible or admissible evidence’ are entrusted to the
attorney general—not the commission.” (emphasis added)), 36 (“[B]y targeting
the first assistant (or any other executive branch attorney exercising the
attorney general’s core constitutional powers), the commission threatens the
attorney general’s ability to run his office and therefore represent the State in
civil litigation altogether.” (emphasis added)).
Actually, the Court allows an exception to this rule, suggesting that the
separation of powers does not prevent the judicial branch from “collaterally”
regulating the practice of an executive-branch attorney if the attorney’s alleged
misconduct “was made in the [attorney’s] private (and thus unprotected)
capacity, or [if] it constituted criminal (and thus unauthorized and
unprotected) conduct, or [if] it was ultra vires (and thus was not action on
behalf of the State at all).” Id. at 36. But the Court fails to acknowledge or
address the fact that conduct that violates a judicially enacted disciplinary rule
is just as “unauthorized” as conduct that violates a legislatively enacted
criminal statute or exceeds the attorney general’s legal authority.

7
constitutional principle,” id. at 30, it cites no authority—from this Court
or any other—that has recognized the direct/collateral distinction it
describes today. That, of course, is because it can’t. 15 Until today, no
court has ever held that the separation of powers prohibits the judicial
branch from regulating the practice of law by one lawful means when it
permits the branch to have the same effect by another.
The Court asserts several justifications for its imaginative
invention of this new direct/collateral distinction, but none withstands
a separation-of-powers analysis. The Court says, for example, that the
separation of powers does not prohibit “direct scrutiny” because direct

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

House of Representatives, 702 S.W.3d 330 (Tex. 2024), but its effort is futile. As
the Court explains, we held in that case that the separation-of-powers doctrine
prohibits the legislative branch from exercising its investigatory power “when
a legislative subpoena would have the effect of blocking a lawfully scheduled
execution.” Ante at 12 (citing Tex. House, 702 S.W.3d at 346–47). We held that
the separation of powers prohibits the legislative branch from exercising its
investigatory power in that circumstance because of the “effect” that exercise
would have on the other branches’ powers, not because of the means by which
the legislative branch sought to exercise its power See Tex. House, 702 S.W.3d
at 334 (holding separation of powers prohibits legislative branch from
exercising its investigatory power in “the face of a scheduled execution” when
doing so would “override the scheduled legal process leading to an execution”).
Under Texas House, the Legislature cannot exercise its investigatory power by
any means if doing so “would thwart the considered and long-planned work of
the other two branches.” Id. at 340. Here, the Court agrees that the judicial
branch may exercise its power to regulate the practice of law when the effect
of doing so prevents the executive branch from deciding whether to file a suit
or what to assert in its pleadings. Ante at 30. But the Court holds that the
separation of powers permits the judicial branch to exercise that power only
through one lawful means (“direct” scrutiny by courts), and not through
another lawful means (“collateral” scrutiny through an agency to which the
branch has delegated that power), even though the effect is the same in both
cases. Id. Neither Texas House nor any other precedent supports that holding.

8
scrutiny “accommodates the inherent authority and responsibility of the
judicial branch.” Ante at 28. But so does “collateral” enforcement of the
disciplinary rules through disciplinary proceedings. 16 Both are equally

16 The judicial branch exercises its inherent authority and responsibility

to regulate the practice of law in two different ways, both of which are equally
valid exercises of its inherent administrative powers. One way it does this is
through what the Court refers to today as “direct scrutiny” of an attorney’s
conduct. Id. at 2. “Trial courts are empowered to command respect and
decorum in courtroom proceedings and may exercise that authority by
sanctioning members of the bar who are pugnacious and indecorous.” Brewer,
601 S.W.3d at 729. The judicial branch may exercise this inherent power to
sanction an attorney’s bad-faith conduct “even when the offensive conduct is
not explicitly prohibited by statute, rule, or other authority.” Id. at 718 (citing
In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)).
Statutes, rules, and other authorities represent a second way courts
regulate the practice of law. See id. at 723. This Court has promulgated both
the Texas Disciplinary Rules of Professional Conduct to establish conduct
standards applicable to all Texas attorneys and the Texas Rules of Disciplinary
Procedure to govern the process for addressing alleged violations of those
standards through disciplinary proceedings. To “aid” the Court in this function,
the Legislature statutorily created the State Bar of Texas, the commission, and
other agencies and positions that exist within the judicial branch to assist the
courts in exercising their inherent power to discipline attorneys who violate
rules governing attorney conduct. The State Bar Act provides “a statutory
mechanism for promulgating regulations governing the practice of
law.” Gomez, 891 S.W.2d at 245; see TEX. GOV’T CODE § 81.011(c). But as the
Court confirms today, the Act “is not the source—much less the sum—of
judicial authority to regulate the practice of law.” Ante at 23. By its own terms,
the Act operates merely “in aid of the judicial department’s powers under the
constitution to regulate the practice of law, and not to the exclusion of those
powers.” TEX. GOV’T CODE § 81.011(b) (emphases added). The State Bar Act, in
other words, merely assists the Court as it exercises its inherent constitutional
powers. See Unauthorized Practice of L. Comm. v. Am. Home Assurance Co.,
261 S.W.3d 24, 33 (Tex. 2008) (“The Legislature has acknowledged that the
Court has exclusive authority to adopt rules governing admission to the
practice of law in Texas.”); Nolo Press, 991 S.W.2d at 770 (“The Court’s
inherent power under Article II, Section I to regulate Texas law practice is
assisted by statute, primarily the State Bar Act.”). Acting “on behalf of the
judicial department,” this Court exercises “administrative control over the

9
proper exercises of the judicial branch’s “inherent authority and
responsibility” to regulate the practice of law. See Nolo Press, 991
S.W.2d at 769; Gomez, 891 S.W.2d at 245.
Similarly, the Court asserts that “direct scrutiny” is permissible
because “[l]awyers who submit to a court’s jurisdiction subject
themselves to that court’s authority” to require their adherence to rules
of professional conduct. Ante at 2. But attorneys who never set foot in a
courtroom also subject themselves to the judicial branch’s authority to
ensure they comply with the disciplinary rules. The judicial branch’s
administrative power to regulate the practice of law exists for “both
conduct before the court and that beyond the court’s confines.”
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). “The distinction
between in-court and out-of-court contempts has been drawn not to
define when a court has or has not the authority to initiate prosecution
for contempt, but for the purpose of prescribing what procedures must
attend the exercise of that authority.” Young v. U.S. ex rel. Vuitton et
Fils S.A., 481 U.S. 787, 798 (1987). The judicial branch has inherent
authority to regulate the practice of every licensed attorney, not just of
litigators who appear in the courts. TEX. GOV’T CODE § 81.071 (“Each
attorney admitted to practice in this state . . . is subject to the
disciplinary . . . jurisdiction of the supreme court and the Commission
for Lawyer Discipline, a committee of the state bar.” (emphasis added));
Brewer, 601 S.W.3d at 723 n.76 (addressing the “processes, procedures,
and standards of review applicable to all attorneys” (emphasis added)).

state bar,” which exists only as “an administrative agency of the judicial
department of government.” TEX. GOV’T CODE § 81.011(a), (c).

10
Still, the Court insists, the judicial branch’s “direct scrutiny” of
an executive-branch attorney’s conduct differs from “collateral” review
through the disciplinary process because collaterally “targeting” the
attorney general’s pleadings poses a “great risk of usurping” executive-
branch authority. Ante at 36. But the Court fails to explain how
“collateral” review creates that risk any more than “direct” review.
Indeed, a court’s “direct” action addressing the attorney general’s
conduct “usurps” the very same powers to the same extent; it just
interferes and usurps “directly” instead of “collaterally.” If the United
States Supreme Court had decided to sanction Webster for filing the
pleading at issue here (as the Court concedes it could have done without
violating the separation of powers), its actions would have interfered
with Webster’s attempt to discharge his duties at least as significantly
as this “collateral” disciplinary proceeding. And the friction that occurs
when the commission reviews an attorney’s conduct is, of course, not
“unauthorized;” it is authorized by the Legislature and by this Court, in
the exercise of the inherent powers the Court concedes belongs to the
judicial branch.
According to the Court, though, the separation of powers
prohibits “collateral” scrutiny of the attorney general’s initial pleadings
unless a court refers the matter to the commission after the court’s
“direct observation of a disciplinary-rule violation.” Id. at 48. Of course,
courts that directly observe an attorney’s misconduct “can, and indeed
must, refer the matter [to the commission] for disciplinary proceedings.”
Brewer, 601 S.W.3d at 723 n.76. But the Court cannot even suggest that
the commission exercises the judicial branch’s inherent power to

11
regulate the practice of law only when it responds to a court’s referral. 17
The commission and the “collateral” disciplinary process through which
it investigates attorney misconduct exist only within the judicial branch
and only “[i]n furtherance of [this Court’s] powers to supervise the
conduct of attorneys.” TEX. GOV’T CODE § 81.072(a). Whether it acts in
response to a referral by a court or to a complaint by someone else, the
commission exercises the judicial branch’s inherent power to regulate
the practice of law.
Regrettably, the Court’s opinion seems to reflect a level of disdain
or distrust for the commission, or at least for the disciplinary rules and
processes that govern the commission’s role. The Court “doubt[s],” for
example, that the commission should ever be able to use Rule 8.04(a)(3)
“to scrutinize the contents of initial pleadings of any attorney,” ante at
2, and it is particularly troubled that the commission can initiate such
scrutiny based on a complaint filed by someone who “does not reside in
Texas,” is not an active Texas attorney, and “has no connection to the
underlying litigation,” id. at 4–5. Yet as the Court concedes, the
commission in this case followed the very process “prescribed by the
Texas Rules of Disciplinary Procedure,” id. at 5, which this Court
adopted. If we are dissatisfied with the process we ourselves created, we

17 The Court acknowledges this reality but declines to consider it
because “no referral to the commission occurred in this case.” Ante at 47.
Instead, it notes “only that a referral to the commission that is preceded by a
court’s direct observation of a disciplinary-rule violation would be an exercise
of the court’s inherent powers ‘to aid in the exercise of its jurisdiction, in the
administration of justice, and in preservation of its independence and
integrity.’” Id. at 47 (quoting Cofer, 754 S.W.2d at 124). But, of course, the
commission’s review of alleged misconduct based on a complaint rather than a
referral is also a valid exercise of those same judicial-branch powers.

12
should change it, not declare portions constitutionally inapplicable,
case-by-case, based on principles we make up as we go along. 18
And we certainly shouldn’t declare portions inapplicable based on
a fundamental yet clearly inapplicable constitutional doctrine like the
separation of powers. No doubt the commission does not possess all the
powers of this Court, or of any court. It possesses no jurisdictional
power 19 at all, and only such administrative powers as this Court has
delegated to it. But the powers it does possess are, as the Court concedes,

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

have. Just last year, we approved an amendment to Disciplinary Rule 1.06 to
address the precise concern that so bothers the Court today. See Order of the
Supreme Court of Texas, Misc. Docket No. 23-9100 (Tex. Dec. 18, 2023); TEX.
RULES DISCIPLINARY P. R. 1.06, reprinted in TEX. GOV’T CODE, tit. 2, subtit. G,
app. A-1. As a result of this amendment, a grievance against a Texas attorney
can qualify as an actionable complaint only if the grievance is submitted by a
“person who has a cognizable individual interest in or connection to the legal
matter or facts alleged.” TEX. RULES DISCIPLINARY P. R. 1.06(G)(2)(f).
19 The judicial branch’s “jurisdictional power” is the power to resolve

individual cases and controversies by hearing and deciding them through the
issuance of legally binding judgments. Davis v. Zoning Bd. of Adjustment of
City of La Porte, 865 S.W.2d 941, 942 (Tex. 1993) (per curiam) (quoting
Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985)); see also Jones v. Hendrix,
599 U.S. 465, 487 (2023) (“[T]he authority to determine the facts and the law
in an individual case, and to render a final, binding judgment based on those
determinations, stands at the core of the judicial power.”); Tex. House, 702
S.W.3d at 342 (describing “the distinctly judicial duties of rendering judgment,
imposing sentence, and adjudicating any appellate or collateral challenges that
may be raised” in a particular lawsuit); Barshop v. Medina Cnty. Underground
Water Conservation Dist., 925 S.W.2d 618, 635 (Tex. 1996) (“[T]he power to
determine controverted rights to property by means of binding judgment” is
“vested in the judicial branch.” (citing Bd. of Water Eng’rs v. McKnight, 229
S.W. 301, 304 (Tex. 1921))). “Jurisdictional power” is “separate and distinct
from” the judicial branch’s “administrative powers.” Eichelberger, 582 S.W.2d
at 400. “The Court’s inherent powers, such as the power to regulate the practice
of law, are not jurisdictional powers.” Gomez, 891 S.W.2d at 245.

13
constitutional powers this Court has delegated to it, as a delegee of “this
Court’s inherent powers” to regulate the practice of law. Id. at 23. As the
Court concedes, “the commission’s work necessarily implicates
derivative judicial power.” Id. at 14. The commission’s power, though
limited, is the power of the judicial branch no less than Webster’s power
is the power of the executive branch. If the Court is dissatisfied with the
commission’s operations, it can of course alter its delegation by
appointing different members or revising our disciplinary-procedure
rules. But for purposes of determining the separation-of-powers
doctrine’s effect on the commission’s role, the commission’s power is as
much the power of the judicial branch as is our own. 20
Fortunately, despite the Court’s many broad statements about
the separation of powers, the Court’s powers, the commission’s powers,
and the attorney-discipline process, its actual holding in this case is very

20 The Court also suggests its holding is justified because allowing
“collateral” scrutiny of an executive-branch attorney’s professional conduct
would “risk the politicization and thus the independence of the judiciary.” Ante
at 3. I, too, am concerned about this risk, perhaps even more so today. But
“politicization” risks are not any more salient when the judicial branch
disciplines an executive-branch attorney than when the judicial branch decides
cases involving the executive branch—as it does regularly. And even if they
were, the risk of politically motivated scrutiny is no greater when the
commission “collaterally” regulates an attorney’s practice than when a court
does so “directly.” And we should at least be willing to admit that the risk that
the commission or a court will improperly act politically by pursuing discipline
against an executive-branch attorney is no greater than the risk that the
commission or a court will act politically by declining to pursue such discipline
(or, for that matter, by holding that the separation of powers prevents the
judicial branch from doing so). If fear of appearing to be acting politically were
sufficient to prevent the judicial branch from exercising its constitutional
powers, we shouldn’t be deciding this case at all. The judicial branch should
never allow the fear of appearing to be acting politically to serve as an excuse
for not fulfilling its constitutional duty to regulate the practice of law.

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narrow: Under “the narrow circumstance before us,” in which the First
Assistant Attorney General filed an original action in the United States
Supreme Court, the “separation of powers requires that violations of the
sort alleged here—based wholly on representations in initial
pleadings—must be addressed directly by the court to whom the
pleadings are presented, rather than on the commission’s purely
collateral review.” Id. at 43. By narrowing its holding in this manner,
the Court at least reduces the damage it causes today to the attorney-
discipline process on which this Court relies to aid its exercise of the
judicial branch’s inherent power to regulate the practice of law.
Unfortunately, it does not reduce the damage it causes to the separation-
of-powers doctrine.
I respectfully dissent. 21

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

significant discussion to the “merits” of the complaint filed against Webster
and of the commission’s construction of the disciplinary rules. See ante at 32–
39. The Court asserts that its consideration of the merits is appropriate
because the “facts underlying the merits” and the “facts underlying our
jurisdiction” are “intertwined.” Id. at 32. Even assuming our process for
resolving a jurisdictional challenge based on the separation of powers should
be similar to our process for resolving a jurisdictional challenge based on
sovereign immunity (an assumption the Court makes but does not support), a
finding that Webster did not violate the disciplinary rules says nothing about
whether the separation of powers prevents the commission from exercising its
delegated judicial-branch authority to investigate a complaint and impose
discipline if he did. My inability to join the Court’s judgment has nothing at all
to do with the merits of the complaint against Webster. As I stated above, in
my view, the commission’s proceeding against Webster could easily fail for
many different reasons—merits included—but the separation of powers is not
one of them.
Second, speaking of sovereign immunity, Webster argues that sovereign
immunity bars the commission’s proceeding against him even if the separation-
of-powers doctrine does not. The court of appeals rejected this argument. 676

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Jeffrey Boyd
Justice

OPINION FILED: December 31, 2024

S.W.3d 687, 702 (Tex. App.—El Paso 2023). Because the Court concludes the
separation of powers bars the proceeding, it does not reach the issue. I conclude
that sovereign immunity does not bar the proceeding for the reasons the court
of appeals aptly explained. In any event, I dissent at least because the Court
does not reach the issue.

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