Commission for Lawyer Discipline v. Brent Edward Webster ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
COMMISSION FOR LAWYER § No. 08-22-00217-CV
DISCIPLINE,
§ Appeal from the
Appellant,
§ 368th Judicial District Court
v.
§ of Williamson County, Texas
BRENT EDWARD WEBSTER,
§ (TC# 22-0594-C368)
Appellee.
OPINION
In wake of the 2020 presidential election, the State of Texas attempted to sue several states
for purported violations of the Electors Clause. 84 professional-misconduct grievances against the
Texas-licensed attorneys on the pleadings followed. One such grievance was against First
Assistant Attorney General, Brent Edward Webster. In this case arising from that complaint, the
Commission for Lawyer Discipline (the Commission) appeals the trial court’s grant of Webster’s
plea to the jurisdiction. We reverse. 1
1
This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. TEX. GOV’T CODE
ANN. § 73.001. We follow the precedent of the Third Court of Appeals to the extent they might conflict with our own.
See TEX. R. APP. P. 41.3.
BACKGROUND
A. The attorney-discipline process in Texas
The Texas Supreme Court 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 Texas
Supreme Court in regulating the practice of law, including by overseeing attorney discipline. See
id. §§ 81.001 et seq.
The Commission is a standing committee of the State Bar that administers the Texas
attorney-discipline system. Id. § 81.076. The Commission also selects and oversees the Office of
Chief Disciplinary Counsel (CDC), which represents the Commission in attorney-disciplinary
litigation. Id. § 81.076(g). The CDC administers the State Bar’s grievance procedure as outlined
in the Texas Rules of Disciplinary Procedure. Id.
Every attorney admitted to practice in Texas is subject to the Texas Disciplinary Rules of
Professional Conduct and Texas Rules of Disciplinary Procedure, both promulgated by the Texas
Supreme Court. Id. §§ 81.072(b), (d); see 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.”). These rules define proper
professional conduct and provide the mechanism by which grievances are processed, investigated,
and prosecuted. Commission for Lawyer Discipline Annual Report, State Bar of Texas, Overview
of the Attorney Discipline Process 13 (2022),
https://www.texasbar.com/AM/Template.cfm?Section=Content_Folders&ContentID=57786&Te
mplate=/CM/ContentDisplay.cfm.
2
Anyone may file a grievance against a Texas attorney by filing a written form with the
CDC, which initiates the attorney-disciplinary process. TEX. RULES DISCIPLINARY P. 1.06(R);
Comm’n for Lawyer Discipline v. Stern, 355 S.W.3d 129, 134 (Tex. App.—Houston [1st Dist.]
2011, pet. denied). Upon receiving a grievance, the CDC must first classify it as either a complaint
or an inquiry. TEX. RULES DISCIPLINARY P. 2.10. If the grievance alleges professional misconduct
on its face, it is classified as a complaint and sent to the lawyer for a response. Id.; TEX. RULES
DISCIPLINARY P. 106(G). If not—i.e., if the grievance alleges conduct that, even if true, does not
constitute professional conduct—it is classified as an inquiry and dismissed. TEX. RULES
DISCIPLINARY P. 2.10. However, the person who filed the grievance may, within 30 days, appeal
the CDC’s classification decision to the Board of Disciplinary Appeals (BODA). Id. If BODA
reverses the classification decision, the grievance is sent back to the CDC, where it is processed as
a complaint. TEX. RULES DISCIPLINARY P. 7.08(C).
Once a grievance is classified as a complaint, the respondent attorney has 30 days from its
receipt to respond to the allegations. TEX. RULES DISCIPLINARY P. 2.10. The CDC must then
determine whether there is just cause to believe professional misconduct has occurred and, if so,
proceed with the complaint within 60 days of the attorney’s response deadline. TEX. RULES
DISCIPLINARY P. 2.12. As part of its investigation, the CDC, with the Committee chair’s approval,
may convene an investigatory panel and issue subpoenas to determine whether just cause exists.
Id.If the CDC determines there is no just cause to proceed on a complaint, the case is presented
to a summary disposition panel, which then makes an independent determination regarding just
cause. TEX. RULES DISCIPLINARY P. 2.13. However, if the CDC (or the summary disposition panel)
determines there is just cause, the CDC notifies the attorney of conduct it contends violates the
3
disciplinary rules and the purported rule violations. TEX. RULES DISCIPLINARY P. 2.14(D). The
attorney has 20 days to notify the CDC whether he elects to have his case heard before an
evidentiary panel of the grievance committee or by a district court, with or without a jury. TEX.
RULES DISCIPLINARY P. 2.15. If the attorney elects the district court option, the Commission must
file its suit within 60 days of his election. TEX. RULES DISCIPLINARY P. 3.01. The Commission
bears the burden to prove the allegations of professional misconduct by a preponderance of the
evidence. TEX. RULES DISCIPLINARY P. 3.08.
B. Texas v. Pennsylvania
On December 7, 2020, the State of Texas attempted to invoke the original jurisdiction of
the United States Supreme Court by suing the Commonwealth of Pennsylvania and the States of
Georgia, Michigan, and Wisconsin. Counsel for Texas included Webster, Attorney General Ken
Paxton (as counsel of record), and Lawrence Joseph, Special Counsel to the Attorney General of
Texas. Specifically, the State of Texas filed:
• a Motion for Leave to File a Bill of Complaint, 2 attaching the Bill of Complaint and
Brief in Support of Motion for Leave;
• a Motion for Expedited Consideration of the same;
• a Motion for Preliminary Injunction and Temporary Restraining Order or,
Alternatively, for Stay and Administrative Stay;
• a Motion to Enlarge Word-Count Limit and Reply in Support of Motion for Leave to
File Bill of Complaint; and
• a Reply in Support of Motion for Preliminary Injunction and Temporary Restraining
Order or, Alternatively, for Stay and Administrative Stay.
2
The Supreme Court’s procedural rules require that any party seeking to invoke the Court’s Article III original
jurisdiction must first file a motion for leave to file before its initial pleading. U.S. Sup. Ct. RR. 17.1, .3.
4
First, Texas alleged that changes made by non-legislative actors to the defendant States’
election procedures in light of the COVID-19 pandemic violated the Constitution’s Electors
Clause. U.S. CONST. art. II, § 1, cl. 2. Second, Texas claimed these alterations created different
voting standards within the States, which violated the “one-person, one-vote” principle enshrined
in the Equal Protection Clause. U.S. CONST. amend. XIV, § 1. Finally, Texas alleged these
alterations rendered election procedures fundamentally unfair in violation of the Due Process
Clause. Id.
Texas argued it had standing to bring these claims because the defendant States purportedly
injured two of Texas’s interests: (1) its interest in who is elected as Vice President and thus can
break Senate ties; and (2) its interest as parens patriae to protect the interest of its own electors.
However, on December 11, 2020, the Supreme Court denied its motion for leave to file a bill of
complaint for lack of standing, concluding “Texas has not demonstrated a judicially cognizable
interest in the manner in which another State conducts its elections” and dismissing all pending
motions as moot. Texas v. Pennsylvania, 141 S. Ct. 1230 (2020).
C. The grievance against Webster
After Texas filed Texas v. Pennsylvania, the CDC received 81 grievances against Paxton
and three against Webster. All but four—three against Paxton and one against Webster—were
ultimately dismissed. This case arises from the one remaining grievance against Webster.
The CDC received that grievance on March 11, 2021, from Brynne VanHettinga, an
inactive Texas-licensed attorney. VanHettinga alleged the Texas v. Pennsylvania pleadings
included, among other things, “manufactured ‘evidence,’” “specious legal arguments,”
“unsupported factual assertions,” “unfounded claims,” and “conspiracy theories,” and that Webster
“violated [his] oath[] as [an] attorney[]” and a public servant. VanHettinga asserted Webster’s
5
conduct violated the Texas Disciplinary Rules of Professional Conduct, including Rule 3.01
(frivolous lawsuits and false statements), 3.03(a)(1) (false statement of material fact or law to a
tribunal), 8.04(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 4.01
cmt. 5 (knowingly assisting a client in the commission of a criminal or fraudulent act).
The CDC initially classified VanHettinga’s grievance as an inquiry and dismissed it as
such. However, VanHettinga appealed the classification to BODA, which granted the appeal and
reversed the initial classification, stating that the grievance alleged a possible violation of Rules
3.01 and 3.03. BODA thus returned VanHettinga’s grievance to the CDC as a complaint for
investigation and determination of just cause. The CDC notified Webster and requested his
response. Webster responded, 3 outlining the circumstances leading up to and legal theories behind
the lawsuit, challenging VanHettinga’s allegations, and raising defenses, including the separation
of powers doctrine. Webster also submitted a supplemental response after VanHettinga amended
her initial grievance.
The CDC then set the complaints against Paxton and Webster for a joint hearing before an
investigatory-hearing panel in Travis County. Webster filed a motion to dismiss or alternatively to
transfer venue of the panel and a motion to recuse panel members; however, the grievance
committee chair denied the motions. On January 5, 2022, the grievance committee held the
investigatory hearing, at which it heard testimony from the complainants. Webster did not appear
or provide testimony, but he was represented by counsel who examined VanHettinga and offered
argument on his behalf. Two days later, the CDC informed Webster that “[b]ased on the evidence,”
the investigatory panel “believes there is credible evidence to support a finding of Professional
3
Given the similarities in complaints, Webster filed a joint response with Paxton.
6
Misconduct for a violation of Rule[] 8.04(a)(3)” and “recommends a sanction of Public
Reprimand.” The CDC offered Webster the opportunity to accept the recommended sanction but
stated if he declined, the Commission would initiate a disciplinary action against him before either
an evidentiary panel or trial court. Webster rejected the proposed sanction and elected to have his
disciplinary action heard in district court.
On May 6, 2022, the CDC filed the Commission’s Original Disciplinary Petition against
Webster in Williamson County district court. It alleged Webster made the following six
misrepresentations in the Texas v. Pennsylvania pleadings:
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;”
4. “illegal votes” had been cast that affected the outcome of the election;
5. Texas had “uncovered substantial evidence . . . that raises serious doubts as to the
integrity of the election process in Defendant States;” and
6. Texas had standing to bring these claims before the United States Supreme Court.
The Commission claimed Webster’s “representations were dishonest” and “were not supported by
any charge, indictment, judicial finding, and/or credible or admissible evidence,” and Webster
“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.” As a result, the Commission contended the
defendants “were required to expend time, money, and resources to respond to the
misrepresentations and false statements contained in these pleadings and injunction requests even
though they had previously certified their presidential electors based on the election results prior
to the filing of [Webster’s] pleadings.” Accordingly, the Commission alleged Webster’s actions
7
amounted to a violation of Rule 8.04(a)(3): “A lawyer shall not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.”
Webster responded by filing his answer, defenses, and plea to the jurisdiction. His plea to
the jurisdiction sought dismissal on two grounds: (1) as a violation of the separation of powers
doctrine; and (2) sovereign immunity. The Commission filed a response, and the court held a
hearing on the plea. The court granted Webster’s plea, stating “the separation of powers doctrine
deprives this court of subject-matter jurisdiction,” and dismissing the Commission’s claims with
prejudice. 4 The Commission appealed.
STANDARD OF REVIEW
A separation of powers doctrine violation defeats a court’s subject-matter jurisdiction, as
does sovereign immunity. Tex. Dep ‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224
(Tex. 2004) (sovereign immunity); Tex. Ass’n of Bus. v. Tex. Air Ctr. Bd., 852 S.W.2d 440, 443–
44 (Tex. 1993) (separation of powers). A defendant may challenge the court’s subject-matter
jurisdiction through a plea to the jurisdiction. Flores v. Tex. Dep’t of Criminal Justice, 634 S.W.3d
440, 450 (Tex. App.—El Paso 2021, no pet.) (citing Miranda, 133 S.W.3d at 225–26). The plea
can attack both the plaintiff’s allegations in the pleadings as well as the existence of jurisdictional
facts by attaching evidence to the plea. Id. (citing Miranda, 133 S.W.3d at 226–27). Here, Webster
did not challenge the existence of jurisdictional facts, so we review his plea as a matter of law.
Flores, 634 S.W.3d at 450 (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009)).
In reviewing a plea to the jurisdiction, we liberally construe the pleadings in the plaintiff’s
favor. Heinrich, 284 S.W.3d at 378 (citation omitted). We review a trial court’s ruling on a plea to
4
The State of Texas also filed a petition in intervention, which the Commission moved to strike. The trial court did
not rule on the State’s motion before granting Webster’s plea and dismissing the Commission’s claims.
8
the jurisdiction de novo. Miranda, 133 S.W.3d at 226 (Tex. 2004).
ANALYSIS
A. The Commission’s jurisdictional allegations
Because Webster’s plea to the jurisdiction challenges the pleadings, we must first
determine whether the Commission alleged facts that affirmatively demonstrate the court’s
jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). The Commission’s petition states
“[t]he cause of action and the relief sought in this case are within the jurisdictional requirements
of this Honorable Court.” It specifies the Commission is suing Webster under the State Bar Act,
the Disciplinary Rules of Professional Conduct, and the Texas Rules of Disciplinary Procedure,
and states Webster’s “acts and omissions . . . as hereinafter alleged, constitute professional
misconduct.” The petition then describes relevant factual background to Texas v. Pennsylvania
before outlining the six alleged misrepresentations listed above the Commission contends violate
Rule 8.04(a)(3). The petition also states venue is proper in Williamson County because that is
Webster’s county of residence.
Consistent with Webster’s election, the Commission brought its suit in a district court in
his county of residence. TEX. RULES DISCIPLINARY P. 2.15, 3.03. Its 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 rules of the
Texas Disciplinary Rules of Professional Conduct allegedly violated by the acts or conduct.” See
TEX. RULES DISCIPLINARY P. 3.01 (listing requirements of a disciplinary petition filed in district
court). Construing the pleadings in the Commission’s favor, we conclude the Commission has
alleged facts demonstrating the court’s jurisdiction over the case under the Texas Rules of
Disciplinary Procedure. See TEX. GOV’T CODE ANN. § 81.071 (“Each attorney admitted to practice
9
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.”).
B. Separation of powers doctrine
Webster contends the Commission’s disciplinary proceeding violates the separation of
powers doctrine because the Commission—a statutorily created agent of the judicial branch—has
invaded the exclusive power of the Attorney General—part of the executive branch—to represent
the State in civil litigation. The question presented is whether the Commission’s disciplinary
proceeding against Webster unduly interferes with the Attorney General’s exercise of its
constitutionally assigned core powers.
Article II, section 1 of the Texas constitution outlines the separation of powers doctrine:
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 of one of these departments, shall exercise any power properly
attached to either of the others, except in the instances herein expressly permitted.
The three branches of government do not, however, “operate with absolute independence,”
and Texas courts “have instead ‘long held that some degree of interdependence and reciprocity is
subsumed within the separation of powers principle.’” Martinez v. State, 503 S.W.3d 728, 734
(Tex. App.—El Paso 2016, pet. ref’d) (quoting Tex. Comm’n on Env’t Quality v. Abbott, 311
S.W.3d 663, 672 (Tex. App.—Austin 2010, pet. denied)). The “proper interpretation” of the
separation of powers doctrine is therefore “dictated by its context.” Coates v. Windham, 613
S.W.2d 572, 576 (Tex. App.—Austin 1981, no writ). While it “prohibits a transfer of a whole mass
of powers from one department to another and . . . a person of one branch from exercising a power
historically or inherently belonging to another department,” it cannot be interpreted to “prevent[]
cooperation or coordination between two or more branches of government, hindering altogether
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any effective governmental action.” Id. Courts take a “flexible approach” in considering whether
a separation of powers violation has occurred, accepting some degree of “commingl[ing] the
functions of the Branches” so long as the challenged act “pose[s] no danger of either
aggrandizement or encroachment.” Martinez, 503 S.W.3d at 734 (quoting Abbott, 311 S.W.3d at671–72).
A separation of powers violation happens in one of two ways. Id. The first is when one
branch “assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’ to
another branch.” Abbott, 311 S.W.3d at 672 (quoting Jones v. State, 803 S.W.2d 712, 715–16
(Tex. Crim. App. 1991) (en banc)). The second is “when one branch unduly interferes with another
branch so that the other branch cannot effectively exercise its constitutionally assigned powers.”
Id. (quoting Jones, 803 S.W.2d at 715–16). Only the second is at issue here.
To determine whether an undue-interference separation of powers violation has occurred,
courts examine the scope of constitutional powers held by the first governmental actor and then
consider the impact of the first branch’s conduct on the second branch’s ability to exercise its own
constitutionally derived powers. Id. (citing Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239
(Tex. Crim. App. 1990)) (en banc). Here, we thus consider the scope of the Commission’s
constitutional powers as an agent of the judiciary established by the legislature and the impact, if
any, of its disciplinary proceeding on the Attorney General office’s ability to effectively exercise
its constitutional powers as a part of the executive branch.
The judicial branch has the “inherent 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). This power is derived from Article II, Section I of the
Texas Constitution, which grants the Supreme Court of Texas the authority to regulate judicial
11
affairs and direct the administration of justice in the judiciary. Id. (citing The State Bar of Tex. v.
Gomez, 891 S.W.2d 243, 245 (Tex. 1994)). That includes the Court’s “obligation” to regulate the
admission and practice of Texas attorneys because these activities are “inextricably intertwined
with the administration of justice.” Gomez, 891 S.W.2d at 245. Indeed, “the Court must have the
power to regulate these activities in order to fulfill its constitutional role.” Id. (emphasis added).
The Legislature acknowledged the Court’s “fundamental authority” to regulate the practice of law
by enacting the State Bar Act to aid the Court in carrying out this inherent power. Id. (citing
TEX. GOV’T CODE ANN. § 81.011(b)); see TEX. GOV’T CODE ANN. §§ 81.024(a) (clarifying the
Court’s supervisory role over the State Bar), .076 (outlining the Commission’s duties and
composition). The Commission’s duties, described above, include administering the Texas
attorney-discipline system pursuant to statutory and Court rules. TEX. GOV’T CODE ANN. § 81.076
The Attorney General is a member of the executive department and has the constitutional
authority to “represent the State in all suits and pleas in the Supreme Court of the State in which
the State may be a party.” 5 TEX. CONST. art. IV, § 22. His “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, 92 (Tex. 2001) (citing TEX. CONST. art. IV, §§ 1, 22; TEX. GOV’T CODE
ANN. § 402.021). As the State’s chief legal officer, the Attorney General has “broad discretionary
power in carrying out his responsibility to represent the State.” Id. (citing Terrazas v. Ramirez,
829 S.W.2d 712, 722 (Tex. 1991) (orig. proceeding)). However, “the Attorney General can only
act within the limits of the Texas Constitution and statutes, and courts cannot enlarge the Attorney
General’s powers.” Id. (citing Terrazas, 829 S.W.2d at 735 (Cornyn, J., concurring)).
5
The Attorney General may act through his assistants. Pub. Util. Comm’n of Tex. v. Cofer, 754 S.W.2d 121, 124
(Tex. 1988). If he is “absent or unable to act,” the First Assistant Attorney General (Webster’s position) performs his
duties that are prescribed by law. TEX. GOV’T CODE ANN. § 402.001(a).
12
Webster urges that the Commission’s disciplinary proceeding unduly interferes with the
Attorney General’s exercise of its core powers, namely its exclusive control over representing the
State in civil appellate litigation. He insists the disciplinary action is “a thinly veiled effort to
second-guess” the Attorney General’s decision to file Texas v. Pennsylvania (though he offers no
evidence of this purported pretext). Because the Attorney General has “broad discretionary power”
in representing the State’s interests in civil litigation, Webster contends the Commission’s
disciplinary proceeding represents “a profound threat to the separation of powers.”
But nowhere in the Commission’s disciplinary proceeding does it challenge the Attorney
General’s decision to file the suit. Instead, it points directly to the allegations within the Texas v.
Pennsylvania pleadings it contends violate Rule 8.04(a)(3). Webster’s conclusory argument
otherwise is not supported by the pleadings, which we must construe liberally in the Commission’s
favor. Heinrich, 284 S.W.3d at 378 (citation omitted). The authorities Webster cites related to the
Attorney General’s decision to exercise his judgment in bringing a suit are thus inapplicable. See,
e.g., Charles Scribner’s Sons v. Marrs, 262 S.W. 722, 727 (Tex. 1924) (noting the Attorney
General alone has the duty to exercise “judgment and discretion” in bringing suits on behalf of the
State); Lewright v. Bell, 63 S.W. 623, 623–24 (Tex. 1901) (concluding courts cannot compel
Attorney General to initiate suit, as that decision involves his professional judgment and
discretion).
We are also not persuaded by Webster’s argument that the Attorney General’s “broad
discretion” to represent the State in civil litigation renders the Commission’s disciplinary
proceeding undue interference with his exercise of core powers. This “broad discretion” is not
unlimited, as “the Attorney General can only act within the limits of the Texas Constitution and
statutes.” Perry, 67 S.W.3d at 92. And though the Texas Disciplinary Rules of Professional
13
Conduct are not statutory, they “should be treated like statutes.” O’Quinn v. State Bar of Tex., 763
S.W.2d 397, 399 (Tex. 1988). Thus, this “broad discretion” is plainly limited by adherence to the
disciplinary rules. Indeed, the Attorney General must also comply with other aspects of the State
Bar Act, including its membership dues requirement. See Osborne v. Paxton, No. 03-15-00374-
CV, 2016 WL 3240211, at *3 n.7 (Tex. App.—Austin June 9, 2016, no pet.) (mem. op.)
(“[R]equiring Paxton to pay dues to maintain his law license does not amount to the State Bar
exercising authority over the office of the Attorney General.”). The same limitation on the Attorney
General applies to his assistants. See Cofer, 754 S.W.2d at 124. 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.
Finally, Webster devotes significant briefing to defending the veracity of his alleged
misrepresentations. However, this discussion concerns the merits of the disciplinary action against
him; it has no bearing on the jurisdictional question before us and would be inappropriate to
address at this stage. See Amarillo v. R.R. Comm’n of Tex., 511 S.W.3d 787, 796 (Tex. App.—El
Paso 2016, no pet.) (“The distinctive feature of an advisory opinion is that it decides an abstract
question of law without binding the parties.”).
Webster has not shown how the Commission’s disciplinary proceeding unduly interferes
with the executive function of the Attorney General’s office. His argument appears to be that to
effectively exercise the Attorney General’s core powers, the Attorney General and his assistants
must be exempt from the lawfully created process addressing attorney conduct that allegedly
violates professional disciplinary rules. That cannot be. Though Webster insists he and other
executive-branch attorneys are still subject to professional discipline through a court’s inherent
sanction power and “external checks” through political and legislative processes, those
14
mechanisms do not preclude the Commission’s authority to administer the attorney-discipline
system in the state; the processes are not mutually exclusive. See TEX. DISCIPLINARY RULES
PROF’L CONDUCT, Preamble: Scope ¶ 15 (“Accordingly, nothing in the rules should be deemed to
augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating
such a duty.”). Indeed, the Texas Supreme Court has endorsed the uncontroversial principle that
“all attorneys” are subject to the professional disciplinary processes, procedures, and standards of
review to “ensure ethical lapses are disciplined.” Brewer v. Lennox Hearth Products, LLC, 601
S.W. 3d 704, 723 n.76 (Tex. 2020). Exempting an entire category of attorneys from the State’s
disciplinary rules would be contrary to precedent, both in Texas 6 and elsewhere. 7 See Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 434 (1982) (“States traditionally
have exercised extensive control over the professional conduct of attorneys. The ultimate objective
of such control is the protection of the public, the purification of the bar and prevention of
recurrence.” (cleaned up)).
In sum, the Commission’s proceeding “pose[s] no danger of either aggrandizement or
encroachment” on the executive branch. Martinez, 503 S.W.3d at 734. Webster is not exempt
from the judiciary’s constitutional obligation to regulate the practice of Texas attorneys simply
6
See, e.g., Order of the Supreme Court of Texas, In re Daniel C. Morales, Misc. Docket No. 03-9205 (Dec. 15, 2003)
(accepting former Attorney General’s resignation in lieu of discipline); State ex rel. Eidson v. Edwards, 793 S.W.2d
1, 7 (Tex. Crim. App. 1990) (en banc) (“[A] prosecutor who violates ethical rules is subject to the disciplining authority
of the State Bar like any other attorney.”).
7
See, e.g., In re Klein, 311 P.3d 321, 393, 399 (Kan. 2013) (suspending former Kansas Attorney General from
practicing law in state for professional misconduct); Massameno v. Statewide Grievance Committee, 663 A.2d 317,
337 (Conn. 1995) (concluding that the separation of powers doctrine does not alter the obligation and right of judicial
branch to investigate and discipline prosecutors for professional misconduct). Indeed, states have long carried out
attorney-misconduct proceedings even in cases involving a high-ranking federal government official. In re Jeffrey B.
Clark, No’s. 22-MC-0096, 22-MC-0117, 23-MC-0007 2023 WL 3884119, at *14 n.13 (D.D.C. June 8, 2023) (mem.
op.) (collecting cases, including Neal v. Clinton, No. CIV 2000-5677, 2001 WL 34355768, at *3 (Ark. App. Jan. 19,
2001) (unpublished) and In re Nixon, 53 A.D.2d 178, 182 (N.Y. App. Div. 1976)).
15
because he serves in the Attorney General’s office. 8 The trial court’s conclusion that the separation
of powers doctrine defeated subject-matter jurisdiction was thus error, and the Commission’s issue
on appeal is sustained.
C. Sovereign immunity
Webster also contends the Commission’s suit is barred by sovereign immunity because he
appeared on the Texas v. Pennsylvania filings in his official capacity so the State is the real party
in interest. 9 The Commission responds that its disciplinary action is against Webster personally as
a Texas-licensed attorney, not in his official capacity as First Assistant Attorney General, and in
any event, a disciplinary proceeding against a Texas-licensed attorney is not a suit against the State
subject to sovereign immunity. The Commission also argues sovereign immunity is not implicated
because its proceeding targets Webster’s license to practice law, and that is not an interest
sovereign immunity protects, even among executive-branch attorneys.
Texas has long recognized the doctrine of sovereign immunity: that “no state can be sued
in her own courts without her consent, and then only in the manner indicated by that consent.”
Hosner v. DeYoung, 1 Tex. 764, 769 (1847). Absent an express waiver of sovereign immunity, the
State and its agencies are generally immune from suit. Paxton v. Waller Cnty., 620 S.W.3d 843,
847 (Tex. App.—Amarillo 2021, pet. denied) (citing Tex. Parks & Wildlife Dep’t v. Sawyer Trust,
8
To the extent Webster attempts to argue the political-question aspect of the separation of powers doctrine renders
this case nonjusticiable, that argument fails for the same reasons; the Commission’s proceeding does not
inappropriately encroach on the executive branch’s constitutional authority over the representation of the State in civil
litigation. See Van Dorn Preston v. M1 Support Services, L.P., 642 S.W.3d 452, 455 (Tex. 2022) (citing American K-
9 Detection Servs. v. Freeman, 556 S.W.3d 246 (Tex. 2018)).
9
The trial court did not explicitly rule on Webster’s sovereign immunity issue, nor did the Commission raise it in its
appellate brief. However, because Webster contends he is entitled to sovereign immunity and the argument is
jurisdictional, we must consider it here. See Dallas Metrocare Services v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013)
(citing Rusk State Hospital v. Black, 392 S.W.3d 88, 94 (Tex. 2012)) (“[A]n appellate court must consider all of a
defendant’s immunity arguments, whether the governmental entity raised other jurisdictional arguments in the trial
court or none at all.”).
16
354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity likewise bars suits against public officials
sued in their official capacities because the State is effectively the real party in interest such that
its agent “enjoy[s] the sovereign’s immunity ‘derivatively.’” GTECH Corp. v. Steele, 549 S.W.3d
768, 784 (Tex. App.—Austin 2018), aff’d sub nom. Nettles v. GTECH Corp., 606 S.W.3d 726(Tex. 2020) (citing Franka v. Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011)). Regardless of
whether a suit is brought explicitly against a public official in his official capacity, “it is the
substance of the claims and relief sought that ultimately determine whether the sovereign is a real
party in interest and its immunity thereby implicated.” Id. at 785. But sovereign immunity comes
into play only if Webster has met an initial burden of establishing that the Commission’s claims
actually implicate that immunity. See id. at 774.
To determine whether a defendant is immune, courts consider “the ‘nature and purposes’
of sovereign immunity.” Univ. of the Incarnate Word v. Redus, 518 S.W.3d 905, 911 (Tex. 2017)
(quoting Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 432 (Tex. 2016)). “[T]he
stated reasons for immunity have changed over time,” evolving from “the English legal fiction that
the King can do no wrong[.]” Wasson Interests, 489 S.W.3d at 431 (cleaned up). The “modern
justification” for sovereign immunity is to “protect[] the public fisc.” Heinrich, 284 S.W.3d at 375;
see also Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 123 (Tex. 2015) (“Sovereign
immunity . . . was designed to guard against the ‘unforeseen expenditures’ associated with the
government’s defending lawsuits and paying judgments that could hamper government functions
by diverting funds from their allocated purposes.” (internal quotations omitted)). Like the
separation of powers doctrine, sovereign immunity also “maintains equilibrium among the
branches of government by honoring ‘the allocation of responsibility’ for resolving disputes with
the state.” Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 740
17
(Tex. 2019) (quoting Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 416 (Tex. 1997) (Hecht, J.,
concurring)). Thus, if a suit “seeks relief that would control state action,” sovereign immunity is
implicated. GTECH Corp., 549 S.W.3d at 786 (citing Ex parte Springsteen, 506 S.W.3d 789, 797
(Tex. App.—Austin 2016, pet. denied)). In other words, government entities and officials are
immunized from suits that seek to restrain their “exercise of discretionary statutory or
constitutional authority.” Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Env’t Quality,
307 S.W.3d 505, 514 (Tex. App.—Austin 2010, no pet.).
The Commission’s disciplinary proceeding against Webster is not subject to sovereign
immunity for several reasons. First, the Commission’s claims clarify the State is not the real party
in interest. Even ignoring the form of the pleadings, the substance of the Commission’s petition
targets Webster personally, not in his official capacity. For example, the Commission seeks “a
judgment of professional misconduct” against Webster, something that affects only his license to
practice law in Texas and has no effect on the State. Though Webster contends he could have filed
the pleadings in Texas v. Pennsylvania only as a member of the Attorney General’s office, again,
it is not the filing of that suit that the Commission’s disciplinary proceeding targets but specific
alleged misrepresentations in its pleadings. Contrary to Webster’s assertion that the Commission’s
suit “arises from the decision of the Attorney General and First Assistant to file the Texas v.
Pennsylvania lawsuit and from their assessment of the facts, evidence, and law,” at issue in a
disciplinary proceeding is “the appropriate interpretation of the Rules of Conduct and a factual
determination of whether [Webster’s] conduct met or violated the Rules at issue.” Hawkins v.
Comm’n for Lawyer Discipline, 988 S.W.2d 927, 936 (Tex. App.—El Paso 1999, pet. denied); cf.
Tirrez v. Comm’n for Lawyer Discipline, No. 03-16-00318-CV, 2018 WL 454723, at *3
(Tex. App.—Austin Jan. 12, 2018, pet. denied) (“Disbarment, designed to protect the public, is a
18
punishment or penalty imposed on the lawyer.” (quoting In re Ruffalo, 390 U.S. 544, 550 (1968)
(emphasis added))). Because the focus in this suit is squarely on Webster’s alleged misconduct—
not the State—it is not a suit subject to sovereign immunity.
Webster relatedly contends that “sanctions meted out by a court against attorneys for
conduct before the court are in no sense a ‘suit’” that would be subject to sovereign immunity
because “they are a component of a court’s exercise of its ‘inherent powers that aid the exercise of
their jurisdiction, facilitate the administration of justice, and preserve the independence and
integrity of the judicial system.’” This logic supports the conclusion that professional misconduct
proceedings are the same—i.e., not the type of “suit” subject to claims of sovereign immunity—
particularly given that the judiciary’s “inherent powers” Webster mentions arise from the same
constitutional source.
Further, the Commission does not pursue relief that would “control state action.” GTECH
Corp., 549 S.W.3d at 786 (citing Ex parte Springsteen, 506 S.W.3d at 797). In addition to seeking
“a judgment of professional misconduct be entered against [Webster],” the Commission requests
“an appropriate sanction” for the violation. In other words, the Commission seeks a penalty against
Webster consistent with the guiding rules and principles of the Rules of Disciplinary Procedure.
See TEX. RULES DISCIPLINARY P. 15.05(A) (discussing appropriate sanctions in cases involving
dishonesty, fraud, deceit, or misrepresentation to a court or another, ranging from private
reprimand to disbarment). Webster urges otherwise, contending that by threatening sanctions, “the
State Bar’s lawsuit against [Webster] aims to deter the Attorney General and his subordinates from
instituting high-profile and contentious lawsuits of which the State Bar may disapprove.” To be
sure, deterrence is certainly a function of the disciplinary rules. See State Bar of Tex. v. Kilpatrick,
874 S.W.2d 656, 659 (Tex. 1994) (“In determining the appropriate sanction for attorney
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misconduct, a trial court must consider . . . the deterrent effect on others[.]” (citing TEX. RULES
DISCIPLINARY P. 3.10 (1992))). However, it is not filing “high-profile and contentious lawsuits”
the rules seek to deter but the alleged misconduct—here, “conduct involving dishonesty, fraud,
deceit or misrepresentation.” TEX. DISCIPLINARY RULES PROF’L CONDUCT 8(a)(3). In other words,
the Commission’s proceeding seeks not to “control state action” but to ensure Texas-licensed
attorneys, including those serving in the executive department, adhere to the disciplinary rules of
professional conduct applicable to “all attorneys.” See Brewer, 601 S.W.3d at 723 n.76.
Nor does this case fit within the modern justification for sovereign immunity: protecting
the public from the “costs and consequences” of improvident government actions. Rosenberg Dev.
Corp., 571 S.W.3d at 741 (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)). The
purpose of an attorney disciplinary proceeding is to protect the public, maintain the integrity of the
profession, and prevent reoccurrence. Middlesex Cnty. Ethics Comm., 457 U.S. at 434.
Immunizing Webster from professional-misconduct proceedings in no way furthers the rationale
for sovereign immunity, as no civil damages threaten the State.
Finally, Webster argues immunizing executive-branch attorneys from disciplinary
proceedings is harmless because they are subject to checks on their ethical obligations in other
ways: through an ultra vires suit, criminal actions, or a court’s inherent authority to impose
sanctions. However, the Disciplinary Rules of Professional Conduct contemplate and reject the
same principle; the Rules may be enforced only through “the administration of a disciplinary
authority.” TEX. DISCIPLINARY RULES PROF’L CONDUCT, Preamble: Scope ¶ 15. That attorneys
have ethical obligations that may be policed elsewhere is thus inapposite, as no other mechanism
can regulate Webster’s Texas-law license. Indeed, courts have offered the availability of a
professional-discipline proceeding as a counterbalance measure to deter misconduct when civil
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suits must otherwise be dismissed due to qualified immunity or litigation privilege. In re Discipline
of Arabia, 495 P.3d 1103, 1110 (Nev. 2021) (collecting cases); see also Imbler v. Pachtman, 424
U.S. 409, 428–29 (1976) (emphasizing prosecutors are still subject to professional discipline even
though they are immune from Section 1983 suits, thus “the public” is not “powerless to deter
misconduct”).
Because sovereign immunity is inapplicable to this proceeding, Webster’s argument that it
defeats subject-matter jurisdiction fails. 10
CONCLUSION
The Commission’s jurisdictional allegations affirmatively demonstrate the trial court’s
jurisdiction. Because Webster is not exempt from jurisdiction by virtue of his position as First
Assistant Attorney General, we reverse the trial court’s judgment and remand for further
proceedings consistent with this opinion.
YVONNE T. RODRIGUEZ, Chief Justice
July 13, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
Soto, J., concurring without separate opinion
10
In a footnote, Webster argues that even if the Commission sued him in his individual capacity, he would still be
immune from suit through official immunity because “filing a lawsuit on behalf of the State in appellate courts is a
discretionary duty” that he did “within the scope of his official duties” and based on his “good-faith belief” in the
“legal arguments and factual allegations at the time the lawsuit was filed.” He points to no authority that would support
exempting executive-branch attorneys from the attorney-disciplinary process on this basis nor does he address how
official immunity applies to the Commission’s claims against him—for alleged misrepresentations in court pleadings,
not “filing a lawsuit.” He also fails to explain how the purpose of official immunity would be served in a professional
misconduct proceeding. See Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994) (noting the purpose of official immunity
is to insulate government function from “the harassment of litigation, not to protect erring officials” and to free public
officials exercising their duties from “fear of damage suits”). Official immunity also does not bar the Commission’s
suit against Webster.
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