Sua Sponte

 More fallout from failed
litigation regarding purported irregularities in the 2020
presidential election. A day after one panel of
the Dallas Court of Appeals unanimously affirmed summary judgment rejecting the State Bar’s disciplinary charges
against Sidney Powell—largely because of the Bar’s less-than-ideal briefing at
trial and on appeal—another divided panel of that same court found it lacked
jurisdiction to review a trial court’s denial of Ken Paxton’s plea to the jurisdiction regarding the
Bar’s disciplinary action against him.

The
State Bar’s Commission for Lawyer Discipline alleged that Paxton made “‘dishonest’
representations to the Supreme Court [in his role as lead counsel for the
State] in Texas v. Pennsylvania.” The Commission contended these alleged
misrepresentations “constitute[d] professional misconduct and violate[d] Rule
8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct.” Paxton
filed a plea to the trial court’s jurisdiction, asserting the Commission’s
action violated the separation-of-powers doctrine and was barred by sovereign
immunity. When the trial court denied that plea, Paxton sought appellate review
pursuant to TCPRC § 51.014(a)(8), which authorizes interlocutory appeal from an
order that “grants or denies a plea to the jurisdiction by a governmental unit”
of the State or, by judicial extension, a plea by a State official sued in his
or her official capacity. Paxton contended that, because Texas law directs only
the Attorney General to “prosecute and defend all actions in which the state is
interested,” the Bar Commission’s case was effectively leveled against him in
his official capacity and the AG’s office itself; the denial of his plea,
therefore, fell within § 51.014(a)(8).

But
the Dallas Court disagreed. The Court noted that the Commission did not
challenge the AG’s discretionary decision to file the Texas v.
Pennsylvania lawsuit, but instead targeted specific alleged
misrepresentations made by Paxton as counsel in that case. And the Commission
sought no relief against the AG’s office or Paxton in his official capacity,
but only against Paxton individually as an attorney licensed by the State of
Texas. Therefore, the Court concluded, the trial court’s denial of Paxton’s
plea to the jurisdiction did not fall within § 51.014(a)(8), and it had no
jurisdiction to hear the interlocutory appeal.

Justice
Emily Miskel dissented. A lot. She would have found jurisdiction for the appeal
under § 51.014(a)(8) and reversed the trial court’s denial of Paxton’s plea to
the jurisdiction, arguing the Commission’s action targeted Paxton in his
official capacity and was barred by the separation-of-powers doctrine as well
as sovereign immunity. She went on to contend the Commission’s complaint also
was defective on the merits.

Last
year—foreshadowing this case—the El Paso Court of Appeals rejected separation-of-powers
and sovereign-immunity defenses in a similar disciplinary action brought by the
Commission against First Assistant AG Brent Webster, also based on alleged
misrepresentations in Texas v. Pennsylvania. Comm’n for Lawyer Discipline
v. Webster, 676 S.W.3d 687 (Tex. App.—El Paso 2023). Webster filed a
petition for review in the Supreme Court of Texas. The petition remains pending,
with briefs on the merits having been requested and filed. So, there’s more to
come in Webster and likely in the Paxton case, as well.