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
═══════════════════════════════════════

Argued September 12, 2024

JUSTICE YOUNG delivered the opinion of the Court, in which Chief
Justice Hecht, Justice Devine, Justice Blacklock, Justice Busby, Justice
Bland, and Justice Huddle joined.

JUSTICE BOYD filed a dissenting opinion, in which Justice
Lehrmann joined.

In the aftermath of the 2020 presidential election, the State of
Texas moved for leave to invoke the U.S. Supreme Court’s original
jurisdiction to sue four other states. Attorney General Ken Paxton was
the counsel of record, and Brent Webster, the attorney general’s first
assistant, appeared on the initial pleadings. An individual with no
connection to the underlying litigation filed a grievance with the

1
Commission for Lawyer Discipline, alleging that Webster’s participation
violated Texas Disciplinary Rule of Professional Conduct 8.04(a)(3). That
rule prohibits lawyers from “engag[ing] in conduct involving dishonesty,
fraud, deceit or misrepresentation.” The commission ultimately agreed,
identifying six statements in the initial pleadings that, it contends,
violate the rule. It filed a lawsuit seeking to hold Webster to account for
those statements. The district court dismissed the case on the ground
that exercising jurisdiction over the commission’s lawsuit would violate
the Texas Constitution’s separation-of-powers doctrine. The court of
appeals reversed. We agree with the district court and reinstate its
judgment of dismissal.
Generally, scrutiny of statements made directly to a court within
litigation is by the court to whom those statements are made. Such a court
has substantial authority and many tools to address alleged violations of
professional disciplinary (and other) rules, which apply to all Texas
lawyers, including the attorney general and his staff. Lawyers who
submit to a court’s jurisdiction subject themselves to that court’s authority
to compel adherence to the highest standards of professional conduct.
But this case involves no such direct scrutiny. The U.S. Supreme
Court neither imposed discipline on the first assistant nor referred him
(or anyone else) to the commission (or any disciplinary body). Rather, the
commission’s lawsuit arose from outside the litigation in which the
challenged statements were made. We doubt that its collateral use of
Rule 8.04(a)(3)—as opposed to direct review by the court to whom the
statements are made—is a proper way to scrutinize the contents of initial
pleadings of any attorney. What makes this case different from ordinary

2
litigation, though, is its constitutional dimension. By second-guessing the
contents of initial pleadings filed on behalf of the State of Texas, under
the attorney general’s authority, the commission has intruded into
terrain that this Court’s precedent has described as belonging to the
attorney general.
Specifically, the Texas Constitution endows the attorney general
(and at his direction, his first assistant) with the authority both to file
petitions in court and to assess the propriety of the representations
forming the basis of the petitions that he files—authority that, as our
cases reflect, cannot be controlled by the other branches of government.
At the same time, the Constitution endows the Court with the judicial
power to discipline attorneys admitted to its bar. The potential for direct
scrutiny by a court to whom representations are made wholly
accommodates the legitimate interests of all branches of government.
Were we to hold otherwise and instead allow collateral attacks like the
commission’s lawsuit, we would improperly invade the executive branch’s
prerogatives and risk the politicization and thus the independence of the
judiciary. We decline to stretch the judicial power beyond its
constitutional boundaries.
Accordingly, the Chief Disciplinary Counsel was right to have
initially declined to pursue the matter, and the Board of Disciplinary
Appeals was wrong to have reversed course. Likewise, the trial court
was right to have dismissed the commission’s lawsuit, and the court of
appeals was wrong to have reversed that determination. We therefore
reverse the judgment of the court of appeals and reinstate the trial
court’s judgment of dismissal for lack of subject-matter jurisdiction.

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I

After the 2020 presidential election, the State of Texas moved for
leave to invoke the U.S. Supreme Court’s original jurisdiction. The bill of
complaint accompanying the motion alleged that non-legislative actors in
the Commonwealth of Pennsylvania and the States of Georgia, Michigan,
and Wisconsin altered state election statutes in violation of several
provisions of the U.S. Constitution. Texas also moved for a preliminary
injunction and a temporary restraining order or, alternatively, for a stay
and an administrative stay, and sought expedited consideration of its
pleadings. Webster, the First Assistant Attorney General of Texas,
appeared on the pleadings. His name was listed below that of Attorney
General Paxton, who signed the pleadings as counsel of record.
The State’s legal theories, however, were never tested on their
merits. Four days after Texas moved for leave, the Supreme Court
dismissed the case “for lack of standing”—albeit with two justices
stating that they would have granted Texas’s motion for leave. Texas v.
Pennsylvania, 141 S. Ct. 1230, 1230 (2020) (mem.); see id. (statement of
Alito, J., joined by Thomas, J.). The case garnered national attention
and fomented substantial public controversy. States across the Union
filed amicus briefs in support of both Texas and the defendant states.
In the wake of the filing, various individuals brought
“grievances”—i.e., “written statement[s], from whatever source,
apparently intended to allege Professional Misconduct”—against the
attorney general and the first assistant. See Tex. Rules Disciplinary P.
R. 1.06(R). Among the grievances was Brynne VanHettinga’s.
VanHettinga does not reside in Texas, is an inactive member of the State

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Bar of Texas, and has no connection to the underlying litigation.
Nevertheless, she faulted the first assistant for making “specious legal
arguments and unsupported factual assertions” in the initial pleadings.
The law has changed in one respect since VanHettinga filed her
grievance. If filed today, such a grievance would go nowhere because
VanHettinga lacked “a cognizable individual interest in or connection to
the legal matter or facts alleged in the grievance.” Tex. Gov’t Code
§ 81.073(a)(1)(B)(vi), (2)(B). The legislature added this cognizable-
individual-interest requirement last year. See Act of May 24, 2023, 88th
Leg., R.S., ch. 1020, § 1, sec. 81.073, 2023 Tex. Gen. Laws 3232, 3232–33
(codified at Tex. Gov’t Code § 81.073); see also Tex. Rules Disciplinary P.
R. 1.06(G) (amended in 2023 following the statutory enactment). But
this case applies the preexisting requirements, under which VanHettinga’s
irrelevance to the underlying litigation did not foreclose her ability to
invoke the process.
What then ensued—and, if brought in compliance with current
law, would ensue today—was prescribed by the Texas Rules of
Disciplinary Procedure. To begin, the Office of the Chief Disciplinary
Counsel (CDC) received the grievance and initially dismissed it for “not
alleg[ing] Professional Misconduct.” See Tex. Rules Disciplinary P.
R. 1.06(T); see also Tex. Gov’t Code § 81.074(1) (explaining that the CDC
shall “dismiss a grievance” that does not allege professional misconduct).
VanHettinga appealed that decision to the Board of Disciplinary Appeals
(BODA), which reversed. BODA determined that the grievance “allege[d]
a possible violation” of the Texas Disciplinary Rules of Professional
Conduct.

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BODA’s determination transformed the “grievance” into a
“complaint,” triggering further phases of the attorney-discipline process.
See generally Tex. Rules Disciplinary P. R. 2.10(B), 2.12. After the first
assistant responded to the allegations, see id. R. 2.10(B), the CDC
“investigate[d]” the complaint to determine whether to proceed, id.
R. 2.12(A). That led the CDC to schedule a hearing before a non-
adversarial investigatory panel, see id. R. 1.06(W), which concluded that
“there [was] credible evidence to support a finding of Professional
Misconduct.” The rules then put the first assistant to a choice: Accept the
panel’s recommended sanction, see id. R. 2.14(D), or have the complaint
“heard in a district court of proper venue, with or without a jury, or by an
Evidentiary Panel,” id. R. 2.15.
The first assistant chose the district court, so the CDC filed a four-
page disciplinary petition in Williamson County on behalf of the
commission. See generally id. R. 3.01–.03 (providing that the CDC “shall
promptly file the Disciplinary Petition” (emphasis added)). The
commission alleged that when the first assistant “filed” the initial
pleadings, he made “misrepresentations,” “false statements,” and
“representations [that] were dishonest.” It identified these six:
1. An outcome-determinative number of votes were tied
to unregistered voters.
2. Votes were switched by a voting-machine glitch.
3. State actors unconstitutionally revised their state’s
election statutes.
4. Illegal votes affecting the election’s outcome had been
cast.
5. Texas had uncovered substantial evidence that
raised serious doubts about the integrity of the

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election process in the defendant States.
6. Texas had standing to bring its claims before the U.S.
Supreme Court.
According to the commission, by appearing on a pleading containing
those statements, the first assistant violated Texas Disciplinary Rule of
Professional Conduct 8.04(a)(3), which provides that “[a] lawyer shall
not . . . engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.” The six statements, the commission alleged,
contravened Rule 8.04(a)(3) because they were not “supported by any
charge, indictment, judicial finding, and/or credible or admissible
evidence.”
Also important is what the commission did not allege. It has never
suggested that the first assistant acted without authority (i.e., that he
acted ultra vires) or that he engaged in criminal conduct. And it is
undisputed that the Supreme Court did not sanction the first assistant
(or anyone else) for the challenged representations (or anything else).
That Court made no referral for discipline to any other body. Nor did any
party to the case raise any complaint about the pleadings.
After the commission filed its petition in the district court, the first
assistant filed a plea to the jurisdiction, arguing that the separation-of-
powers doctrine—or alternatively, sovereign immunity—rendered the
commission’s petition nonjusticiable. Following a hearing, the court
found that “the separation of powers doctrine deprive[d] [it] of subject
matter jurisdiction.”
The commission appealed. For docket-equalization purposes, this
Court transferred the case to the Eighth Court of Appeals, which
reversed. 676 S.W.3d 687, 691 (Tex. App.—El Paso 2023); see also id. at

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703 (Soto, J., concurring without separate opinion). The court of appeals
held that neither the separation-of-powers doctrine nor sovereign
immunity required dismissal. Id. at 691, 699, 702. It reasoned that these
disciplinary proceedings do not violate the separation of powers because
(1) the commission does not challenge the first assistant’s decision to file
suit; (2) the first assistant’s broad constitutional discretion (through the
attorney general) is limited by the rules of professional conduct; and
(3) exempting the first assistant from those rules is unnecessary for his
ability “to effectively exercise the Attorney General’s core powers.” Id. at
697–99. As to sovereign immunity, the court explained that (1) the
“petition targets Webster personally,” not the State; (2) discipline against
Webster would not amount to seeking to “control state action”; (3) there
was no risk of overdeterrence, as pursuing discipline in this context would
deter only violations of Rule 8.04(a)(3); and (4) there would be no harm to
the public fisc. Id. at 700–02. The court remanded to the district court
for proceedings on the merits. Id. at 703.
We granted Webster’s petition for review.

II

Whether a dispute is justiciable is a legal question that this Court
reviews de novo. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex.
2010).

A

Like the United States and our sister states, ours is a tripartite
system of government, whose powers are “divided into three distinct
departments”: legislative, executive, and judicial. Tex. Const. art. II, § 1;
see also id. arts. III–V. The People’s commitment to the separation of

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powers predates not just statehood but our days as a republic. The 1824
Constitution of Mexico and the 1827 Constitution of the State of Coahuila
y Tejas both contained separation-of-powers provisions that forbade the
unification or usurpation of power between or among the branches. See
1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 73, 426 (1898). The
very first provision of the Constitution of the Republic of Texas likewise
provided that “[t]he powers of this Government shall be divided into three
departments, viz: Legislative, Executive and Judicial, which shall remain
forever separate and distinct.” Tex. Const. of 1836, art. I, § 1. And
beginning in 1845, each Constitution of the State of Texas has contained
the following text:
The powers of the Government of the State of Texas shall
be divided into three distinct departments, each of which
shall be confided to a separate body of magistracy, to wit:
those which are Legislative to one, those which are
Executive to another, and those which are Judicial to
another; and no person, or collection of persons, being one
of these departments, shall exercise any power properly
attached to either of the others, except in the instances
herein expressly permitted.
Tex. Const. art. II, § 1; Terrazas v. Ramirez, 829 S.W.2d 712, 733 (Tex.
1991) (Cornyn, J., concurring) (noting that the separation-of-powers
clause “has been present in every Texas Constitution since 1845”).
Respect for this “fiat of the [P]eople”—the separation of
governmental powers—leads each branch to avoid stoking needless
friction with the other coordinate branches of government. See Lytle v.
Halff, 12 S.W. 610, 611 (Tex. 1889) (observing that the executive,
legislative, and judicial departments cannot “enlarge, restrict, or destroy
the powers of any one of th[em]”). True, some friction in tripartite

9
government is inevitable and indeed salutary. Cf. Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)
(“[The U.S. Constitution] enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.”). But as this Court has
confirmed, constitutional problems arise when one branch pushes beyond
the boundaries to interfere with another branch’s exercise of its
constitutional powers. Maud v. Terrell, 200 S.W. 375, 376 (Tex. 1918);
State Bd. of Ins. v. Betts, 308 S.W.2d 846, 851–52 (Tex. 1958).
If one branch seeks to seize power belonging solely to another, the
constitutional implication is obvious—the offending branch’s claim is
invalid. But “separation-of-powers disputes” often arise when “none of
the [competing constitutional] claims, at least when viewed in isolation,
is invalid.” In re Tex. House of Representatives, 702 S.W.3d 330, 340 (Tex.
2024) (emphasis added). Quite commonly, “[e]ach of the multiple claims
of power at issue” is “valid and entitled to respect,” requiring the Court
“to ensure that no branch is exercising its core authority in a way that
negates the ability of a coordinate branch to do so.” Id. at 340, 344. The
doctrines of constitutional avoidance and of presuming good faith on the
part of other governmental actors assist in this task. Both doctrines
manifest the judiciary’s commitment to the separation of powers, respect
for the other branches, and desire to prevent constitutional friction unless
and until unavoidable.
Our recent cases employ these constitutional principles. In In re
Turner, this Court weighed whether a gubernatorial veto “threaten[ed]
the Legislature’s ability to operate.” 627 S.W.3d 654, 656 (Tex. 2021).
Just one year later, in Van Dorn Preston v. M1 Support Services, L.P., the

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Court wrestled with “whether judicial review of military action in a suit”
interfered with the “Executive Branch’s constitutional authority over the
armed forces.” 642 S.W.3d 452, 455 (Tex. 2022). Later that year, in In re
Stetson Renewables Holdings, LLC, we considered “whether relators
ha[d] a judicially enforceable right to compel [an executive branch official]
to act” given scarce resources and an expiring statutory program. 658
S.W.3d 292, 295 (Tex. 2022). In each case, the ability of the courts to
proceed reduced to whether doing so would create unwarranted conflict
with the constitutional prerogatives of our co-equal branches.
Hence, in Turner, we recognized that we have a “duty to avoid
unnecessary constitutional issues,” which meant refraining from
exercising jurisdiction “to resolve disputes between the other two
branches that those branches c[ould] resolve for themselves.” 627 S.W.3d
at 660–61 (quoting Sullivan v. McDonald, 913 A.2d 403, 406 (Conn.
2007)). Even when the dispute is “one between the members of one
branch rather than one between the branches,” we will avoid exercising
jurisdiction out of respect for the separation of powers. Id. at 661.
We put these principles to practice in Van Dorn, where we
concluded that we had “constitutional jurisdiction to resolve the
dispute”—but only after assuring ourselves that doing so did not involve
or trespass into the executive branch’s “expertise or judgment.” 642
S.W.3d at 465. And in Stetson, we held that we could not compel the
comptroller—an executive-branch official—to act, because such an order
would unnecessarily pit the judicial department against the prerogatives
of the coordinate branches and risked invading the official’s “exercise of
discretion.” 658 S.W.3d at 296.

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The dissent suggests that the separation-of-powers doctrine cannot
“restrict the means by which a department [of government] may exercise
a power it properly possesses.” Post at 2 (Boyd, J., dissenting). To the
extent that cryptic statement means that each branch of government may
fulfill its constitutional duties by using the powers “properly” at its
disposal without another branch’s interference, we agree. But the use of
a given power—even one that, in a vacuum, is unquestionably proper—
can sometimes impair the work of another branch. When that happens,
the whole point of the separation-of-powers doctrine is to determine
whether one “means” rather than another is permissible.
Just last month, for example, we expressly held that “the
legislature’s authority to compel witness testimony is unquestionably
valid” and specifically that it was a proper means to achieve the
important legislative objective of gathering information. In re Tex. House
of Representatives, 702 S.W.3d at 346. But we simultaneously held that
this very means violated the separation of powers when a legislative
subpoena would have the effect of blocking a lawfully scheduled
execution. Id. at 346–47. To “accommodat[e] the interests of all branches
of the government,” we determined that there was no “judicially
enforceable right” to make use of what otherwise is an entirely lawful
means of proceeding—because compelling testimony under those
circumstances would “ru[n] up against equally valid powers of the other
branches.” Id.
Accordingly, in separation-of-powers cases involving competing
exercises of valid constitutional authority, it is rarely enough to conclude
that a branch of government possesses a particular “means” to achieve an

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appropriate goal of that branch. Rather, it is our duty to determine
whether a coordinate branch’s exercise of power—and especially our own
exercise of power—“rise[s] to the level of constitutionally forbidden
impairment of [another branch’s] ability to perform its [powers].” Clinton
v. Jones, 520 U.S. 681, 699–703 (1997); see also, e.g., In re Dallas County,
697 S.W.3d 142, 163 (Tex. 2024) (“[T]he separation of powers requires
that we respect the other branches’ checks on the judiciary and not just
our checks on them.”).

B

The separation-of-powers problem in this case involves two
specific powers, both of which are valid: the judiciary’s authority to
regulate the practice of law and the attorney general’s exclusive authority
to determine the arguments and assess the evidence that warrant
bringing suit on behalf of the State. “These powers do not exist in
isolation but converge in a particular context,” In re Tex. House of
Representatives, 702 S.W.3d at 340, which requires the Court to
accommodate both constitutional interests by preventing one from
swallowing up the other.

1

We begin by describing the commission and defining the judicial
power at issue in this case.
The commission is “a standing committee of the state bar,” Tex.
Gov’t Code § 81.076(b), which is “an administrative agency of the judicial
department of government,” id. § 81.011(a). The commission does not
resemble the judiciary and, instead of being staffed by judges, has six
lawyers and six public members (i.e., non-lawyers) who serve staggered

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three-year terms. See id. § 81.076(b), (c). “The president of the state bar
appoints the attorney members,” and this Court “appoints the public
members.” Id. § 81.076(b).
Although the commission’s work necessarily implicates derivative
judicial power, the commission does not purport to be a court or even a
substitute for a court. It does not claim the judicial power, for example,
to adjudicate cases or liquidate law—power that we have sometimes
called “our jurisdictional power.” See, e.g., Eichelberger v. Eichelberger,
582 S.W.2d 395, 400 (Tex. 1979). Rather, it and the state bar serve as an
“aid” to “the judicial department’s powers under the [Texas]
[C]onstitution to regulate the practice of law, and not to the exclusion of
those powers.” Tex. Gov’t Code § 81.011(b). We have referred to this kind
of judicial authority as falling within our “administrative powers.” State
Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (emphasis omitted).
However demarcated, the Constitution vests all “judicial power”
only in courts and, for present purposes, “in one Supreme Court.” Tex.
Const. art. V, § 1. The judicial power at issue here is of the administrative
kind and is among the Court’s “inherent power[s]” that are “not secured
by any legislative grant” and are “necessarily implied to enable the Court
to discharge its constitutionally imposed duties.” Gomez, 891 S.W.2d at
245. We have described this Court’s inherent powers as “woven into the
fabric of the [Texas] [C]onstitution by virtue of their origin in the common
law and the mandate of . . . the separation of powers between three co-
equal branches.” Eichelberger, 582 S.W.2d at 398 (citing Tex. Const. art.
II, § 1). Broadly, the inherent powers “enable our courts to effectively
perform their judicial functions and to protect their dignity,

14
independence[,] and integrity.” Id. at 399.
As relevant to this case, we have held that the judicial power
necessarily includes the “power to regulate the practice of law in Texas
for the benefit and protection of the justice system and the people as a
whole.” In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 769 (Tex. 1999);
see also Unauthorized Prac. Comm. v. Cortez, 692 S.W.2d 47, 51 (Tex.
1985). Because bar admission and practice are “inextricably intertwined
with the administration of justice, the Court must have the power to
regulate these activities in order to fulfill its constitutional role.” Gomez,
891 S.W.2d at 245. Our early cases, for example, took it as a given that
this power is “necessarily inherent in all courts possessing . . . general
jurisdiction.” Scott v. State, 24 S.W. 789, 790 (Tex. 1894); see also Jackson
v. State, 21 Tex. 668, 673 (1858).
Denominating the judiciary’s authority to regulate the practice of
law as an “inherent power” is another way of stating that the original
public meaning of the “judicial power” created by the Texas Constitution
includes such authority. This aspect of the judicial power traces from
“the days of the Inns of Court in common law English jurisprudence,”
Eichelberger, 582 S.W.2d at 398–99, to the time the People adopted
article V, § 1 into the Texas Constitution in 1876.
As the English legal system developed within the common law, so
too did the “unity of interest between the courts and the legal profession.”
Thomas M. Alpert, The Inherent Power of the Courts to Regulate the
Practice of Law: An Historical Analysis, 32 Buff. L. Rev. 525, 529 (1983).
The courts, specifically, were “unique[ly]” interested in exercising
authority over the profession. Id. After King Edward I “ceded control

15
over [the profession] to the justices of his courts,” id. at 530, “[t]he
attorneys’ branch was henceforth a closed profession, reserved for those
who had been educated to it, and admitted to it, in the official course”—
but always “under the direction of the court[s],” Theodore F. T. Plucknett,
A Concise History of the Common Law 217–18 (5th ed. 1956).
The “attorney,” eventually synonymous with the modern English
solicitor, was “an officer of the court,” a privilege that meant he was
directly “subject to its orders.” People ex rel. Karlin v. Culkin, 248 N.Y.
465, 472–73 (1928) (Cardozo, C.J.); see also Alpert, supra, at 530–31 &
n.26. Attorneys’ distinction as officers of the court made them, as
Blackstone recounted, “peculiarly subject to the censure and
animadversion of the judges.” 3 William Blackstone, Commentaries *26
(emphasis added); see also Culkin, 248 N.Y. at 475–76 (discussing the
English courts’ system “for a continuing inquiry into the [attorneys’]
conduct” and “with a view to their discipline and removal by a court of
civil jurisdiction”).
Unsurprisingly, like the English courts, colonial courts exercised
authority over the practice of law. See Charles Warren, A History of the
American Bar 86, 109, 113, 121, 123, 130 (1911) (noting the courts’ roles
in Massachusetts, Pennsylvania, New Jersey, the Carolinas, and
Connecticut). This continued after the ratification of the U.S. Constitution
and over the first century of American independence, including when
Texas joined the Union and ratified the current Constitution. Adhering
to common-law practice, the U.S. Supreme Court referred to attorneys
as “its officers.” Ex parte Secombe, 60 U.S. (19 How.) 9, 13 (1856); see also
Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530–31 (1824). Indeed, these

16
“officers of the court” could “only be deprived of their [privileges]” or
admitted to practice through the “exercise of judicial power.” Ex parte
Garland, 71 U.S. (4 Wall.) 333, 378–79 (1866). State courts echoed these
sentiments throughout the nineteenth century. E.g., Ex parte Brown, 2
Miss. 303, 306–07 (Miss. Err. & App. 1836); People ex rel. Mulford v.
Turner, 1 Cal. 143, 150 (1850); State ex rel. Walker v. Mullins, 31 S.W.
744, 745 (Mo. 1895).
Most importantly, this Court did so, both before and after the
adoption of the present article V, § 1. See Scott, 24 S.W. at 790; Jackson,
21 Tex. at 673. The Court embraced the “officer of the court” concept from
the beginning. See, e.g., State v. Johnson, 12 Tex. 231, 238 (1854) (“The
District Attorney is not only an officer of the State, but also, in common
with other attorneys, an officer of the Court.” (emphasis added));
Richardson v. Wells, 3 Tex. 223, 227–28 (1848) (observing that “an
attorney” is “an officer of the court”).
References to “inherent” power in the context of attorney discipline
and admissions, in short, reflect that the original public meaning of the
judicial power in 1876 included the courts’ “inherent power” to regulate
the practice of law. See Nolo Press, 991 S.W.2d at 769; State v. Robinson,
26 Tex. 367, 371 (1862) (noting that the power to “disfranchise attorneys,
before and without conviction or indictment[,] . . . should be independent”
and “should be regarded as one of the inherent powers”). As one well-
known legal-ethics scholar observed in 1989, “[a] century or more ago the
predominant role of courts in regulating lawyers would have seemed
simply inescapable, natural, and inevitable to anyone.” Charles W.
Wolfram, Lawyer Turf and Lawyer Regulation—The Role of the Inherent-

17
Powers Doctrine, 12 U. Ark. at Little Rock L. Rev. 1, 5 (1989). It is this
jurisprudential history that animates statements like our observation
that “the Court [itself] must have the power to regulate” the practice of
law “to fulfill its constitutional role.” Gomez, 891 S.W.2d at 245.
At the same time, the three branches can and have worked
together in this context. For instance, to “aid” this Court in the exercise
of its judicial power “to regulate the practice of law,” see Tex. Gov’t Code
§ 81.011(b), the legislature enacted the State Bar Act, which simply
“provide[d] a statutory mechanism for promulgating regulations
governing the practice of law,” Gomez, 891 S.W.2d at 245. The legislature
explicitly disclaimed that the State Bar Act operated “to the exclusion of
[the judicial department’s] powers.” Tex. Gov’t Code § 81.011(b). And
“[t]he Legislature has acknowledged that the Court has exclusive
authority to adopt rules governing admission to the practice of law in
Texas.” Unauthorized Prac. of Law Comm. v. Am. Home Assurance Co.,
261 S.W.3d 24, 33 (Tex. 2008); see Tex. Gov’t Code § 81.061 (“Rules
governing the admission to the practice of law are within the exclusive
jurisdiction of the supreme court.”). Legislative willingness to assist the
judiciary without purporting to invade the judiciary’s inherent authority
is consistent with the Constitution’s use of the term “judicial power.”
The commission’s very existence concretely illustrates how the
branches have cooperated in this area. Some history provides context.
The commission was not officially created until 1991, replacing the then-
existing “grievance oversight committee.” See Act of May 23, 1991,
72d Leg., R.S., ch. 795, § 21, 1991 Tex. Gen. Laws 2794, 2801. The path
toward a more uniform and, at least from the courts’ perspective, less

18
burdensome disciplinary system was already well-trodden by then. In
1939, the first State Bar Act encouraged systematizing and simplifying
the disciplinary process by “empowering the Supreme Court to prepare,
propose, adopt[,] and promulgate rules and regulations for disciplining,
suspending[,] and disbarring attorneys at law.” See Act of Apr. 6, 1939,
46th Leg., R.S., ch. 1, 1939 Tex. Gen. Laws 64, 64.
Commentary from the very first issues of the Texas Bar Journal
highlighted how both the state legislature and the legal profession were
under public pressure to integrate the State Bar and “stream-lin[e] and
modernize” the disciplinary rules. E.g., Ben H. Powell, To the Members
of the Texas Bar Association, 1 Tex. B.J. 356, 356 (1938) (letter from the
then-president of the Texas Bar Association). Perhaps with some
exaggeration, one State Bar Act proponent observed that as things stood,
it was “virtually impossible to bar any lawyer from further practice
regardless of how reprehensible his actions may have been or how much
his unscrupulous and shady transactions may have hurt the legal
profession.” See F. E. Knetcsch, Have Lawyers ‘Slipped’ as Leaders? A
Legislator Says We Have, and Suggests a Remedy, 1 Tex. B.J. 357, 370
(1938). To “curb[] this evil,” “full time officers” within the then-voluntary
Texas Bar Association could assist the judiciary to more “promptly and
effectively disbar the [unscrupulous practitioners] from our ranks” should
the State Bar Act become law. Id.
It did become law, and ever since then, the State Bar Act and its
successive amendments have yielded many efficiencies. We need not
look further than our own docket to recognize the commission’s valuable
contribution to safeguarding Texas citizens from unscrupulous lawyers

19
while ensuring fairness and evenhandedness to lawyers subjected to
challenges. This Court could not do that job alone.
But the commission’s contributions are only the latest example.
Throughout Texas history, this Court disciplined, suspended, and when
necessary, disbarred attorneys admitted to practice in Texas. To
facilitate that authority, the Third Congress of the Republic of Texas
passed a law (exactly a century before the State Bar Act, as it happens)
that the State’s first legislature adopted in 1846—a statute “[t]o regulate
the License and Practice of Attornies and Counsellors at Law.” 2
Gammel, supra, at 1551–55; see id. at 136–39 (the 1839 enactment). The
statute provided that attorneys who are guilty of “any fraudulent or
dishonorable conduct, or of any mal-practice,” could be “suspended or
stricken from the roll of attornies at the direction of the court; and any
attorney who may be stricken from the roll, shall not afterwards be
allowed to practice in any court of the State, unless reinstated on appeal
to the supreme court.” Id. at 1553. The legislature provided that a Texas
attorney could be prosecuted “by motion or information of any two or more
practicing attornies of any court in which the party prosecuted may
practice, . . . and the motion or information shall be made and carried on
in the name of the State of Texas.” Id. at 1553–54; see also 3 Gammel,
supra, at 1562 (1854 amendments). Thus, the legislature has long
assisted the judicial branch in the discharge of its duties by providing
supplemental tools for streamlining discipline and using the bar—in
other words, other attorneys—to maintain discipline.
We disbarred at least one attorney with the aid of these provisions.
In Dillon v. State, an attorney sought a divorce for Mrs. Martha Ann

20
Walker after a mysterious “gentleman he did not know” supposedly
requested that he “bring the suit.” 6 Tex. 55, 58–59 (1851). It turned out,
however, that the attorney sought the divorce “without any authority
whatever from [Mrs. Walker].” Id. at 58. In response, two attorneys
invoked the statutory mechanism and moved for the trial court to order
the attorney to show cause for “why he should not be stricken from the
roll of practicing attorneys on a charge of malpractice.” Id. at 55. We
found the attorney’s story “altogether too improbable to be entitled to the
least possible credence.” Id. at 59. Rather, it was more likely that the
attorney “act[ed] in fraudulent collusion with the husband to procure the
divorce without the knowledge and consent of the wife.” Id. at 59–60.
Thus, the trial court was “fully justified . . . in revoking his license.” Id.
at 60.
A few years later, in Jackson, we confirmed that these early
statutory provisions facilitated but did not supplant the inherent
authority of the courts—they made discipline easier and more uniform,
but they did not make discipline possible or confine its administration
to new forms. The “power to enforce the forfeiture [of an attorney’s
professional franchise] must be lodged” in the courts, as “[s]uch a power
is indispensable to preserve the administration of justice.” Jackson, 21
Tex. at 672–73. There, we reversed a trial court’s decision to strike an
attorney from the rolls where nothing in the record supported the
judgment. See id. Several decades later, in Scott, we reversed the court
of civil appeals after it dismissed the judgment against an attorney that
“revok[ed] his license to practice law” and “str[uck] his name from the roll
of attorneys.” 24 S.W. at 789. This Court observed that the legislature

21
did “not expressly confe[r]” the “power to disbar attorneys” on the district
courts, but we reiterated that “[t]he power to disbar attorneys . . . is a
power necessarily inherent in all courts possessing such general
jurisdiction as is given to the district courts by the [C]onstitution.” Id. at
790; see also Robinson, 26 Tex. at 371.
Proceeding in these ways was laborious and at least risked a
perception of variation and inconsistency; the creation of the State Bar
and the various disciplinary bodies within it since 1939 has sought to
mitigate these problems. The current commission plays its role in this
effort in reliance on its relationship with this Court for its ability to
subject attorneys to scrutiny—potentially life-altering scrutiny, given the
consequences of discipline. Early on, we recognized that “proceeding to
disbar an attorney may be highly penal” because he may be “deprived of
the right to pursue and reap the profits of a profession, to fit himself for
which he may have spent years of toil, and upon which he is dependent
for a livelihood.” Scott, 24 S.W. at 789.
Our history and jurisprudence therefore reflect that the
commission has a significant but limited role in assisting this Court in
its duty to superintend the admission to the practice of law and the role
of attorneys within the judicial system. The importance of professional
discipline is unquestioned, and it is part of the judicial power itself for
courts to be able to demand that any attorney appearing before them
adhere to professional standards. Direct review of conduct before a
tribunal is part of this history.
The commission, by contrast, does not wield an identical version of
the courts’ disciplinary power in all contexts. Like the larger state bar

22
itself, the commission’s exercise of any authority is derivative of this
Court’s inherent powers and is to be deployed as an administrative aid to
the Court. Put to practice, this means that any exercise of power that
would have been improper or unauthorized for this Court to undertake
before the commission’s creation would necessarily be improper and
unauthorized for the commission to undertake now. The commission is
bound by these limitations on judicial authority even as it does not, and
indeed could not, remotely exercise the full judicial power. As we have
described, under the statute creating it, none of its members are active
judges, and the judiciary does not even select the majority of the
commission’s members—let alone control the statutory appointment
scheme set forth by the legislature. This case provides no occasion to
examine any tension that could arise between how the commission is
structured and its proper role as an administrative aid to this Court’s
exercise of its inherent powers. It is enough to recognize that while the
Court, the rest of the judiciary, the public, and the profession itself all
benefit from the State Bar Act, which creates the commission, the Act is
not the source—much less the sum—of judicial authority to regulate the
practice of law.
In addition to this and other inherent judicial powers vested in
this Court by article V, § 1 and reserved to the judicial department
under article II, § 1, the Constitution expressly imposes certain duties
on the Court, including the promulgation of rules of civil procedure and
judicial administration. See Tex. Const. art. V, § 31. This aspect of the
Court’s role is addressed in and facilitated by other chapters of the
Government Code and does not directly affect the case now before us.

23
2

Pitted against the commission’s derivative exercise of judicial
power is the first assistant, who “operates under the direct supervision of
the Attorney General.” 7 Tex. Jur. 3d Attorney General § 4; see also Tex.
Gov’t Code § 402.001(a) (“If the attorney general is absent or unable to
act, the attorney general’s first office assistant shall perform the duties
of the attorney general that are prescribed by law.”). Under our
Constitution, the attorney general is an executive-department officer
“whose primary duties are to render legal advice in opinions to various
political agencies and to represent the State in civil litigation.” Perry v.
Del Rio, 67 S.W.3d 85, 91 (Tex. 2001) (first citing Tex. Const. art. IV, §§ 1,
22; and then citing Tex. Gov’t Code § 402.021). Like the commission,
which derives its constitutional power from the judicial department, the
first assistant derives any authority that he may exercise from the
executive department—and specifically from the attorney general, whose
authority comes from the Constitution and from statutes. The degree to
which the commission and the first assistant exercise constitutional
powers, however, is far from the same.
Because all the “constitutional and statutory authority is vested in
one Attorney General,” the first assistant’s exercise of power is
intertwined with and can never exceed the attorney general’s. See PUC
v. Cofer, 754 S.W.2d 121, 123–24 (Tex. 1988) (noting that “the various
assistant attorneys general have no constitutional or statutory authority
that is not derived directly from the Attorney General himself ”). That
distinguishes him from the commission, which cannot exercise the full
judicial power. He instead must operate next to and in tandem with the

24
constitutional source of power. In other words, when the first assistant
acts under the direction of the attorney general, he does so as if the
attorney general himself had acted. Like other high executive-branch
officials elected by the People, the attorney general cannot exercise the
function of his office—or at least very little of it—without assistance from
those who work under his direction. The challenge posed by the
commission, therefore, is a challenge to the powers entrusted to the
attorney general.
Those powers have deep roots. We have observed that the office of
the attorney general “is one of ancient origin.” Charles Scribner’s Sons v.
Marrs, 262 S.W. 722, 727 (Tex. 1924). “This personage was the chief law
officer of the [English] Crown, and its only legal representative in the
courts.” John Ben Shepperd, Common Law Powers and Duties of the
Attorney General, 7 Baylor L. Rev. 1, 1 (1955). As such, he was subject to
the Crown’s wishes, but his office was also vested with substantial power,
discretion, and “exceptional privileges.” See 6 W. S. Holdsworth, A
History of English Law 468–69 (1924).
The Office of the Attorney General of Texas preexisted our
statehood and was incorporated into our first constitution. Shepperd,
supra, at 4–5. In relevant part, the current constitutional provision states
as follows:
The Attorney General shall represent the State in all suits
and pleas in the Supreme Court of the State in which the
State may be a party, and [he] shall . . . perform such other
duties as may be required by law.
Tex. Const. art. IV, § 22. By this text—and a related statute empowering
him to “prosecute and defend all actions in which the state is interested

25
before the supreme court and courts of appeals,” Tex. Gov’t Code
§ 402.021—the attorney general is “clothed with important powers and
responsibilities,” Marrs, 262 S.W. at 729. Like the common-law attorney
general, the Texas attorney general “is the chief law officer of the State.”
Agey v. Am. Lib. Pipe Line Co., 172 S.W.2d 972, 974 (Tex. 1943). He is
likewise subject to the will of the sovereign—no longer the Crown but now
the People. Still, his office’s duties remain “multifarious, neces[s]arily
involving at all times the exercise of broad judgment and discretion.”
Marrs, 262 S.W. at 727. A century ago, we resolved that this “judgment
and discretion . . . will not be controlled by other authorities.” Id.
(emphasis added).
That judgment and discretion includes not only bringing and
defending lawsuits but also, as we expressed in Agey, the “right to
investigate the facts and [to] exercise his judgment and discretion
regarding” the suits in which the State is an interested party. 172 S.W.2d
at 974. For example, his “filing of a suit,” id., depends on his
“examin[ation] into the facts of the alleged offense, and [his] find[ing] not
only that there is reasonable ground to believe that the statute has been
violated, but also that the evidence necessary to a successful prosecution
of the suit can be procured,” Lewright v. Bell, 63 S.W. 623, 624 (Tex. 1901).
Of course, every attorney can and should investigate the
underlying facts, assess the likelihood of procuring evidence to support
the potential claims, determine whether the facts and the law justify
bringing suit or asserting a defense, and otherwise exercise sound
judgment in whether and how to do so. This process captures the essence
of the profession, at least for those attorneys who practice litigation. And

26
yet we would not have needed to make those points so markedly in cases
like Agey, Lewright, and Marrs if the attorney general’s authority were
merely the same as every other attorney’s. Those decisions stand for an
entirely different point: that the attorney general’s assessments in
bringing suit are privileged at a constitutional level from collateral review
by the other branches.
At the same time, of course, the “powers of the office of Attorney
General are limited.” State v. Thomas, 766 S.W.2d 217, 224 (Tex. 1989)
(Hecht, J., dissenting); see also Florida ex rel. Shevin v. Exxon Corp., 526
F.2d 266, 276 (5th Cir. 1976) (Coleman, J., dissenting) (noting that while
a state attorney general is “the chief law officer of the realm, he does not
exercise [his] authority as an unlimited monarch, governed only by his
own judgment”). Though he has “broad discretionary power in carrying
out his responsibility to represent the State,” “the Attorney General can
only act within the limits of the Texas Constitution and statutes.” Del
Rio, 67 S.W.3d at 92. In suits brought by the attorney general, therefore,
the authority of the court hearing the case naturally includes holding
even the attorney general (and any other executive-branch lawyer) to
account for litigation conduct. This allowance is consonant with our
repeated observation that the coordinate departments cannot “enlarge,
restrict, or destroy the powers of any one of th[em].” Lytle, 12 S.W. at 611;
see also Del Rio, 67 S.W.3d at 91–92 (quoting Garcia v. Laughlin, 285
S.W.2d 191, 194 (Tex. 1955)).
* * *
The underlying interests of both branches are valid. The judicial
branch has the authority to demand compliance with the rules of

27
professional discipline from attorneys who invoke a court’s jurisdiction,
including those from the executive branch. The executive branch has the
authority to make determinations about the propriety of filing suit
without the other branches’ attempts at control. The question for this
Court, then, is whether one of these interests may trump the other or
whether—and how—they may both be accommodated in our
constitutional tradition of the separation of powers.

III

We do not find the call to be close. Direct scrutiny within the
judicial process accommodates the inherent authority and responsibility
of the judicial branch. A court that perceives or is alerted to a professional
violation may address it, always sensitive to a coordinate branch’s
authority, its entitlement to respect, and the presumptions of good faith
and regularity that it is owed. But the commission claims authority for
the judicial branch that the judiciary lacks: a free-ranging power to
second-guess the attorney general’s and his first assistant’s exercise of
discretion in making initial filings that is wholly divorced from and
collateral to the litigation in which those filings are made. This claim of
authority creates unauthorized friction between the judicial and
executive departments. Exercising jurisdiction to reach the merits of the
commission’s lawsuit would violate the separation-of-powers doctrine.

A

All appear to agree that the commission may not collaterally
scrutinize the attorney general’s (or the first assistant’s) decision to file
a lawsuit, no matter how controversial or problematic the suit may be.
Instead, the commission argues that all our precedents concerning the

28
attorney general’s core constitutional powers pertain only to that choice—
his ultimate decision to file a suit. E.g., Lewright, 63 S.W. at 624
(examining “the duty of the attorney general to institute suits”); Marrs,
262 S.W. at 727 (describing the attorney general’s judgment and
discretion in “bringing suits”); Agey, 172 S.W.2d at 974 (same “regarding
the filing of a suit”); cf. Thomas, 766 S.W.2d at 219 (assessing the attorney
general’s ability to “take action ‘in the courts’ ” (citation omitted)). From
that premise, the commission contends—and the court of appeals
agreed—that filing a suit is wholly distinct from making the
representations within it. It then asserts that this case only targets the
latter—the six alleged misrepresentations. So, it concludes, the
disciplinary proceedings in no way “challenge the Attorney General’s
decision to file the suit” in the Supreme Court. 676 S.W.3d at 698.
We agree with the commission to an extent. The decision to file a
case is at least in some respects distinct from the specific content of the
case. An entirely defensible lawsuit may be infected with wholly
indefensible allegations. But we disagree with the commission on a more
important level. When referring to the attorney general’s broad
constitutional discretion, this Court has never drawn a line between these
two actions—his authority to file suit and his authority to populate the
suit with the representations that give it force and led him to file it. To
the contrary, to the extent that they are privileged at all, both actions are
privileged to the same degree.
The commission’s argument is therefore foreclosed by our
precedents. See supra Part II.B.2. In Agey, for example, we recognized
the attorney general’s responsibility “to institute in the proper courts

29
proceedings to enforce or protect any right of the public that [was]
violated,” which of course depended on his “investigat[ion] [of] the facts.”
172 S.W.2d at 974. On other occasions, when addressing the attorney
general’s ability to “elec[t]” whether to bring suit, Marrs, 262 S.W. at 728,
or to “examine into the facts of the alleged offense,” Lewright, 63 S.W.
at 624, we referred to his broad constitutional discretion to select legal
arguments, assess the available facts and evidence, and then make the
ultimate decision about whether to file suit. The attorney general’s
understanding of the facts and the law, of course, is what generates the
content of the original petition—the allegations and representations
made to the court.
In other words, it does not matter that the decision to file can be
distinguished in a theoretical sense from selecting the contents of the
filing. Those two activities are also integrally connected, which is why
our cases treat them with an identical level of constitutional protection.
We reaffirm this core constitutional principle today: When filing suit on
behalf of the State without any allegation of criminal or ultra vires
conduct, the attorney general (and hence the first assistant) is not
subject to collateral review of either the choice to file a lawsuit or the
representations in the suit’s initial pleadings. Instead, if the contents of
the pleadings are objectionable, whether for legal or ethical reasons,
only direct scrutiny—that is, by the court to whom the pleadings are
presented—is permissible under the separation-of-powers doctrine.
Our considerable case law is far from “no authority,” see post at
7–8, for our application of the law. See also infra Part III.B.3 (further
examining the relevant cases). Those cases explain the nature of the

30
constitutional conflict at issue. They provide the foundation for both
principles: that direct review by a court of the attorney general’s initial-
filing decisions cannot be foreclosed without sacrificing the core judicial
power of compelling adherence to the disciplinary rules and that
collateral review must be foreclosed in this context to avoid sacrificing
the authority that our cases unambiguously afford him.

B

The foregoing analysis nearly resolves the case, but there is a bit
more for us to do. Having refused to divorce the first assistant’s decision
to file the pleadings from the representations within them, we proceed
to analyze whether the district court could exercise subject-matter
jurisdiction over the commission’s petition. We do so by reviewing the
commission’s “pleadings and factual assertions” that implicate the
attorney general’s exercise of constitutional powers delegated to the first
assistant. Cf. City of Elsa, 325 S.W.3d at 625. We proceed in three steps:
first, by defining the scope of our review; second, by analyzing the
commission’s specific allegations and its theory of the case; and third,
by weighing the court of appeals’ holding against our precedents.

1

At the outset, the commission argues that our review is limited.
Specifically, it says that we cannot examine the alleged misrepresentations
because doing so would prematurely address the merits of the
disciplinary proceedings against the first assistant. This argument
echoes the view of the court of appeals, under which the first assistant’s
defense of his alleged misrepresentations “ha[d] no bearing on the
jurisdictional question before [it].” 676 S.W.3d at 698 (finding his

31
arguments “inappropriate”). Instead, all that mattered was that the
commission’s “petition meets all requirements of a disciplinary petition
filed in a district court, including ‘[a] description of the acts and conduct
that gave rise to the alleged Professional Misconduct’ and ‘[a] listing of
the specific [disciplinary] rules . . . allegedly violated by the acts or
conduct.’ ” Id. at 695–96 (quoting Tex. Rules Disciplinary P. R. 3.01).
This approach would be proper for a purely private action, but it
fails to account for how the “facts underlying the merits” and the facts
underlying our jurisdiction can be “intertwined” in the context of a
governmental plea to the jurisdiction. E.g., City of Fort Worth v. Pridgen,
653 S.W.3d 176, 182 (Tex. 2022); see also Van Dorn, 642 S.W.3d at 458–
59 (applying “separation of powers principles to determine whether
jurisdiction existed” while discussing “disputed jurisdictional fact issues
intertwined with the merits”). Sometimes, as here, that intersection is
“unavoidabl[e],” at least in part. See Chambers–Liberty Counties
Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019) (citing Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex.
2004)). Our analysis of the separation-of-powers problem before us
requires a review of the purported misrepresentations, especially where
the constitutional injury the first assistant alleges is the commission’s
scrutiny of his representations filed in the U.S. Supreme Court. This
analysis implicates but of course does not resolve the underlying merits
of whether the first assistant violated Texas Disciplinary Rule of
Professional Conduct 8.04(a)(3). Cf. id. at 349. Our holding, after all, is
that reaching the merits is what a court may not do in these
circumstances.

32
2

We conduct our review by “constru[ing] the pleadings liberally” in
the commission’s favor and “look[ing] to [its] intent.” Miranda, 133
S.W.3d at 226. That review reveals, from the face of the commission’s
petition, that the specific allegations—whether well-founded or
otherwise—impermissibly seek to challenge the first assistant’s legal
determinations and assessments of the available facts and evidence at
the time he filed the initial pleadings in the Supreme Court. The theory
of the commission’s case against the first assistant is that he is liable for
having “engage[d] in conduct involving dishonesty, fraud, deceit or
misrepresentation,” Tex. Disciplinary Rules Prof’l Conduct R. 8.04(a)(3),
because his six alleged misrepresentations were not “supported by any
charge, indictment, judicial finding, and/or credible or admissible
evidence.” Eschewing any limiting principle, the commission commits
to a reading of Rule 8.04(a)(3) that it says is “broa[d] in scope” and that
denotes “a lack of honesty, probity, or integrity in principle” as well as a
“lack of straightforwardness.”
This unbounded reading of Rule 8.04(a)(3) belies the commission’s
suggestion that it is simply attempting to hold the first assistant to the
same standards of professional conduct as all other Texas-licensed
attorneys. The deployment of Rule 8.04(a)(3) at the pleadings stage is
particularly problematic. Demanding such things as “judicial findings”
and “credible or admissible evidence” at the time the first assistant filed
the bill of complaint raises a host of concerns—some that would apply
whether the challenged attorney was in private practice or in public
office, and some that are specific to the attorney general’s authority.

33
For one thing, the commission’s view of Rule 8.04(a)(3)’s demands
is—at best—in tension with the minimum pleading standards for filing a
federal complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding
that “[t]o survive a motion to dismiss,” a claim must have “facial
plausibility,” meaning “more than a sheer possibility that a defendant has
acted unlawfully”), as well as the commentary to our own disciplinary
rules, see, e.g., Tex. Disciplinary Rules Prof’l Conduct R. 3.01 cmt. 3
(noting that “[a] filing or contention” is “not frivolous . . . merely because
the facts have not been first substantiated fully or because the lawyer
expects to develop vital evidence only by discovery” (emphasis added)).
We have some doubts, therefore, that the commission’s charges under
Rule 8.04(a)(3) would be permissible to scrutinize initial pleadings even
in purely private litigation, but we need not resolve that question today.
Suffice it to say that when a court holds a lawyer—any lawyer—to
account under Rule 8.04(a)(3), whether directly or collaterally, it should
do so with caution after giving that rule a careful reading.
More importantly, the commission’s allegations are at odds with
our case law regarding who is constitutionally entitled to assess the facts
and the law that warrant bringing suit on behalf of the State. As we
have reiterated, the attorney general’s determinations about whether a
lawsuit and its constituent parts are “supported by any charge,
indictment, judicial finding, and/or credible or admissible evidence” are
entrusted to the attorney general—not the commission. See supra Parts
II.B.2, III.A.
We confronted an analogous situation in Marrs, where we issued a
writ of mandamus directing the state superintendent to perform “the

34
ministerial acts required of him” by statute. Marrs, 262 S.W. at 723, 728.
The relator had entered a contract to sell and furnish textbooks to the
State, and the superintendent declined to observe the contract or perform
“according to its terms.” Id. at 728. But the attorney general, not the
superintendent, was “the officer authorized by law to protect the interests
of the state in matters of this kind, and to determine whether or not suits
shall be brought . . . to test the validity of its contracts, or to annul them.”
Id. at 727. Such determinations, we said, are cloaked with political
nuance. See id. at 728. For example, even supposing the contract in
Marrs was procured by “fraud or collusion,” the attorney general could
still “elect” whether to bring suit, as “[i]t may be that the state would
desire the benefits of [such] a contract.” Id.
The commission here, like the superintendent in Marrs, seeks “to
determine whether or not suits shall be brought,” see id. at 727, and
more, it attempts to second-guess the attorney general’s judgment and
discretion in populating the suit with the representations that gave it
force. Yet “independent of [the commission’s] judgment as to the wisdom
of ” the State’s bill of complaint, the attorney general’s “judgment and
discretion . . . will not be controlled by other authorities.” Cf. id. at 727–
28 (emphasis added)). This principle would mean little if it did not bar
subsequent second-guessing of the attorney general’s decision, which is
what we call collateral review.
The U.S. Supreme Court, of course, has full authority to discipline
any attorneys appearing before it. It is the federal judicial system’s court
of last resort; lawyers appearing before it must be admitted by that Court
to its own bar, over which it has exclusive control. For initial pleadings

35
filed in that or any other court by the attorney general, however, purely
collateral review by Texas state authorities under Rule 8.04(a)(3) is
impermissible because of its great risk of usurping the authority
entrusted to the attorney general. Indeed, by targeting the first assistant
(or any other executive branch attorney exercising the attorney general’s
core constitutional powers), the commission threatens the attorney
general’s ability to run his office and therefore represent the State in civil
litigation altogether. Cf. Cofer, 754 S.W.2d at 124 (noting the utility of
the attorney general’s ability to “not be personally involved in every case”
and to “delegate his duties to his assistants”).
In other words, the face of the commission’s petition eliminates any
authorized basis for subjecting the first assistant to discipline and
represents an especially egregious invasion of the attorney general’s
authority. The petition only alleges impermissible grounds for discipline—
it does not allege, for example, that the filing was made in the first
assistant’s private (and thus unprotected) capacity, or that it constituted
criminal (and thus unauthorized and unprotected) conduct, or that it was
ultra vires (and thus was not action on behalf of the State at all). The
first assistant accepts, and so we assume without the need for decision,
that the commission would have collateral authority over him under such
circumstances, which are not alleged and thus not at issue.
We have not previously needed to distinguish between direct and
collateral disciplinary review—but that is because, as far as we can see,
this case is the first one we have seen involving collateral review. To
date, the commission has provided this Court with no precedents for
disciplining any public attorney for allegedly violating Rule 8.04(a)(3)

36
based on representations at the pleadings stage. To its credit, in a post-
submission letter brief, the commission has acknowledged finding only
one other disciplinary matter that relied exclusively on Rule 8.04(a)(3)
involving any “alleged misrepresentations to a court in pleadings or
otherwise.” Even that one matter, however, involved a private rather
than a public lawyer, and it primarily involved out-of-court conduct
rather than statements in judicial filings.
We have found no other such examples ourselves. Our research
shows that of 148 instances where a state or federal court has cited Texas
Disciplinary Rule of Professional Conduct 8.04, not one provided even a
historical example of the commission deploying Rule 8.04(a)(3) against an
executive-branch attorney for representations made in initial pleadings.
This lack of precedent strikes us as unsurprising because the primary
way to address alleged violations of disciplinary (and other) rules in
initial pleadings is our system’s normal way—to take it up with the court
to whom the pleadings are presented. Collaterally disciplining an official
like the first assistant for statements made in initial pleadings—
particularly when a filing involves a politically sensitive lawsuit—creates
a serious risk that the judicial branch will venture into, or be dragged
into, the contentious arena of political disputes. This Court has time and
again refused to do so. See, e.g., Stetson, 658 S.W.3d at 297.
It is true that even direct review might impose some such risks,
and it is also true that the judiciary does not flinch from performing its
task merely because the subject matter might involve controversial topics
that courts would gladly avoid. But the theory underlying the
commission’s case against the first assistant maximizes such a risk,

37
including by opening up the process to anyone, anywhere, who for his own
reasons—whether good or bad—desires to harness the judicial power of
this State and to unleash that power in response to decisions of the
executive branch that a complainant opposes. Construing Rule 8.04(a)(3)
to bear such a broad application—any accusation of “a lack of honesty,
probity, or integrity in principle” or a “lack of straightforwardness”—
raises significant separation-of-powers concerns because it is easy to
characterize disagreement in such ways when passions rise. The
commission, like the judiciary that it serves, instead has the duty to
extend to the first assistant—a member of a coordinate branch—a
presumption of regularity, good faith, and legality. See, e.g., United
States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926) (“The presumption
of regularity supports the official acts of public officers, and, in the
absence of clear evidence to the contrary, courts presume that they have
properly discharged their official duties.”); Borgelt v. Austin Firefighters
Ass’n, 692 S.W.3d 288, 303 (Tex. 2024) (“[W]hen courts scrutinize the
other branches’ actions or enactments, we start with the presumption
that the rest of the government, no less than the judiciary, intends to
comply with the Constitution.”).
Accusations like a “lack of straightforwardness” or “integrity in
principle” as bases for subjecting an executive-branch attorney’s initial
pleadings to collateral review under Rule 8.04(a)(3) are therefore doubly
problematic. Such accusations are comparatively vague compared to
other disciplinary rules, e.g., Tex. Disciplinary Rules Prof’l Conduct
R. 1.11 (providing that “a lawyer shall not represent a private client in
connection with a matter in which the lawyer participated personally and

38
substantially as a public officer or employee”), and they constitute as
direct an impingement on the presumptions each branch owes to the
others as one can imagine. Accordingly, especially in the context of initial
pleadings, a minimally narrow rather than a maximally broad reading of
Rule 8.04(a)(3) is necessary to avoid undue constitutional friction. And
here, although the commission disclaimed any allegation of bad faith at
oral argument, its view of Rule 8.04(a)(3) in this case suggests the
opposite. By neither giving the first assistant the good-faith presumption
nor recognizing the attorney general’s authority to determine the
arguments and assess the evidence that warrant bringing suit on behalf
of the State, the commission’s unbounded construction of Rule 8.04(a)(3)
forcefully pits the judicial department against the executive.
All that to say, it is insignificant that the commission relabeled the
assessments and determinations that informed and populated the initial
pleadings as “misrepresentations.” Whatever the label, the challenged
statements are part and parcel of the attorney general’s (and first
assistant’s) “investigation of the case, and [his] determination” that “the
evidence necessary to a successful prosecution of the suit can be
procured.” Lewright, 63 S.W. at 624.

3

The court of appeals went a step further. It invoked this Court’s
admonition that the attorney general, and thus the first assistant, “can
only act within the limits of the Texas Constitution and statutes.” Del
Rio, 67 S.W.3d at 92 (emphasis added). Seizing on “and statutes,” the
court of appeals reasoned that “though the Texas Disciplinary Rules of
Professional Conduct are not statutory, they ‘should be treated like

39
statutes.’ ” 676 S.W.3d at 698 (quoting O’Quinn v. State Bar of Tex., 763
S.W.2d 397, 399 (Tex. 1988)). It then concluded that the first assistant’s
constitutional discretion “is plainly limited by adherence to the
disciplinary rules.” Id.
All that is true as far as it goes. The first assistant, for his part,
does not dispute that he is bound by the disciplinary rules, which indeed
bind all lawyers. But that the first assistant, like all lawyers, is subject
to the applicable disciplinary rules does not address how the rules apply
in a context laden with constitutional authority or how they are to be
enforced if the violation allegedly springs from initial pleadings. We
think that the court of appeals got the matter backwards. “The
legislature cannot by statute abrogate the Attorney General’s
constitutional grant of power.” Thomas, 766 S.W.2d at 219. If the
legislature could not by statute abrogate our holdings regarding the
attorney general’s authority to assess the facts and law incident to filing
a case, rules (no matter how much “like statutes” they are) certainly may
not do so by authorizing collateral review that the Constitution forbids.
Our decisions in Cofer, Lewright, and Stetson punctuate the point.
In Cofer, we addressed whether a trial court erred in exercising its
inherent powers to preclude the attorney general from “represent[ing]
both the [Public Utility Commission] and a state agency that [was]
appealing [the PUC’s] decision” on the grounds that his “representation
of opposing agencies created a[n] [irreconcilable] conflict of interest.”
754 S.W.2d at 122 (emphasis added). After all, under the disciplinary
rules, being on both sides of a dispute is impermissible. See id.; see also,
e.g., Tex. Disciplinary Rules Prof’l Conduct R. 1.06(a) (“A lawyer shall

40
not represent opposing parties to the same litigation.”). But there, the
attorney general’s statutory duty trumped the rules—the attorney
general could represent the State, even though the State’s interests were
divided. Cofer, 754 S.W.2d at 125. Also at play was an even more
fundamental principle: that a disciplinary rule could not “depriv[e] the
Attorney General of a power he clearly possesse[d]”—i.e., the
constitutional “duty to represent the state agencies” and make all the
discretionary decisions that representation entails. See id.; Tex. Const.
art. IV, § 22. The constitutional failsafe, of course, was the court before
which the attorney general appeared. Cofer, 754 S.W.2d at 125. “[I]n
the unlikely event” that the attorney general or his subordinates acted
outside their constitutional authority or acted unlawfully, the court
could deal with that conduct in due course through direct review. Id.
Our decision in Lewright, in turn, confirms that even statutory
duties cannot trump the attorney general’s constitutional authority.
There, we rejected an attempt to superintend via statute the attorney
general’s constitutional discretion. See Lewright, 63 S.W. at 623–24. We
concluded that we could not issue a writ of mandamus that would have
commanded the attorney general “to institute a suit in the name of the
[S]tate.” Id. at 623. True, a statute gave the attorney general the “duty”
to “institute a suit” under the circumstances described in the petition, but
the People entrusted the attorney general to avoid engaging in “vexatious
litigation” or “profitless suits.” See id. at 623–24. He therefore had
broad discretion to “examine into the facts of the alleged offense,” find
“that there [was] reasonable ground to believe that the statute ha[d]
been violated,” and conclude “that the evidence necessary to a successful

41
prosecution of the suit c[ould] be procured.” See id. at 624. Accordingly,
the Court refused to “control [the attorney general’s] judgment” or to
“determine his action.” Id. Our recent decision in Stetson similarly
refused to instruct the comptroller regarding how to allocate scarce
resources, which—despite a mandatory duty—was a determination for
the comptroller to make. 658 S.W.3d at 297.
The commission distinguishes our case law by arguing that these
disciplinary proceedings punish the first assistant for past conduct and
so do not control his judgment or determine his future action. But our
precedents are not so thin. Just like the parties in Lewright and Cofer,
the commission threatens the attorney general’s clear constitutional
authority and asks the Court to endorse judicial second-guessing of his
selection of legal arguments, his assessment of the facts and evidence,
and the ultimate decision to file suit based on those determinations.
Cofer, 754 S.W.2d at 125; Lewright, 63 S.W. 623–24. And like in Stetson,
we cannot fashion a “judicial remedy against the executive branch” where
doing so would “interfere in [its] administration of the state government”
and “exercise of discretion.” 658 S.W.3d at 297. Our decision today
adheres to these precedents.

C

The commission makes one last argument: that finding a lack of
subject-matter jurisdiction in this case would not solve, but create, a
separation-of-powers problem. According to the commission, the first
assistant seeks an “exemption” from the rules governing all other lawyers
and thus invades this Court’s prerogative to insist that all lawyers—
public and private—comply with the rules. Again, however, the first

42
assistant seeks no such exemption, and we offer none. The commission
then relies on out-of-state or federal case law, but those cases ultimately
support our holding or are inapposite to the purely collateral proceedings
the commission seeks to maintain here. Finally, it argues that the courts
and private attorneys are defenseless against executive-branch attorneys
who may flout the disciplinary rules without concern for professional
liability. We think, however, that the commission’s argument overlooks
the many existing safeguards against the risk of unscrupulous
government lawyers and provides no excuse for the commission’s own
unprecedented actions.
First—and to reiterate yet again—the first assistant claims no
entitlement to violate any disciplinary rule. We authorize no such
entitlement, either. All lawyers are bound by the rules. The judiciary
remains fully capable of vindicating breaches in any context. In the
narrow circumstance before us, however, we conclude that the separation
of powers requires that violations of the sort alleged here—based wholly
on representations in initial pleadings—must be addressed directly by
the court to whom the pleadings are presented rather than on the
commission’s purely collateral review. The substance and application of
the rules remains fully intact, and so does our separation-of-powers
precedent.
Second, the commission’s invocation of out-of-state authority fares
no better. It relies on Messameno v. Statewide Grievance Committee,
where the Supreme Court of Connecticut rejected the state attorney’s
extraordinarily broad argument that he could not be disciplined because
“any and all grievance proceedings pertaining to prosecutors” are “a

43
violation of the separation of powers.” 663 A.2d 317, 337 (Conn. 1995)
(emphasis added). The state supreme court unsurprisingly rejected such
a broad assertion, but it nonetheless observed that “a prosecutor subject
to investigation [in a grievance proceeding] may be able to allege that,
because of separation of powers principles, different substantive or
procedural rules appl[ied] to him or her than to the average attorney.”
Id. at 336. That is because “particular aspects of the prosecutorial
function”—including weighing “the strength of the evidence”—are
“generally [not] well suited for broad judicial oversight.” Id. We do not
decide today whether even a private lawyer would be subject to the
“substantive” rule that the commission advances—but we agree that if so,
the attorney general and his lawyers are entitled, “because of separation
of powers principles,” to a “different . . . procedural rul[e],” id., in the
sense that the commission may not collaterally attack initial pleadings
made before a court. This principle long predates the Connecticut
Supreme Court’s, or this Court’s, observation. Cf. 6 Holdsworth, supra,
at 468 (noting that the king’s attorney was not “subject to [the court’s]
discipline in the same way as the ordinary attorney”).
We again note that the first assistant does not dispute that a court
can sanction him and other executive-branch lawyers for conduct that
occurs before that court and that violates the Texas Disciplinary Rules of
Professional Conduct. Without opining on the general correctness of the
commission’s other cited cases, they do not advance the commission’s
argument here. E.g., Chilcutt v. United States, 4 F.3d 1313, 1327 (5th
Cir. 1993) (observing that “to restrict a district court’s power to fashion
appropriate sanctions, simply because the transgressor is a member of

44
the executive or legislative branch, would violate the separation of powers
doctrine” (footnote omitted)). Likewise, our dissenting colleagues have
offered no helpful authority. They have not cited a single case involving
collateral review of initial filings by the attorney general or his senior
officials. Indeed, their cases do not involve scrutiny of the attorney
general’s conduct at all. See, e.g., post at 5 & n.9 (quoting State ex rel.
Durden v. Shahan, 658 S.W.3d 300, 303 (Tex. 2022), which involved
assessing the authority of county attorneys).
In our view, the commission’s attempt to leverage experience in
other states only confirms our decision. If there were an established
practice of subjecting public lawyers—and especially state attorneys
general—to catch-all provisions like Rule 8.04(a)(3) for alleged
misrepresentations in initial pleadings, we would expect a host of
authorities rather than the silence that we instead find. That silence
reflects the judiciary’s duty to refuse invitations to interfere with
coordinate-branch decisions that are ultimately political. The
commission’s approach risks allowing the judiciary to be commandeered
by adversaries—political or otherwise—who wish to leverage the
disciplinary process in service of deeply felt views of policy or politics
that are best addressed outside the disciplinary process. “Placing the
Constitution’s entirely anticipated political arm wrestling into
permanent judicial receivership does not do the system a favor.” United
States v. Windsor, 570 U.S. 744, 791 (2013) (Scalia, J., dissenting). While
it is of course possible that referrals to the commission could be made
cynically or in bad faith, the greater risk may well be complaints that are
made in good faith—because the complainant genuinely believes in the

45
righteousness of his position. In this case, for example, an out-of-state,
inactive Texas attorney believed that “in the middle of a deadly pandemic
and economic recession,” the first assistant “exacerbated” the Union’s
“unprecedented loss of life” and “loss of public cohesion” when he “aided
and abetted” unnamed “malignant, power-deranged political hacks[’]
attempt[s] to disenfranchise voters and subvert democracy.”
The rule this Court announces today protects the prerogatives of
the courts as much as it protects those of the attorney general. “The
hydraulic pressure inherent within each of the separate Branches to
exceed the outer limits of its power, even to accomplish desirable
objectives, must be resisted.” INS v. Chadha, 462 U.S. 919, 951 (1983).
By avoiding the temptation to engage in processes that exceed judicial
bounds, courts protect their very nature as judicial entities. Our decision
applies our well-settled doctrine; it certainly does not fashion a restriction
on the judicial branch’s inherent power out of whole cloth. See post at 8.
Third, we are confident that the normal adversarial system
provides a powerful safeguard against executive-branch authorities who
may violate the Texas Disciplinary Rules of Professional Conduct over the
course of litigation. Once a case has been filed, the opposing party has
every incentive—and indeed obligation—to identify any problems, ethical
or otherwise, with the government’s case or its filings. One of our
disciplinary rules, for example, provides that a lawyer with “knowledge
that another lawyer has committed a [disciplinary rule] violation . . . that
raises a substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the appropriate
disciplinary authority.” Tex. Disciplinary Rules Prof’l Conduct R. 8.03(a)

46
(emphasis added). One such “appropriate disciplinary authority” is
unquestionably the court overseeing the conduct that gave rise to the
alleged rule violation. And the court does not have to await the opposing
party’s call; if it perceives breaches of the rules or other sanctionable
conduct, the court is empowered to investigate and impose consequences.
See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 723 n.76
(Tex. 2020).
The exercise of such direct review requires sensitivity to a
coordinate branch’s authority and entails the presumptions of good faith
and regularity that we have repeatedly described. See supra pp. 10, 28,
38. But the courts must have the authority to subject any attorney’s
litigation conduct to direct review. Our decision in Cofer, for example,
confirmed that courts possess such direct-review authority over
government attorneys for disciplinary purposes, while acknowledging
that substantive separation-of-powers concerns could arise there as in any
context. 754 S.W.2d at 123. As in Cofer, however, “we need not explore
[those concerns] here,” id. at 124, where no direct review has occurred.
While our precedent suggests that a judge “must” refer unethical
conduct to disciplinary proceedings, Brewer, 601 S.W.3d at 723 n.76, no
referral to the commission occurred in this case, and we have no occasion
to resolve any dispute concerning the proper extent of such a referral. We
note only that a referral to the commission that is preceded by a court’s
direct observation of a disciplinary-rule violation would be an exercise of
the court’s inherent powers “to aid in the exercise of its jurisdiction, in the
administration of justice, and in preservation of its independence and
integrity.” Cofer, 754 S.W.2d at 124. It is enough to recognize the

47
distinction between a referral to the commission by the presiding court
and a commission activated on its own motion or by any party foreign to
the litigation forming the basis of a grievance.
Fourth, the first assistant has readily agreed that in other
circumstances, the commission—and not just a court—may institute
disciplinary procedures. The first assistant cites private representations
(such as of family members), actions that constitute criminal conduct
(hence the Court’s prior acceptance of a former attorney general’s
resignation in lieu of discipline after he pleaded guilty to federal crimes),
or ultra vires conduct. Yet again, we have no occasion here to address
these or other examples.
Fifth, various political mechanisms serve as additional checks on
the attorney general’s (and by extension, the first assistant’s) conduct.
The attorney general’s client is ultimately the People of the State, who
are empowered to renew his engagement, or not, every four years. As
then-Justice Willett observed, it is this electoral process that prescribes
the strongest medicine for “an obdurate and vengeful Attorney General
Javert.” City of Galveston v. State, 217 S.W.3d 466, 481 (Tex. 2007)
(Willett, J., dissenting). The legislature, moreover, possesses powers for
expressing its disapproval of the attorney general’s conduct. Its devices
include how his office is funded or regulated; or, if necessary, by formal
censure as provided by the Constitution.
Finally, in addition to the other checks on executive-branch
violations of our rules, this Court’s inherent power to discipline (or even
disbar) public and private attorneys alike remains the ultimate failsafe.
See Scott, 24 S.W. at 790; Cofer, 754 S.W.2d at 125. After all, as part of

48
its inherent authority, the judiciary policed professional misconduct in
litigation long before the commission was created. See supra Part II.B.1;
Dillon, 6 Tex. at 58–59. That inherent authority remains intact today.
This Court, moreover, will remain the final check if courts
improperly impose or, in egregious cases, refuse to impose discipline. See
Jackson, 21 Tex. at 672–73. The worthy goal of the State Bar Act and its
many revisions is to streamline and systematize the disciplinary system
such that resort to the courts’ inherent authority becomes less and less
necessary. But the authority itself remains. The judicial branch, and this
Court, remain fully capable of redressing whatever concerns may arise
that would otherwise threaten the independence, integrity, or impartiality
of the judiciary. Vindicating our power to “regulate the practice of law in
Texas for the benefit and protection of the justice system and the people
as a whole,” Nolo Press, 991 S.W.2d at 769, does not depend on allowing
the commission to bring lawsuits like the one it initiated here.

IV

Because we conclude that the commission’s case is nonjusticiable
under the separation-of-powers doctrine, we do not reach the first
assistant’s alternative sovereign-immunity argument. The court of
appeals’ judgment is reversed. We reinstate the trial court’s judgment
dismissing the case for lack of subject-matter jurisdiction.

Evan A. Young
Justice

OPINION DELIVERED: December 31, 2024

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