Filed: 8/23/2022 3:04 PM

Lynne Finley
District Clerk
Collin County, Texas
By Amy Mathis Deputy
Envelope ID: 67576726
CAUSE NO. 471-02574-2022

COMMISSION FOR LAWYER DISCIPLINE, § IN THE DISTRICT COURT

Petitioner, §
§
v. §
§ OF COLLIN COUNTY, TEXAS
WARREN KENNETH PAXTON, JR. §
202006564; 202006566; 202101148; §
202101678; 202104762, §
Respondent. § 471ST JUDICIAL DISTRICT

RESPONDENT’S REPLY IN SUPPORT OF PLEA TO THE JURISDICTION

Over a century’s worth of Texas Supreme Court precedent conclusively demonstrates that

the Attorney General has exclusive, unfettered discretion to file civil lawsuits in the State’s name.

The Commission acts as if these cases do not exist. Its response contains not one reference to the

binding precedent most relevant to this plea. Time and again, the Commission evades and fails to

address authority that undermines its argument. Indeed, the Commission must avoid contrary

precedent. Its entire case turns on one flawed syllogism: the Commission regulates lawyers, the

Attorney General is a lawyer, and therefore the Commission regulates the Attorney General.

Introduce any nuance into the equation, and the Commission’s case is untenable. But the

“nuance” here is the Texas Constitution, binding precedent, and common sense, which all counsel

against subjugating the State’s chief legal officer to the whims of unelected bureaucrats.

Lacking legal support, the Commission resorts to hyperbole by accusing the Attorney

General of wanting to immunize himself from accountability. But this is wrong, misleading, and

irrelevant to the issue before this Court: can the Commission discipline the Attorney General for

filing Texas v. Pennsylvania? Under the Texas Constitution and the overwhelming weight of

precedent, they cannot. The Commission’s claims should be dismissed.

 ARGUMENTS & AUTHORITIES

A. The Commission’s Attempt to Undermine the Attorney General’s Authority via

Disciplinary Proceedings Violates Separation of Powers.

It is disingenuous for the Commission to contend that they are not seeking to control the

Attorney General. See, e.g., Resp. at 16-17. By pursuing disciplinary sanctions, the Commission is

attempting to bring the Attorney General to heel for filing a lawsuit with which it disagreed. And

inherent in the imposition of judicial sanctions, of any kind, is control. See, e.g., Positive Software

Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 462 (5th Cir. 2010) (finding that a federal

court would turn into “a roving commission” over the arbitral forum if given the power to sanction

substantive aspects of arbitration). Indeed, one of the primary reasons to impose disciplinary

sanctions is to deter future misconduct. See Kaufman v. Comm’n for Lawyer Discipline, 197 S.W.3d

867, 878–79 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied); Disciplinary Counsel v.

Horton, 158 Ohio St. 3d 76, 88–89 (2019); Matter of Schwartz, 176 Ariz. 455, 458 (1993). Even

punitive damages—a remedy designed to “punish” outrageous misconduct—have a deterrent

aspect. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 40 (Tex. 1998).

The Commission can have no purpose behind bringing these proceedings other than to

control the Attorney General. The Commission instituted these proceedings against the Attorney

General in part to stop him and his successors from filing future actions like Texas v. Pennsylvania;

the Commission seeks nothing less than to become the final arbiter of the propriety of every

decision made by an Attorney General. Thus, “sanction” and “control” are synonymous in this

context, and the Commission never meaningfully argues otherwise. The real question before the

Court is not the Commission’s motive, but whether this form of control via this attempt to impose

of sanctions violates the Texas Constitution’s Separation-of-Powers Clause. It clearly does.

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 The Texas Constitution puts the Attorney General in charge of deciding whether to file

civil lawsuits for the State: “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 . . . .” Tex. Const. art. IV, §

22. The Legislature gave the Attorney General similar authority: “The attorney general shall

prosecute and defend all actions in which the State is interested before the supreme court and

courts of appeals.” Tex. Gov’t Code § 402.021. Thus, the Attorney General is unquestionably

authorized to file lawsuits like Texas v. Pennsylvania. Even the Commission acknowledges “that

[the Attorney General] serves a unique role in Texas Government” and that he “had the right to

make the decision to file the Pennsylvania Case.” Resp. at 13, 31 (emphasis omitted).

The Texas Supreme Court has repeatedly recognized that the Attorney General’s power

to file such lawsuits is both extremely broad and beyond the control of the judicial and legislative

branches. Lewright v. Bell may be the earliest case on this point. There, the Court found that the

judiciary could not compel the Attorney General to file a lawsuit in the State’s name seeking

forfeiture of a company’s charter rights. Lewright v. Bell, 94 Tex. 556, 556-57 (1901). The Court

explained that the Attorney General was ultimately responsible for investigating and litigating such

issues and held that courts “cannot control [the Attorney General’s] judgment” in this area.

Id. at 557.

Nearly two decades later, the Court expanded Lewright’s holding to include legislative

control of the Attorney General’s discretion. In Maud v. Terrell, the Court found it was the

Attorney General’s “duty” to represent the State “as to suits and pleas in the Supreme Court.”

109 Tex. 97, 99 (1918) (citing Tex. Const. art. IV, § 22). The Court explained that this power is

3
“exclusive,” and that the Legislature could not “interfere with the [Attorney General’s] right to

exercise [it].” Id.

In Charles Scribner’s Sons v. Marrs, the Court again emphasized the Attorney General’s

extremely broad discretion in this field:

The office of Attorney General is one of ancient origin, and in all jurisdictions its
duties have been multifarious, necesarily [sic] involving at all times the exercise of
broad judgment and discretion. Even in the matter of bringing suits the Attorney
General must exercise judgment and discretion, which will not be controlled by other
authorities.

114 Tex. 11, 27 (1924) (emphasis added) (citation omitted).

More recently, in Terrazas v. Ramirez, the Court noted that the Attorney General is “the

chief legal officer of the State” with “broad discretionary power in conducting his legal duty and

responsibility to represent the State.” 829 S.W.2d 712, 721 (Tex. 1991). A decade later, the Court

repeated this point in Perry v. Del Rio: “We have recognized that the Attorney General, as the

State’s chief legal officer, has broad discretionary power in carrying out his responsibility to

represent the State.” 67 S.W.3d 85, 92 (Tex. 2001). 1

The Commission does not engage with the Texas Constitution’s clear command or the

century of caselaw that foreclose its attempt to seek disciplinary sanctions against the Attorney

General. It is not and cannot be disputed that the Attorney General is an executive officer with

exclusive authority to represent the State in civil matters such as Texas v. Pennsylvania. Tex. Const.

1
For additional authority on this issue, see Yett v. Cook, 115 Tex. 205, 221 (1926) (“Since the state can bring a
mandamus suit similar in purpose to the one before us, it is elementary that the Attorney General has the power to
institute such an action.”); State v. Farmers’ Loan & Tr. Co., 17 S.W. 60, 65 (Tex. 1891) (“[I]t has been steadily held
that an action or suit can be maintained by an attorney general in [sic] behalf of the state for the redress of injury to the
public, or to prevent this and that he cannot maintain a suit or action when private rights alone are involved.”); Queen
Ins. Co. v. State, 22 S.W. 1048, 1052 (Tex. Civ. App. 1893) (“[It is] the duty of the attorney general to institute
necessary proceedings in the courts to enforce or protect any right of the public that is violated, or to redress or prevent
any injury done to the public that demands the intervention of the courts.”), rev’d on other grounds, 24 S.W. 397 (1893).

4
art. IV, § 22. The Commission, as an unelected administrative arm of the Supreme Court, is within

the judicial department. See Tex. Const. art. V. And the attempted interference by the Commission

over the core powers of the Attorney General is unconstitutional. E.g., In re D.W., 249 S.W.3d 625,

635 (Tex. App.—Fort Worth 2008, pet. denied); Ex parte Lo, 424 S.W.3d 10, 29 (Tex. Crim. App.

2013). Simply put, these cases are fatal to the Commission’s arguments.

Rather than confront this authority, the Commission focuses primarily on two out-of-state

cases: In re Lord, 255 Minn. 370 (1959), and Massameno v. Statewide Greivance Comm., 234 Conn.

539 (1995). 2 Neither case supports the Commission’s argument that it can sanction the Attorney

General’s use of his constitutional and statutory authority.

First, In re Lord is factually and procedurally distinct from this case. There, the Minnesota

attorney general, while acting as an “assistant to [certain] county attorneys,” effectively told them

to defy a court’s restraining order, which they did. In re Lord, 255 Minn. at 373–75. The court found

that the attorney general’s conduct warranted “a severe censure.”. Id. at 382. Importantly, the

attorney general did not represent the state in the underlying lawsuit, and therefore the court found

that he was not exercising his executive powers at all. Id. at 373 (“In this proceeding the attorney

general is not even representing the state. He appears only as an assistant to the county attorneys

in the matter in which the boards of county commissioners of the named counties, not the state,

are parties. As such, he is no more acting in an executive capacity than are the county attorneys

involved.”).

2
The Commission also makes passing reference to Stephens v. Texas, Nos. PD-1032-20, PD-1033-20, 2021
WL 5917198 (Tex. Crim. App. 2021) (pet. for rehearing pending), a wrongly decided and non-binding case
relating solely to the Attorney General’s criminal prosecution authority for election code crimes. That case
has no bearing here, and the Office of the Attorney General’s litigation positions regarding its criminal
prosecution authority say nothing about the constitutional limits on the Commission’s power.

5
 These factual distinctions make In re Lord wholly unhelpful to the Commission’s position.

Despite the Minnesota court’s lofty rhetoric, without the exercise of executive power or any

limitation on it, there can be no separation-of-powers violation in the imposition of penalties by the

judiciary against the executive. Of course, the same cannot be said here. Moreover, the attorney

general in In re Lord defaulted on the sanctions issue—on the Governor’s advice, he refused to

participate in the proceedings against him. 3 Id. at 371. Thus, the separation-of-powers issue could

not have been adequately briefed.

Massameno is even less helpful to the Commission. The issue presented was whether a

statewide grievance committee could sanction a prosecutor’s use of official judgment without

violating separation of powers. 234 Conn. at 539. The Connecticut Supreme Court found it could.

But the Commission ignores the court’s reasoning and analysis, which undermines their claims

against Respondent.

For instance, the Commission omits Massameno’s discussion of when sanctions could

violate separation of powers. The court acknowledged that, when making sanctions decisions,

judges must be mindful of the “enormous discretion” prosecutors have over “deciding which

citizens should be prosecuted and for what charges they are to be held accountable.” Id. at 574–75.

The court explained that “judicial intrusion may disproportionately impact particular aspects of

the prosecutorial function.” Id. at 575. The court highlighted “prosecutorial charging decisions”

as an area particularly ill-suited “for broad judicial oversight” due to the high level of discretion

and judgment involved. Id. at 575–76.

3
As the concurrence noted, the Minnesota Supreme Court diverged from their written procedures in
significant ways, and “the interests of due process” were not well-served. In re Lord, 255 Minn. at 382-83
(Murphy, J., concurring specially).

6
 Like a prosecutor’s charging decision, the Attorney General’s decision to sue on behalf of

the State is a judgment call. The voters of Texas have entrusted the Attorney General—and the

Attorney General alone—to make these decisions, which often involve the most pressing issues of

our time. Making things worse, many of these cases, like Texas v. Pennsylvania, come with a ticking

clock: act immediately or the damage will already be done.

So no, the Attorney General is not like “every other Texas-licensed attorney,” as the

Commission claims. Resp. at 14. Constitutionally, statutorily, and practically, the Attorney

General is distinct from every other Texas-licensed attorney. The courts are well-equipped to

analyze the merits of the Attorney General’s lawsuits. But the Commission is poorly suited to

nitpick the countless factors underlying the Attorney General’s exercise of his authority. The

Commission may want more control over this area, but that is not the judiciary’s role under the

Texas Constitution.

Massameno is also unhelpful to the Court for another reason: the Connecticut Constitution

is materially different from the Texas Constitution. In Connecticut, prosecutors and courts have

significantly overlapped beginning in colonial times. Connecticut prosecutors were effectively

extensions of the judicial branch; they were appointed by judges and considered “ministers of

justice.” Massameno, 234 Conn. at 555–60. In 1973, the Connecticut Legislature moved

prosecutors to the executive branch via a constitutional amendment, but the court found that this

amendment was not intended to upset prosecutors’ and the judiciary’s historically intertwined

relationship. Id. at 558–60. This background was central to Massameno’s holding that the judiciary

could sanction prosecutors without violating separation of powers. See, e.g., id. at 555 (“We must

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. . . trace the history of prosecutorial power in Connecticut to understand the extent to which the

judiciary may permissibly interfere with that power.”).

The Texas Attorney General’s relationship to the Texas judiciary is very different. The

1845 Texas Constitution placed the Attorney General within the judicial branch. Tex. Const. art.

II, § 1 (1845). During the short time that this provision was in place, the Governor—not the

judiciary—had appointment power over the position. Id. The Attorney General was then moved

to the executive branch and remains there to this day. Tex. Const. art. IV, § 22. From the turn of

the 20th century and to the present, the Texas Supreme Court has repeatedly found that the

Attorney General has absolute discretion to file civil suits on the State’s behalf—a power he wields

free from legislative and judicial oversight. See Lewright, 94 Tex. at 557; Maud, 109 Tex. at 99;

Charles Scribner’s Sons, 114 Tex. at 27; Terrazas, 829 S.W.2d at 721; Perry, 67 S.W.3d at 92.

The Commission argues that the Attorney General has both executive and judicial powers.

Resp. at 13–14. To be clear, the Commission never explained why this distinction matters. Perhaps

because it does not.

A separation-of-powers violation occurs when one branch of government assumes or

interferes with a power attached to another branch. E.g., In re D.W., 249 S.W.3d at 635; Ex parte

Lo, 424 S.W.3d at 29. Whether characterized as judicial, executive, or something else, the power

to represent the State in civil litigation is still the Attorney General’s power. As the Attorney

General is an elected officer of the executive branch while the Commission is an unelected

bureaucracy of the judicial branch, the Commission violates separation of powers when it interferes

with the Attorney General’s authority.

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 Equally damning, the Commission’s distinction conflicts with the modern-day definition

of “judicial power.” The Texas Supreme Court found that this term “embraces powers to hear

facts, to decide issues of fact made by pleadings, to decide questions of law involved, to render and

enter judgment on facts in accordance with law as determined by the court, and to execute

judgment or sentence.” Holmes v. Morales, 924 S.W.2d 920, 923 (Tex. 1996). These categories do

not cover the Attorney General’s decision to file a lawsuit.

One final point about Massameno. The court there stated that a prior Connecticut Supreme

Court case analyzed how “the Code of Professional Responsibility [applied] to the attorney general

and to assistant attorneys general.” Massameno, 234 Conn. at 572–73 (citing Connecticut Comm’n

on Special Revenue v. Connecticut Freedom of Info. Comm’n, 174 Conn. 308, 387 (1978) (“Connecticut

Commission”)). The Commission failed to address Connecticut Commission in its response, but it

undercuts the Commission’s arguments. The issue there was whether the attorney general (Ajello)

and an assistant attorney general (Sheridan), who both represented adverse parties in the case,

needed to withdraw due to this conflict. Connecticut Commission, 174 Conn. at 308–10. Were Ajello

and Sheridan like any other private attorney, the professional rules would require their withdrawal.

Id. at 318. But the court found that the professional rules, at times, need to bend to accommodate

the attorney general’s unique role in the legal system: “Th[e] special status of the attorney general

where the people of the state are his clients cannot be disregarded in considering the application of

the provisions of the code of professional responsibility to the conduct of his office.” Id. at 319–20.

The court explained that an attorney general must at least be given leeway to perform his duties as

the State’s chief legal officer:

It seems to us that if the Attorney General is to have the unqualified role of chief
legal officer of the State, he or she must be able to direct the legal affairs of the State

9
 and its agencies. Only in this way will the Attorney General properly serve the State
and the public interest.

Id. at 320. The court gave “full consideration to the sui generis nature of [the Attorney General’s]

constitutional office and operation” and found that Ajello’s and Sheridan’s dual representation

did not violate the professional rules. Id. at 322.

The Commission wants this Court to believe that the State’s chief legal officer is just like

every other attorney, even when using his constitutional and statutory authority to represent the

State. More than a hundred years of law, including the Commission’s cited precedent, counsels

otherwise. This Court should follow precedent and common sense and find that the Commission’s

decision to file charges against the Attorney General violated separation of powers.

B. The Commission Cannot Overcome Sovereign Immunity with a Mere Assertion that
It Sued the Attorney General in His Individual Capacity.

The Commission’s sovereign immunity arguments fare no better than its separation-of-

powers arguments. The Commission contends that it can avoid the Attorney General’s sovereign

immunity merely because it purports to assert an individual-capacity remedy. See Resp. at 14–15.

But even the Commission’s own brief does not support this conclusion.

The Commission seemingly agrees that (1) claims arising from a state officer’s performance

of official duties are official capacity claims protected by sovereign immunity, and (2) this remains

true even when a plaintiff asserts an individual-capacity remedy (like monetary damages). See id.;

cf. PTJ at 32–34. Yet the Commission’s argument violates these principles. The Commission

contends that it avoided sovereign immunity solely because it seeks an individual-capacity remedy:

“the regulation of [the Attorney General’s] license to practice law.” Resp. at 14. But this cannot

be squared with the Commission’s acknowledgment that a plaintiff cannot plead around sovereign

immunity simply by asserting an individual-capacity remedy against a state official. Sovereign

10
immunity would be effectively meaningless if, as the Commission suggests, it could be so easily

undermined by artful pleading.

It is clear from the petition that the Commission asserted official-capacity claims against the

Attorney General. The basis for the complaints and for these charges are the Attorney General’s

decision to seek leave to file the Texas v. Pennsylvania lawsuit, an act he could only take in his official

capacity. See Tex. Const., art. IV, § 22; Tex. Gov’t Code § 402.021. All parties agree that relief

seeking to control state action is barred by sovereign immunity. See Resp. at 15; PTJ at 34–35.

In response, the Commission claims it takes no issue with the Attorney General’s choice to

file the Texas v. Pennsylvania lawsuit. Instead, the Commission purports to challenge only the

Attorney General’s “conduct of that litigation.” Resp. at 15. This metaphysical distinction proves

less than it seems. After all, the Attorney General does not personally participate in virtually any

matters that he directs: as the chief legal officer for the State, he decides whether to empower his

subordinates to file various cases. Indeed, in Texas v. Pennsylvania, the Attorney General’s key role

was in approving the choice to file a case in the first place. As the elected individual entitled to

represent the State of Texas, only the Attorney General could authorize such litigation.

The Commission attempts to reframe its fundamental dispute with this choice, recasting it

as a series of objections to the evidence and legal arguments underlying the State’s initial pleadings

and the Attorney General’s decision to file the lawsuit based on that supporting material. See id. at

10–11, 23; Pet. at 3. But the decision to file a particular lawsuit cannot be divorced from its content;

indeed, the Attorney General’s role in our system of separated powers is to decide whether a given

case based on a particular set of theories and evidence is in the best interests of the State of Texas.

Once the content of a lawsuit is changed under threat of sanctions from the Commission, the

11
“decision” to file that lawsuit has been taken away, and instead the Attorney General is only

permitted to file a different lawsuit. The Commission’s semantic contortions cannot save their

flawed theories.

Similarly, the Commission’s argument that “Respondent need not have actively

participated as an attorney in the Pennsylvania Case at all,” Resp. at 16, is of no moment. To be

sure, the Attorney General cannot personally play an active role in each of the tens of thousands of

cases handled by his office. But as a matter of law, the Attorney General is counsel of record in

every case handled by his office. Pub. Utility Comm’n of Tex. v. Cofer, 754 S.W.2d 121, 124 (Tex.

1988) (“[T]he Attorney General is still of counsel in every case where an assistant is of counsel.”);

Langdeau v. Dick, 356 S.W.2d 945, 959 (Tex. Civ. App.—Austin 1962, writ ref’d n.r.e.) (“[A]n

Assistant Attorney General is not of counsel in every case in which the Attorney General may be

of counsel, but [] the Attorney General is of counsel in every case in which an Assistant Attorney

General, as such, is properly of counsel.”). To the extent that the Commission uses Respondent’s

active involvement in the State’s litigation against him—a dubious argument on its own terms—it

proves nothing and does not constitute a waiver of the State’s sovereign immunity.

Sovereign immunity applies to suits challenging a state official’s exercise of absolute (rather

than limited) discretion. Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., 646 S.W.3d 329, 333 (Tex.

2022). Here, there are no factors for an Attorney General to weigh, no standards to satisfy, and no

approvals to seek before suing in the State’s name. See Tex. Const., art. IV, § 22; Tex. Gov’t Code

§ 402.021; Schroeder, 646 S.W.3d at 336. He can simply decide a lawsuit is warranted and then file

it. Put differently, he has absolute discretion to decide whether to file a civil suit on behalf of Texas.

The Commission’s attempt to interfere with this discretion violates sovereign immunity.

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 PRAYER

The Texas Constitution, Texas Supreme Court caselaw, and common sense all support

dismissal of the Commission’s lawsuit for lack of jurisdiction, and the Commission’s arguments to

the contrary fail. The Court should grant the Attorney General’s plea to the jurisdiction and

dismiss the petition.

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Date: August 23, 2022. Respectfully submitted.

KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
/s/ Christopher D. Hilton
CHRISTOPHER D. HILTON
Chief, General Litigation Division
Texas Bar No. 24087727
JUDD E. STONE II
Solicitor General of Texas
Texas Bar No. 24076720
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
[email protected]
[email protected]
COUNSEL FOR THE ATTORNEY GENERAL

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served

electronically through the electronic-filing manager in compliance with Texas Rule of Civil

Procedure 21a on August 23, 2022, to all counsel of record.

/s/ Christopher D. Hilton

CHRISTOPHER D. HILTON

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 Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.

Laura Kiick on behalf of Christopher Hilton

Bar No. 24087727
[email protected]
Envelope ID: 67576726
Status as of 8/24/2022 9:17 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Royce Lemoine 24026421 [email protected] 8/23/2022 3:04:13 PM SENT
Amanda M.Kates [email protected] 8/23/2022 3:04:13 PM SENT
Laura Kiick [email protected] 8/23/2022 3:04:13 PM SENT
Christopher Hilton [email protected] 8/23/2022 3:04:13 PM SENT
Murtaza Sutarwalla [email protected] 8/23/2022 3:04:13 PM SENT
Samuel GrantDorfman [email protected] 8/23/2022 3:04:13 PM SENT