Hearing On PTJ

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1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
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TRIAL COURT CAUSE NO. 471-02574-2022
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COMMISSION FOR LAWYER ) IN THE DISTRICT COURT
5 DISCIPLINE )
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6 VS. ) COLLIN COUNTY, TEXAS
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7 WARREN KENNETH PAXTON, JR. ) 471ST JUDICIAL DISTRICT
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12 PLEA TO THE JURISDICTION
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21 On the 24th day of August, 2022, the following
22 proceedings came on to be heard in the above-entitled and
23 numbered cause before the Honorable Casey Blair, Judge
24 presiding, held in Kaufman, Kaufman County, Texas;
25 Proceedings reported by machine shorthand.
ELIZABETH CROW WOODS, CSR

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1 A P P E A R A N C E S
2 FOR THE STATE:
3 ROYCE LE MOINE
SBOT: #24026421
4 E-mail: [email protected]
AMANDA M. KATES
5 SBOT: #24075987
E-mail: [email protected]
6 MICHAEL GRAHAM
SBOT: #24113581
Office of the Chief Disciplinary Counsel
8 State Bar of Texas
P.O. Box 12487, Capitol Station
9 Austin, Texas 78711-2487
Phone: (512) 427-1350
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FOR THE DEFENDANT:
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CHRISTOPHER D. HILTON
13 SBOT: #24087727
14 THOMAS A. ALBRIGHT
SBOT: # 00974790
Office of the Attorney General
16 P.O. Box 12548
Austin, Texas 78711-2548
17 Phone: (512) 475-4120
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1 I N D E X
VOLUME 1
2 (PLEA TO THE JURISDICTION)
Page Vol.
3 AUGUST 24, 2022
Announcements........................... 5 1
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Argument by Mr. Hilton.................. 10 1
5 Argument by Mr. Le Moine................ 47 1
Response by Mr. Hilton.................. 56 1
6 Response by Mr. Le Moine................ 58 1
7 Court's ruling taken under advisement... 66 1
8 Court Reporter's Certificate............ 67 1
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1 P R O C E E D I N G S
2 THE COURT: This is Cause
3 No. 471-02574-2022, styled Commission for Lawyer
4 Discipline V. Warren Kenneth Paxton, Jr. We're here
00:00 5 today, I believe, on a plea to the jurisdiction; is that
6 correct?
7 MR. HILTON: Yes, Your Honor.
8 MR. LE MOINE: From the respondent, that's
9 correct.
00:00 10 THE COURT: From the respondent?
11 MR. HILTON: And -- and there's also an
12 intervenor in the case, Your Honor, the State of Texas --
13 THE COURT: Okay.
14 MR. HILTON: -- that's also been noticed for
00:00 15 today. The issues are the same. It's -- you know, the
16 presentation is the same.
17 MR. LE MOINE: And, Your Honor, we're --
18 what I'll probably do is ask that -- I've already
19 conferred with opposing counsel -- that we set these two
00:00 20 matters that are still pending for the Court for a future
21 hearing and we can do it remotely.
22 But first of all, we received a copy of this
23 plea to the jurisdiction filed by the State of Texas
24 48 hours ago. So I haven't even been able to confer with
00:00 25 the Commission and develop a response to any of the

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1 allegations. Even though the wording in the plea to the
2 jurisdiction for the State of Texas and the respondent
3 are similar, they're completely different in arguments.
4 We have no jurisdiction over the State of
00:01 5 Texas or the attorney general's office. They're not
6 individual license holders who have sworn an oath to the
7 Rules. So our whole response is going to be completely
8 different and I need to discuss this with the Commission
9 and at this point, I've had 48 hours.
00:01 10 The second thing is we filed a motion to
11 strike and the motion to strike the intervention is --
12 needs to be heard before the plea to the jurisdiction on
13 the State of Texas. The case is Union Carbide and it
14 requires that the Judge and the decision be made on that
00:01 15 motion to strike before we go forward on any of these
16 adjudications.
17 THE COURT: And that's just on the -- the
18 intervenor?
19 MR. LE MOINE: That's correct, yes, just on
00:01 20 the intervenor.
21 THE COURT: Response?
22 MR. HILTON: I would disagree. This was
23 properly noticed. He was given three days. We filed
24 this and noticed it on Sunday. Monday, Tuesday,
00:01 25 Wednesday, that's the three days required by the Rules.

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1 That's what the Rules require. So we're here today. The
2 issues are the same. I'm raising the same substantive
3 issues that I raised in respondent's plea to the
4 jurisdiction and what everyone's discussing about not
00:02 5 having jurisdiction over the State of Texas and not
6 proceeding against them as an individual license holder,
7 that's not the basis of the State's intervention.
8 The basis of the State's intervention is to
9 protect the separation of powers doctrine and to preserve
00:02 10 its sovereign immunity. Again, the presentation today
11 and the issues before the Court are exactly the same on
12 both pleas. You know, the -- the -- the motion to strike
13 the intervention was only filed yesterday, I believe, or
14 Monday evening. It's not noticed for today. We can take
00:02 15 that up at a later time, but both pleas are properly
16 noticed before the Court and it's the same issues for the
17 Court to decide.
18 MR. LE MOINE: Two things, Your Honor.
19 First of all, there was no certificate of conference on
00:02 20 this plea to the jurisdiction that was filed by the State
21 of Texas. It was filed at 10:00 o'clock or 10:30 on
22 Sunday. Notice was -- therefore, notice was given on
23 Monday. I'm sitting on it for 48 hours. But because
24 there was no even conference with opposing counsel to let
00:02 25 us know, we had no idea that it was gonna be set and it's

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1 not properly set on today's docket because there was no
2 certificate of conference.
3 MR. HILTON: I don't understand that the
4 Rules require a certificate of conference.
00:03 5 MR. LE MOINE: 3.3, Your Honor.
6 MR. HILTON: I'm sorry?
7 MR. LE MOINE: It's 3.3 of the Collin County
8 Local Rules.
9 MR. HILTON: Okay.
00:03 10 THE COURT: And that is part of my local
11 rules too.
12 MR. HILTON: Okay. Understood. And we did
13 not have time to confer. But, again, the issues are
14 before the Court today. It's all exactly the same
00:03 15 issues.
16 THE COURT: Are you ready to proceed on
17 their motion to strike also?
18 MR. HILTON: No. That hasn't been noticed.
19 Quite frankly, Mr. -- when Mr. Le Moine and I discussed
00:03 20 it, he was saying early October for the motion to strike.
21 I don't know what Mr. Le Moine is talking about as far as
22 that needing to proceed first.
23 It's my understanding of interventions that
24 when you intervene, you're intervened until stricken and
00:03 25 therefore, the plea to the jurisdiction is ripe for

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1 decision.
2 MR. LE MOINE: It's --
3 MR. HILTON: But, you know, that's something
4 that we can confer about and I can see that case law, of
00:03 5 course, when we -- when we do hear the motion to strike,
6 but that's not before the Court today.
7 MR. LE MOINE: And we -- we've sent over the
8 dates that we got from Ms. Tilson related to the motion
9 to strike, but, again, it is Union Carbide and it
00:04 10 requires a decision be made first.
11 THE COURT: Okay. Here's what we're going
12 to do: We're going to take up the original plea to the
13 jurisdiction that was set for today. The coordinator did
14 tell me y'all had asked for an October date already. So
00:04 15 we're not too far around the corner here.
16 After I hear the plea of jurisdiction, then
17 I'll decide whether or not we need to move forward on
18 anything else. Make sense?
19 MR. LE MOINE: Thank you, Your Honor.
00:04 20 MR. HILTON: Yes, Your Honor.
21 THE COURT: Are you ready to proceed?
22 MR. HILTON: I am, Your Honor.
23 THE COURT: All right. You may do so.
24 MR. HILTON: Does the Court prefer I stand
00:04 25 when I address the Court?

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1 THE COURT: You know what? I'm good either
2 way since you're probably going to be standing for a
3 while, I'm assuming.
4 MR. HILTON: I do have a bit to say today.
00:04 5 Maybe I'll take a seat if that's okay with you.
6 THE COURT: You may be seated, yes, sir.
7 MR. HILTON: Thank you.
8 THE COURT: And which notebook is whose
9 here?
00:05 10 MR. HILTON: Your Honor, you have two
11 notebooks from me with blue covers. One is the pleadings
12 and then the other is all the exhibits to the pleadings.
13 THE COURT: Okay.
14 MR. HILTON: And I've also given you a copy
00:05 15 of what was gonna be a Power Point presentation, but I
16 figure I can just give you a paper copy of the slides --
17 THE COURT: I like --
18 MR. HILTON: -- of that presentation.
19 THE COURT: -- I like that better. And this
00:05 20 is y'all's here?
21 MR. LE MOINE: Yes. The first one is -- the
22 black one is the response to the plea to the
23 jurisdiction. The blue one is the motion to strike the
24 intervention if -- for some reason, if we need to take
00:05 25 that up.

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1 THE COURT: Okay. Thank you. Go ahead.
2 MR. HILTON: Thank you, Your Honor. Chris
3 Hilton from the attorney general's office on behalf of
4 the attorney general and the State of Texas.
00:05 5 The disciplinary charges against the
6 attorney general are completely meritless but much more
7 importantly, they never should have been brought. The
8 level of hyperbole in the discussion about the Texas V.
9 Pennsylvania lawsuit has reached the point that no longer
00:05 10 reflects reality.
11 Yes, Texas versus Pennsylvania was a
12 controversial case. It ignited strong passions on both
13 sides, the complainants and State Bar feeling one way but
14 many others feeling another way about the lawsuit and it
00:06 15 was over in four days. And in that short period of time,
16 nearly every state in the Union and a huge fraction of
17 Congress got involved. President Trump himself
18 intervened and it was over in four days when the Supreme
19 Court determined that Texas didn't have standing to
00:06 20 proceed. We disagree with the Court's conclusion, but we
21 respect it and we move on.
22 Afterward, this pernicious narrative that
23 election integrity is somehow not a legitimate concern
24 took hold and grew out of control. And Attorney General
00:06 25 Paxton became a target and the State Bar has allowed

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1 itself to be controlled by its narrative and has gone
2 after Ken Paxton with no basis to do so. We'll talk a
3 bit about the Texas versus Pennsylvania lawsuit itself.
4 I also want to note that the procedure from
00:07 5 the very beginning of these disciplinary proceedings has
6 been highly irregular with numerous departures from the
7 normal course of business, but that's all context for
8 what we view as an egregious breach of the separation of
9 powers principle.
00:07 10 What you have in this case, Your Honor, is
11 unelected administrators from the judicial branch
12 attempting to stand in judgment of the elected attorney
13 general who is the sole executive officer with the
14 authority to represent the State of Texas in the Supreme
00:07 15 Court of the United States.
16 And more than that, the State of Texas's
17 sovereign immunity is also implicated here and,
18 therefore, the suit cannot go forward if the Court does
19 not have jurisdiction.
00:07 20 So, again, I'm going to begin with a
21 discussion a little bit about Texas versus Pennsylvania
22 and what the lawsuit actually said. And -- and to frame
23 our discussion, I'll go through a bit of a procedural
24 history, which I think is illuminating about, you know,
00:08 25 the issues that the sovereign -- that the sovereign

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1 immunity and separation of powers arguments, you know,
2 have wrapped in them and then we'll go to the substantive
3 legal arguments.
4 So Texas V. Pennsylvania -- and I don't want
00:08 5 to assume any knowledge -- the State of Texas sued
6 Pennsylvania and three other states regarding
7 irregularities in how they administered their elections
8 during the 2020 November elections. This was during
9 COVID. Many states took measures to change how elections
00:08 10 were administered given the unprecedented times we were
11 all living in.
12 But Texas -- in Texas's view, some of those
13 changes and these four states were in violation of the US
14 Constitution. And there were three counts brought, but
00:08 15 the primary one was based on the Electors Clause of the
16 Constitution, which is Article 2, Section 1, Clause 2.
17 And essentially what it says is that -- or it's quoted on
18 the next slide -- excuse me. It says, Each State shall
19 appoint, in a manner -- in such manner as the legislature
00:09 20 thereof may direct, a number of electors equal to the
21 whole number of senators and representatives.
22 Now, the legal argument underpinning Texas
23 V. Penn was essentially this: That the changes to
24 election procedure and election law in Pennsylvania,
00:09 25 Wisconsin, Michigan and Georgia were not at the direction

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1 of the legislature. In many cases, there were friendly
2 settlements between local election officials and interest
3 groups. In some cases, you had local election officials
4 simply, you know, deciding that a new rule would govern
00:09 5 how the elections were conducted. In some cases, you had
6 executive officers -- who were not allowed to do so --
7 making changes to election procedure.
8 And, Your Honor, this case is not about
9 whether any of that would have carried today, whether any
00:10 10 of that, you know, was successful and this litigation was
11 not -- the Supreme Court decided not to take it up.
12 We'll talk about that a little bit and where the current
13 status of litigation like this is, but that's the legal
14 theory, and it's primarily a legal issue.
00:10 15 And under that legal theory, any votes that
16 are in violation of the Electors Clause, which reserves
17 solely to the legislature, not the individual state but
18 the legislature of the state, the -- the ability to
19 appoint in a manner as they direct the number of
00:10 20 electors. Any votes that don't follow the legislature's
21 commands would therefore violate the Electors Clause
22 under this theory.
23 When the litigation began, the original
24 proceedings like this, a state versus another state, the
00:10 25 Supreme Court, according to the Supreme Court's rules,

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1 you have to file leave -- a motion for leave to file a
2 bill of complaint. So you can't just file a petition.
3 You have to ask permission. Texas did that. It was
4 supported by, I believe, 11 affidavits, significant
00:11 5 documentary evidence, one expert -- one expert statement,
6 numerous citations to publicly available sources, and it
7 was a voluminous and well researched pleading.
8 Shortly thereafter, six other states moved
9 to intervene -- intervene in that proposed bill of
00:11 10 complaint: Missouri, Arkansas, Louisiana, Mississippi,
11 South Carolina and Utah. They want to join Texas as
12 plaintiffs under the very same legal theory and adopt and
13 incorporate Texas's evidence and want to join in that
14 proceeding.
00:11 15 125 members of the US House of
16 Representatives -- excuse me -- 126 members of the US
17 House of Representatives filed a motion for leave to file
18 an amicus curiae brief in support of Texas's lawsuit.
19 Seventeen other states filed -- moved for leave to file
00:12 20 an amicus curiae brief in support of Texas. And on the
21 other side, many other states sought to file leaves for
22 amicus as well.
23 So all total, I think it was something like
24 46 states were involved despite the four-day life span of
00:12 25 this case. At the end -- four days after it was filed,

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1 the Supreme Court of the United States issued a very
2 short text ruling. The only place I've been able to find
3 it is on the Supreme Court's website. And essentially
4 they said that Texas did not have standing under Article
00:12 5 3 of the Constitution.
6 Now, Texas had four standing arguments. The
7 Court apparently rejected all of them. Again, we don't
8 agree with the decision but nonetheless, we live with it.
9 Two justices dissented, however. Justices Alito and
00:12 10 Thomas said that they don't have discretion to deny the
11 filing of the bill and they essentially said, you know,
12 we would grant the motion for leave to file the bill but
13 we wouldn't do anything else and we don't express any
14 view on any other issue.
00:13 15 So what they said was we should hear this
16 case. And they didn't say how they would rule once they
17 had the case before them or what they would do with it,
18 but they did say we should take up the case. So on a
19 seven to two vote, Texas was not permitted to proceed
00:13 20 with its bill of complaint and that was the end of the
21 litigation.
22 Now, I want to go through some of the
23 specifics of the allegations of the lawsuit that the
24 Commission has taken issue with, but before I do that, on
00:13 25 page 8 of the -- the presentation I've given you, I've

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1 restated the federal pleadings standard here. I think
2 that's important to keep in mind as we walk through what
3 the lawsuit of Texas V. Penn actually says.
4 Similar to the state court pleading
00:13 5 standards, just a short, plain statement of the claim,
6 you don't have to have detailed factual allegations. You
7 can't just say, I was injured; therefore, I win. You
8 have to have some more meat on the bones.
9 But, you know, the Commission is under the
00:14 10 impression when you read their filings that you have to
11 have admissible and credible evidence. They say that
12 repeatedly, and they also take Texas to task for not
13 having court orders and judicial determinations that --
14 that some of these issues, which have not yet worked
00:14 15 their way through the courts -- we didn't have those
16 judgments in hand when Texas filed the lawsuit, but
17 that's nowhere in the federal pleadings standards.
18 Nonetheless, they said that the complaint
19 was well researched and well supported, something like a
00:14 20 dozen affidavits of the documentary evidence.
21 When you look at the specifics of what the
22 Commission has taken issue with on page 9 of my
23 presentation here, I've quoted the main four things that
24 they have in their petition against the attorney general.
00:14 25 And I won't go through every single alleged

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1 misrepresentation that the Commission has put in their
2 petition, but I think these four are illustrative of the
3 kinds of things the Commission has brought before the
4 Court in this case.
00:15 5 So the first representation that they take
6 issue with is, according to them, that the respondent,
7 the attorney general, made representations that an
8 outcome-determinative number of votes were tied to
9 unregistered voters. That's what they have said about
00:15 10 the Texas V. Pennsylvania lawsuit.
11 The lawsuit does discuss an incident in
12 Wayne County in Michigan where there were approximately
13 173,000 votes that were not tied to a registered voter.
14 It does not say that those on their own would have been
00:15 15 outcome-determinative anywhere in the pleadings that I
16 can see, and while that number was greater than the
17 margin of victory for President Biden in Michigan -- so
18 it may have been outcome-determinative in Michigan --
19 Texas would have been -- would have needed to be
00:16 20 successful in at least two of the states by my math on
21 the number of electoral college votes in order to
22 actually have an outcome-determinative number of votes.
23 So no matter which way you slice it, the
24 allegation that these were an outcome-determinative
00:16 25 number of votes tied to unregistered voters, you simply

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1 don't see it in the pleadings.
2 To take the second one, they talk about a
3 representation that respondent allegedly made that votes
4 were switched by a glitch with Dominion voting machines.
00:16 5 We all remember hearing the word "Dominion." It was all
6 over the news.
7 There is one paragraph that references
8 Dominion voting machines in the Texas V. Pennsylvania
9 proposed bill of complaint. It's in the factual
00:16 10 background section and it's discussing, you know, the
11 types of things that have been reported and that are out
12 there that are raising concerns about how the election
13 was conducted in some of these states.
14 And so I've quoted that -- that paragraph
00:16 15 and throughout this -- this -- you know, these slides,
16 Your Honor, I've indicated just kind of a base number
17 which of our exhibits, you know, this refers to so you
18 can find those in the binder.
19 So, again, the reference to Dominion voting
00:17 20 machines, you know, discusses a glitch, discusses votes
21 being wrongly switched, but that was based on publicly
22 available news reports. I mean, if you turn to page 11,
23 I've just shown you the headlines there, but the links to
24 these articles are available in our brief. There was a
00:17 25 lap -- there was a laptop and some USB drives that were

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1 stolen. They did contain voting data. The officials
2 said that clerk error is what initially caused some votes
3 to erroneously register for President Biden as opposed
4 to -- or for President Elect Biden as opposed to
00:17 5 President Trump at the time, but that was just the
6 official's word. And what Texas said in its lawsuit was
7 this was not independently verified and that's true.
8 It's the official saying that at the time the lawsuit was
9 filed.
00:17 10 So, again, we have the Commission saying
11 that there was an alleged misrepresentation regarding the
12 vote switching for Dominion voting machines. You don't
13 find that in the pleadings.
14 No. 3 from the -- page 3 of their petition,
00:18 15 they say they take issue with the representation that the
16 state actors, quote, unconstitutionally revised their
17 State's election statutes, end quote. I believe that is
18 an accurate quotation and as I just explained, under the
19 legal theory that the Electors Clause prohibits any
00:18 20 non-legislature changes to election procedures in any
21 state, that would be a true statement.
22 Now, if the legal theory is incorrect, then,
23 sure, it would not be unconstitutional. That would be
24 for the Supreme Court to decide, but that was the entire
00:18 25 legal theory of the case.

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1 And recall there were two justices who said
2 they would take up the case, did not give a hint as to
3 what they would do. But since then, a very similar legal
4 theory regarding the Elections Clause -- not the Electors
00:19 5 Clause but the Elections Clause, which has a similar
6 admonition that the legislatures of the state are to, you
7 know, prescribe a manner for conducting an election.
8 That lawsuit, which is Moore versus Harper,
9 we have four justices there saying that this is an
00:19 10 important issue. Both sides have advanced serious
11 arguments of the merits. We'll have to resolve this
12 question sooner or later and the sooner we do so, the
13 better, and the Supreme Court has taken up cert on that
14 issue.
00:19 15 And, again, it's not the Electors Clause.
16 It's the Elections Clause, but it's a very similar legal
17 theory. So, yes, the theory of Texas's complaint was
18 that there were unconstitutional revisions to the state's
19 election statutes, but it's a legal theory that has been
00:19 20 out there in legal circles for a while and the Supreme
21 Court has now taken up a very similar legal theory.
22 So whatever the purported misrepresentation
23 is supposed to be here, you know, it's not something that
24 was invented out of whole cloth. Whether it ultimately
00:19 25 carries, again, is not the point. We're talking about

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1 the federal pleadings standard. That's a lenient
2 pleadings standard, and you don't have to be successful
3 in order to not get sanctioned in a lawsuit.
4 The last one that I'll explain briefly is
00:20 5 there's this reference to representations that illegal
6 votes that have been cast that affected the outcome of
7 the election. On page 14 of the slides that I've given
8 Your Honor, I've reproduced for you the entire page, the
9 only page where the phrase "illegal votes" -- which is in
00:20 10 quotes in the petition -- appears. It's not even talking
11 about the 2020 election. It's talking about Bush versus
12 Gore. The only time that phrase appears has nothing to
13 do with the 2020 election.
14 More importantly though, Your Honor, even if
00:20 15 it did appear elsewhere -- I couldn't find it but let's
16 say it did -- under the Electors Clause legal theory,
17 that would be a true statement. And, again, maybe that
18 legal theory is not correct. That's for the Supreme
19 Court to decide, but success in the litigation is not
00:21 20 what's before Your Honor.
21 Whether Texas V. Pennsylvania was a good
22 lawsuit, a bad lawsuit, or somewhere in between, that's a
23 very separate question from whether an ethical duty was
24 filed. And so for the reasons that we'll get into and we
00:21 25 shouldn't even be reaching the merits, it's all important

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1 to understand the context of what we're actually talking
2 about. It's over alleged misrepresentations like these
3 that the administrative arm of the State Bar has come
4 after the standing attorney general.
00:21 5 I won't go through the details of this one,
6 you know, on page 15 of the slides that I've given you.
7 But in their response to our plea to the jurisdiction,
8 there are new allegations of alleged misrepresentations.
9 There are others that I haven't gone through here but
00:21 10 I've gone through in our briefing. The tenor of the
11 allegations is that they weren't supported by facts or by
12 legitimate legal theories.
13 Well, you know, for this one on page 15,
14 it's quoting a third party source that was, you know,
00:21 15 issued by Pennsylvania state legislators mere days before
16 the filing of the Texas V. Pennsylvania and -- and -- and
17 the lawsuit quotes it directly.
18 So, again, maybe after a full inquiry, the
19 Supreme Court had let that lawsuit go forward. Maybe
00:22 20 those facts wouldn't have borne out, but the Commission's
21 allegation is that there was no legitimate basis to even
22 say this in the pleadings. And yet here, you can just
23 refer to -- I can't remember exactly which pleading it
24 is, but it's included in the exhibit binder. It's quoted
00:22 25 right there from the source that we all provide the

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1 Supreme Court.
2 That's the kinds of allegations of
3 misrepresentations that the Commission has brought in
4 this case. And so on the basis of those alleged
00:22 5 misrepresentations, we began down this very long process
6 of -- of dealing with these complaints that the State Bar
7 received. And this is reproduced from our written
8 filing, but on page 16, you know, there were -- my
9 understanding is something like 90 complaints filed
00:23 10 against the attorney general in total. Most of those, to
11 my knowledge, we haven't even seen and don't know why
12 they were disposed of. These four which are at issue in
13 the case before Your Honor were initially dismissed.
14 There was an initial finding that there was no basis to
00:23 15 these lawsuits. Those complainants appealed and then the
16 Board of Disciplinary Appeals sent it back down for
17 investigation under two specific rules.
18 So why were -- and then following the
19 reversal on these four complainants, there was another
00:23 20 one that was filed and so given that the Board of
21 Disciplinary Appeals just ruled, as I understand it, the
22 fifth complainant also got lumped in with these four.
23 Why were the other 85 or so complaints --
24 why do those stay dismissed and why were these five
00:23 25 reinstated? I don't know that I know that answer. I

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1 don't know that I'll ever find out, but that's how we
2 began.
3 We, you know, after this proceeded to an
4 investigation, we provided a lengthy response to the
00:24 5 State Bar raising the same issues that are in our plea to
6 the jurisdiction now and going through the exact same
7 factual support for Texas V. Penn that we just walked
8 through and is in our pleadings before the Court.
9 To my knowledge, before litigation we never
00:24 10 received a response other than, well, we're proceeding
11 forward. Never received a substantive response, to my
12 knowledge, and we immediately had some procedural
13 irregularities that -- that, you know, we could not make
14 sense of.
00:24 15 When you go to an investigatory panel, the
16 Texas Rules of Disciplinary Procedure are -- are -- are
17 specific about where that panel should be convened. And
18 the investigatory panel is a very important step in the
19 proceedings because the people who sit on that panel
00:24 20 determine if proceedings go forward. And that panel is
21 drawn from the community where the, you know, panel is
22 convened.
23 So the -- the venue rules say that the panel
24 shall be conducted by a panel in the county where the
00:25 25 alleged professional misconduct occurred in whole or in

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1 part. Well, the alleged professional misconduct here is
2 misrepresentations to the Supreme Court of the United
3 States, which is in D.C.
4 So there was no county within Texas where
00:25 5 the alleged professional misconduct occurred. The
6 Commission has no evidence about where any -- any
7 preparation work for those filings may have been done.
8 And they haven't alleged any facts about where any of
9 this, you know, supposed work on the lawsuit might have
00:25 10 been done.
11 So the venue rule goes on to say if it
12 occurred wholly outside the State of Texas, which it did
13 here, proceedings shall be conducted by a panel in the
14 county of the respondent's residence. For Ken Paxton,
00:25 15 that would be Collin County. And yet, over our objection
16 in our motion to transfer venue, the Commission proceeded
17 with an investigatory panel in Travis County. And as
18 they explained in their response to our PTJ, they did
19 that because Travis County, Texas, is where the
00:26 20 allegations against him occurred in whole or in part.
21 That's on page 18 of the demonstrative I provided to the
22 Court.
23 I'm not quite sure what that means. I don't
24 know if that means the all -- you know, the complainants
00:26 25 provided their allegations in Travis County. I assume

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1 what they mean is that the conduct underlining the
2 investigations occurred in Travis County, but it's not
3 clear to me. And this is, as far as I know, the most
4 explanation we've ever been given by the State Bar as far
00:26 5 as where, you know -- why the investigatory panel
6 convened in Travis County.
7 And they also cite here Texas Government
8 Code 402.008 and that's in support of -- you know, that's
9 where the conduct underlying the allegations, I suppose,
00:26 10 occurred in whole or in part.
11 But Texas Government Code 402.008 on page 19
12 says the attorney general shall keep the attorney
13 general's office in Austin. That's their support for the
14 proposition that venue was proper in Travis County.
00:27 15 Again, they have no evidence to suggest that
16 any work on this was done in any particular location and
17 the misrepresentations that are alleged would have been,
18 you know, before the Court in D.C. but regardless, that's
19 where we are. We went forward with the investigatory
00:27 20 hearing panel in Travis County.
21 As Your Honor I'm sure has noticed, this
22 proceeding is not in Travis County now. Why is that?
23 Well, they're now alleging in the petition that venue is
24 proper in Collin County because that's Ken Paxton's
00:27 25 principal place of practice.

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1 So the investigatory hearing phase, venue is
2 proper because that's where the attorney general's office
3 is. Now that we're at the litigation phase, Collin
4 County is his principal place of practice. Okay.
00:27 5 And then there's a different venue rule, as
6 I'm sure Mr. Le Moine will point out, for the actual
7 litigation phase of the disciplinary process. We have
8 different rules.
9 The first choice is venue where the -- the
00:28 10 county of the respondent's principal place of practice.
11 For the investigatory phase, that was Travis County, and
12 it's our contention it's because they want it in Travis
13 County. That panel based on publicly available
14 information are democratic primary voters, democratic
00:28 15 donors, people who were extremely hostile to Attorney
16 General Paxton.
17 You know, if you go past the principal place
18 of practice, then it should be in the county of residence
19 or -- or you know, where the misconduct occurred. The
00:28 20 point is not whether venue is proper now. We believe
21 that it is. We believe that we always should have had
22 venue in Collin County, but we've got shifting
23 justifications. And so it doesn't make sense to me as
24 far as why we've got principal place of practice now in
00:29 25 Collin County before we're talking about the attorney

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1 general's office in Travis County.
2 There's one other -- two other issues that I
3 just want to note before we move on to the merits of our
4 substantive plea. Again, I think all this is important
00:29 5 just so that Your Honor understands the context that all
6 this arose, where these complainants come from, and
7 provides the important context for the egregiousness for
8 the separation of powers violation.
9 We -- we have stated in our plea to the
00:29 10 jurisdiction that the Commission attempted to have this
11 lawsuit filed or had filed this lawsuit shortly before
12 Attorney General Paxton's primary runoff, again,
13 evidencing the -- the political and partisan motivation
14 of the Commission in bringing these meritless charges,
00:29 15 and they take issue with that.
16 They say, well, look at the file-stamped
17 date of the petition. It was May 25th, which was after
18 the primary runoff, and that's true. That's when it was
19 actually filed. But what I've shown you on page 21 of
00:30 20 the material I've submitted is a letter from Mr. Le Moine
21 to the administrative judge a month before the primary
22 runoff asking for Your Honor, I suppose, to be appointed
23 to preside over the case. And due to administrative
24 delay or whatever, apparently it took longer than that.
00:30 25 But, you know, clearly the Commission on

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1 their timeline was trying to get this filed before the
2 primary runoff.
3 There's always indications of political
4 motivation and then when we look at the actual charges
00:30 5 that were brought, we -- we -- we, you know, again, see
6 that the procedural irregularities here are clear
7 indications that this is not a, you know -- that this is
8 a politically motivated attack against the attorney
9 general.
00:30 10 The tenor of the Commission's claims are
11 that, you know, the legal theories and the facts
12 supporting Texas versus Pennsylvania were not -- not
13 meritorious, that Texas or the attorney general didn't
14 have full candor with the Court, didn't explain such and
00:31 15 such fact that he should have and there are two rules
16 directly on point for that.
17 We've got Disciplinary Rule of Professional
18 Conduct 3.01, which has to do with meritorious claims and
19 contentions. We've got 3.03, which is candor toward the
00:31 20 tribunal. Those were part of the complaints that were
21 initially brought to the Commission. Apparently they
22 didn't feel like they could sustain those charges. They
23 haven't brought those allegations against the attorney
24 general even though they're directly on point for the
00:31 25 kind of conduct that we're talking about, which is very

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1 clear from both the complaints and everything that the
2 Commission has filed.
3 Instead, they brought these charges under
4 8.04, which is a general misconduct provision. The
00:31 5 Commission has described it as a gap-filling provision to
6 cover dishonest conduct that does not fall within the
7 more specific provisions. They adopted that explanation
8 from a secondary source on that and had other similar
9 characterizations in a filing in another case that's on
00:32 10 appeal.
11 So they had to resort to a gap-filling
12 provision because they couldn't sustain the charges on
13 the more specific provision. And if all that weren't
14 enough, the -- the Disciplinary Rules of Professional
00:32 15 Conduct are also, you know, fairly specific about what
16 should happen in this scenario where the conduct at issue
17 occurred outside of the State of Texas. This was all in
18 front of the Supreme Court in the United States,
19 Washington D.C. and the federal system, had nothing to --
00:32 20 none of the alleged misrepresentations were to a Texas
21 court. They have no evidence that anything occurred in
22 Texas. It was all in D.C.
23 The Rules are clear, you know -- yes, I
24 think technically under the letter of the rule conduct
00:32 25 occurred outside the state could potentially be

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1 sanctionable within the State of Texas. But it's very
2 clear from reading the Rules that that is -- really
3 should be reserved for the occasion where the foreign
4 tribunal has taken issue with or sanctioned the attorney.
00:33 5 If I go get admitted to a pro hac vice in
6 Oklahoma and I get sanctioned by a court there, the Rules
7 say that the State Bar of Texas -- if I'm a State Bar of
8 Texas license holder -- can also take issue with that if
9 it's also professional conduct under the Texas Rules.
00:33 10 But Comment 4 to this jurisdictional rule is
11 pretty clear. Normally, discipline will not be imposed
12 in this state for conduct occurring solely in another
13 jurisdiction even if that conduct would violate these
14 rules.
00:33 15 What's not normal about this case? It was
16 politically divisive. Complainants didn't like it.
17 Commission didn't like it. So we see these procedural
18 irregularities throughout the lead-up to here. Again,
19 these claims are meritless and never should have been
00:33 20 brought. Unfortunately, they were brought. That doesn't
21 mean they need to continue.
22 So there are two primary bases for the plea
23 to the jurisdiction. The first I'll go through is
24 separation of powers. So the Texas Constitution, like
00:34 25 the U.S. Constitution, we've got legislative, executive,

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1 and judicial departments. And the Texas Constitution is
2 clear that no person or collection of persons being of
3 one of these departments shall exercise any power
4 properly attached to either of the others unless
00:34 5 expressly permitted by the Constitution.
6 Case law across the state is clear that it's
7 not just exercising a power of another branch but undue
8 interference of another branch so that they cannot
9 effectively exercise their own constitutional powers. So
00:34 10 it doesn't have to be the judiciary overstepping into the
11 executive and exercising executive power. It's also a
12 separation of powers violation if there's
13 unconstitutional, you know, interference with another
14 branch. And I -- I don't understand that we have a
00:34 15 dispute about this bedrock legal principle.
16 So that's exactly the situation we have
17 here. We've got an administrative arm of the judicial
18 branch, unelected state bureaucrats telling the chief
19 legal officer of the State of Texas how he can exercise
00:35 20 his sole prerogative and his exclusive authority to bring
21 a civil lawsuit on behalf of the State of Texas.
22 No other attorney in Texas, no one else on
23 the planet can bring a lawsuit on behalf of the State, an
24 original proceeding in the Supreme Court, as far as I'm
00:35 25 aware. Case law is pretty clear about that, and we've

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1 cited ostensibly in our plea to the jurisdiction. The
2 State's also cited in its intervention its plea to the
3 jurisdiction and I didn't understand we had any
4 disagreement about that either.
00:35 5 They say respondent had the right to make a
6 decision to file the Pennsylvania case. That's what the
7 Commission says. So it's the attorney general's sole
8 authority to decide to do that or not, and the Texas
9 Supreme Court has been clear for over a hundred years
00:36 10 that -- the quote from Lewright versus Bell, which is the
11 earliest case we found on this -- Courts cannot control
12 his -- the attorney general's -- "judgment in the matter
13 and determine his action regarding whether or not to file
14 suit." That's been clear for over a hundred years in
00:36 15 Texas.
16 In 1924, the Supreme Court said, "Even in
17 the matter of bringing suits, the attorney general must
18 exercise judgment and discretion which will not be
19 controlled by other authorities." This is solely his
00:36 20 power given him by the Constitution and the voters.
21 And more recently 2001 Perry versus Del Rio,
22 "Attorney general has broad discretionary power in
23 carrying out his rights and responsibility to represent
24 the state." There are other cases cited throughout our
00:36 25 brief.

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1 It's clear that this is the attorney
2 general's exclusive authority to bring this proceeding,
3 bring this type of civil proceeding. So rather than
4 engage head on with this issue, they've conceded it and I
00:37 5 think they must.
6 They focus primarily on two out-of-state
7 cases to say no, no, no, there's no separation of powers
8 issue. We have In Re Lord from 1969. They have a
9 Connecticut case, Massameno from 1995.
00:37 10 Now, the Minnesota case, In Re Lord has lots
11 of soaring rhetoric. The facts of that case are somebody
12 saying evidently the attorney general advised some local
13 county attorneys to disregard a court order, and then
14 they did so because the attorney general told them to.
00:37 15 Then when the Supreme Court of Minnesota called the
16 attorney general to account for it, the governor said to
17 the attorney general, Don't even show up, they don't have
18 any authority over you.
19 So there's lots of heated rhetoric about
00:37 20 this opinion but it doesn't have anything to do with the
21 issues before the Court and that's on the Court's own
22 terms. In this case, they said in this proceeding, the
23 attorney general is not even representing the State.
24 He's no more acting in an executive capacity than are the
00:38 25 county attorneys involved. There simply wasn't an

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1 exercise of executive powers in that case. So there
2 couldn't have been a separation of powers violation.
3 So it just simply has nothing to do with the
4 issue before the Court. Again, you can sit down and read
00:38 5 that case and it has lots of soaring rhetoric about, you
6 know, the Court's authority mirrors much of what the
7 Commission has said, but this case simply doesn't have
8 anything to do with the factual situation that's before
9 the Court. There wasn't an exercise of executive power.
00:38 10 The Massameno Connecticut case is a bit more
11 interesting. And, you know, in that case, within the
12 Connecticut structure, the Court -- Connecticut Supreme
13 Court did find the authority to sanction prosecutors, but
14 there's lots of interesting language in that case that
00:38 15 the Commission ignores. And I think it's directly
16 relevant to the issues before this Court that we go
17 through them.
18 You know, the Court goes to great lengths to
19 talk about judicial respect for the independence of the
00:39 20 prosecutor. And they talk about the history within
21 Connecticut of the close link between prosecutors and the
22 judiciary. Prosecutors were housed in the judicial
23 branch in Connecticut from 1704 until 1974, I believe.
24 In 1974, the legislature moved them to the executive
00:39 25 branch, but the Supreme Court of Connecticut found that,

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1 you know, their responsibilities didn't change. They
2 were still essentially exercising a judicial power within
3 the Connecticut system.
4 And so, again, we're not really presenting
00:39 5 the same issues that we are here where the attorney
6 general of Texas has been within the executive department
7 of the State of Texas since the Constitution of 1865. He
8 was briefly housed in the judicial department in the
9 first Constitution, was appointed by the governor. That
00:39 10 lasted only a matter of years for, you know, 160 years or
11 whatever it's been now, the attorney general has been an
12 executive officer in Texas.
13 Another interesting thing about the
14 Massameno case that the Commission doesn't note is that
00:40 15 it relies heavily on an earlier Connecticut Supreme Court
16 case called Connecticut Commission on Special Revenue
17 versus Connecticut Freedom of Info Commission.
18 That case goes through the interaction
19 between the attorney general and judicial disciplinary
00:40 20 proceedings and it says the special status of the
21 attorney general cannot be disregarded in considering the
22 application of provisions of the Code of Professional
23 Responsibility.
24 The Connecticut Supreme Court in that case
00:40 25 said seems to us if the attorney general is to have the

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1 unqualified role of chief legal officer of the State --
2 the Texas attorney general also has -- he or she must be
3 able to direct the legal affairs of the State of its
4 agencies. Only in this way will the attorney general
00:40 5 properly serve the State and the public interest.
6 And the facts of this Connecticut Freedom
7 case are interesting because there, there was a clear
8 conflict where if the attorney general and the
9 subordinate -- probably assistant attorney general -- had
00:41 10 been members of the same law firm, the Connecticut rules
11 at the time would have been clear that they would have
12 been conflicted out of representation.
13 And here, the Connecticut Supreme Court
14 said, no, you're the attorney general. The rules don't
00:41 15 apply to you the same way. You can proceed with the
16 representation. So the two out-of-jurisdiction cases
17 that they focus on really don't end up supporting their
18 position at all.
19 You know, the other issue here is, you know,
00:41 20 the extent to which these proceedings constitute control
21 over the attorney general. And I don't see the
22 Commission directly engaged with this and I don't think
23 they can seriously dispute that the power to discipline
24 the attorney general is a power to control him.
00:41 25 We cite several cases in our -- in our

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1 briefing about how judicial authority of any kind to
2 sanction an attorney is to deter future conduct. That's
3 one of the purposes. That's one of the purposes of
4 damages, for example. So whatever the Commission hopes
00:42 5 to gain here, there can only be one purpose for it --
6 well, two. There's retribution, but there's also to
7 deter future like conduct, to make sure this attorney
8 general and future attorneys general think twice about
9 what the State Bar will have to say before they defend
00:42 10 the interests of the State of Texas.
11 That's a significant degree of interference
12 by one branch against the other and it's an attack on a
13 key -- a key -- in fact, an exclusive authority of the
14 attorney general to initiate this kind of lawsuit.
00:42 15 And there's case law, which we've included
16 in our brief, that if the separation of powers violation
17 goes to a core function of that other branch, the attempt
18 to intrude on that power alone is sufficient to
19 constitute a separation of powers violation, much less
00:42 20 here where they're attempting to threaten the attorney
21 general's law license for representing the State the way
22 he saw fit doing the will of his voters.
23 The State Bar cannot sit in judgment of the
24 attorney general for exercising his constitutionally
00:43 25 granted authority.

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1 And if this reasoning by the Commission
2 wouldn't stop with the attorney general, think about a
3 hypothetical. Think about a governor on the campaign
4 trail or an executive order saying something that the
00:43 5 Commission thought was a misrepresentation that they
6 received complaints about. Our current governor is a
7 licensed attorney. Under the Commission's theory, they
8 could go after that governor even though he's executing
9 a -- you know, a core executive power. And they brought
00:43 10 this case under a theory that would allow them to do that
11 because 8.04 talks about you have a general duty to be an
12 honest person in the world to have a law license.
13 So nothing would stop them from going after
14 a governor that the Commission received complaints about
00:43 15 and that they decided was unethical. What about a
16 legislator at a community event or during a floor debate
17 saying something that they thought was factually untrue
18 and couldn't be supported? That would be a
19 misrepresentation. Could they go after that legislator
00:44 20 if they were an attorney?
21 That case isn't before Your Honor, but it
22 shows the extent to which the Commission is attempting to
23 go outside of its purview. Simply put, unelected
24 bureaucrats who are an administrative arm of the
00:44 25 judiciary do not and cannot have oversight authority over

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1 elected constitutional officers and executives.
2 Finally, Your Honor, on sovereign immunity,
3 the Court has long recognized that only the legislature
4 can waive or abrogate sovereign immunity. Sovereign
00:44 5 immunity protects the -- the State both from suit and
6 from liability in cases where the legislature hasn't, you
7 know, acquiesced to the lawsuit. And it often turns on
8 whether the government officer is sued as an official or
9 individual capacity.
00:45 10 When the attorney general is sued in his
11 official capacity -- as you can imagine, happens all the
12 time -- he's entitled to sovereign immunity unless there
13 is a waiver. The sovereign immunity of the State of
14 Texas is imputed to the attorney general in his official
00:45 15 capacity because the suit is against the office and those
16 lawsuits are about control of the office rather than
17 about control of the man.
18 So what capacity is relevant here? Of
19 course, the Commission says that this is an individual
00:45 20 capacity lawsuit. We're going after a man's law license,
21 not after an office. Well, what does the law say about
22 determining capacity? The form of the pleadings may be
23 relevant in determining whether a suit is official or
24 individual capacity.
00:45 25 The example from the Austin Court of Appeals

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1 that I put in our slides on page 33 says that if the suit
2 says, yes, this is an official capacity suit, well,
3 that's a pretty good clue it's an official capacity suit.
4 But that isn't the end of the inquiry. You have to look
00:46 5 at the substance of the claims and the relief sought, the
6 judicial inquiry into what is the actual claim here,
7 whether it's official or individual capacity.
8 In Texas, courts repeatedly and consistently
9 find that claims arising from a government official's
00:46 10 exercise of their official duties are covered by
11 sovereign immunity.
12 In other words, if a person is only in a
13 position to act as he did by virtue of his office, then
14 he's entitled to the sovereign immunity of the State
00:46 15 because that suit is really against the State. It is not
16 against the person. That's exactly the situation we have
17 here.
18 The attorney general of Texas, Ken Paxton,
19 was not able to file this lawsuit on behalf of the State
00:46 20 of Texas because he was a licensed Texas attorney. It's
21 only because he was -- had the office of the attorney
22 general of Texas. He could only take that action in his
23 official capacity.
24 The attorneys out in the hallway couldn't
00:47 25 come in here and bring a lawsuit on behalf of the State

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1 of Texas. Only the attorney general or someone wielding
2 his authority can do that.
3 Case law also says that a suit that seeks to
4 restrain the State or its officials in the exercise of
00:47 5 discretionary, statutory, or constitutional authority is
6 a suit that seeks to control State action and, therefore,
7 would implicate sovereign immunity. That's exactly what
8 we have here.
9 We've got the Commission seeking to punish
00:47 10 State action by the attorney general through his office
11 and we've got the Commission seeking to deter future
12 State action that it doesn't like through the threat of
13 sanctions in the future.
14 Texas' sovereign interests are clearly
00:47 15 injured by these proceedings. If the Commission lawsuit
16 is allowed to go forward and if they're successful, every
17 future attorney general will have to fear for their law
18 license rather than represent the State of Texas to the
19 best of their ability and in the way their voters
00:48 20 expected they would do.
21 They'll be hamstrung by unelected
22 bureaucrats and "the sovereign can only act through its
23 agents and, when the agents' actions are restrained, the
24 sovereign himself may, through him, be restrained."
00:48 25 That's exactly what this lawsuit threatens.

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1 Now, the Commission attempts a couple of
2 ways to try to get around this issue. They try to
3 separate out the choice to file Texas versus Pennsylvania
4 from the content of the lawsuit. They say they take no
00:48 5 issue with the decision to file Texas versus Penn, but
6 they say the attorney general's conduct in the course of
7 that litigation is what they take issue with.
8 Your Honor, to be frank, I don't think that
9 proves much. For one, you can't divorce the decision to
00:48 10 file a lawsuit from the content of a lawsuit. If we're
11 saying no, no, no, a decision to file the lawsuit was
12 fine but the content we have an issue with, well, then if
13 the content was different, then it wouldn't be the same
14 decision to file the lawsuit. You can't separate the
00:49 15 two.
16 And the attorney general's major function --
17 I mean, he can't possibly and does not personally attend
18 to every single one of the 30,000-plus cases that his
19 office handles, but for a case like this, his major
00:49 20 function is to approve the filing of the lawsuit. Only
21 the attorney general can do that.
22 So there is no other conduct that they could
23 take issue with. It's simply not possible to separate
24 the legal theories, the factual evidence, and whether
00:49 25 that's sufficient to bring a lawsuit from the decision to

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1 bring the lawsuit and all of that is commanded only to
2 the attorney general.
3 Now, the Commission also makes the argument
4 that the attorney general need not have actively
00:50 5 participated as an attorney in the Pennsylvania cases.
6 They say he may not have appeared as counsel of record.
7 He's indicated as counsel of record. He signed pleadings
8 in this matter. Go to the Supreme Court's website, the
9 only attorney listed for the State of Texas is Ken
00:50 10 Paxton.
11 But this is just not the law in Texas. The
12 law in Texas is clear. The attorney general is counsel
13 of record in every case handled by his office, whether he
14 has personal involvement or not. He is the chief legal
00:50 15 officer of the State. Any case where his assistant
16 attorneys general are appearing, he is also appearing as
17 counsel of record.
18 The authority to be the chief legal officer
19 of Texas is vested in the man, not the office. The
00:50 20 Constitution actually doesn't talk about the office. It
21 only talks about the attorney general himself.
22 And so by operation of law in Texas, he's
23 counsel of record in every single pleading. Again, I
24 don't really understand what this argument is going to
00:50 25 get them anyway. They're criticizing the attorney

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1 general for having an active role in litigation. It
2 seems like something you'd want your attorney general to
3 do.
4 If their argument is, well, ignore the cases
00:51 5 that your office is handling and we won't bother you,
6 that's not an argument that makes much sense to me.
7 Your Honor, on sovereign immunity, the --
8 the -- the -- at the end of the day, it's actually quite
9 a simple analysis. The attorney general acted at all
00:51 10 times in his official capacity. He couldn't have done
11 anything that he did in Texas versus Pennsylvania in his
12 individual capacity. He could only have done it as the
13 attorney general of Texas.
14 The Commission cannot establish a waiver of
00:51 15 sovereign immunity. They haven't even tried. The State
16 is the real party in interest when its ability to have
17 effective legal representation is at stake.
18 And as a statewide officer, the attorney
19 general is accountable to Texans in many other ways.
00:51 20 They vote for him. The legislature can impeach him. If
21 the attorney general does something not in his official
22 capacity, let's say he, you know, represents a friend in
23 a contract dispute, he commits unethical conduct there,
24 well, he's not acting in his official capacity.
00:52 25 Sovereign immunity won't apply, but here, sovereign

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1 immunity does apply.
2 Nothing here could have happened -- Ken
3 Paxton could not have done anything in this case but for
4 exercising the authority of his office. Therefore, he's
00:52 5 entitled to the sovereign immunity in this case.
6 So again, Your Honor, just to sum up, the
7 charges against the attorney general are completely
8 meritless. Whatever alleged misrepresentations the
9 Commission thinks they have found simply aren't there or
00:52 10 are -- are -- are so minor or are so, you know,
11 understandable within the context of -- again, I'm not
12 conceding there were any misrepresentations -- I think
13 that there were -- but it happens all the time when
14 someone files a lawsuit and has a factual theory that
00:52 15 doesn't pan out or has a legal theory that doesn't pan
16 out.
17 It's meritless to suggest that just because
18 Texas wasn't successful in this lawsuit that the attorney
19 general should be sanctioned. The administrators in the
00:52 20 judicial branch can't impede a statewide elected official
21 and the State sovereign immunity bars this litigation.
22 Your Honor, I appreciate your patience with
23 me going through all that. I know it's dense material.
24 I'm happy to answer any questions.
00:53 25 THE COURT: Why don't we take a quick break.

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1 We're off the record.
2 (Recess taken from 9:56 a.m. to 10:06 a.m.)
3 THE COURT: Let's go back on the record. We
4 are back on the record in the 471-02574-2022 case and I
01:03 5 believe -- you may proceed with your response.
6 MR. LE MOINE: Royce Le Moine with the
7 Commission. This, Your Honor, is a disciplinary action
8 as defined under 106(j) of our Texas Disciplinary Rules
9 of Professional Conduct. This is not a lawsuit against
01:03 10 the attorney general's office. This is not a civil suit
11 for money damages against Mr. Paxton. The complainants
12 are not even parties to this proceeding. This has
13 nothing to do with Mr. Paxton's executive or legal
14 decision to file the lawsuit in the -- in Texas versus
01:03 15 Pennsylvania.
16 Disciplinary actions as defined by our
17 Supreme Court are limited in scope to proceedings covered
18 by the Rules that Mr. Paxton swore to uphold.
19 THE COURT: Hold on one second. Hold on one
01:03 20 second. I'm going to let y'all get some water. We're
21 off the record.
22 (Off-the-record discussion.)
23 THE COURT: We'll go back on the record.
24 I'm sorry. Go ahead and proceed.
01:04 25 MR. LE MOINE: That's fine, Your Honor. And

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1 this relates only to his interest of his law license.
2 The cases that opposing counsel is citing claiming that
3 the respondent has some type of immunity are based on
4 lawsuits against government agencies and government
01:04 5 actors that are acting outside of the court at law.
6 On page 15 and 16 of our response, one of
7 the cases I cite is Dinsdale and it is a Massachusetts
8 case, but it is more related than any of the Texas cases
9 that we've cited in both of these -- the response and the
01:04 10 plea to the jurisdiction.
11 It sets forth that an attorney with the
12 attorney general's office should be shielded from
13 harassing lawsuits. And even with that immunity though,
14 it states that government lawyers are still subject to
01:04 15 sanctions, contempt, and Bar discipline. And this is
16 focused on the pleadings especially when they filed them
17 in a court at law under, in Mr. Paxton's case, his
18 judicial capacity.
19 As to opposing counsel's claims that the CDC
01:05 20 and the Commission failed to follow its own rules and has
21 a political agenda, there's no evidence at all to support
22 these allegations.
23 First, it is clear and I've set forth in our
24 response that Rules 2.14(d), 2.15, 3.01 and 3.03 of the
01:05 25 Texas Rules of Disciplinary Procedure that the

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1 Commission, the chief disciplinary counsel, the State Bar
2 of Texas, and its staff could not prevent the filing of
3 this petition.
4 I'd also like to inform the Court, like in
01:05 5 every discipline matter that we have, my staff and I
6 personally make ourselves available to answer questions
7 to respondent's counsels and we did this in this matter.
8 We had numerous conferences with Mr. Sutarwalla and
9 Mr. Dorfman and explained this whole process to them.
01:06 10 Opposing counsel has been informed our
11 investigation of these complaints were remanded by the
12 Supreme Court Rules. Every action that we took, every
13 notice that we sent out was required by these Rules.
14 Opposing counsel's reference that our
01:06 15 requests for Your Honor to be appointed to this matter,
16 this was a deadline required by the Supreme Court. We
17 were required to file this by May 17th.
18 The filing of the petition, which they
19 initially stated in their response was filed before the
01:06 20 primary election, was filed the day after. And why?
21 Because 303 required us to do that at the time we
22 received the appointment of Your Honor.
23 As to the claim by opposing counsel that the
24 CDC and the Commission cannot look at the list of
01:06 25 possible violations that BODA sends back on an appeal,

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1 it's just -- to be honest with you, it's nonsensical. We
2 talk about it in our response.
3 A grievance is not investigated until it's
4 classified as a complaint. BODA's review of an inquiry
01:07 5 that takes place before an investigation has not been
6 conducted. His reference to these other 90 cases, they
7 weren't appealed. That's why they weren't sent back.
8 There were only four cases appealed and they were sent
9 back to us.
01:07 10 The difference between that case and the
11 other one that was upgraded, without going to BODA, was
12 the fact that they made specific allegations of the
13 representations that third actors committed crimes and
14 unconstitutional acts to support the injunction request
01:07 15 in the pleadings. That is why that matter was upgraded
16 before it was sent to BODA.
17 I believe it's very disingenuous to argue
18 that the Supreme Court ever envisioned a disciplinary
19 process that would allow an attorney to testify and state
01:07 20 that he committed judicial miss -- I mean misconduct in
21 terms of these Rules and then allow them to move and have
22 the case dismissed because BODA, at the inquiry phase,
23 did not accurately speculate what those rules were --
24 what rules were violated when the complainant filed the
01:08 25 grievance.

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1 As to opposing counsel's claim that the
2 definition of professional misconduct as defined in
3 1.06(CC)(2) should somehow govern this case and prevent
4 the Commission from seeking disciplinary action against
01:08 5 the respondent because he was not disciplined in the
6 District of Columbia, I would ask this Court to not
7 overlook the other definitions of professional misconduct
8 including 1.06(CC)(1) and the Commission's clear
9 jurisdiction laid out in 8.05.
01:08 10 The second sentence of 8.05(a) states, "In
11 addition to being actionable for his or her conduct
12 occurring in this State, any such lawyer also may be
13 disciplined in the State for conduct occurring in another
14 jurisdiction or resulting in lawyer discipline in another
01:08 15 jurisdiction if it is professional misconduct under 804,"
16 which is what we have here.
17 Without going into the history of the State
18 Bar Act of 1939, Your Honor, the case law we present on
19 page 29 of our response, those cases are Pepper, Rosales,
01:09 20 Favaloro, and Willie show us that if an attorney
21 practices in Texas, has clients that reside in Texas, and
22 takes action or files or litigates a matter in another
23 jurisdiction related to this representation, he is
24 subject to the jurisdiction of the Supreme Court and the
01:09 25 Commission.

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1 The case law also supports our argument. If
2 an attorney misrepresents facts to a court of law in an
3 effort to obtain an injunction or restraining order, he
4 is subject to the jurisdiction of the Texas Supreme Court
01:09 5 and the Commission. Whether or not the Court chooses to
6 sanction him independently does not affect that
7 jurisdiction.
8 To the extent that opposing counsel in some
9 detail argue that the Commission has no jurisdiction
01:09 10 because there's no professional misconduct, we would
11 argue that in light of the exhibits that were attached to
12 the plea to the jurisdiction in our response, that there
13 exists a fact issue that needs to be adjudicated by this
14 Court. And if they feel like it's not sufficient, the
01:10 15 more appropriate thing to do would be to file a motion
16 for summary judgment after discovery has been completed.
17 As to opposing counsel's claim that this
18 disciplinary action is somehow motivated on the part of
19 the State Bar of Texas or Commission politically in some
01:10 20 way, it bears repeating that every action, notice, the
21 filing of this disciplinary petition were all done in
22 accordance to the Rules and they were required -- the
23 Commission for Discipline, Commission for Lawyer
24 Discipline, and the chief discipline counsel -- to do
01:10 25 what they did in each one of these entities.

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1 Over a hundred attorneys have been
2 sanctioned since 2019 on Rule 8.0483. This is not a
3 selective prosecution of the Rules that is not being
4 enforced.
01:11 5 To date, the only political publicizing of
6 this matter before the filing of the petition was made by
7 the respondent and three of the five complainants in the
8 underlying matters.
9 I also want to quickly note based on
01:11 10 opposing counsel's statements that the makeup and
11 intention of the IVH panel members is speculative and
12 wrong. The opposing counsel's statement about the reason
13 Mr. Ratner's grievance was upgraded -- we just talked
14 about -- was wrong.
01:11 15 And opposing counsel's statement that
16 without filing this politically-motivated complaint that
17 they say this is, would not have happened without the
18 complainants going and filing a grievance form is just a
19 misunderstanding of our Rules.
01:11 20 We can actually receive media reports and
21 cases and do a State Bar initiated complaint. It would
22 have probably taken time in this matter because there
23 were 62-plus cases, election cases, we had to read in
24 order to get to the fruit of what was going on and what
01:12 25 the representations were.

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1 I think the best way to generalize this is
2 the Texas Disciplinary Rules of Professional Conduct do
3 not hinder the respondent's ability to advocate for his
4 clients or the State of Texas. We have over 97 percent
01:12 5 of our licensed Texas attorneys right now that are
6 practicing, and they advocate for their clients without
7 violating one single rule. We only have three percent
8 right now that have a sanction on their membership page.
9 The action in this case that Mr. Paxton
01:12 10 filed is really based on a specific thing, which is
11 accusing multiple individuals of criminal and
12 unconstitutional behavior and then seeking an injunction
13 based on his representation that this criminal behavior
14 had an outcome-determinative number of votes that were
01:13 15 legally accepted by four defendant states. And these
16 four defendant states had to defend themselves and they
17 used state resources and file pleadings in order to fight
18 the pleadings that Mr. Paxton filed.
19 It is a little bit different here. Normally
01:13 20 when you go to the Supreme Court's website, the solicitor
21 general is counsel of record. And opposing counsel can
22 correct me if I'm wrong because I'm not an expert in
23 this, but if Mr. Paxton's name is on it, it has to do
24 with his executive capacity. If he's not the signature
01:13 25 and he's not counsel of record, he's of counsel.

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1 In this case, we had him testify before the
2 Senate finance committee that he and Mr. Webster actually
3 drafted with their executive team these pleadings and
4 that's why we're in the court today, Your Honor.
01:13 5 I -- I don't really want to take too much
6 time because I -- I want to be able to answer questions
7 for you if you have questions about our process and why
8 we did the things we did.
9 To conclude, I would just say that this is a
01:14 10 decision for Your Honor to make. We had an investigatory
11 panel that made a recommendation. Mr. Paxton chose not
12 to accept that recommendation. He then chose -- he gets
13 the option. He gets to go to an evidentiary panel or
14 district court.
01:14 15 Every single rule requires us to take a
16 step. It says we shall send him a just cause letter.
17 Once he sends an election, we shall send a letter to have
18 Your Honor appointed to this matter. Once that comes in,
19 we shall as soon as possible file the petition. We
01:14 20 complied with all those rules.
21 So, Your Honor, I'm -- respectfully, the
22 Commission would ask the Court to deny respondent's plea.
23 Again, at this point, if you have any questions, I'm
24 willing to answer, especially about specific arguments
01:14 25 that were made by opposing counsel or anything you need

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1 to know about what our process is.
2 Other than that, I can reserve my time --
3 hopefully, after I drink some water -- reserve my time in
4 case there's something else I need to clarify after he
01:15 5 replies.
6 THE COURT: Okay. Thank you. Response?
7 MR. HILTON: I'll just respond briefly to a
8 few things there. There was a lot there and most of it
9 was based on the merits of the case, which we don't need
01:15 10 to reach. I don't think any court should ever reach
11 those. That's the basis of our plea.
12 What you didn't hear was any explanation of
13 the venue issues. What you didn't hear was any
14 substantive response to the separation of powers
01:15 15 argument. You didn't hear any substantive response to
16 the sovereign immunity argument other than just the bare
17 assertion that, no, this is individual capacity and not
18 official capacity.
19 The case law says that that bare assertion
01:15 20 is not enough and they haven't substantively responded to
21 that or offered any sort of merits defense on that issue.
22 You know, I -- there's also no explanation
23 of the -- the contents of the petition in this case. I
24 understand that Mr. Le Moine's position is that they had
01:16 25 no authority but to bring these charges, that they had to

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1 bring them. You know, that wouldn't excuse whatever he
2 put in his petition against the attorney general. And
3 what he's put, you know, those four numbered alleged
4 misrepresentations that we went through, you know, that's
01:16 5 his case. That's not something he was ordered to do to
6 make those, you know, four specific arguments and -- and
7 those don't hold up.
8 So, again, that's a merits issue, but
9 there's a lot here that's not being explained. I was
01:16 10 hopeful that Mr. Le Moine would answer some of these
11 questions about -- that we've had about the process,
12 about venue, you know, why the investigatory hearing
13 panel occurred in Travis County where the makeup of that
14 panel was obviously going to be hostile to the attorney
01:16 15 general.
16 I appreciate Mr. Le Moine saying earnestly
17 that this is not politically motivated but that bare
18 assertion can't explain all these departures and to the
19 extent that Mr. Le Moine is suggesting that's speculative
01:17 20 and wrong, that the makeup of that investigatory hearing
21 panel was, you know, political enemies of Ken Paxton, I
22 mean, it, again, is public record. So I don't think we
23 need to prove that. That's not an issue before the
24 Court.
01:17 25 I'm going to cut myself off there, Your

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1 Honor, because the vast majority of what Mr. Le Moine
2 said was, again, about merits issues or things that
3 simply don't have anything to do with the plea. There
4 was not a substantive discussion or a substantive
01:17 5 rebuttal of the separation of powers arguments or of the
6 sovereign immunity argument. Their brief doesn't do the
7 job either. We respectfully ask that the plea be
8 granted.
9 THE COURT: Do you want to address any of
01:17 10 those questions?
11 MR. LE MOINE: Sure. I can address a couple
12 of them. First of all, our brief does support the
13 arguments we're talking about. As to venue, again, this
14 is at the investigatory hearing phase. It has no
01:17 15 consequence on what's taking place at this point. We
16 have two different venue rules.
17 One is for investigatory hearings, which
18 require them to be held where the misconduct occurred.
19 If somebody files a pleading from an office in a certain
01:18 20 location, that's considered possibly where the misconduct
21 occurred and it's based on what the complainant said. So
22 if they said actions were taking place in Travis County,
23 then that is -- it only has to be one allegation to fall
24 in that county.
01:18 25 Again, there's two different venue rules.

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1 When we get into the district court, it's obviously the
2 principal place of business he designated on his
3 membership page, which is why we're in Collin County.
4 The separation of powers issues, again, we
01:18 5 focused on the Government Code, the State Bar Act under
6 Chapter 81. There's also Article 5, Section 31, which
7 basically says Section B, the Supreme Court is
8 responsible for the efficient administration of the
9 judicial branch and shall promulgate rules of
01:18 10 administration not inconsistent with laws of the State as
11 may be necessary.
12 Section C says the legislature may delegate
13 to the Supreme Court or the Criminal Court of Appeals the
14 power to promulgate such other rules as may be prescribed
01:19 15 by the law under this Constitution, which is what
16 happened in 1939 with the State Bar Act, which is defeat.
17 It's an exception to Article 2, Section 1. In the very
18 last sentence, it is the exception in the Constitution
19 for the formation of the State Bar and the Supreme
01:19 20 Court's authority in order to regulate the profession of
21 law.
22 A lot of these, again, things that happened
23 before the disciplinary petition was filed and, again,
24 it's -- I had this conversation with at least two or
01:19 25 three attorneys and there's about four or five of them

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1 that are working this case and I stepped them through
2 step by step what we had to do and why we had to do it.
3 So if there's questions about it now, I'm happy to answer
4 it. But, again, we did everything we were supposed to do
01:19 5 pursuant to the Rules, every single notice, every action
6 taken.
7 And the Commission, while they don't have
8 discretion on the initial filing, they have discretion
9 now, which is one reason why I said it's great for me for
01:20 10 this next plea that we're talking about for me to go back
11 to them and talk to -- talk to my Commission, which I'm
12 charged to do under 503 of the Rules and see what next
13 step they want to take. They don't control the filing of
14 the disciplinary petition, but now they are the client
01:20 15 for this whole process going forward. So those things
16 are important.
17 THE COURT: So the Commission is your
18 client? So you will --
19 MR. LE MOINE: The Commission becomes our
01:20 20 client, right.
21 THE COURT: So you will go back and talk to
22 them after each --
23 MR. LE MOINE: Yeah.
24 THE COURT: -- step of the way?
01:20 25 MR. LE MOINE: We have meetings every month

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1 but in this case, obviously, I e-mail them information
2 when I get it and we have to coordinate with 12
3 individuals and we have a conference call and we'll
4 probably have to do it this week, especially with the
01:20 5 pleadings that we received on Monday.
6 THE COURT: So, counsel, do you -- are you
7 telling me that like different directions may be taken as
8 we move through this process?
9 MR. LE MOINE: Sure. So this happens a lot
01:21 10 of times in district court cases. So we'll go through
11 discovery or we'll get a defense or the respondent will
12 bring up some argument. We take it to the Commission.
13 We go to our meeting. We let them know what the
14 arguments are and they can dismiss a case. They can --
01:21 15 even at that phase, they can dismiss a case. They can go
16 forward. They can give us a range on how we handle
17 certain things. They're basically our client at this
18 point.
19 Once we're past the investigatory hearing,
01:21 20 which resulted in the recommendation, Mr. Paxton said,
21 no, I don't want to take it, they become our client.
22 They just didn't control the filing of the petition,
23 which goes against their narrative, but they don't
24 control that.
01:21 25 THE COURT: You want to say something on

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1 that?
2 MR. HILTON: There is a lot I want to say.
3 I'll try to limit myself.
4 THE COURT: Sure.
01:21 5 MR. HILTON: On the issue that counsel just
6 raised, the notion that, you know, these are new
7 arguments that he needs to go discuss with his clients.
8 Exhibit 1 to our plea to the jurisdiction is
9 a letter sent -- I'm looking for the date -- I believe it
01:22 10 was July 15, 2021. It explains our separation of powers
11 argument and our sovereign immunity argument, if my
12 memory serves me. This is not a new issue that has been
13 raised. And, again, I just -- you know, nowhere in there
14 are we hearing a response to the separation of powers
01:22 15 issues that I just went through, a response to the
16 sovereign immunity issues that I went through.
17 I could have sworn I heard Mr. Le Moine say
18 that it was the filing of the lawsuit, that that
19 triggered this and not the content of it.
01:22 20 So, you know, again, there isn't a
21 substantive response here about why this Court has
22 jurisdiction. I understand that the Commission thinks
23 that it has jurisdiction over every, you know, law
24 license holder in Texas and I'm certain that the State
01:22 25 Bar says that. But that's not what's before this Court

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1 and that doesn't inform whether this Court has
2 jurisdiction over proceedings against the sitting
3 attorney general of Texas.
4 And so for all the reasons that I've
01:23 5 explained, there just isn't jurisdiction for this Court
6 to entertain this case.
7 THE COURT: As to my jurisdiction
8 particularly on this -- on this case, it's solely because
9 he elected to have it go to district court?
01:23 10 MR. LE MOINE: Yes.
11 THE COURT: Okay.
12 MR. LE MOINE: He could have chose the
13 evidentiary hearing or he could have chose district
14 court. He chose district court.
01:23 15 MR. HILTON: Let me clarify on that. The
16 Rules permit a respondent in a disciplinary proceeding to
17 choose either an administrative panel of -- an
18 administrative body that we earnestly believe is
19 politically motivated to get my client or we can be tried
01:23 20 in front of a jury of our -- or my client can be tried in
21 front of a jury of his peers in his home county.
22 So that is no choice at all and that is not
23 an acquiescence to jurisdiction and they haven't made
24 that argument that we've somehow agreed to the Court's
01:24 25 jurisdiction or waived any sort of separation of powers

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1 or sovereign immunity argument. And, in fact, the
2 attorney general could not waive the sovereign immunity
3 of the State of Texas. Only the legislature can do that.
4 They have not done so.
01:24 5 So, again, there is no substantive response
6 that I have heard to the separation of powers and
7 sovereign immunity arguments.
8 THE COURT: Do you want to address those two
9 issues at all?
01:24 10 MR. LE MOINE: Two things: One, if he would
11 have chosen an evidentiary panel at that stage, it goes
12 to where the principal place of practice is. He
13 designated that as -- was it Collin County?
14 MS. KATES: I believe so.
01:24 15 MR. LE MOINE: Collin County. So that's
16 where the panel would have been convened. He chose
17 district court. So that's another matter.
18 Again, the State Bar Act, based on these
19 rules, the exception in the Constitution that allowed the
01:24 20 Supreme Court to promulgate rules is the structure for
21 what we have jurisdiction over all regulated licensed
22 attorneys in the State of Texas. There's no exception
23 for a district attorney. There's no exception for the
24 Texas attorney general. If there was, then we wouldn't
01:25 25 be here today. But at this point, the jurisdiction set

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1 forth by the State Bar Act is for all licensed Texans --
2 licensed attorneys in the State of Texas.
3 MR. HILTON: Can I say one last thing, Your
4 Honor, at the risk of wearing out my welcome?
01:25 5 THE COURT: No. Go ahead, please.
6 MR. HILTON: Mr. Le Moine just said we're
7 arguing for some sort of, you know, exception to the
8 statute or, you know, as he put it, this is an argument
9 that the attorney general is above the law in some way.
01:25 10 That is absolutely not what we're arguing here. What
11 we're saying here is that the Constitution, the
12 constitutional principles of separation of powers and
13 sovereign immunity trump whatever statute may be out
14 there.
01:26 15 We're not saying that Ken Paxton the man is
16 immune from any proceedings against his law license if he
17 does something in his individual capacity. What we are
18 saying is that this is a breach of separation of powers
19 and a violation of the State's sovereign immunity because
01:26 20 that's not the case that's before the Court.
21 The case before the Court is only about the
22 actions that the attorney general took as the office
23 holder, as the attorney general. There -- there is no
24 jurisdiction for this Court for those claims.
01:26 25 THE COURT: All right. Obviously y'all have

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1 given me plenty to review. I will do so. There's
2 obviously a problem with me getting pleadings from Collin
3 County, but I think now I have all those and y'all's
4 briefs along with my own. I will take that. I will take
01:27 5 this under advisement. We're off the record.
6 (End of proceedings at 10:30 a.m.)
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1 THE STATE OF TEXAS)
2 COUNTY OF KAUFMAN)
3 I, Elizabeth Crow Woods, Official Court Reporter in
4 and for the 86th Judicial District Court, Kaufman County,
5 State of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of
7 all portions of evidence and other proceedings requested
8 in writing by counsel for the parties to be included in
9 this volume of the Reporter's Record, in the above-styled
10 and numbered cause, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits, if
14 any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $871.00 and was
17 paid by Christopher Hilton.
18 WITNESS MY OFFICIAL HAND this the 25th day of August,
19 2022.
/s/ Elizabeth Crow Woods
20 Elizabeth Crow Woods, Texas CSR 8189
Expiration Date: 10/31/2023
21 Official Court Reporter
86th Judicial District Court
22 Kaufman County, Texas
23 Kaufman County Courthouse

100 W. Mulberry
24 Kaufman, Texas 75742
25

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1

12 PLEA TO THE JURISDICTION

21 On the 24th day of August, 2022, the following

22 proceedings came on to be heard in the above-entitled and

23 numbered cause before the Honorable Casey Blair, Judge

24 presiding, held in Kaufman, Kaufman County, Texas;

25 Proceedings reported by machine shorthand.

ELIZABETH CROW WOODS, CSR

2 FOR THE STATE:

ELIZABETH CROW WOODS, CSR

7 Court's ruling taken under advisement... 66 1

8 Court Reporter's Certificate............ 67 1

ELIZABETH CROW WOODS, CSR

2 THE COURT: This is Cause

3 No. 471-02574-2022, styled Commission for Lawyer

4 Discipline V. Warren Kenneth Paxton, Jr. We're here

00:00 5 today, I believe, on a plea to the jurisdiction; is that

7 MR. HILTON: Yes, Your Honor.

8 MR. LE MOINE: From the respondent, that's

00:00 10 THE COURT: From the respondent?

11 MR. HILTON: And -- and there's also an

12 intervenor in the case, Your Honor, the State of Texas --

13 THE COURT: Okay.

14 MR. HILTON: -- that's also been noticed for

16 presentation is the same.

17 MR. LE MOINE: And, Your Honor, we're --

18 what I'll probably do is ask that -- I've already

19 conferred with opposing counsel -- that we set these two

21 hearing and we can do it remotely.

22 But first of all, we received a copy of this

23 plea to the jurisdiction filed by the State of Texas

24 48 hours ago. So I haven't even been able to confer with

00:00 25 the Commission and develop a response to any of the

ELIZABETH CROW WOODS, CSR

1 allegations. Even though the wording in the plea to the

2 jurisdiction for the State of Texas and the respondent

3 are similar, they're completely different in arguments.

4 We have no jurisdiction over the State of

00:01 5 Texas or the attorney general's office. They're not

6 individual license holders who have sworn an oath to the

7 Rules. So our whole response is going to be completely

8 different and I need to discuss this with the Commission

9 and at this point, I've had 48 hours.

00:01 10 The second thing is we filed a motion to

11 strike and the motion to strike the intervention is --

12 needs to be heard before the plea to the jurisdiction on

13 the State of Texas. The case is Union Carbide and it

14 requires that the Judge and the decision be made on that

00:01 15 motion to strike before we go forward on any of these

17 THE COURT: And that's just on the -- the

19 MR. LE MOINE: That's correct, yes, just on

00:01 20 the intervenor.

21 THE COURT: Response?

22 MR. HILTON: I would disagree. This was

23 properly noticed. He was given three days. We filed

24 this and noticed it on Sunday. Monday, Tuesday,

00:01 25 Wednesday, that's the three days required by the Rules.

ELIZABETH CROW WOODS, CSR

1 That's what the Rules require. So we're here today. The

2 issues are the same. I'm raising the same substantive

3 issues that I raised in respondent's plea to the

4 jurisdiction and what everyone's discussing about not