DALLAS - On Thursday, the Fifth Court of Appeals found that the Commission for Lawyer Discipline sued Attorney General Ken Paxton as an individual, not in his official capacity – green lighting the state Bar’s action against him over his effort to overturn the 2020 presidential election.
However, not all the justices on the 5th Court agreed with the majority, as justice Emily Miskel dissented, opining that the “attorney general is an organ of government derived from the Constitution of Texas.”
“I conclude that the Commission’s suit complains of actions taken by the attorney general in his official capacity as a governmental unit,” writes Miskel. “Because the Commission’s suit is based on an executive officer’s discretionary performance of the powers assigned exclusively to him, I would deny the Commission’s motion to dismiss the interlocutory appeal and reverse the trial court’s order.
“For the reasons stated, I would render judgment granting the attorney general’s plea to the jurisdiction on sovereign-immunity and separation-of-powers grounds and dismissing the Commission’s suit with prejudice.”
Court records show Paxton responded to the Commission’s disciplinary action by filing a plea to the jurisdiction asserting the suit violates the separation-of-powers doctrine and is barred by sovereign immunity.
The trial court denied Paxton’s plea, leading to the appeal.
“The focus of the Commission’s allegations is squarely on Paxton’s alleged misconduct—not that of the State,” states the 5th Court’s majority opinion. “The Commission’s suit does not seek to impose liability against the governmental unit; it seeks disciplinary measures against Paxton individually as a licensed attorney for alleged misrepresentations made to the Supreme Court of the United States.
“The Commission’s suit cannot be considered a ‘suit against the entity,’ the Office of the Attorney General, in any respect.”
Appeals case No. 05-23-00128-CV