The Commission for Lawyer Discipline sued Attorney General Ken Paxton over alleged misstatements in the initial pleadings he filed on behalf of the State of Texas in a lawsuit in the U.S. Supreme Court about the 2020 presidential election.¹ The suit grew out of grievances filed against the Attorney General by five people who had no connection to the underlying litigation; the Commission first dismissed the complaints, the Board of Disciplinary Appeals reclassified them, and an investigatory panel found credible evidence to proceed, after which the Attorney General rejected a public reprimand and elected a trial in district court.² The Commission's suit is nearly identical to the one against the Attorney General's first assistant that the Court decided in Webster v. Commission for Lawyer Discipline, which held that he could not be subjected to collateral professional discipline based on alleged misstatements in initial pleadings filed for the State.³

The Commission sued the Attorney General in the 471st District Court of Collin County in May 2022, alleging a violation of Disciplinary Rule 8.04(a)(3), which forbids conduct involving dishonesty, fraud, deceit, or misrepresentation.¹ The Attorney General filed a plea to the jurisdiction based on separation of powers and sovereign immunity, and the trial court denied it.² A divided Fifth Court of Appeals held that the Attorney General "is not a governmental unit" entitled to an interlocutory appeal under Civil Practice and Remedies Code section 51.014(a)(8) and dismissed for want of jurisdiction; Justice Miskel dissented and would have held that the statute authorized the appeal and that the plea should have been granted.³ The Attorney General petitioned for review on June 3, 2024, and the Commission responded on September 9, 2024, after the Court requested a response (Docket). After Webster issued, the Commission filed a notice of nonsuit with prejudice and a motion to dismiss the petition as moot on January 22, 2025, and the Attorney General agreed the case was moot but asked the Court also to vacate the court of appeals' opinion.⁴

Petition for review from the Fifth Court of Appeals; decided per curiam on the Commission's motion to dismiss as moot, without oral argument, under Rule of Appellate Procedure 56.2.⁵

The Attorney General's petition presents three issues: whether the Commission's action violates the Separation of Powers Clause, whether it is barred by sovereign immunity, and whether the Attorney General, acting in his official capacity, may appeal the denial of a plea to the jurisdiction under sections 51.014(a)(8) and 101.001.¹ The Commission frames the issue as whether the Attorney General is a "governmental unit" for the limited purpose of an interlocutory appeal of the denial of his own plea in a disciplinary action brought against him as a Texas-licensed attorney.² After the nonsuit, the questions before the Court were whether the case is moot and whether to vacate the court of appeals' opinion as well as its judgment.³

The Commission notes that the Court reviews de novo a court of appeals' determination of its own jurisdiction.¹ On vacatur, the Court has discretion to vacate an opinion if "the public interest would be served by a vacatur".²

Whether the Court should grant review of the court of appeals' decision.

Petitioner (Attorney General Paxton): As in Webster, the separation-of-powers doctrine and sovereign immunity bar the suit, because it second-guesses his core executive power to represent the State in litigation and seeks to sanction conduct that could only be undertaken in his official capacity.¹ The court of appeals compounded the errors by holding that because the Commission seeks sanctions against his law license and not damages from the State, he could not appeal; he is an "organ of [the] government" entitled to an interlocutory appeal in an official-capacity suit.² In reply he contends that the Commission concedes he is a constitutional officer yet asserts that he loses that status when he acts as attorney of record, and he asks the Court to hold the petition and then grant, vacate, and remand in light of Webster.³

Respondent (Commission for Lawyer Discipline): The court of appeals correctly held that, in a disciplinary suit directed solely at the Attorney General in his individual capacity as a licensed attorney, he is not a "governmental unit" under section 51.014(a)(8), so he has no interlocutory appeal.⁴ It argues that whether an entity may take an interlocutory appeal and whether it has sovereign immunity are separate questions with separate analytical frameworks, so the "easy path" the petition fears does not exist.⁵

The Attorney General argued that the decision below, like Webster, presents undecided questions of statewide importance over whether members of an administrative body housed in the judicial branch may superintend an elected executive officer's core functions by threatening his law license, and that the court of appeals' reasoning on "governmental unit" could give plaintiffs an easy path to circumvent the sovereign immunity of many executive officers and block interlocutory review.¹ The Commission responded that the only rationale offered for review of the jurisdictional determination was that concern, which it called a misstatement of the law.²

• Wolfgang P. Hirczy de Mino filed an amicus curiae brief on January 23, 2025.
• Adriano Kruel Budrei filed an amicus curiae brief on January 25, 2025.
• Adriano Kruel Budri filed an amicus brief on February 13, 2025.

Holding

The Commission's nonsuit renders the case moot, and the public interest supports vacating the court of appeals' judgment and opinion rather than leaving an unreviewed decision in place.¹

Reasoning

The Court agreed with the parties that the nonsuit moots the case, so it could not resolve the disputed question of appellate jurisdiction.² It nonetheless need not leave the court of appeals' opinion standing, because it has discretion to vacate an opinion when the public interest would be served.³ Following Morath v. Lewis, vacatur was appropriate because the State is a frequent litigant, the opinion would have meaningful precedential value, the issue it decided is potentially of consequence far beyond this case, and the Court recently resolved a nearly identical case on the merits.⁴ The Court added that where mootness results from the unilateral action of the party that prevailed below, as here, the case for preventing an unreviewable decision from spawning legal consequences is at its strongest.⁵ The one issue in the opinion that did not arise in Webster was whether the Attorney General may bring an interlocutory appeal under section 51.014(a)(8), because there the district court granted, rather than denied, the plea to the jurisdiction.⁶

Disposition

After granting the petition for review and without hearing oral argument or considering the merits, the Court vacated the judgment and the opinion of the court of appeals and dismissed the case as moot.⁷

Vote Breakdown

Per Curiam Opinion

Joined by Blacklock, C.J., and Bland, Boyd, Busby, Devine, Huddle, Lehrmann, Sullivan, and Young, JJ.