Texas AG Ken Paxton can be disciplined over effort to overturn 2020 presidential election

Attorney General Ken Paxton remains subject to a disciplinary complaint over his effort to cast doubt on the outcome of the 2020 presidential election and overturn its results in four states, a Dallas appeals court ruled Thursday.

Seeking to dismiss the punitive administrative action brought by the Commission for Lawyer Discipline, a standing committee of the State Bar of Texas, Paxton's appeal — based on the argument that he acted in an official capacity and is therefore not subject to reprimand for filing an election lawsuit before the U.S. Supreme Court — was rejected by a three-justice panel of the 5th Court of Appeals in Dallas.

"Every attorney admitted to practice in Texas, including those representing a government agency, is subject to the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure, both promulgated by the Texas Supreme Court," the majority opinion issued by Justices Erin Nowell and Nancy Kennedy said.

In rejecting Paxton's appeal, the court made the distinction that the commission's case is targeting Paxton not for filing the lawsuit in his role as attorney general, but for presenting a case as a licensed attorney that was dishonest and failed to meet judicial standards.

"Subjecting Paxton to disciplinary proceedings does not violate separation of powers; immunizing him does," the justices wrote.

Known as Texas v. Pennsylvania, the case sought to delay the certification of the 2020 presidential election results in Pennsylvania, Michigan, Georgia and Wisconsin. Dismissed as moot by the country's high court, Paxton in the aftermath faced a handful of complaints for filing the suit, leading the commission in 2022 to move for disciplinary action.

More:Why 18 attorneys general are backing Ken Paxton aide in professional misconduct complaint

Some of those concerns were outlined again in the majority opinion issued Thursday and included allegations that Paxton misrepresented the sway of unregistered voters, a glitch that affected voting machines, that "illegal votes" had affected the election outcome and that state actors "unconstitutionally revised their state’s election statutes."

In previous court filings the commission has argued that Paxton "made several representations that were dishonest, as they were not supported by any charge, indictment, judicial finding, or credible or admissible evidence."

Paxton's office in a statement Friday said it will appeal the ruling, referencing an amicus brief recently submitted by 18 attorneys general that invoked constitutional separation of powers concerns in a parallel conduct complaint case against Paxton's top deputy, first assistant attorney general Brent Webster.

"As in that case, we will appeal this ruling and we have full confidence the Supreme Court of Texas will not allow false claims by the State Bar and partisan political revenge to affect professional licensure of the state’s lawyers,” said Paige Willey, director of communications for the attorney general's office.

The State Bar of Texas and its Commission for Lawyer Discipline declined to comment on the ruling Friday.

Depending on a possible future trial on the matter, Paxton could face punishments ranging from a private or public reprimand to the revocation of his license to practice law in Texas. However, in Texas, an elected attorney general is not required to be a licensed member of the State Bar.

The coalition of attorneys general, in its friend-of-the-court brief filed last Friday, argued that the work of Paxton's office is beyond the State Bar commission's purview and is protected by a constitutional separation of powers. Further, allowing disciplinary action against Webster to move forward would be a step in violating the discretion of the attorney general's office to pursue legal actions, the attorneys general wrote.

"Any attempt by the judiciary — or by entities subject to the judiciary’s control — to restrict the Attorney General’s discretionary choices interferes with the exercise of the Attorney General’s constitutional authority and violates fundamental separation-of-powers principles," the coalition's brief states.

That stance, submitted in Webster's case, which sits before the Texas Supreme Court, appears to be offline from the 5th Circuit's interpretation in Paxton's proceeding.

"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 justices wrote.

In dissenting from the majority opinion, Justice Emily Miskel agreed with Paxton, saying she would have rejected the commission's motion to dismiss Paxton's appeal, overturned a previous trial court ruling and thrown out the commission's complaint entirely.

"As discussed above, the Commission has not shown that the attorney general’s actions were unlawful or without authority," Miskel wrote. "The Commission is attempting to interfere with the attorney general’s exercise of his discretionary authority in carrying out his constitutionally assigned powers."