(CN) — In more bad news for the scandal-plagued Texas attorney general's office, a state appeals court on Thursday ruled that a top official at the office is not immune from discipline over his alleged efforts to subvert the 2020 election.
The official — First Assistant Attorney General Brent Webster, a Republican — previously dodged discipline by arguing that as a public official, he was immune from consequences sought by the Commission for Lawyer Discipline, a watchdog committee of the Texas state bar.
The Texas Eighth Court of Appeals in El Paso reversed that lower-court ruling on Thursday, finding the commission was not trying to "control state action" through its lawsuit but merely trying to enforce "rules of professional conduct" for all Texas lawyers.
In an emailed statement to Courthouse News on Friday, the AG's office vowed to appeal the ruling to the Texas Supreme Court.
The adverse ruling for Webster, who currently serves as second-in-command in the office, is just the latest setback for Texas' top law-enforcement agency, which has faced controversy for years over Webster's boss, the current (and currently suspended) Republican Attorney General Ken Paxton.
Paxton, an avowed Trump supporter, attended a now-infamous Trump rally immediately prior to the U.S. Capitol riots in 2021 and led some of the most serious legal efforts to undermine election results in battleground states like Pennsylvania. Paxton has been hounded for his entire tenure by serious corruption allegations, including an FBI probe over the alleged firing of whistleblowers and a securities-fraud indictment from 2015 that could see him spend up to 99 years in prison.
Paxton has so far managed to avoid trial on that indictment — but in May, the long string of controversies finally caught up with him.
In a remarkably bipartisan vote, the Republican-controlled Texas House of Representatives voted 121-23 to impeach Paxton on 20 articles, including alleged bribery. He was suspended from duties pending a full trial in the Texas Senate, which is slated for early September.
This current case instead involves Paxton and his office's role in attempting to undermine the 2020 presidential elections. The Texas AG's office in December 2020 sued several battleground states, including Pennsylvania and Georgia, claiming it had jurisdiction to overturn presidential election results in these states.
This was no Four Seasons Total Landscaping: It was a concerted, professionalized effort to undermine American democracy that would have had serious implications for the United States if successful. Other right-wing AGs later signed on to the effort through amicus briefs.
The U.S. Supreme Court ultimately threw out that lawsuit, Texas v. Pennsylvania. Still, in its aftermath, dozens of complaints against the AG's office poured into the Commission for Lawyer Discipline, which safeguards professional legal conduct in the state.
While many of those grievances were ultimately dismissed, a handful — including a grievance brought against Webster by another attorney, Brynne VanHettinga — were found to have some merit. In her grievance, VanHettinga complained that Webster had violated professional ethics rules by helping to draft filings in the case, which she alleged contained "manufactured 'evidence,'" "specious legal arguments" and "conspiracy theories."
Initially, the Commission for Lawyer Discipline also dismissed VanHettinga's complaint. She appealed to the Texas Board of Disciplinary Appeals, which found it did have merit and set a hearing for January 2022.
Webster did not appear at that hearing or provide testimony. Two days later, the board found there was "credible evidence" that Webster had violated professional rules and recommended sanctions.
The commission found Webster had made "dishonest" claims about election fraud in filings with the U.S. Supreme Court. It found Webster had violated a professional rule barring lawyers from engaging in "dishonesty, fraud, deceit, or misrepresentation."
In a petition that May, the Commission for Lawyer Discipline alleged Webster had made six key misrepresentations in filings in Texas v. Pennsylvania. Among them: that Texas had "uncovered substantial evidence" of voter fraud, that "illegal votes" had affected the outcome of the election and that votes on Dominion voting machines had been "switched by a glitch."
After these adverse findings from the grievance panel, Webster had two options. He could accept sanctions proposed by the grievance panel, or he could appeal the decision in court.
Webster chose the latter, appealing to a lower court in Williamson County just outside of Austin where he lives. Webster argued that as a state official he was immune from legal challenge on this issue, including under the "separation of powers principle" because he works in the executive branch. The lower court ruled in Webster's favor, granting his plea.
The commission next appealed to the Texas Eighth Court of Appeals, which reversed that lower court ruling on Thursday. Writing for the court, Chief Justice Yvonne Rodriguez found Webster was "not exempt" from discipline and remanded the case back to Williamson County for further proceedings.
In her ruling, Rodriguez found that governmental immunity did not prevent the lawsuit because the commission was not trying to "control state action" but simply trying to enforce professional conduct rules that apply to "all attorneys." She argued there was "no other mechanism" to regulate Webster's legal behavior and that a ruling in his favor would leave the public "powerless to deter misconduct."
Besides, Rodriguez noted, the complaints against Webster "affects only his license to practice law" and otherwise had "no effect" on the business of the state of Texas.
"Immunizing Webster from professional-misconduct proceedings in no way furthers the rationale for sovereign immunity," Rodriguez wrote.
In an emailed statement to Courthouse News on Friday, VanHettinga, the attorney who filed the grievance against Webster, was pleased to learn of the appeals-court ruling, calling it "wonderful news."
"I am grateful to Lawyers Defending American Democracy," a pro-democracy legal group, "for filing an amicus brief in the Webster case," VanHettinga said in her email. She noted the group was also involved in a similar disciplinary proceeding against Paxton, which has not yet seen a final ruling.
Follow @stephentpaulsen
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