Court rejects AG Ken Paxton’s bid to dismiss ethics complaint over 2020 election challenge

Ruling against Texas Attorney General Ken Paxton, a state appeals court declined to dismiss a State Bar of Texas ethics complaint accusing Paxton of dishonesty when he sought to overturn then-President Donald Trump’s 2020 election defeats in four swing states.

Paxton argued that he couldn’t be sued by the state bar’s Commission for Lawyer Discipline because he petitioned the U.S. Supreme Court as part of his official duties.

In a 2-1 ruling, the Dallas-based 5th Court of Appeals disagreed, saying the commission’s lawsuit accused Paxton of violating the state’s code of ethics, which bars lawyers from conduct “involving dishonesty, fraud, deceit, or misrepresentation.”

Paxton was sued “in his capacity as a Texas-licensed lawyer and an officer of the legal system” that subjects him to discipline if he fails to meet that system’s standards, Justice Erin A. Nowell wrote in an opinion joined by Justice Nancy Kennedy.

“Paxton is not exempt from the judiciary’s constitutional obligation to regulate the practice of Texas attorneys simply because he serves as the Attorney General,” Nowell wrote.

Nowell and Kennedy are Democrats.

Justice Emily Miskel, the court’s sole Republican, dissented.

Miskel, appointed to the court by Gov. Greg Abbott in 2022, said she would have dismissed the state bar’s lawsuit because Paxton relied on his authority as attorney general when he asked the Supreme Court to overturn Biden victories in four states.

“The attorney general’s primary duties are to render legal advice in opinions to various political agencies and to represent the state in civil litigation,” Miskel wrote, adding that Paxton had no individual power to plead legal claims on behalf of Texas,

In December 2020, Paxton asked the Supreme Court to overturn the presidential election results in Pennsylvania, Georgia, Wisconsin and Michigan, arguing that voter fraud tainted the results. Electoral votes from the four states were crucial to Democrat Joe Biden’s victory over Trump.

The Supreme Court dismissed the lawsuit. In 2022, the state bar filed similar complaints against Paxton and First Assistant Attorney General Brent Webster in separate district courts. Potential penalties include being disbarred or suspended from the practice of law.

The commission accused Paxton of dishonesty when he told the Supreme Court that Texas had “uncovered substantial evidence” that election results were affected by illegal voting, including ballots cast by unregistered voters. The petition also blamed faulty voting machines for changing some results.

Paxton, who has called the bar’s actions a political “witch hunt,” can appeal the ruling to the all-Republican Texas Supreme Court. His office did not respond to a message seeking comment.

The El Paso appeals court ruled against Webster in a similar challenge. He has appealed to the Texas Supreme Court.

Last week, a group of 18 Republican attorneys general submitted a brief arguing that the Webster complaint should be dismissed because the 2020 Supreme Court petition was filed as an official act of the attorney general’s office.

CORRECTION, 2:50 p.m., April 19, 2023: An earlier version of this story incorrectly said the El Paso appeals court had not ruled on an appeal involving First Assistant Attorney General Brent Webster. The court ruled against Webster, and he has appealed to the Texas Supreme Court.