ACCEPTED 15-24-00095-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/3/2025 10:58 AM No. 15-24-00095-CV CHRISTOPHER A. PRINE CLERK FILED IN IN THE COURT OF APPEALS 15th COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH JUDICIAL DISTRICT 1/3/2025 10:58:06 AM AUSTIN, TEXAS CHRISTOPHER A. PRINE Clerk
EDWARD RANDOLPH TURNBULL, IV, Appellant,
v.
THE COMMISSION FOR LAWYER DISCIPLINE, ET AL., Appellees.
ON APPEAL FROM THE 201ST JUDICIAL DISTRICT COURT OF TEXAS CAUSE NO. D-1-GN-24-002025 THE HONORABLE AMY CLARK MEACHUM, PRESIDING
APPELLANT’S BRIEF
GAINES WEST WEST, WEBB, ALLBRITTON & GENTRY, P.C. State Bar No. 21197500 1515 Emerald Plaza gaines.west@westwebblaw.com College Station, Texas 77845 Telephone: (979) 694-7000 JOHN “JAY” RUDINGER, JR. State Bar No. 24067852 jay.rudinger@westwebblaw.com STONE HILTON PLLC JUDD E. STONE, II 600 Congress Avenue, Suite 2350 State Bar No. 24076720 Austin, Texas 78701 judd@stonehilton.com Telephone: (737) 465-3897
ATTORNEYS FOR APPELLANT
ORAL ARGUMENT REQUESTED
i IDENTITY OF PARTIES AND COUNSEL
Appellant Counsel for Appellant Edward Randolph Turnbull, IV Gaines West gaines.west@westwebblaw.com John “Jay” Rudinger, Jr. jay.rudinger@westwebblaw.com WEST, WEBB, ALLBRITTON & GENTRY, P.C. 1515 Emerald Plaza College Station, Texas 77845
Judd E. Stone II judd@stonehilton.com Stone Hilton PLLC 600 Congress Ave., Suite 2350 Austin, Texas 78701
Appellees Counsel for Appellees Cindy V. Tisdale; Steve Benesh; Patrick W. Mizell Laura Gibson; Kennon Lily pmizell@velaw.com Wooten; Kade W. Browning; Emily S. Bamseberger Elizabeth Sandoval Cantu; Luis ebamesberger@velaw.com Cavazos; Jason Charbonnet; Craig Brooke A. Noble Cherry; Kelly-Ann F. Clarke; Jeff bnoble@velaw.com Chochran; David C. Courreges; VINSON & ELKINS LLP Thomas A. Crosley; August W. 845 Texas Avenue, Suite 4700 Harris III; Britney E. Harrison; Houston, Texas 77002 Noelle Hicks; Matthew J. Hill; pmizell@velaw.com Forrest L. Huddleston; Kristina N. Kastl; Lori M. Kern; Bill Kroger; Hisham Masri; Dwight McDonald; Ruldolph K. Metayer; Lawrence Morales II; Kimberly N. Naylor; Rosalind V.O. Perez; Christopher D. Pineda; Chris Popov; Laura Pratt; Shannon Quadros; Michael J. Ritter; Audio Sciumbato; John Sloan; G. David Smith; Paul K. Stafford; Alex J. Stelly Jr.; Nitin Sud; Carlo ii Taboada; Radha Thiagarajan; Dr. Martin A. Tobey; Aaron Z. Tobin; G. Michael Vasquez; Stephen J. Venzor; and Michael J. Wynne (collectively, the “State Bar Defendants”)
Commission for Lawyer Royce LeMoine Discipline; Office of the Chief royce.lemoine@texasbar.com Disciplinary Counsel; Seana State Bar of Texas Willing; Amanda Kates; John S. P.O. Box 12487, Capitol Station Brannon; Timothy J. Baldwin; Austin, Texas 78711 Daniel Martinez; and Daniela Grosz
Jenny Hodgkins Daniel J. Olds dolds@clarkhill.com Jedd Masso jmasso@clarkhill.com CLARK HILL PLC 901 Main Street, Suite 6000 Dallas, Texas 75202
iii TABLE OF CONTENTS Page Identity of Parties and Counsel ................................................................................. ii Table of Contents ......................................................................................................iv Table of Authorities ...................................................................................................vi Statement of the Case................................................................................................ix Statement Regarding Oral Argument ......................................................................... x Issues Presented .....................................................................................................x
(1) Did the district court err in dismissing Mr. Turnbulls’ claims for lack of standing ................................................................................ x
(2) Did the district court err in dismissing Mr. Turnbull’s claims as frivolous ............................................................................................x Statement of Facts ......................................................................................................1 Standard of Review ....................................................................................................6 Summary of Argument ...............................................................................................6 Argument....................................................................................................................7 I. The district court erred in finding that Mr. Turnbull lacks standing to bring his claims ............................................................. 7
A. Mr. Turnbull has suffered an actual, non-hypothetical Injury ...........................................................................................8
B. Mr. Turnbull’s injury is fairly traceable to each of the Appellees ...................................................................................10
C. A favorable decision will redress Mr. Turnbull’s injury ........... 14
II. Appellees are not immune from this lawsuit .................................16
A. The Texas Legislature waived immunity in the State Bar Act ......................................................................................17
iv B. Sovereign immunity does not apply to equitable relief from constitutional harms ................................................19
C. Ministerial, ultra vires acts are not protected by official ministry .........................................................................20
D. Appellees cannot rely on TRDP 17.09 immunity .....................22
III. The district court erred in finding that Mr. Turnbull’s claims are frivolous ........................................................................24
A. A reasonable person could believe Mr. Turnbull’s allegations .................................................................................25
B. Mr. Turnbull’s claims are not legally foreclosed ......................26
Conclusion .............................................................................................................29 Certificate of Compliance ........................................................................................31 Certificate of Service ...............................................................................................31
v TABLE OF AUTHORITIES
Aguilar v. Morales, 545 S.W.3d 670 (Tex. App.—El Paso 2017, pet. denied) ................................. 24
Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161 (Tex. App.—Austin 2013, no pet.) ......................................... 23
Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417 (Tex. 2004) .............................................................................. 20
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) .................................................................................. 6
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) .............................................................................. 20
City of Elsa v. M.A.L., 226 S.W.3d 390, 391 (Tex. 2007) .............................................................................. 14
City of Port Arthur v. Thomas, 659 S.W.3d 96 (Tex. App.—Beaumont 2022, no pet.) ..................................... 27
City of Webster v. Myers, 360 S.W.3d 51 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) .................. 6
Crampton v. Farris, 596 S.W.3d 267 (Tex. App.—Houston [1st Dist.] 2019, no pet.) ..................... 22
Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692 (Tex. 2021) ................................................................................ 8
Davis v. Homeowners of Am. Ins. Co., No. 05-21-00092-CV, 2023 WL 3735115 (Tex. App.—Dallas May 31, 2023, no pet.) ..................................................... 25
Drake v. Walker, No. 05-14-00355-CV, 2015 WL 2160565 (Tex. App.—Dallas May 8, 2015, no pet.) (mem. op.)) .................................. 25
vi Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) .............................................................................. 17
Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838 (Tex. 2009) ............................................................................. 17
Health Care Serv. Corp. v. E. Tex. Med. Ctr., 459 S.W.3d 333 (Tex. App.—Tyler 2016, no pet.) ........................................... 14
Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012) .................................................................... in pasim
In re RNDC Tex., LLC, No. 05-18-00555-CV, 2018 WL 27773262 (Tex. App.—Dallas June 11, 2018, no pet.) (mem. op.) .............................................................................................. 27
In re Shire PLC, 633 S.W.3d 1 (Tex. App.—Texarkana 2021, orig. proceeding [mand. denied])) ................................................................................................ 27
Johnson v. Lynaugh, 796 S.W.2d 705 (Tex. 1990) (per curiam) ......................................................... 24
Klumb v. Hous. Mun. Emp. Pension. Sys., 458 S.W.3d 1 (Tex. 2015) .................................................................................. 19
Longhorn Creek Ltd. v. Gardens of Connemara Ltd., 686 S.W.3d 418 (Tex. App.—Dallas 2024, pet. filed) ................................ 25, 27
Murphy v. Missouri, 603 U.S. 43 (2024) .............................................................................................. 11
Sw. Bell Tel. Co. v. Mktg. on Hold, Inc., 308 S.W.3d 909 (Tex. 2010) ................................................................................ 7
Tex. Ass’n of Bus. v. Tex. Air. Control Bd., 852 S.W.2d 440 (Tex. 1993) ................................................................................ 7
Tex. Dep’t of State Health Servs. v. Holmes, 294 S.W.3d 328 (Tex. App.—Austin 2009, pet denied) ................................... 19 vii Tex. Dep’t of Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ................................................................................ 6
Tex. Nat. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) ................................................................................ 16
Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384 (Tex. 2011) .............................................................................. 16
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) .............................................................................. 17
Univ. of Hous. v. Clark, 38 S.W.3d 578 (Tex. 2000) ................................................................................ 20
Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175 (Tex. 1994) .............................................................................. 17
Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) .............. 24
Statutes and Constitutions
TEX. CONST. art. I § 3 ......................................................................................... 9, 27, 28 TEX. CONST. art. I § 13 ............................................................................................. 9, 28 TEX. CONST. art. I § 19 ............................................................................................. 9, 27 TEX. GOV’T CODE § 33.006 ......................................................................................... 23 TEX. GOV’T CODE § 81.014.......................................................................................... 17 TEX. GOV’T CODE § 81.017.......................................................................................... 18 TEX. GOV’T CODE § 81.024 ......................................................................................... 24 TEX. GOV’T CODE § 81.071 ..................................................................................... 8, 11 TEX. GOV’T CODE § 81.072 ............................................................................... in pasim TEX. GOV’T CODE § 81.076 .............................................................................. in passim TEX. GOV’T CODE § 81.106 ......................................................................................... 18 TEX. GOV’T CODE § 311.034........................................................................................ 17 TEX. R. CIV. P. 91a.1 .............................................................................................. 25, 26 TEX. R. DISCIPLINARY P. 1.06 ...................................................................................... 23 TEX. R. DISCIPLINARY P. 2.12 ...................................................................................... 23 TEX. R. DISCIPLINARY P. 17.09 .............................................................................. 22, 29
viii STATEMENT OF THE CASE Nature of the Case: Appellant Edward Randolph Turnbull, IV filed suit against various subdivisions and agents of the State Bar of Texas, seeking injunctive and declaratory relief.
Course of the Proceedings: Cause No. D-1-GN-24-002025, in the 201st Judicial District Court of Travis County, Texas; the Honorable Amy Clark Meachum, presiding.
District Court’s Disposition: On August 6, 2024, the district court dismissed Mr. Turnbull’s claims against the Commission for Lawyer Discipline, Daniela Grosz, Daniel Martinez, the Chief Disciplinary Counsel, Seana Willing, John S. Brannon, and Amanda Kates as frivolous. On August 9, 2024, the district court dismissed Mr. Turnbull’s claims against the State Bar Defendants as frivolous. On August 13, 2024, the district court dismissed Mr. Turnbull’s claims against Ms. Hodgkins on jurisdictional grounds.
ix STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because it would significantly aid the
Court’s decisional process in this case. Oral argument would assist the Court in
evaluating the jurisdictional issues disregarded by the district court in dismissing
Appellant’s claims.
ISSUES PRESENTED
Issue No. 1 Did the district court err in dismissing Mr. Turnbull’s claims for lack of standing. Issue No. 2 Did the district court err in dismissing Mr. Turnbull’s claims as frivolous.
x TO THE HONORABLE FIFTEENTH COURT OF APPEALS: Appellant Edward Randolph Turnbull, IV, files this Appellant’s Brief and asks
this Court to reverse each of the following five district court orders: (i) August 6,
2024, Order Granting the Commission for Lawyer Discipline’s Motion to Dismiss;
(ii) August 6, 2024, Order Granting Daniela Grosz and Daniel Martinez’s Motion to
Dismiss; (iii) August 6, 2024, Order Granting the Chief Disciplinary Counsel (Seana
Willing), John S. Brannon, and Amanda Kates’s Motion to Dismiss; (iv) August 9,
2024, Order Granting State Bar Defendants’ Rule 91a Motion to Dismiss; and (v)
August 13, 2024, Order Granting Defendant Jenny Hodgkins’s Plea to the
Jurisdiction. Additionally, Appellant asks this Court to remand to the district court
all claims for litigation on the merits.
STATEMENT OF FACTS
In retaliation for Mr. Turnbull and his firm pursuing civil recourse against
Microsoft for Microsoft’s improper seizure of his law firm’s data, Brien Jacobsen,
Mary Olga Lovett, and Rene Trevino (collectively, the “Microsoft Attorneys”) told
Mr. Turnbull and his counsel that they would pursue a criminal investigation against
Mr. Turnbull and other attorneys and staff at his firm, involve the State Bar of Texas,
and file public pleadings stating that Mr. Turnbull and his firm possessed and shared
child exploitation images. Pl.’s Orig. Pet. ¶ 33. Just as they had threatened, the very
next day, the Microsoft Attorneys filed false and baseless public pleadings alleging
1 that Mr. Turnbull and his firm shared or made public images of child sexual
exploitation imagery. Pl.’s Orig. Pet. ¶ 33.
On February 10, 2021, Mr. Turnbull filed grievances against the Microsoft
Attorneys, alleging that their false, improper, and unjustified statements and
behavior clearly violated the Texas Disciplinary Rules of Professional Conduct (the
“Texas Disciplinary Rules”). Pl.’s Orig. Pet. ¶ 42. In late March 2021, Mr. Turnbull
was notified that the Chief Disciplinary Counsel (the “CDC”) dismissed his
grievances. Pl.’s Orig. Pet. ¶ 43. Shortly thereafter, Mr. Turnbull appealed the
dismissal of the grievances and was informed by Jenny Hodgkins, the Executive
Director and General Counsel for the Board of Disciplinary Appeals (“BODA”), that
BODA granted Mr. Turnbull’s appeal upon finding that the grievances constituted a
possible violation of the Texas Disciplinary Rules and remanded the grievances to
the CDC for further investigation. Pl.’s Orig. Pet. ¶ 45.
On August 16, 2021, John S. Brannon, the Assistant Disciplinary Counsel for
the CDC, notified Mr. Turnbull that the CDC placed the grievances on a summary
disposition docket rather than referring the grievances to an investigatory hearing
panel. Pl.’s Orig. Pet. ¶ 51. The grievances were thereafter dismissed. Pl.’s Orig. Pet.
¶ 51. And when Mr. Turnbull filed a public information request regarding the
documents and materials the CDC used to determine that the grievances warranted
dismissal, the CDC swiftly refused to provide such information. Pl.’s Orig. Pet. ¶ 55.
2 Coincidentally, however, the CDC thereafter filed disciplinary petitions against
Sydney Powell, Attorney General Ken Paxton, and First Assistant Brent Webster for
the same allegations Mr. Turnbull made against the Microsoft Attorneys: that they
had misrepresented the truth and were dishonest in their pleadings filed with a court.
Pl.’s Orig. Pet. ¶ 59.
Over one year after Mr. Turnbull filed his initial grievances, Mr. Turnbull
submitted new grievances against the Microsoft Attorneys for allegations of
professional misconduct completely distinct from the allegations Mr. Turnbull made
in his initial grievances. Pl.’s Orig. Pet. ¶ 57–58. Despite the fact that the new
grievances were based on separate and distinct violations of the Texas Disciplinary
Rules of Professional Conduct and stemmed from separate and distinct factual
events, the CDC treated them as identical to the initial grievances and wholly
dismissed them. Pl.’s Orig. Pet. ¶ 60. When Mr. Turnbull attempted to appeal this
decision to BODA, BODA rejected his appeal and informed Mr. Turnbull that its
“decision is final.” Pl.’s Orig. Pet. ¶ 63. Mr. Turnbull then attempted to amend his
grievances, as permitted by the Texas Rules of Disciplinary Procedure (“TRDP”).
Pl.’s Orig. Pet. ¶ 65. However, these, too, were arbitrarily rejected by the CDC,
which informed Mr. Turnbull that it would not permit Mr. Turnbull to amend or refile
any of his grievances. Pl.’s Orig. Pet. ¶ 66.
3 Four months later, Mr. Turnbull received an anonymous email providing a
profile summary of Mr. Brannon, indicating that Brannon was a former partner at
the law firm of Thompson & Knight, LLP. Pl.’s Orig. Pet. ¶ 67. Shortly before the
CDC issued its summary disposition of Mr. Turnbull’s complaint, Thompson &
Knight, LLP had merged into Holland & Knight, the law firm representing Brien
Jacobsen, one of the Microsoft Attorneys Mr. Turnbull filed grievances against with
the Washington State Bar Association. Pl.’s Orig. Pet. ¶ 67. Less than three weeks
after his former law firm merged into and became the same firm representing Mr.
Jacobsen and Microsoft, Mr. Brannon notified Mr. Turnbull that the Grievances he
was supervising had been placed on a summary disposition docket. Pl.’s Orig. Pet. ¶
67. For over one and a half years, Mr. Brannon neither disclosed this conflict of
interest nor rescued himself, in violation of numerous Texas Disciplinary Rules. Mr.
Brannon did so to intentionally discriminate against Mr. Turnbull. Pl.’s Orig. Pet. ¶
67.
On March 28, 2024, Mr. Turnbull filed his Original Petition complaining of
Appellees’ violations of the Texas Constitution. On May 22, 2024, Ms. Hodgkins
filed her Original Answer and Plea to the Jurisdiction. On June 14, 2024, Mr.
Brannon, Ms. Kates, Ms. Willing, the CFLD, Ms. Grosz, and Mr. Martinez filed their
Original Answers. On June 24, 2024, the CFLD, Ms. Grosz, and Mr. Martinez filed
their Motion to Dismiss. On June 26, 2024, Ms. Willing, Mr. Brannon, and Ms. Kates
4 filed their Motion to Dismiss. On July 1, 2024, Mr. Turnbull filed his response to
Ms. Hodgkins’ Plea to the Jurisdiction. That same day, the CFLD, Ms. Willing, Mr.
Brannon, Ms. Kates, Ms. Grosz, and Mr. Martinez filed their Joint Motion for
Protective Order. On July 8, 2024, the State Bar Defendants filed their Rule 91A
Motion to Dismiss. On July 22, 2024, Mr. Turnbull filed his responses to each of the
motions to dismiss. That same day, the State Bar Defendants filed their Plea to the
Jurisdiction.
On August 8, 2024, the district court granted: (i) the CFLD’s 91a Motion to
Dismiss; (ii) Ms. Grosz and Mr. Martinez’s 91a Motion to Dismiss; (iii) the State
Bar Defendants’ Plea to the Jurisdiction; and (iv) Ms. Willing, Mr. Brannon, and Ms.
Kates’s 91a Motion to Dismiss. On August 9, 2024, the district court granted the
State Bar Defendants’ 91a Motion to Dismiss and vacated the district court’s order
granting the State Bar Defendants’ Plea to the Jurisdiction. On August 13, 2024, the
district court granted Ms. Hodgkins’ Plea to the Jurisdiction. On August 23, 2024,
Mr. Turnbull filed his response to the State Bar Defendants’ Plea to the Jurisdiction.
On August 27, 2024, the district court denied the State Bar Defendants’ Plea to the
Jurisdiction as moot.
As of August 13, 2024, all of Mr. Turnbull’s claims against Appellees had been
dismissed as frivolous. Mr. Turnbull then filed his Notice of Appeal on August 30,
2024.
5 STANDARD OF REVIEW
Each of the five district court orders appealed from in this case are subject to
de novo review. An appellate court’s standard of review is determined by the
substance of the issue to be reviewed, not simply the type of motion to which the
order relates. City of Webster v. Myers, 360 S.W.3d 51, 56 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied). The plea to the jurisdiction and the four motions to dismiss
each alleged that Mr. Turnbull lacked standing to bring his claims and that the
Appellees have sovereign immunity. Importantly, both sovereign immunity and
standing deprive a court of subject matter jurisdiction. Tex. Dep’t of Wildlife v.
Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (sovereign immunity); Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 553 (Tex. 2000) (standing).
It is well-established that jurisdictional determinations are a question of law
reviewed de novo. Tex. Dep’t of Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004). And because each of the district court’s orders were determinations of its
subject matter jurisdiction, the proper standard of review for this Court to apply is
de novo review.
SUMMARY OF THE ARGUMENT
This Court should reverse the district court’s judgment because the district
court erred in finding that Mr. Turnbull lacked standing to maintain his claims and
that his claims are frivolous. Mr. Turnbull established standing because he pleaded
6 specific constitutional harms caused by and fairly traceable to Appellees, and his
injuries are redressable by a grant of injunctive relief. Additionally, Mr. Turnbull’s
claims are not frivolous because they are believable by a reasonable person and are
not legally barred.
Notably, this matter has been bogged down in jurisdictional jumble while the
merits of Mr. Turnbull’s claims have remained unlitigated. At this stage of litigation,
the merits and ultimate resolution of Mr. Turnbull’s claims are irrelevant; rather, this
Court merely needs to find that Mr. Turnbull has standing to bring his claims and
that his claims are not frivolous.
ARGUMENT
I. The district court erred in finding that Mr. Turnbull lacks standing to bring his claims. The Texas Constitution requires plaintiffs to have standing to file suit. Sw. Bell
Tel. Co. v. Mktg. on Hold, Inc., 308 S.W.3d 909, 915 (Tex. 2010). To establish
standing, (1) the plaintiff must have suffered an injury in fact; (2) the injury must be
fairly traceable to the alleged misconduct by the defendants; and (3) it must be likely
that the injury will be redressed by a favorable decision by the court. Heckman v.
Williamson Cnty., 369 S.W.3d 137, 154–55 (Tex. 2012). Review of a district court’s
dismissal for want of jurisdiction is a question of law reviewed de novo. Id. In its
determination, courts must “construe the pleadings in favor of the plaintiff and look
to the pleader’s intent.” Tex. Ass’n of Bus. v. Tex. Air. Control Bd., 852 S.W.2d 440,
7 446 (Tex. 1993). Because Mr. Turnbull satisfied the three prongs of standing, it was
error for the district court to find otherwise.
A. Mr. Turnbull has suffered an actual, non-hypothetical injury.
To satisfy the injury prong of standing, the plaintiff must plead facts
demonstrating that he suffered some concrete, particularized, non-hypothetical
injury. Heckman, 369 S.W.3d at 155. An injury is “particularized” when it affects the
plaintiff in a personal and individual way. Data Foundry, Inc. v. City of Austin, 620
S.W.3d 692, 696 (Tex. 2021). However, constitutional harms are sufficient to satisfy
the injury prong of standing. Heckman, 369 S.W.3d at 155.
The Texas Legislature created the State Bar of Texas to aid the Supreme Court
of Texas’s regulation of the practice of law. TEX. GOV’T CODE § 81.072. In doing so,
the Texas Legislature authorized disciplinary actions against attorneys and provided
certain rights and procedures regarding attorney discipline. Id. § 81.071.
Specifically, the Texas Legislature thought it important to statutorily require
complainants, like Mr. Turnbull, be given “a full explanation” as to why a grievance
was dismissed. Id. § 81.072. Furthermore, the Texas Legislature tasked the State Bar
of Texas with overseeing the Commission for Lawyer Discipline (“CFLD”) and the
Chief Disciplinary Counsel (“CDC”) in their effectuation of the attorney disciplinary
system. See TEX. GOV’T CODE § 81.072(b)(2), .076(a), .076(g).
8 These statutory obligations also have constitutional counterparts, three of
which are pertinent here. First, article I section 13 of the Texas Constitution requires
that Texas courts be open and that every individual has the right to due course of
law. TEX. CONST. art. I § 13. Mr. Turnbull has alleged that by denying Mr. Turnbull
a full explanation of why his grievances were dismissed, as legally required,
Appellees denied Mr. Turnbull of his substantive due process rights to a transparent
disciplinary proceeding, which is necessary to uphold the Texas Constitution’s
requirement that Texas courts be “open.” Pl.’s Orig. Pet. ¶ 84–87.
Second, article I section 19 of the Texas Constitution provides that no
individual “shall be deprived of life, liberty, property, privileges or immunity, or in
any manner disenfranchised, except by due course of the law.” TEX. CONST. art. I §
19. Mr. Turnbull has alleged that by denying Mr. Turnbull a full explanation of why
his grievances were dismissed and by acting like a biased political body, Appellees
deprived Mr. Turnbull of his substantive due process rights under the Texas
Constitution. Pl.’s Orig. Pet. ¶ 75–80.
Finally, article I section 3 of the Texas Constitution provides that every
individual shall be given equal protection under the law. TEX. CONST. art. I § 3. Mr.
Turnbull has alleged that Appellees arbitrarily applied the Texas Rules of
Disciplinary Procedure in order to intentionally treat Mr. Turnbull differently than
other similarly situated complainants. Pl.’s Orig. Pet. ¶ 81–83.
9 Importantly, Mr. Turnbull is not complaining of the nonprosecution of his
grievances against the Microsoft Attorneys. Rather, Mr. Turnbull has remained
consistent that his claims are based on Appellees constitutionally harming Mr.
Turnbull by (a) intentionally depriving Mr. Turnbull of a full and fair explanation for
why his grievances were dismissed on the purported ground that the grievances
lacked just cause; (b) weaponizing the TRDP to intentionally treat Mr. Turnbull
differently than other similarly situated complainants; and (c) intentionally cloaking
the attorney discipline system in secrecy to hide Appellees’ arbitrary and capricious
decision-making process. Appellees’ actions have nothing to do with Appellees’
decision not to prosecute Mr. Turnbull’s grievances but, instead, are based on
specific conduct that caused constitutional harm to Mr. Turnbull. When this Court
construes the pleadings liberally in favor of Mr. Turnbull, as the law requires, it is
abundantly clear that Mr. Turnbull has established the injury prong of standing.
B. Mr. Turnbull’s injury is fairly traceable to each of the Appellees.
To satisfy the traceability prong of standing, the plaintiff must plead facts that
trace the alleged injuries to the defendant’s conduct. Heckman v. Williamson Cnty.,
369 S.W.3d 137, 155 (Tex. 2012). The purpose of this prong is to ensure that a court
acts only to redress the defendant’s conduct as opposed to that of an independent
third party not before the court. Compare id. (finding the plaintiff’s injuries
redressable by an injunction against the public official and state entities that caused
10 his injuries) with Murphy v. Missouri, 603 U.S. 43, 73 (2024) (finding the plaintiffs’
injuries non-redressable by the government for the actions of an independent, private
third party). This prong of standing is concerned simply with whether the plaintiff
has identified the proper defendants. See Heckman, 369 S.W.3d at 155.
As noted supra, the Texas Legislature, in authorizing the creation of the
attorney discipline system, imposed various rights and procedures to govern the
system. TEX. GOV’T CODE § 81.071. Again, this includes the right of each
complainant to be given a full and fair explanation as to why a grievance was
dismissed. Id. § 81.072. Most importantly, the Texas Legislature tasked Appellees—
and Appellees alone—to oversee the attorney disciplinary system. See TEX. GOV’T
CODE § 81.072(b)(2), .076(a), .076(g). Appellees, as state actors with direct authority
over the regulation of the practice of law, are required to follow the Texas
Legislature’s instructions in the State Bar Act as well as the clear provisions of the
Texas Constitution.
The Supreme Court of Texas has already held that a breach in legislative duties
is traceable to the state actor or agency responsible for carrying out that legislative
duty. See Heckman, 369 S.W.3d at 157. In Heckman, the plaintiff alleged that the
local government denied him his right to counsel under the Texas Constitution and
Texas Fair Defense Act. Id. The Supreme Court of Texas held that the plaintiff
satisfied the traceability prong of standing when he established that the government
11 defendants were legislatively responsible for providing indigent defense services to
him and failed to do so. See id. Importantly, the Supreme Court of Texas noted that
the traceability prong of standing does not require the plaintiff to show exactly what
responsibility the defendants bear for his alleged injuries. Id. Rather, to establish the
traceability prong of standing, the plaintiff need only show that his injuries are fairly
traceable to the defendants. Id.
Like the plaintiff in Heckman, Mr. Turnbull alleged that his constitutional
harms were caused by the Appellees’ violations of their statutorily and
constitutionally mandated authority. Specifically, Mr. Turnbull has alleged that: (i)
Mr. Brannon failed to disclose his conflict of interest and subsequently told Mr.
Turnbull that the CDC placed his grievances on the summary disposition docket
[Pl.’s Orig. Pet. ¶ 51]; (ii) Mr. Baldwin informed Mr. Turnbull that the summary
disposition panel dismissed his grievances [Pl.’s Orig. Pet. ¶ 54]; (iii) Ms. Reynolds
informed Mr. Turnbull that the CDC denies Mr. Turnbull’s public information
request regarding his grievances and their dismissal [Pl.’s Orig. Pet. ¶ 56]; (iv) Ms.
Grosz informed Mr. Turnbull that the CDC dismissed his new grievances [Pl.’s Orig.
Pet. ¶ 61]; (v) Ms. Hodgkins informed Mr. Turnbull that BODA affirmed the
dismissal of his grievances, told Mr. Turnbull that BODA’s decision was final and
denied Mr. Turnbull his right to amend his grievances, in violation of the TRDP [Pl.’s
Orig. Pet. ¶ 63]; (vi) Mr. Martinez returned Mr. Turnbull’s amended grievances and
12 informed Mr. Turnbull that he would not be permitted to amend or refile his
grievances [Pl.’s Orig. Pet. ¶ 66]; and (vii) the CDC and CFLD, including Ms.
Willing, Mr. Brannon, and Ms. Kates, refused to provide Mr. Turnbull his statutory
right to an explanation as to why his grievances were dismissed, denied Mr. Turnbull
his statutory right to amend or appeal his grievances, intentionally treated Mr.
Turnbull differently than other similarly-situated complainants, and used the
attorney discipline system to cloud in secrecy its arbitrary, capricious, and political
decision making process [Pl.’s Orig. Pet. ¶ 70–87].
As the traceability prong of standing requires, Mr. Turnbull has identified the
proper defendants because Mr. Turnbull has pointed to specific conduct taken by
each Appellee that resulted in Mr. Turnbull’s constitutional harm. As the Supreme
Court of Texas stated in Heckman, whether or not Appellees bear ultimate
responsibility for Mr. Turnbull’s harms is irrelevant because Mr. Turnbull need not
prevail on the merits of his claims at this stage of the litigation. Rather, Mr. Turnbull
need only show that his injuries are fairly traceable to Appellees’ conduct. By
identifying the specific and independent actions taken by each Appellee that violated
their statutorily and constitutionally mandated duties, Mr. Turnbull has satisfied the
traceability prong of standing.
13 C. A favorable decision will redress Mr. Turnbull’s injury.
To satisfy the redressability requirement, the plaintiff need not prove to a
mathematical certainty that the requested relief will remedy his injury. Heckman,
369 S.W.3d at 155–56. Rather, he must simply establish a “substantial likelihood
that the requested relief will remedy the alleged injury in fact.” Id. Government
entities may be sued for injunctive relief under the Texas Constitution. City of Elsa
v. M.A.L., 226 S.W.3d 390, 391 (Tex. 2007). Such a remedy is proper when it “is
necessary to prevent irreparable injury or extreme hardship.” Health Care Serv.
Corp. v. E. Tex. Med. Ctr., 459 S.W.3d 333, 339 (Tex. App.—Tyler 2016, no pet.).
The Supreme Court of Texas has already held that an injunction against the
government requiring the government to follow its statutory and constitutional
obligations satisfies the redressability prong of standing. Heckman, 369 S.W.3d at
158. In Heckman, the plaintiff requested an injunction against the local government
to not only stop the government from continuing to violate his constitutional rights,
but also to fairly evaluate his request for appointed counsel. Id. The Supreme Court
of Texas held that because the requested injunction would “in some way” remedy
the plaintiff’s alleged injuries, the plaintiff satisfied the redressability prong of
standing. Id. at 159.
Again, like the plaintiff in Heckman, Mr. Turnbull seeks injunctive relief
against the government to prevent the government from continuing to violate his
14 constitutional rights. See Pl.’s Orig. Pet. ¶ 88–96. Specifically, Mr. Turnbull
requested injunctive relief for Appellees to re-open the grievances, investigate the
grievances fairly, and provide Mr. Turnbull with a full and fair explanation of the
decision—whatever decision—it makes. Pl.’s Orig. Pet. ¶ 89. Such relief would
simply require Appellees to follow their statutory and constitutional obligations,
which they failed to do. It would be a gross miscarriage of justice for this Court to
hold that state actors, like Appellees, cannot be compelled to follow their clearly
defined statutory and constitutional obligations.
Granting this request will not only redress Mr. Turnbull’s already-incurred
injuries at the hands of Appellees, but it will also help prevent Appellees from
continuing to take a hands-off approach to the attorney discipline system it is
responsible for overseeing. Without the requested relief, Mr. Turnbull and the legal
profession will continue to suffer irreparable injury because Appellees will remain
unchecked in their accountability for overseeing the attorney discipline system.
Furthermore, attorneys will be emboldened to knowingly make misrepresentations
in court and file dishonest pleadings because, as here, Appellees will turn a blind
eye—at least for attorneys Appellees favor, that is. Because injunctive relief would
remedy the constitutional harms Appellees caused Mr. Turnbull, Mr. Turnbull has
satisfied the redressability prong of standing.
15 * * *
In sum, Mr. Turnbull satisfied the injury prong of standing by establishing that
he suffered constitutional harms stemming from Appellees’ willful refusal to follow
their statutorily and constitutionally mandated authority. Additionally, Mr. Turnbull
satisfied the traceability prong of standing by establishing that Appellees themselves,
not any other third party, committed the constitutional harms of which Mr. Turnbull
complains. Finally, Mr. Turnbull established the redressability prong of standing by
establishing that his requested injunctive relief would redress his constitutional harm
by simply requiring Appellees to adhere to their existing statutory and constitutional
authority, which Appellees abandoned. Mr. Turnbull’s establishment of these three
prongs of standing is all that is required for Mr. Turnbull to move to the next stage
of the litigation. The ultimate conclusion of this case was not for the district court to
decide at this stage in the litigation; rather, the purpose of standing is to ensure that
there is a real controversy between the parties, and Mr. Turnbull has established just
that.
II. Appellees are not immune from this lawsuit.
Sovereign immunity protects the State from lawsuits for money damages. Tex.
Nat. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Absent an
express waiver of sovereign immunity, the State and its agencies are generally
immune from suit. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388
16 (Tex. 2011); see Franka v. Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011)
(extending sovereign immunity to state actors sued in their official capacities). To
waive sovereign immunity, the Texas Legislature must have expressed as such in
“clear and unambiguous language.” TEX. GOV’T CODE § 311.034; Univ. of Tex. Med.
Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994).
A. The Texas Legislature waived immunity in the State Bar Act.
The State Bar Act governs the State Bar of Texas and its subsidiaries and
actors, including Appellees. TEX. GOV’T CODE § 81.014. The State Bar Act provides
that the “state bar may sue and be sued in its own name.” Id. Though the “sued and
be sued” language appears to be a waiver of sovereign immunity, the Supreme Court
of Texas has held that such language does not, by itself, constitute waiver. Tooke v.
City of Mexia, 197 S.W.3d 325, 342 (Tex. 2006). Rather, courts must also look to the
context of the statute. Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d
838, 843 (Tex. 2009). When analyzing statutes for legislative waiver of immunity,
courts (a) look to whether the statute waives immunity without doubt, (b) resolve
ambiguity in favor of retaining immunity, (c) find waiver where the Texas
Legislature requires an otherwise-immune entity to join as a necessary party, and (d)
look to whether the Texas Legislature provided an objective limitation on
government liability. Id. at 844. Here, the factors weigh in favor of waiver of
sovereign immunity.
17 First, in addition to outlining the “minimum standards and procedures” to be
implemented in the attorney discipline system, the Texas Legislature expressly
provided immunity to complainants, witnesses, the unauthorized practice of law
committee, committee members, and any person assisting the committee. TEX.
GOV’T CODE §§ 81.072, .106. Had the Texas Legislature wished to extend immunity
to the entire State Bar of Texas, including Appellees, the Texas Legislature would
not have limited immunity to the above-provided actors within the attorney
discipline system. Second, the Texas Legislature limited the indebtedness, liability,
or obligation of the State Bar of Texas to the State Bar itself and not any other entity
or state actor “other than the state bar.” Id. § 81.017(a). Had the Texas Legislature
intended to fully immunize the entire State Bar of Texas, including Appellees, the
Texas Legislature would not have drafted such a provision holding the State Bar of
Texas—and only the State Bar of Texas—responsible for its liabilities. Finally, the
Texas Legislature limited the liability of the State Bar of Texas to nonmonetary relief
but allowed for relief in the form of declaratory and injunctive relief. See id. §
81.017(b). Here, however, Mr. Turnbull has not once made a demand for monetary
relief. See Pl.’s Orig. Pet. ¶ 89.
The State Bar Act’s “sue and be sued” language, coupled with the above
factors, indicate that the Texas Legislature waived sovereign immunity for
Appellees. The Texas Legislature deliberately chose not to immunize Appellees in
18 order to maintain the integrity and accountability of the State Bar of Texas’s
oversight of the attorney discipline system. Importantly, had the Texas Legislature
truly believed that a clarification was necessary to provide such immunity to
Appellees, the Texas Legislature would have done so at any point over the last 85
years of the State Bar Act’s reign. As a result, Appellees cannot avail themselves of
sovereign immunity in this case.
B. Sovereign immunity does not apply to equitable relief from constitutional harms.
Even if this Court disagrees that the State Bar Act waives sovereign immunity,
Appellees are nevertheless still not immune from suits alleging constitutional harms
and seeking prospective relief.
Appellees are not entitled to sovereign immunity in this case because
sovereign immunity is inapplicable to equitable relief from constitutional harms.
Tex. Dep’t of State Health Servs. v. Holmes, 294 S.W.3d 328, 334 (Tex. App.—Austin
2009, pet denied) (“Sovereign immunity does not shield a governmental entity from
suit for equitable relief for a violation of constitutional rights”); see also Pl.’s Orig.
Pet. ¶ 80 (pleading this as the basis of why Appellees are not entitled to sovereign
immunity). When a plaintiff alleges that a governmental entity or actor committed a
constitutional violation, the proper focus is on whether the plaintiff has pleaded a
facially viable claim, not whether the entity or actor performed a ministerial act.
Klumb v. Hous. Mun. Emp. Pension. Sys., 458 S.W.3d 1, 13 (Tex. 2015). Mr. 19 Turnbull’s due course of law, equal protection, and open courts claims are for
equitable relief for violations of Mr. Turnbull’s constitutional rights. Pl.’s Orig. Pet.
¶¶ 75–87, 89. Therefore, Appellees are not entitled to sovereign immunity.
C. Ministerial, ultra vires acts are not protected by official immunity.
Generally, state actors are immune from suits that seek to restrain their good
faith performance of a discretionary function within the scope of their statutory and
constitutional authority. Univ. of Hous. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).
Ministerial, as opposed to discretionary, acts are those for which “the law prescribes
and defines the duty to be performed with such precision and certainty as to leave
nothing to the exercise of discretion or judgment.” Ballantyne v. Champion Builders,
Inc., 144 S.W.3d 417, 425 (Tex. 2004). Importantly, suits “to determine or protect a
private party’s rights against a state official who has acted without legal or statutory
authority is not a suit against the State that sovereign immunity bars.” City of El
Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009). Because Appellees acted outside
their statutory authority and failed to perform ministerial acts, Appellees cannot avail
themselves of official immunity.
Mr. Turnbull has alleged that: (i) Mr. Brannon failed to disclose his conflict
of interest and subsequently told Mr. Turnbull that the CDC placed his grievances
on the summary disposition docket [Pl.’s Orig. Pet. ¶ 51]; (ii) Mr. Baldwin informed
Mr. Turnbull that the summary disposition panel dismissed his grievances [Pl.’s
20 Orig. Pet. ¶ 54]; (iii) Ms. Reynolds informed Mr. Turnbull that the CDC denies Mr.
Turnbull’s public information request regarding his grievances and their dismissal
[Pl.’s Orig. Pet. ¶ 56]; (iv) Ms. Grosz informed Mr. Turnbull that the CDC dismissed
his new grievances [Pl.’s Orig. Pet. ¶ 61]; (v) Ms. Hodgkins informed Mr. Turnbull
that BODA affirmed the dismissal of his grievances, told Mr. Turnbull that BODA’s
decision was final and denied Mr. Turnbull his right to amend his grievances, in
violation of the TRDP [Pl.’s Orig. Pet. ¶ 63]; (vi) Mr. Martinez returned Mr.
Turnbull’s amended grievances and informed Mr. Turnbull that he would not be
permitted to amend or refile his grievances [Pl.’s Orig. Pet. ¶ 66]; and (vii) the CDC
and CFLD, including Ms. Willing, Mr. Brannon, and Ms. Kates, refused to provide
Mr. Turnbull his statutory right to an explanation as to why his grievances were
dismissed, denied Mr. Turnbull his statutory right to amend or appeal his grievances,
intentionally treated Mr. Turnbull differently than other similarly-situated
complainants, and used the attorney discipline system to cloud in secrecy its
arbitrary, capricious, and political decision making process [Pl.’s Orig. Pet. ¶ 70–
87].
The provisions of the State Bar Act Appellees refused to follow involve no
exercise of discretion but, instead, require Appellees to follow their statutorily
mandated ministerial functions. In addition, by engaging in the above actions,
Appellees acted ultra vires and cannot now avail themselves of official immunity. If
21 this Court were to hold otherwise, Appellees would, in effect, be appointed the
ultimate arbiters of the attorney discipline system and would be protected by an
impenetrable veil that encourages state actors to act ultra vires yet evade
accountability for their lawlessness.
D. Appellees cannot rely on TRDP 17.09 immunity.
In the proceedings below, Appellees cited Rule 17.09 of the Texas Rules of
Disciplinary Procedure, which provide that Appellees are “immune from suit for any
conduct in the course of their official duties.” TEX. R. DISCIPLINARY P. 17.09.
However, Appellees cannot avail themselves of Rule 17.09 immunity because Rule
17.09 ignores the nature of the function performed and only the Texas Legislature
can bestow absolute immunity.
To determine whether immunity applies in this case, this Court must look to
the “nature of the function performed, not the identity of the actor performing it.”
Crampton v. Farris, 596 S.W.3d 267, 274 (Tex. App.—Houston [1st Dist.] 2019, no
pet.). Furthermore, activities that are “intimately associated with the judicial phase
of prosecution” may entitle a governmental entity or actor to immunity. Id. Here, Mr.
Turnbull has alleged that the Appellees sued in their official capacity refused to
provide Mr. Turnbull his statutory right to an explanation of why his grievances were
dismissed, denied Mr. Turnbull his statutory right to amend or appeal his grievances,
intentionally treated Mr. Turnbull differently than other similarly-situated
22 complainants, and used the attorney discipline system to cloud in secrecy its
arbitrary, capricious, and political decision making process. Pl.’s Orig. Pet. ¶¶ 75–
87. Importantly, all of these actions were taken during the just cause determination
stage of the attorney disciplinary process, which is non-judicial and non-adversarial.
TEX. R. DISCIPLINARY P. 1.06(W), 2.12. Because Mr. Turnbull’s grievances were
dismissed as part of a non-adversarial process, Appellees were not acting as part of
the “judicial phase of prosecution.”
Moreover, only the Texas Legislature may grant absolute and unqualified
immunity. This Court must “defer to the Legislature as the gatekeeper controlling
when and how citizens can sue their state government or its officers for their official
acts.” Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 173 (Tex. App.—Austin
2013, no pet.) (emphasis added). This is because the Texas Legislature is in the best
position to bestow absolute and unqualified immunity. The Texas Legislature did so,
for example, in a statute governing the Texas Commission on Judicial Conduct
(“CJC”), which provides “absolute and unqualified” immunity to the CJC and its
officers for actions taken in the scope of their duties. TEX. GOV’T CODE § 33.006(c).
Importantly, the apparent immunity provided by Rule 17.09 of the TRDP was not
granted by the Texas Legislature but, instead, the Supreme Court of Texas. While
the Texas Legislature authorized the Supreme Court of Texas to promulgate rules
governing the State Bar of Texas and its maintenance, operation, and administration,
23 granting unchecked immunity in the TRDP does not fall within this grant of authority
by the Texas Legislature. TEX. GOV’T CODE § 81.024. Importantly, Appellees cannot
point to any provision within the State Bar Act or any other statute that provides the
same absolute and unqualified immunity to the entire State Bar of Texas, including
Appellees. Accordingly, Appellees cannot reasonably hide behind a judicial rule to
circumvent accountability for violating their statutory and constitutional obligations.
III. The district court erred in finding that Mr. Turnbull’s claims are frivolous.
A proceeding is frivolous when it lacks an arguable basis in law or fact.
Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990) (per curiam). Such
determinations are legal questions reviewed de novo. Wooley v. Schaffer, 447 S.W.3d
71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Courts must construe
the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept
as true the factual allegation in the pleadings to determine if the cause of action has
a basis in law or fact. Id. In doing so, courts must determine if the petition gives fair
and adequate notice of the facts upon which the pleader bases his claim. See Aguilar
v. Morales, 545 S.W.3d 670, 677 (Tex. App.—El Paso 2017, pet. denied). Because a
reasonable person could believe Mr. Turnbull’s allegations and his claims are not
legally foreclosed, the district court erred in finding that Mr. Turnbull’s suit is
frivolous.
24 A. A reasonable person could believe Mr. Turnbull’s allegations.
A cause of action lacks a basis in fact if “no reasonable person could believe
the facts pleaded” by the plaintiff. TEX. R. CIV. P. 91a.1. This prong relates to the
believability of the plaintiff’s allegations. Longhorn Creek Ltd. v. Gardens of
Connemara Ltd., 686 S.W.3d 418, 425 (Tex. App.—Dallas 2024, pet. filed). In
making such a determination, courts do not consider whether the plaintiff’s
“allegations ‘are likely, or even if the conduct alleged is outlandish, but only if a
reasonable person could believe the alleged conduct.’” Id. (quoting Drake v. Walker,
No. 05-14-00355-CV, 2015 WL 2160565, at *3 (Tex. App.—Dallas May 8, 2015, no
pet.) (mem. op.)). Because this factual-plausibility bar is so low, it “seldom rises to
a point of contention in the case law.” Id. at 425 (quoting Davis v. Homeowners of
Am. Ins. Co., No. 05-21-00092-CV, 2023 WL 3735115, at *2 (Tex. App.—Dallas
May 31, 2023, no pet.)).
Mr. Turnbull has alleged specific actions taken by Appellees that caused him
constitutional harm. Specifically, Mr. Turnbull has alleged that the State Bar
Defendants and the CFLD failed to ensure that the CDC properly applied the
procedures instituted by law to provide a “full explanation” on its decision to dismiss
Mr. Turnbull’s grievances despite the law instructing the CFLD to oversee the CDC’s
effectuation of the procedures. See TEX. GOV’T CODE §§ 81.072(b)(2), .076(a),
.076(g). Additionally, Mr. Turnbull has alleged that Ms. Grosz, Mr. Martinez, Ms.
25 Willing, Ms. Brannon, Ms. Kates, and Ms. Hodgkins each intentionally deprived Mr.
Turnbull of his statutory right to a “full explanation” of why his grievances were
dismissed and, as a result, deprived Mr. Turnbull of his constitutional rights to due
course of law, equal protection, and open courts. See id; see also Pl.’s Orig. Pet. ¶
72. Finally, Mr. Turnbull has alleged that the State Bar of Texas was responsible for
overseeing the CFLD’s exercise of its duties, and by failing to ensure that the CFLD
properly monitored and evaluated the CDC for its failure to follow the procedures
required by law, the State Bar of Texas deprived Mr. Turnbull of his right to due
course of law. Id.
Importantly, the Texas Legislature expressly tasked Appellees with overseeing
the attorney discipline system, including the effectuation of a complainant’s right to
a full and fair explanation of why a grievance is dismissed. TEX. GOV’T CODE §§
81.071, .072. Because Mr. Turnbull’s claims arise from Appellees’ unlawful actions
within the attorney discipline system and Appellees are the very state entities and
actors that oversee the attorney discipline system, a reasonable person could believe
Mr. Turnbull’s allegations. Therefore, Mr. Turnbull’s claims have a basis in fact.
B. Mr. Turnbull’s claims are not legally foreclosed.
A cause of action lacks a basis in law if the plaintiff’s allegations taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought. TEX. R. CIV. P. 91a.1. In other words, “the defendant must establish
26 the plaintiff’s claims are ‘foreclose[d] as a matter of law.” Longhorn Creek Ltd., 686
S.W.3d at 426 (quoting In re Shire PLC, 633 S.W.3d 1, 18 (Tex. App.—Texarkana
2021, orig. proceeding [mand. denied])). However, if nothing in the pleadings
“trigger a clear legal bar” to the claims, then the claims are not frivolous. In re RNDC
Tex., LLC, No. 05-18-00555-CV, 2018 WL 27773262, at *1 (Tex. App.—Dallas June
11, 2018, no pet.) (mem. op.). Mr. Turnbull’s claims are not legally foreclosed
because his claims are based on express rights afforded to him under the Texas
Constitution, and Appellees cannot avail themselves of immunity.
Each of Mr. Turnbull’s three claims are based on the due course of law, equal
protection, and open courts provisions of the Texas Constitution. First, article I
section 19 of the Texas Constitution provides that “[n]o citizen of the State shall be
deprived of life, liberty, property, privileges, or immunities, or in any manner
disenfranchised, except by due course of the law of the land.” TEX. CONST. art. I §
19. Mr. Turnbull has alleged that by failing to provide Mr. Turnbull a full explanation
of why his grievances were dismissed and prohibiting Mr. Turnbull from amending
his grievances, Appellees violated Mr. Turnbull’s due course of law rights afforded
to him under article I section 19 of the Texas Constitution. Pl.’s Orig. Pet. ¶¶ 75–80.
Second, article I section 3 of the Texas Constitution “directs government actors to
treat all similarly situated persons alike.” City of Port Arthur v. Thomas, 659 S.W.3d
96, 115 (Tex. App.—Beaumont 2022, no pet.) (citing TEX. CONST. art. I § 3). Mr.
27 Turnbull has alleged that by using the attorney discipline system to treat him
differently from similarly situated complainants, Appellees violated Mr. Turnbull’s
equal protection rights afforded to him under article I section 3 of the Texas
Constitution. Pl.’s Orig. Pet. ¶¶ 81–83. Finally, article I section 13 of the Texas
Constitution prohibits the government from unreasonably restricting a citizen’s
access to the judicial system. TEX. CONST. art. I § 13. Mr. Turnbull has alleged that
because Appellees denied Mr. Turnbull his right to a full explanation of why his
grievances were dismissed, prohibited him from amending his grievances, and failed
to ensure that the State Bar of Texas and its subsidiaries and actors followed the State
Bar Act, Appellees unlawfully cloaked the attorney discipline system in secrecy and,
therefore, violated Mr. Turnbull’s open courts rights afforded to him under article I
section 13 of the Texas Constitution. Pl.’s Orig. Pet. ¶¶ 84–87. Accordingly, Mr.
Turnbull’s claims are based on three specific provisions of the Texas Constitution
that Appellees, as state entities and actors, were required to uphold.
In addition, Mr. Turnbull’s claims are not barred by immunity. As briefed
extensively supra, Appellees cannot avail themselves of sovereign immunity
because the Texas Legislature waived sovereign immunity for Appellees in the State
Bar Act. However, even if this Court finds no such waiver, Appellees are
nevertheless not entitled to sovereign immunity in this case because Mr. Turnbull
seeks equitable relief from constitutional harms. Moreover, Appellees cannot avail
28 themselves of absolute immunity under Rule 17.09 of the TRDP because the Texas
Legislature did not bestow this immunity and because this immunity does not protect
misconduct committed during the just cause determination stage of the attorney
discipline process. Finally, Appellees cannot avail themselves of official immunity
because Appellees engaged in ministerial or ultra vires actions.
At this stage of litigation, Mr. Turnbull need not conclusively prove his case.
Rather, Mr. Turnbull need only establish that his claims are plausible in fact and law.
Because Mr. Turnbull’s claims based on three unique constitutional violations and
Appellees cannot avail themselves of sovereign, official, or absolute immunity, Mr.
Turnbull’s claims are not legally barred and, therefore, based in law. Furthermore,
because Mr. Turnbull’s claims are based in fact, his claims are not frivolous.
CONCLUSION
Mr. Turnbull respectfully requests that this Court reverse each of the five
outlined district court orders, remand the proceedings for discovery and eventual
resolution on the merits, and grant such other and further relief for which Mr.
Turnbull may be entitled.
29 Respectfully submitted,
WEST, WEBB, ALLBRITTON & GENTRY, P.C. 1515 Emerald Plaza College Station, Texas 77845 Telephone: (979) 694-7000 Facsimile: (979) 694-8000
By: /s Gaines West GAINES WEST State Bar No. 21197500 gaines.west@westwebblaw.com JOHN “JAY” RUDINGER, JR. State Bar No. 24067852 jay.rudinger@westwebblaw.com
- and -
JUDD E. STONE, II State Bar No. 24076720 judd@stonehilton.com STONE HILTON PLLC 600 Congress Avenue, Suite 2350 Austin, Texas 78701 Telephone: (737) 465-3897
30 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, I certify that the foregoing document complies with the word count limitation Rule 9.4(i). It contains 6,937 total words, including any parts exempted by Rule 9.4(i)(1). In making this Certificate of Compliance, I am relying on the word count provided by Microsoft Word, the software used to prepare the document. This is a computer- generated document using Times New Roman 14-point font.
/s/ Gaines West GAINES WEST
CERTIFICATE OF SERVICE I certify that on January 3, 2025, the foregoing Appellant’s Brief was filed electronically using the Court’s e-filing, which will give notice of the filing to counsel for Appellees as follows:
Daniel J. Olds Email: dolds@clarkhill.com CLARK HILL PLC 901 Main Street, Suite 6000 Dallas, Texas 75202 dolds@clarkhill.com
Patrick W. Mizell Email: pmizell@velaw.com VINSON & ELKINS LLP 845 Texas Avenue, Suite 4700 Houston, Texas 77002 pmizell@velaw.com
Royce LeMoine Email: royce.lemoine@texasbar.com State Bar of Texas P.O. Box 12487, Capitol Station Austin, Texas 78711 royce.lemoine@texasbar.com
ATTORNEYS FOR APPELLEES
31 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Billy Hart on behalf of Gaines West Bar No. 21197500 billy.hart@westwebblaw.com Envelope ID: 95824857 Filing Code Description: Brief Requesting Oral Argument Filing Description: Appellant's Brief Status as of 1/3/2025 11:17 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Pat Mizell pmizell@velaw.com 1/3/2025 10:58:06 AM SENT
Billy SHart billy.hart@westwebblaw.com 1/3/2025 10:58:06 AM SENT
Jay Rudinger jay.rudinger@westwebblaw.com 1/3/2025 10:58:06 AM SENT
Jadd Masso 24041411 jmasso@clarkhill.com 1/3/2025 10:58:06 AM SENT
Royce Lemoine 24026421 royce.lemoine@texasbar.com 1/3/2025 10:58:06 AM SENT
Richard Huntpalmer 24097857 Richard.Huntpalmer@texasbar.com 1/3/2025 10:58:06 AM SENT
Gaines West 21197500 gaines.west@westwebb.law 1/3/2025 10:58:06 AM SENT
John Rudinger 24067852 jay.rudinger@westwebblaw.com 1/3/2025 10:58:06 AM SENT
Judd Stone 24076720 Judd@stonehilton.com 1/3/2025 10:58:06 AM SENT
Daniel Olds 24088152 dolds@clarkhill.com 1/3/2025 10:58:06 AM SENT
Brooke Noble bnoble@velaw.com 1/3/2025 10:58:06 AM SENT
Michael Graham 24113581 Michael.Graham@TEXASBAR.COM 1/3/2025 10:58:06 AM SENT
Emily Bamesberger ebamesberger@velaw.com 1/3/2025 10:58:06 AM SENT
Justin B.Cox jbcox@clarkhill.com 1/3/2025 10:58:06 AM SENT
Gaines West gaines.west@westwebblaw.com 1/3/2025 10:58:06 AM SENT