Commission for Lawyer Discipline v. Brent Edward WebsterCommission for Lawyer Discipline v. Brent Edward Webster
OPINION
In wake of the 2020 presidential election, the State of Texas attempted to sue several states for purported violations of the Electors Clause. 84 professional-misconduct grievances against the Texas-licensed attorneys on the pleadings followed. One such grievance was against First Assistant Attorney General, Brent Edward Webster. In this case arising from that complaint, the Commission for Lawyer Discipline (the Commission) appeals the trial court‘s grant of Webster‘s plea to the jurisdiction. We reverse.1
BACKGROUND
A. The attorney-discipline process in Texas
The Texas Supreme Court supervises the conduct of attorneys admitted to practice in Texas.
The Commission is a standing committee of the State Bar that administers the Texas attorney-discipline system.
Anyone may file a grievance against a Texas attorney by filing a written form with the CDC, which initiates the attorney-disciplinary process.
Once a grievance is classified as a complaint, the respondent attorney has 30 days from its receipt to respond to the allegations.
If the CDC determines there is no just cause to proceed on a complaint, the case is presented to a summary disposition panel, which then makes an independent determination regarding just cause.
disciplinary rules and the purported rule violations.
B. Texas v. Pennsylvania
On December 7, 2020, the State of Texas attempted to invoke the original jurisdiction of the United States Supreme Court by suing the Commonwealth of Pennsylvania and the States of Georgia, Michigan, and Wisconsin. Counsel for Texas included
- a Motion for Leave to File a Bill of Complaint,2 attaching the Bill of Complaint and Brief in Support of Motion for Leave;
- a Motion for Expedited Consideration of the same;
- a Motion for Preliminary Injunction and Temporary Restraining Order or, Alternatively, for Stay and Administrative Stay;
- a Motion to Enlarge Word-Count Limit and Reply in Support of Motion for Leave to File Bill of Complaint; and
- a Reply in Support of Motion for Preliminary Injunction and Temporary Restraining Order or, Alternatively, for Stay and Administrative Stay.
First, Texas alleged that changes made by non-legislative actors to the defendant States’ election procedures in light of the COVID-19 pandemic violated the Constitution‘s Electors Clause.
Texas argued it had standing to bring these claims because the defendant States purportedly injured two of Texas‘s interests: (1) its interest in who is elected as Vice President and thus can break Senate ties; and (2) its interest as parens patriae to protect the interest of its own electors. However, on December 11, 2020, the Supreme Court denied its motion for leave to file a bill of complaint for lack of standing, concluding “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections” and dismissing all pending motions as moot. Texas v. Pennsylvania, 141 S. Ct. 1230 (2020).
C. The grievance against Webster
After Texas filed Texas v. Pennsylvania, the CDC received 81 grievances against Paxton and three against Webster. All but four—three against Paxton and one against Webster—were ultimately dismissed. This case arises from the one remaining grievance against Webster.
The CDC received that grievance on March 11, 2021, from Brynne VanHettinga, an inactive Texas-licensed attorney. VanHettinga alleged the Texas v. Pennsylvania pleadings included, among other things, “manufactured ‘evidence,‘” “specious legal arguments,” “unsupported factual assertions,” “unfounded claims,” and “conspiracy theories,” and that Webster “violated [his] oath[] as [an] attorney[]” and a public servant. VanHettinga asserted Webster‘s
conduct violated the Texas Disciplinary Rules of Professional Conduct, including Rule 3.01 (frivolous lawsuits and false statements), 3.03(a)(1) (false statement of material fact or law to a tribunal), 8.04(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 4.01 cmt. 5 (knowingly assisting a client in the commission of a criminal or fraudulent act).
The CDC then set the complaints against Paxton and Webster for a joint hearing before an investigatory-hearing panel in Travis County. Webster filed a motion to dismiss or alternatively to transfer venue of the panel and a motion to recuse panel members; however, the grievance committee chair denied the motions. On January 5, 2022, the grievance committee held the investigatory hearing, at which it heard testimony from the complainants. Webster did not appear or provide testimony, but he was represented by counsel who examined VanHettinga and offered argument on his behalf. Two days later, the CDC informed Webster that “[b]ased on the evidence,” the investigatory panel “believes there is credible evidence to support a finding of Professional
Misconduct for a violation of Rule[] 8.04(a)(3)” and “recommends a sanction of Public Reprimand.” The CDC offered Webster the opportunity to accept the recommended sanction but stated if he declined, the Commission would initiate a disciplinary action against him before either an evidentiary panel or trial court. Webster rejected the proposed sanction and elected to have his disciplinary action heard in district court.
On May 6, 2022, the CDC filed the Commission‘s Original Disciplinary Petition against Webster in Williamson County district court. It alleged Webster made the following six misrepresentations in the Texas v. Pennsylvania pleadings:
- an outcome determinative number of votes were tied to unregistered voters;
- votes were switched by a glitch with Dominion voting machines;
- state actors “unconstitutionally revised their state‘s election statutes;”
- “illegal votes” had been cast that affected the outcome of the election;
- Texas had “uncovered substantial evidence . . . that raises serious doubts as to the integrity of the election process in Defendant States;” and
- Texas had standing to bring these claims before the United States Supreme Court.
The Commission claimed Webster‘s “representations were dishonest” and “were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence,” and Webster “failed to disclose to the Court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law.” As a result, the Commission contended the defendants “were required to expend time, money, and resources to respond to the misrepresentations and false statements contained in these pleadings and injunction requests even though they had previously certified their presidential electors based on the election results prior to the filing of [Webster‘s] pleadings.” Accordingly, the Commission
amounted to a violation of Rule 8.04(a)(3): “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Webster responded by filing his answer, defenses, and plea to the jurisdiction. His plea to the jurisdiction sought dismissal on two grounds: (1) as a violation of the separation of powers doctrine; and (2) sovereign immunity. The Commission filed a response, and the court held a hearing on the plea. The court granted Webster‘s plea, stating “the separation of powers doctrine deprives this court of subject-matter jurisdiction,” and dismissing the Commission‘s claims with prejudice.4 The Commission appealed.
STANDARD OF REVIEW
A separation of powers doctrine violation defeats a court‘s subject-matter jurisdiction, as does sovereign immunity. Tex. Dep ‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (sovereign immunity); Tex. Ass‘n of Bus. v. Tex. Air Ctr. Bd., 852 S.W.2d 440, 443–44 (Tex. 1993) (separation of powers). A defendant may challenge the court‘s subject-matter jurisdiction through a plea to the jurisdiction. Flores v. Tex. Dep‘t of Criminal Justice, 634 S.W.3d 440, 450 (Tex. App.—El Paso 2021, no pet.) (citing Miranda, 133 S.W.3d at 225–26). The plea can attack both the plaintiff‘s allegations in the pleadings as well as the existence of jurisdictional facts by attaching evidence to the plea. Id. (citing Miranda, 133 S.W.3d at 226–27). Here, Webster did not challenge the existence of jurisdictional facts, so we review his plea as a matter of law. Flores, 634 S.W.3d at 450 (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009)).
In reviewing a plea to the jurisdiction, we liberally construe the pleadings in the plaintiff‘s favor. Heinrich, 284 S.W.3d at 378 (citation omitted). We review a trial court‘s ruling on a plea to
the jurisdiction de novo. Miranda, 133 S.W.3d at 226 (Tex. 2004).
ANALYSIS
A. The Commission‘s jurisdictional allegations
Because Webster‘s plea to the jurisdiction challenges the pleadings, we must first determine whether the Commission alleged facts that affirmatively demonstrate the court‘s jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). The Commission‘s petition states “[t]he cause of action and the relief sought in this case are within the jurisdictional requirements of this Honorable Court.” It specifies the Commission is suing Webster under the State Bar Act, the Disciplinary Rules of Professional Conduct, and the Texas Rules of Disciplinary Procedure, and states Webster‘s “acts and omissions . . . as hereinafter alleged, constitute professional misconduct.” The petition then describes relevant factual background to Texas v. Pennsylvania before outlining the six alleged misrepresentations listed above the Commission contends violate Rule 8.04(a)(3). The petition also states venue is proper in Williamson County because that is Webster‘s county of residence.
Consistent with Webster‘s election, the Commission brought its suit in a district court in his county of residence.
in this state . . . is subject to the disciplinary and disability jurisdiction of the supreme court and the Commission for Lawyer Discipline, a committee of the state bar.“).
B. Separation of powers doctrine
Webster contends the Commission‘s disciplinary proceeding violates the separation of powers doctrine because the Commission—a statutorily created agent of the judicial branch—has invaded the exclusive power of the Attorney General—part of the executive branch—to represent the State in civil litigation. The question presented is whether the Commission‘s disciplinary proceeding against Webster unduly interferes with the Attorney General‘s exercise of its constitutionally assigned core powers.
Article II, section 1 of the Texas constitution outlines the separation of powers doctrine:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
The three branches of government do not, however, “operate with absolute independence,” and Texas courts “have instead ‘long held that some degree of interdependence and reciprocity is subsumed within the separation of powers principle.‘” Martinez v. State, 503 S.W.3d 728, 734 (Tex. App.—El Paso 2016, pet. ref‘d) (quoting Tex. Comm‘n on Env‘t Quality v. Abbott, 311 S.W.3d 663, 672 (Tex. App.—Austin 2010, pet. denied)). The “proper interpretation” of the separation of powers doctrine is therefore “dictated by its context.” Coates v. Windham, 613 S.W.2d 572, 576 (Tex. App.—Austin 1981, no writ). While it “prohibits a transfer of a whole mass of powers from one department to another and . . . a person of one branch from exercising a power historically or inherently belonging to another department,” it cannot be interpreted to “prevent[] cooperation or coordination between two or more branches of government, hindering altogether
any effective governmental action.” Id. Courts take a “flexible approach” in considering whether a separation of powers violation has occurred, accepting some degree of “commingl[ing] the functions of the Branches” so long as the challenged act “pose[s] no danger of either aggrandizement or encroachment.” Martinez, 503 S.W.3d at 734 (quoting Abbott, 311 S.W.3d at 671–72).
A separation of powers violation happens in one of two ways. Id. The first is when one branch “assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’ to another branch.” Abbott, 311 S.W.3d at 672 (quoting Jones v. State, 803 S.W.2d 712, 715–16 (Tex. Crim. App. 1991) (en banc)). The second is “when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.” Id.
To determine whether an undue-interference separation of powers violation has occurred, courts examine the scope of constitutional powers held by the first governmental actor and then consider the impact of the first branch‘s conduct on the second branch‘s ability to exercise its own constitutionally derived powers. Id. (citing Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990) (en banc)). Here, we thus consider the scope of the Commission‘s constitutional powers as an agent of the judiciary established by the legislature and the impact, if any, of its disciplinary proceeding on the Attorney General office‘s ability to effectively exercise its constitutional powers as a part of the executive branch.
The judicial branch has the “inherent power to regulate the practice of law in Texas for the benefit and protection of the justice system and the people as a whole.” In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 769 (Tex. 1999). This power is derived from Article II, Section I of the Texas Constitution, which grants the Supreme Court of Texas the authority to regulate judicial
affairs and direct the administration of justice in the judiciary. Id. (citing The State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994)). That includes the Court‘s “obligation” to regulate the admission and practice of Texas attorneys because these activities are “inextricably intertwined with the administration of justice.” Gomez, 891 S.W.2d at 245. Indeed, “the Court must have the power to regulate these activities in order to fulfill its constitutional role.” Id. (emphasis added). The Legislature acknowledged the Court‘s “fundamental authority” to regulate the practice of law by enacting the State Bar Act to aid the Court in carrying out this inherent power. Id. (citing
The Attorney General is a member of the executive department and has the constitutional authority to “represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party.”5
Webster urges that the Commission‘s disciplinary proceeding unduly interferes with the Attorney General‘s exercise of its core powers, namely its exclusive control over representing the State in civil appellate litigation. He insists the disciplinary action is “a thinly veiled effort to
But nowhere in the Commission‘s disciplinary proceeding does it challenge the Attorney General‘s decision to file the suit. Instead, it points directly to the allegations within the Texas v. Pennsylvania pleadings it contends violate Rule 8.04(a)(3). Webster‘s conclusory argument otherwise is not supported by the pleadings, which we must construe liberally in the Commission‘s favor. Heinrich, 284 S.W.3d at 378 (citation omitted). The authorities Webster cites related to the Attorney General‘s decision to exercise his judgment in bringing a suit are thus inapplicable. See, e.g., Charles Scribner‘s Sons v. Marrs, 262 S.W. 722, 727 (Tex. 1924) (noting the Attorney General alone has the duty to exercise “judgment and discretion” in bringing suits on behalf of the State); Lewright v. Bell, 63 S.W. 623, 623–24 (Tex. 1901) (concluding courts cannot compel Attorney General to initiate suit, as that decision involves his professional judgment and discretion).
We are also not persuaded by Webster‘s argument that the Attorney General‘s “broad discretion” to represent the State in civil litigation renders the Commission‘s disciplinary proceeding undue interference with his exercise of core powers. This “broad discretion” is not unlimited, as “the Attorney General can only act within the limits of the Texas Constitution and statutes.” Perry, 67 S.W.3d at 92. And though the Texas Disciplinary Rules of Professional
Conduct are not statutory, they “should be treated like statutes.” O‘Quinn v. State Bar of Tex., 763 S.W.2d 397, 399 (Tex. 1988). Thus, this “broad discretion” is plainly limited by adherence to the disciplinary rules. Indeed, the Attorney General must also comply with other aspects of the State Bar Act, including its membership dues requirement. See Osborne v. Paxton, No. 03-15-00374-CV, 2016 WL 3240211, at *3 n.7 (Tex. App.—Austin June 9, 2016, no pet.) (mem. op.) (“[R]equiring Paxton to pay dues to maintain his law license does not amount to the State Bar exercising authority over the office of the Attorney General.“). The same limitation on the Attorney General applies to his assistants. See Cofer, 754 S.W.2d at 124. No amount of discretion in representing the State in civil litigation would permit an executive-branch attorney to bypass the Commission‘s disciplinary process if he engaged in alleged professional misconduct.
Finally, Webster devotes significant briefing to defending the veracity of his alleged misrepresentations. However, this discussion concerns the merits of the disciplinary action against him; it has no bearing on the jurisdictional question before us and would be inappropriate to address at this stage. See Amarillo v. R.R. Comm‘n of Tex., 511 S.W.3d 787, 796 (Tex. App.—El Paso 2016, no pet.) (“The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties.“).
Webster has not shown how the Commission‘s disciplinary proceeding unduly interferes with the executive function of the Attorney General‘s office. His argument appears to be that to effectively exercise the Attorney General‘s core powers, the Attorney General and his assistants must be exempt from the lawfully created process addressing attorney conduct that allegedly violates professional disciplinary rules. That cannot be. Though Webster insists he and other executive-branch attorneys are still subject to professional discipline through a court‘s inherent sanction
mechanisms do not preclude the Commission‘s authority to administer the attorney-discipline system in the state; the processes are not mutually exclusive. See
In sum, the Commission‘s proceeding “pose[s] no danger of either aggrandizement or encroachment” on the executive branch. Martinez, 503 S.W.3d at 734. Webster is not exempt from the judiciary‘s constitutional obligation to regulate the practice of Texas attorneys simply
because he serves in the Attorney General‘s office.8 The trial court‘s conclusion that the separation of powers doctrine defeated subject-matter jurisdiction was thus error, and the Commission‘s issue on appeal is sustained.
C. Sovereign immunity
Webster also contends the Commission‘s suit is barred by sovereign immunity because he appeared on the Texas v. Pennsylvania filings in his official capacity so the State is the real party in interest.9 The Commission responds that
Texas has long recognized the doctrine of sovereign immunity: that “no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.” Hosner v. DeYoung, 1 Tex. 764, 769 (1847). Absent an express waiver of sovereign immunity, the State and its agencies are generally immune from suit. Paxton v. Waller Cnty., 620 S.W.3d 843, 847 (Tex. App.—Amarillo 2021, pet. denied) (citing Tex. Parks & Wildlife Dep‘t v. Sawyer Trust,
354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity likewise bars suits against public officials sued in their official capacities because the State is effectively the real party in interest such that its agent “enjoy[s] the sovereign‘s immunity ‘derivatively.‘” GTECH Corp. v. Steele, 549 S.W.3d 768, 784 (Tex. App.—Austin 2018), aff‘d sub nom. Nettles v. GTECH Corp., 606 S.W.3d 726 (Tex. 2020) (citing Franka v. Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011)). Regardless of whether a suit is brought explicitly against a public official in his official capacity, “it is the substance of the claims and relief sought that ultimately determine whether the sovereign is a real party in interest and its immunity thereby implicated.” Id. at 785. But sovereign immunity comes into play only if Webster has met an initial burden of establishing that the Commission‘s claims actually implicate that immunity. See id. at 774.
To determine whether a defendant is immune, courts consider “the ‘nature and purposes’ of sovereign immunity.” Univ. of the Incarnate Word v. Redus, 518 S.W.3d 905, 911 (Tex. 2017) (quoting Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 432 (Tex. 2016)). “[T]he stated reasons for immunity have changed over time,” evolving from “the English legal fiction that the King can do no wrong[.]” Wasson Interests, 489 S.W.3d at 431 (cleaned up). The “modern justification” for sovereign immunity is to “protect[] the public fisc.” Heinrich, 284 S.W.3d at 375; see also Brown & Gay Eng‘g, Inc. v. Olivares, 461 S.W.3d 117, 123 (Tex. 2015) (“Sovereign immunity . . . was designed to guard against the ‘unforeseen expenditures’ associated with the government‘s defending lawsuits and paying judgments that could hamper government functions by diverting funds from their allocated purposes.” (internal quotations omitted)). Like the separation of powers doctrine, sovereign immunity also “maintains equilibrium among the branches of government by honoring ‘the allocation of responsibility’ for resolving disputes with the state.” Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 740 (Tex. 2019)
(Tex. 2019) (quoting Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 416 (Tex. 1997) (Hecht, J., concurring)). Thus, if a suit “seeks relief that would control state action,” sovereign immunity is implicated. GTECH Corp., 549 S.W.3d at 786 (citing Ex parte Springsteen, 506 S.W.3d 789, 797 (Tex. App.—Austin 2016, pet. denied)). In other words, government entities and officials are immunized from suits that seek to restrain their “exercise of discretionary statutory or constitutional authority.” Creedmoor-Maha Water Supply Corp. v. Tex. Comm‘n on Env‘t Quality, 307 S.W.3d 505, 514 (Tex. App.—Austin 2010, no pet.).
The Commission‘s disciplinary proceeding against Webster is not subject to sovereign immunity for several reasons. First, the Commission‘s claims clarify the State is not the real party in interest. Even ignoring the form of the pleadings, the substance of the Commission‘s petition targets Webster personally, not in his official capacity. For example, the Commission seeks “a judgment of professional misconduct” against Webster, something that affects only his license to practice law in Texas and has no effect on the State. Though Webster contends he could have filed the pleadings in Texas v. Pennsylvania only as a member of the Attorney General‘s office, again, it is not the filing of that suit that the Commission‘s disciplinary proceeding targets but specific alleged misrepresentations in its pleadings. Contrary to Webster‘s assertion that the Commission‘s suit “arises from the decision of the Attorney General and First Assistant to file the Texas v. Pennsylvania lawsuit and from their assessment of the facts, evidence, and law,” at issue in a disciplinary proceeding is “the appropriate interpretation of the Rules of Conduct and a factual determination of whether [Webster‘s] conduct met or violated the Rules at issue.” Hawkins v. Comm‘n for Lawyer Discipline, 988 S.W.2d 927, 936 (Tex. App.—El Paso 1999, pet. denied); cf. Tirrez v. Comm‘n for Lawyer Discipline, No. 03-16-00318-CV, 2018 WL 454723, at *3 (Tex. App.—Austin Jan. 12, 2018, pet. denied) (“Disbarment, designed to protect the public, is a
punishment or penalty imposed on the lawyer.” (quoting In re Ruffalo, 390 U.S. 544, 550 (1968) (emphasis added))). Because the focus in this suit is squarely on Webster‘s alleged misconduct—not the State—it is not a suit subject to sovereign immunity.
Webster relatedly contends that “sanctions meted out by a court against attorneys for conduct before the court are in no sense a ‘suit‘” that would be subject to sovereign immunity because “they are a component of a court‘s exercise of its ‘inherent powers that aid the exercise of their jurisdiction, facilitate the administration of justice, and preserve the independence and integrity of the judicial system.‘” This logic supports the conclusion that professional misconduct proceedings are the same—i.e., not the type of “suit” subject to claims of sovereign immunity—particularly given that the judiciary‘s “inherent powers” Webster mentions arise from the same constitutional source.
Further, the Commission does not pursue relief that would “control state action.” GTECH Corp., 549 S.W.3d at 786 (citing Ex parte Springsteen, 506 S.W.3d at 797). In addition to seeking “a judgment of professional misconduct be entered against [Webster],” the Commission requests “an appropriate sanction” for the violation. In other words, the Commission seeks a penalty against Webster consistent with the guiding rules and principles of the Rules of Disciplinary Procedure. See
misconduct, a trial court must consider . . . the deterrent effect on others[.]” (citing
Nor does this case fit within the modern justification for sovereign immunity: protecting the public from the “costs and consequences” of improvident government actions. Rosenberg Dev. Corp., 571 S.W.3d at 741 (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)). The purpose of an attorney disciplinary proceeding is to protect the public, maintain the integrity of the profession, and prevent reoccurrence. Middlesex Cnty. Ethics Comm., 457 U.S. at 434. Immunizing Webster from professional-misconduct proceedings in no way furthers the rationale for sovereign immunity, as no civil damages threaten the State.
Finally, Webster argues immunizing executive-branch attorneys from disciplinary proceedings is harmless because they are subject to checks on their ethical obligations in other ways: through an ultra vires suit, criminal actions, or a court‘s inherent authority to impose sanctions. However, the Disciplinary Rules of Professional Conduct contemplate and reject the same principle; the Rules may be enforced only through “the administration of a disciplinary authority.”
suits must otherwise be dismissed due to qualified immunity or litigation privilege. In re Discipline of Arabia, 495 P.3d 1103, 1110 (Nev. 2021) (collecting cases); see also Imbler v. Pachtman, 424 U.S. 409, 428–29 (1976) (emphasizing prosecutors are still subject to professional discipline even though they are immune from Section 1983 suits, thus “the public” is not “powerless to deter misconduct“).
Because sovereign immunity is inapplicable to this proceeding, Webster‘s argument that it defeats subject-matter jurisdiction fails.10
The Commission‘s jurisdictional allegations affirmatively demonstrate the trial court‘s jurisdiction. Because Webster is not exempt from jurisdiction by virtue of his position as First Assistant Attorney General, we reverse the trial court‘s judgment and remand for further proceedings consistent with this opinion.
YVONNE T. RODRIGUEZ, Chief Justice
July 13, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ. Soto, J., concurring without separate opinion