Texas Attorney General Ken Paxton filed on December 7, 2020, an original action, together with a request for an injunction, in the U.S. Supreme Court styled State of Texas v. Commonwealth of Pennsylvania, and the States of Wisconsin, Michigan, and Pennsylvania, Case No. 220155, seeking to overturn the vote certifications for presidential electors from those four states. The Clerk ordered responsive papers filed by 3pm on December 10th, and the four defendant-states did so.
Apart from the procedural stance, the averments, and the merits, I ask: by what authority has Ken Paxton filed these papers?
All the Texas Constitution and the Texas Government Code say, as far as I can see in my quick research just now, about the scope of Paxton's authority are:
Tex. Const.
Art. IV. Sec. 22. ATTORNEY GENERAL.
The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law.
-and-
Tex. Gov't Code:
Sec. 402.001. ASSISTANTS. (a) If the attorney general is absent or unable to act, the attorney general's first office assistant shall perform the duties of the attorney general that are prescribed by law.
(b) The attorney general shall, at the request of an agency, designate one or more assistants to attend the meetings of the agency if the attorney general served as an ex officio member of the governing board of the agency on August 23, 1963.
Sec. 402.002. REGISTER. (a) The attorney general shall keep in a proper book a register of:(1) the official acts and opinions of the attorney general; and (2) actions, demands, and related proceedings involving state revenue prosecuted or defended by the attorney general or a district or county attorney. (b) The attorney general shall deliver the register to the successor to that office.
Sec. 402.003. REPORT. The attorney general shall report to the governor on the first Monday of December of each even-numbered year. The report must include the following information for the preceding two years:
(1) a summary of the cases in which the state was a party that were acted on by the supreme court and court of criminal appeals; and
(2) a summary of civil cases in which the state was a party that were prosecuted or defended by the attorney general in other state or federal courts.
Sec. 402.004. ADMISSION, AGREEMENT, OR WAIVER. An admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state.
Sec. 402.005. ACCEPTANCE OF GIFTS, GRANTS, AND FORFEITED ASSETS; CREATION OF SPECIAL ACCOUNT. (a) The attorney general may not accept or use money offered by an individual, firm, partnership, corporation, or association for investigating or prosecuting a matter.
There are a number of other references to the Texas AG scattered through Texas Statutes but all are for specific purposes such as defense of or making of monetary claims.
One commentator's conclusion supports my analysis from review of the Texas Constitution and the Texas Statutes:
"The issue is not whether the elected Attorney General [of Texas] or any other government lawyer should be independent. The issue is what constitutes legitimate independence. Legitimate independence of the attorney assigned to represent state agencies should mean essentially the same thing it means for private attorneys: independence to discern and argue the law in the best way to help achieve the client's lawful goals. Legitimate independence is not the power of an attorney to command the client's goals or policies-and certainly not the power of an attorney to deny the client her day in court. In sum, there are plenty of generals to run the state government. The Texas Attorney General should just be the attorney."
Bill Aleshire, The Texas Attorney General: Attorney or General, 20 REV. LITIG. 187, 231 (2000) (emphasis added).One who serves as "just the attorney"--i.e., Ken Paxton--does not have authority to make the decision to initiate litigation--such as Paxton's freelancing in the filing of Texas vs. Pa., Mich., Wisc. & Ga.UPDATE: The Supreme Court has just now flushed Ken Paxton's ridiculous original action against Pa., Wisc., Mich., and Ga. in a terse order the text of which is simply posted as a docket entry. Sweet that it was entered immediately after Ken filed his reply to the opposition papers of those four states. The fact that it is not even in th form of a separate document illustrates that the Court has treated Paxton as harshly as it can:
My question persists: did Ken Paxton have any authority to purport to represent the State of Texas--with no legislative or gubernatorial authorization or even input--in filing this absurd original action.
