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Exhibit DD

Case 1:19-cv-00219-LY Document 5-32 Filed 03/25/19 of 21

Vinson&Elkins

Thomas S. Leatherbury

Tel +1.214.220.7792 Fax +1.214.999.7792

February 20, 2019

Honorable Ken Paxton Attorney General of Texas Office of the Attorney General Attn: Opinion Committee opinion. committee@oag. texas. gov

Re: Constitutionality of State Bar of Texas governance (RQ-0265-KP)

Dear Attorney General Paxton:

This firm represents the State Bar of Texas ("State Bar") . On January 22, 2019, the President of the State Bar, Joe K. Longley, submitted a request for your opinion on several matters regarding the membership requirements and voting procedures of the State Bar. On behalf of the State Bar, I submit this letter brief in response to that request.

President Longley's letter presents six discrete questions covering two overarching issues: (1) whether the State Bar may constitutionally require membership and payment of annual fees as a condition of practicing law in Texas, where such fees are used to fund programs to which some members allegedly object on First Amendment grounds, and (2) whether the State Bar's election procedures concerning the Texas Young Lawyers Association ("TYLA") are constitutional, where only members of TYLA may vote for the president of TYLA, and membership in TYLA is restricted by age or length oflicensure. President Longley's six questions are reformulated here to more accurately and efficiently address the key issues he raises in his letter.

1. May the State Bar constitutionally collect compulsory fees from Bar members as a condition of practicing law in the state, and use those fees to fund programs, such as TYLA and the Texas Opportunity & Justice Incubator ("TOJI"), to which some Bar members allegedly object?

Answer: Yes. Under binding Supreme Court precedent in Lathrop v. Donohue, 367 U.S. 820 (1961 ), and Keller v. State Bar of California, 496 U.S . 1 (1990), the State Bar may constitutionally use compulsory fees to fund programs such as TYLA and TOJI as long as those programs further the state 's interest in either (1) regulating the legal profession , or (2) improving the quality of legal services in Texas.

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V&E February 20, 2019 Page 2

2. Do the State Bar Board of Directors election procedures, which designate three Board positions to TYLA officers, violate the Equal Protection Clause of the Fourteenth Amendment, where nonTYLA members are not permitted to vote for TYLA officers?

Answer: No. The Equal Protection Clause does not preclude states from imposing age-based restrictions on the right to vote. Furthermore , State Bar elections are "special interest" elections, and as such, the Bar's procedures are valid under the Equal Protection Clause because they are rationally related to the State's legitimate interest in ensuring that "the public responsibilities of the legal profession [are] effectively discharged." Tex. Gov't Code Ann. § 81.012.

3. Do the State Bar Board of Directors election procedures, which designate three Board positions to TYLA officers, violate the Twenty-Sixth Amendment, where non-TYLA members are not permitted to vote for TYLA officers?

Answer: There appears to be no precedent invalidating similar voting procedures under the TwentySixth Amendment. And it cannot be said that TYLA's voting procedures deny the right to vote solely "on account of age," U.S. Const. amend. XXVI, because Texas lawyers of any age can be TYLA members and can vote for TYLA officers , as long as they have practiced law for less than sixty months prior to June 1st of the current year.

4. Do the State Bar's election procedures, which prohibit non-TYLA members from voting for TYLA officers, violate Texas Government Code § 81.0242, which requires the State Bar to "promote ... participation of members of the state bar in elections under this chapter"?

Answer: No. The TYLA voting restrictions do not violate§ 81.0242 because TYLA elections are not "elections under " Chapter 81, and even if they were, the State Bar fulfills its responsibility under§ 81.0242 by promoting participation in TYLA elections by the members who are eligible to vote in those elections.

5. Do the State Bar's election procedures, which prohibit non-TYLA members from voting for TYLA officers, violate Texas Government Code§ 81.053?

Answer: No. The State Bar does not violate§ 81.053 by prohibiting non-TYLA members from voting for TYLA officers because § 81.053 does not confer an unlimited right to active members to vote in all State Bar elections , but rather , merely restricts the voting rights of inactive and associate members.



Authority to Request the Attorney General's Opinion

At the request of a statutoril y prescribed list of officials , the Attorney General has the authority to "issue a written opinion on a question affecting the public interest or concerning the official duties of the requesting person. " Tex. Gov ' t Code Ann.§ 402.042 . An opinion may only be requested by the governor ; the head of a department of state government ; the head or board of a penal institution ; the head or board of an eleemosynary institution; the head of a state board ; a regent or trustee of a state educational institution; a committee of a house of the legislature; a county auditor authorized by law ; or the chairman of a governing board of a river authority. Id. § 402.042(b ). The Attorney General "may not give ... a written opinion " to any other person . Id. § 402 .045 .

Although the Attorney General has previously issued opinions at the request of the State Bar President , 1 it is questionable whether the Attorney General has the authority to issue an opinion in response to State Bar President Longley's letter under the particular circumstances present here. The Attorney General ' s authority appears to turn on whether President Longley was acting as "the head of a state board" in requesting the opinion. Tex. Gov ' t Code Ann.§ 402.042(b)(5) . The State Bar of Texas "is a public corporation and an administrative agency of the judicial department of government. " Id. § 81.01 l(a). It is governed by a board of directors , of which President Longley is a member. Id. § 81.020. Even assuming that the State Bar Board is "a state board " within the meaning of § 402 .042(b)(5), it is questionable whether Presiden t Longle y was acting in the capacity as "the head " of the State Bar Board in requesting the Attorne y General's opinion . To start , President Longley is not the chair of the State Bar Board. The current chair of the Board is Laura Gibson , who was elected to that position by the other Board members in accordance with the State Bar Rules and the State Bar Board's Policy Manual. See State Bar Rules art. IV, § 4 (as amended June 2018) , http://bit.ly/2DCuwK2 ; State Bar of Texas Board of Directors Policy Manual§ 1.11 (Sept. 2018) , http ://bit.ly/2SsI6dm (hereinafter "Board Policy Manual "); see also 2018-2019 State Bar of Texas Officers , Directors , Liaisons , Section Representatives and Ex Officio , http ://bit.ly/2SDZwTH (last visited Feb . 19, 2019) . In addition, President Longley made his request without authorization from the State Bar Board , and in the face of the unanimous vote of the Board ' s other members to take no action regarding the election-related matters addressed in President Longley ' s letter. See January 18, 2019 Board of Directors Meeting Video , at 2:45:00 , http://bit.l y/2E40TRP (Board of Directors roll call vote in favor of motion from Director Dawson to maintain status quo for voting in TYLA elect ions pursuant to § 1.23 of the Board Policy Manual); see also State Bar Rules , art. II, § 13 (the President "shall be the public representative of the State Bar and shall enunciate the policies of the State Bar as pr omulgated by the board , except that the Board or the pre sident may delegate such authority under such conditions as the board may

1 See Letter from Joe K. Longley, President, State Bar of Texas, to Ken Paxton, Attorney General , State of Texas, at 1 n.l (Jan. 22, 2019) (hereinafter "Longley Letter").



prescribe. " (emphasis added)). The State Bar Board made no delegation to President Longley to make this request, and his framing of his questions was also not approved or authorized by the Board.

Background

1. The State Bar of Texas

In 1939, the Texas legislature created the State Bar of Texas as "an administrative agency of the Judicial Department of the State." State Bar Act§ 2; 2 Tex. B.J. 128, 128 (1939); see also Tex. Gov 't Code Ann.§ 81.01 l(a) ("The state bar is a public corporation and an administrative agency of the judicial department of government. "). The State Bar Act "is in aid of the judicial department's powers under the constitution to regulate the practice of law, and not to the exclusion of those powers. " Tex. Gov't Code Ann.§ 81.01 l(b). The State Bar is charged with, among other things, assisting "the courts in carrying on and improving the administration of justice ," advancing "the quality of legal services to the public," and fostering and maintaining "high ideals and integrity , learning, competence in public service, and high standards of conduct" among Texas lawyers. Id. § 81.012.

The State Bar is governed by a Board of Directors . Tex. Gov't Code Ann.§ 81.020(a). The Board is composed of the following persons : the officers of the State Bar, which are the president , president-elect , and immediate past president of the State Bar, see id. § 81.019(a); the president , president-elect, and immediate past president of the Texas Young Lawyers Association; not more than 30 members of the State Bar elected by the membership from their district as determined by the board ; six persons appointed by the Texas Supreme Court and confirmed by the Senate who are not attorneys and who do not have, other than as consumers, a financial interest in the practice of law; and four atlarge directors appointed by the State Bar President. Id. § 81. 020(b ).

The State Bar is composed of all persons licensed to practice law in Texas. Id. § 81.051 (a). It is a "mandatory" or "integrated " bar association in that each person licensed to practice law in Texas is required to become a member of the State Bar. Id. § 81.051(b) ("Each person licensed to practice law in [Texas] shall, not later than the 10th day after the person ' s admission to practice, enroll in the state bar by registering with the clerk of the supreme court."). State Bar members must pay membership fees, which are set by the Texas Supreme Court, on an annual basis . See id. § 81.054; see also id. § 81.022(a-3)-(a-4) (requiring change in membership fees to pass by majority of State Bar members , except that State Bar Board may increase fees by up to 10% once every six years without members' approval) .

Under § 81.054(d), those fees "may be used only for administering the public purposes " provided for in the State Bar Act. See id. § 81.054(d). The Act prohibits the State Bar from using the fees "for influencing the passage or defeat of any legislative measure unless the measure relates to the regulation of the legal profession, improving the quality of legal services , or the administration of



justice. " Tex. Gov 't Code Ann. § 81.034. The State Bar Board's Policy Manual recognizes these limitations on the use of members ' fees: "The purpose of the State Bar of Texas is to engage in those activities enumerated at§ 81.012 of the State Bar Act. The expenditure of funds by the State Bar of Texas is limited both as set forth at§ 81.034 of the State Bar Act and in Keller v. State Bar of California , 496 U.S. 1 (1990). " Board Polic y Manual§ 3.14.01.

2. The Texas Young Lawyers Association

The Junior Bar Association of the Texas State Bar was formed in 1930. See James J. Hartnett , A Review: State Junior Baro/Texa s, 25 Tex. B.J . 361 (1962). In 1937, the Texas Junior Bar Association became a section of the (then voluntary) Texas Bar Association. See id. at 362 . Membership in the Junior Bar was limited to attorneys who had been licensed for seven years or less , and was available only by registration. Id. In 1938, the Junior Bar changed its membership to "members of the [Texas Bar] Association who enroll in the Junior Bar Section and who are thirty-five years of age and under." Committee Reports , 1 Tex . B.J. 191, 193 (1938).

In 1982, TYLA amended its bylaws to make voting members of TYLA (1) "lawyers under 36 years of age as of June 1st" and (2) "new lawyers who have been licensed within 3 6 months prior to June 1st." Texas Young Lawyers Association Manual of Organization 1982-83 , art. II (1982) ; see TYLA , Minutes of the Meeting of the Board of Directors of the Texas Young Lawyer s Association May 7 and 8, 1982 16-17 (1982). In 2007, concerned that "many lawyers over 36 years of age were technically ' aged out' ofTYLA membership before they had the opportunity to take advantage of many of its benefits ," TYLA extended membership eligibility to all Texas attorne ys who are 36 years old or younger or have practiced five years or less. Karin Crump , What Has TYLA Done for You Lately ?, 70 TEX. B.J. 167 (2007). Today , licensed Texas attorneys who meet these requirements are automatically members ofTYLA. About Us, TYLA , https://tyla.org/about/ (last visited Feb. 19, 2018) ; see also Bylaws of the Texas Young Lawyers Association , art. II, § 1 (2013) , http://bit.ly/2I49Wrw (hereinafter "T YLA Bylaws ") ("The following members of the State Bar of Texas are regular members of TYLA for the entire fiscal year beginning June 1: (a) lawyers 36 years of age and under as of June 1; and (b) lawyers initially licensed within 60 months prior to June 1.").

TYLA "is a department of the State Bar of Texas " and "is commonly referred to as the ' public service arm '" of the State Bar. About Us, TYLA , https://tyla .org/about/. TYLA furthers the State Bar ' s objectives of regulating the legal profession and impro ving the quality of legal services in Texas. TYL A' s purpose is to "facilitate the administra tion of justice , foster respect for the law, and advance the role of the legal profession in serving the public ," as well as "to serve young lawyers by act ivities which will be of assistance to their practice oflaw ." Id.; TYLA Bylaws , art. I, § 2 (statement ofTYLA's purpos es). TYLA ' s fun ding comes from the State Bar and grants from not-for-pro fit entities , and members do not pay additional fees to become a member. About Us, TYLA , https://tyla.org/about/ . The



Texas legislature has recognized that TYLA is an integral part of the State Bar by making TYLA 's president, president-elect , and immediate past president voting members of the Bar ' s Board of Directors and by making TYLA ' s president a member of the Bar's Executive Committee. See Tex. Gov 't Code Ann . §§ 81.020, 81.121; see also Board Policy Manual§ 1.02 (Board consists of voting members and enumerated list of non-voting members).

TYLA programs provide legal educational services to the general public , help lawyers develop and maintain their practices , and aid underserved members of the community . See, e.g., Slavery Out of the Shadows , https ://ty la. org/resource/ slavery-out-of-the-shadows/ (TYLA-maintained website containing videos and printable files to educate the public on human trafficking and related legal issues , such as civil remedies and federal immigration visas for victims); Free From Violence , http://freefromviolence.tyla.org/ (TYLA-maintained website containing videos, legal information , and links to resources to educate the public on domestic abuse and elder abuse); TYLA , Enrolling Your Child in Another School After a Natural Disaster (2017), https://bit.ly/2RXyKkz (one-page guide advising on the legal definition and rights of "homeless " children under the McKinney-Vento Homeless Assistance Act of 1987); And Justice for All, http://tylajusticeforall.com/ (TYLA-sponsored website aiming to "educate lawyers on both sides of the bar , as well as the general public , to reduce the risk of wrongful convictions " in Texas).

3. Texas Opportunity & Justice Incubator

TOJI is a professional "incubator " program that provides training and office space to new attorneys who want to build their own practice serving low- and modest-income clients . See About Us, TOJI , https://txoji.com/about-us/ (last visited Feb. 19, 2019). It was founded in 2016 with a mission to "expand access to justice for low- and moderate-income Texans by assisting new lawyers in establishing sustainable practices that serve this population ." Id.; see also Frank Stevenson , Bridges , 79 Tex . B.J . 798 (2016) .

The TOJI program provides participants with practice support , office space , and continuing legal education free of charge for the first three months , and then for $300 per month for the 18-month duration of the program. In exchange , participants agree to provide at least 100 hours of pro bono legal services during their first twelve months , and must commit to establishing practices that "focus substantially on serving the legal needs of low- and modest-income clients. " About Us, TOJI , https ://txoji.com/about-us /. TOJI participants are not employees of the State Bar.



Argument

1. The State Bar may constitutionally collect mandatory membership fees and use those fees to fund programs to which members object on First Amendment grounds, as long as such programs further the State's legitimate interests in regulating the legal profession and improving the quality of legal services in Texas.

A. Binding Supreme Court precedent holds that the State Bar may constitutionally collect mandatory membership fees and use such fees to fund programs germane to the purposes of the State Bar.

In Lathrop v. Donohue, 367 U.S. 820, 843 (1961), the Supreme Court held that integrated bars , which require lawyers to join and pay annual fees as a condition of practicing law in the state, do not violate an attorney's First Amendment right to freedom of association. Id. at 843 (plurality opinion); see also id. at 849-50 (Harlan, J., and Frankfurter , J., concurring). In Lathrop , a Wisconsin lawyer brought suit against the Wisconsin state bar, arguing that he could not be compelled to "join and give support" to the bar because it used his dues for state legislative activities. Id. at 827 (plurality opinion). Rejecting the plaintiff's First Amendment argument , the Court held that Wisconsin could constitutionally require attorneys to pay dues to the Wisconsin Bar "in order to further the State' s legitimate interests in raising the quality of professional services ." Id. at 843 (plurality opinion) ; see also id. at 849 (Harlan , J., and Frankfurter, J., concurring) (" [A] State may Constitutionall y condition the right to practice law upon membership in an integrated bar association . ... "). Even when a mandatory bar association engages in legislative and political activities, the First Amendment's guarantee of freedom of association does not prohibit the bar association from requiring the payment of dues where "[b ]oth in purport and in practice the bulk of State Bar activities serve the function ... of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State." Id. at 843 (plurality opinion).

In Keller v. State Bar of California , 496 U.S. 1 (1990), the Supreme Court again considered the constitutionality of mandatory bar associations and annual member fees. The Court unanimously held that a mandatory bar does not violate an attorney ' s First Amendment right to freedom of speech by engaging in activities with which the attorney disagrees, as long as the mandatory dues are used to fund activities germane to the state ' s interest in either (1) regulating the legal profession , or (2) improving the quality of legal services in the state. Id. at 13-14 ("[T]he compelled association and integrated bar are justifi ed by the State's interest in regulating the legal profession and improving the quality oflegal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members."). Integrated bars may not, however, use mandatory dues to "fund activiti es of an ideological nature which fall outside of those areas of activity. " Id. at 14 (emphasis



added); see also id. at 16 (barring use of compulsory dues to endorse or advance gun control or nuclear weapons freeze initiatives).

Under Keller, "the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose ofregulating the legal profession or 'improving the quality of the legal service available to the people of the State ."' Id. at 14 (quoting Lathrop, 367 U.S. at 843).

B. Under Lathrop and Keller, the State Bar may constitutionally use member fees to fund programs, such as TYLA and TOJI, that further the State's legitimate interests in regulating the legal profession and improving the quality of legal services in Texas.

Any State Bar expenditure that is "necessarily or reasonably incurred" for the purpose of (1) regulating the legal profession, or (2) improving the quality oflegal services available in Texas, is constitutional. Keller, 496 U.S. at 13-14. Keller's requirements are codified in the State Bar Act and the State Bar's other governing documents. See Tex. Gov't Code Ann.§ 81.034 (requiring that State Bar-funded legislative efforts "relate[] to the regulation of the legal profession, improving the quality of legal services, or the administration of justice," and that the amount of the expenditure be "reasonable and necessary"); Board Policy Manual§ 3.14.01 ("The expenditure of funds by the State Bar of Texas is limited both as set forth at§ 81.034 of the State Bar Act and in Keller v. State Bar of California, 496 U.S. 1 (1990).").

All members have the right to object to State Bar expenditures they believe violate the limitations set forth in Keller. See Board Policy Manual§ 3.14.02 ("A member may object to a proposed or actual expenditure of the State Bar as not within the purposes or limitations set out at Subsection 3.14.01 .. . and seek refund of a pro rata portion of his or her dues expended, plus interest, by filing a written objection with the Executive Director.") . Upon receipt of a member's objection, the State Bar's Executive Director must review the objection, and in consultation with the President, has the discretion to resolve the objection, including by "refunding a pro rat a portion of the member ' s dues, plus interest." Id. § 3.14.03. Such a refund shall not, however, "be construed as an admission that the [ challenged] activity ... was or would not have been within the purposes or limitations" on the State Bar. Id. § 3 .14.04.

The State Bar's use of mandatory fees to fund programs like TYLA and TOJI is constitutional under Keller because such programs are germane to the State's interests in regulating the legal profession and improving the quality of legal services in Texas.


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i. Texas Young Lawyers Association

President Longley's letter raises the question whether the State Bar's funding of TYLA is unconstitutional if some TYLA activities could be considered "beyond the regulatory functions of the State Bar." Longley Letter 7. There are two problems with this inquiry. First, President Longley's letter does not expressly seek the Attorney General's opinion on whether TYLA generally, or any TYLA program specifically, should be considered within the State Bar's "regulatory" functions. Instead, President Longley merely claims that some Bar members apparently view some TYLA programs "as inappropriate and as beyond the regulatory functions of the State Bar." Id. Second, even if President Longley's letter had squarely raised the question of whether certain TYLA programs fall outside the Bar's regulatory functions, under Keller, the State Bar may constitutionally fund programs that advance the state's interest in either "regulating the legal profession or improving the quality of ... legal service[s]" in the state. Keller, 496 U.S. at 14 (emphasis added) (internal quotation marks omitted). Accordingly, even if some TYLA programs are "beyond the regulatory functions" of the State Bar, the Bar may fund those programs as long as they are related to improving the quality of legal services in Texas, a core purpose of the State Bar as set out in§ 81.012 of the State Bar Act. See Tex. Gov't Code Ann.§ 81.012(2).

The State Bar's use of member fees to fund TYLA complies with that standard. TYLA "serve[s] young lawyers by activities which will be of assistance to their practice of law." TYLA Bylaws, art. I, § 2. TYLA also "serve[s] the public interest by facilitating the administration of justice, promoting reform in the law, fostering respect for the law, and advancing the role of the legal profession in serving the public." Id. These broad purposes are fulfilled by TYLA's various programs.

For example, following Hurricane Harvey in 2017, TYLA developed a series of guides to assist "those who need legal advice" in the wake of a natural disaster, such as a one-page guide titled "Enrolling Your Child in Another School After a Natural Disaster." This guide advised the public on the legal qualifications and rights of a "homeless" child under the McKinney-Vento Homeless Assistance Act of 1987, 42 U.S.C. § 11301 et seq. (2018). See TYLA, Enrolling Your Child in Another School After a Natural Disaster (2017). TYLA has also established or sponsored several legal resource websites, including "Free From Violence," which provides legal resources regarding domestic violence and elder abuse; "Slavery Out of the Shadows," which contains videos and documents regarding human trafficking and legal remedies for victims; and "And Justice for All," which aims to "reduce the risk of wrongful convictions" by providing information regarding false testimony, prosecutorial misconduct, and related issues. See supra p. 6. These TYLA programs and resources provide the public with free and easy access to legal information, which might not otherwise be available, and are clearly aimed at improving the quality of legal services in Texas.


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The State Bar may therefore constitutionally use mandatory member fees to fund TYLA, even though some members may object to some TYLA programs as beyond the State Bar's regulatory functions, because this expenditure serves Texas's legitimate interest in improving the quality of legal services in the state.

ii. Texas Opportunity & Justice Incubator

President Longley's letter claims that some State Bar members have also objected to the use of membership fees to fund TOJI. Longley Letter 7. As stated above, however, even if some members object, the Bar may constitutionally use member fees to fund TOJI as long as it furthers the state's interest in improving the quality of legal services in Texas.

TOJI furthers that objective. As explained above, TOJI is a professional "incubator" program that provides training and office space to new attorneys who want to build their own practices serving low- and modest-income clients. Its mission is to "expand access to justice for low- and moderateincome Texans by assisting new lawyers in establishing sustainable practices that serve this population." About Us, TOJI, https://txoji.com/about-us/. In exchange for practice support, office space, and continuing legal education - which is provided to participants for free during the first three months of the program and then for $300 per month for the 18-month duration of the program-TOJI participants agree to provide at least 100 hours of pro bono legal services during their first twelve months, and must commit to establishing practices that "focus substantially on serving the legal needs of low- and modestincome clients." Id. TOJI thus advances Texas's interest in improving the quality oflegal services available to low- and moderate-income Texas citizens by helping public-service-minded lawyers start their own, "sustainable" law practices targeting underserved communities.

The Texas Commission to Expand Civil Legal Services, which was created by the Supreme Court of Texas in 2015, officially recommended to the Supreme Court that it should "support and promote" legal incubator programs (including TOJI), because "they can teach lawyers how to make a living serving modest-means clients[,] and they can serve as a visible reminder to the legal community that serving clients who are unable to pay full service price 'is a moral obligation of each lawyer as well as the profession generally." ' Report of the Texas Commission to Expand Civil Legal Services 15 (2016), http://bit.ly/2GuKRVa (quoting Texas Disciplinary Rules of Professional Conduct, preamble para. 6). Incubators like TOJI also "serve as places to experiment with technology," "alternative billing structures," and other innovative practices . Id. at 14. The lessons learned from that experimentation can benefit the bar as a whole.



C. The Supreme Court's recent decision in Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018), and its remand in Fleck v. Wetch, 868 F.3d 652 (8th Cir. 2017), vacated and remanded, 139 S. Ct. 590 (2018), do not disturb the binding holdings of Lathrop and Keller.

President Langley's letter requests guidance "as to when the Bar may legally and constitutionally collect compulsory dues from Bar members" in light of the Supreme Court's recent decision in Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018), and its remand order in Fleck v. Wetch, 868 F .3d 652 (8th Cir. 2017), vacated and remanded, 139 S. Ct. 590 (2018). The Court's decision in Janus and its remand order in Fleck do not disturb the holdings of Lathrop and Keller, and have no legal effect on the constitutionality of the State Bar's current practices.

1. Janus did not overrule Lathrop and Keller and did not undermine the Court's reasoning in those cases.

In Janus, the Supreme Court held that a public employer violates the First Amendment by compelling an employee to contribute financially to a union that acts as the exclusive collective bargaining agent of the employee (an "agency fee arrangement"). See Janus, 138 S. Ct. at 2459-60. Janus overruled the Court's prior decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that agency fee arrangements were permissible under the First Amendment, as long as public employees were not compelled to fund a union's political or ideological activities. See Janus , 238 S. Ct. at 2478; Abood, 431 U.S. at 242. The Court in Abood reasoned that agency fee arrangements were justified by the state's compelling interests in (1) maintaining labor peace, and (2) avoiding free riders. Abood, 431 U.S. at 221-22. In overruling Abood, Janus concluded that neither of those interests was sufficient to support agency fee arrangements . Janus, 238 S. Ct. at 2465-69. Justice Alito's opinion for the Court in Janus, however, did not even mention-much less overrule-either Lathrop or Keller. Those cases thus remain binding precedent unless and until the Supreme Court itself expressly overrules them. See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc ., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.") .

Continuing to assess the State Bar's activities under the standard set forth in Lathrop and Keller is particularly appropriate because Janus did not disturb the reasoning in those cases. Because Lathrop was decided over a decade before Abood , Janus 's overruling of Abood does not affect Lathrop ' s precedential value. As for the Court's unanimous decision in Keller , it merely drew an "analogy" to Abood in the course of rejecting the California State Bar' s argument that its mandatory fees were effectively exempt from First Amendment scrutiny because the Bar ' s activities constituted "government speech." Keller , 496 U.S. at 10-13; see also Pleasant Grove City v. Summum, 555 U.S. 460 , 467 (2009)



("The Free Speech Clause . . . does not regulate government speech."); Johanns v. Livestock Mktg. Ass 'n, 544 U.S. 550, 562 (2005) ("Citizens ... have no First Amendment right not to fund government speech."). 2 Keller did not rely on Abood in articulating the limitations that the First Amendment imposes on the use of mandatory bar fees-namely, that the expenditures must be "necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal service available to the people of the State." 496 U.S. at 14 (internal quotation marks omitted). And those state interests in professional regulation and legal-service quality bear no resemblance to the interests in maintaining labor peace and avoiding free riding at issue in Abood and Janus .

The fact that state bars , unlike public unions, play an important regulatory function is a particularly important factor distinguishing Keller from Abood and Janus. "The primary purpose of a labor union is to bargain collectively for its members with management in the matter of wages, hours and working conditions." Leo Brewster, The State Bar, 22 Tex. B.J. 113, 114 (1959). By contrast , "a bar is state-organized to enable the profession to discharge its duty to the public to maintain the high standards of practice and conduct." Id. Keller recognized that mandatory bar associations "perform[] important and valuable services for the State by way of governance of the profession." 496 U.S. at 11. Mandatory bar associations thus serve regulatory functions-such as overseeing the discipline of attorneys , maintaining client security funds to reimburse clients whose attorneys have stolen from them, administering minimum continuing legal education (MCLE) accreditation and compliance, and providing preventative programs like ethics helplines and peer assistance programs-that the public unions at issue in Janus did not. Janus does not overrule Keller 's holding that the First Amendment permits states to mandate payment of membership fees to ensure those regulatory functions are adequately funded.

The Court in Janus also indicated that public unions raise particular First Amendment concerns that are not raised by mandatory bar fees. Janus noted that collective bargaining by public unions has a special "political valence" that the Court in Abood did not appreciate at the time. Janus, 13 8 S. Ct. at 2483. According to Janus , the "ascendance of public-sector unions has been marked by a parallel increase in public spending, " giving rise to political debate over public spending and debt. Id. Indeed , Janus emphasized that " [u]nsustainable collective-bargaining agreements have .. . been blamed for multiple municipal bankruptcies. " Id. Here, by contrast, there is no similar claim that the member-

2 To the extent that Keller treated integrated bar associations as more like private entities , such as unions , than government agencies for purposes of First Amendment analysis , its reasoning is questionable. Just as speech by government agencies that is funded by tax dollars cannot violate the First Amendment's Free Speech Clause , the licens ing-fee-funded activities of the Texas State Bar, which is "an administrati ve agenc y of the jud icial department of governme nt," Tex . Gov't Code Ann. § 81.0 1 l(a) , should not pose any Firs t Amendmen t diffic ulties . Nev ertheless , for purposes of this brief, the State Bar treats Keller as settled law. It, however , preserves for other forums the argument that the Bar should be treated as a government agency for purp oses of First Amen dment analysis.



funded activities of the State Bar burden the public fisc in Texas or have led to the accumulation of significant government debt for which taxpayers would be liable. Mandatory bar fees thus represent much less of a threat to First Amendment interests than the risk that the Court perceived and sought to address in Janus.

11. Harris v. Quinn, 573 U.S. 616 (2014), decided just four years before Janus, confirms that Keller does not rise or fall with Abood.

The Court's decision in Harris v. Quinn, 573 U.S. 616 (2014), confirms that Keller fits within the "exacting scrutiny" framework applied in Janus . Harris was decided just four years before Janus , and the Court's opinion in Harris was written by Justice Alito, who also authored the Court's decision in Janus . Harris refused to extend Abood to home-care personal assistants after concluding that the personal assistants were not public employees . Id. at 645-46. Foreshadowing the demise of Abood , the Court in Harris applied "exacting scrutiny" in holding that states could not constitutionally charge nonpublic employees agency fees. See id. at 648-50. As later explained by the Court in Janus, which applied the exacting-scrutiny standard in overruling Abood , exacting scrutiny requires that a compelled subsidy " serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms ." Janus, 138 S. Ct. at 2465 (quoting Knox v. Serv. Emps. Int 'l Union, 567 U.S. 298, 310 (2012)).

The Court in Harris explicitly considered whether the exacting-scrutiny framework would disturb its prior holding in Keller that states may require lawyers to pay fees to fund bar activities furthering the "State ' s interest in regulating the legal profession and improving the quality oflegal services. " Harris , 573 U.S. at 655 (quoting Keller , 496 U.S. at 14). Answering that question in the negative , the Court stated that Keller "fits comfortably within [the exacting-scrutiny] framework " applied in Harris, and that its decision in Harris was "wholly consistent with [the Court ' s] holding in Keller. " Id. at 656. In reaching this conclusion , the Court emphasized that licensed attorneys are "subject to detailed ethics rules, and the bar rule [ at issue in Keller] requiring the payment of dues was part of this regulatory scheme." Id. at 655. The Court also noted that states have a "strong interest in allocating to the members of the bar, rather than the general public , the expense of ensuring that attorneys adhere to ethical practices. " Id. at 655-56. Given the Court ' s express statement in Harris that Keller 's holding "is wholly consistent " with the exacting-scrutiny framework later applied in Janus , id. at 656, there is no basis for concluding that Janus overruled Keller .

iii. The Court ' s remand in Fleck v. Wetch does not disturb the binding nature of Kelle r.

In Fleck v. Wetch, 868 F.3d 652 (8th Cir. 2017), vacated and remanded, 139 S. Ct. 590 (2018), the Eighth Circuit considered a challenge to North Dakota ' s procedure for allowing attorneys to "optout" of paying fees for non-germane bar activities as defined by Keller-i.e. , activities unrelated to



"regulating the legal profession and improving the quality oflegal services." Id. at 653-54 (quoting Keller, 496 U.S. at 13-14). The Eighth Circuit decided the case before the Court's ruling in Janus , holding that North Dakota ' s procedure did not violate plaintiff Fleck' s rights under Keller. Id. at 656-57. Although Fleck conceded in the Eighth Circuit that the court was bound by Keller , see id. at 653, in his petition to the Supreme Court-filed before the Janus decision-Fleck argued that the Court should overrule Keller, see Petition for a Writ of Certiorari , Fleck v. Wetch, No. 17-886 (U.S. Dec. 15, 2017) . On December 3, 2018 , the Supreme Court granted Fleck ' s petition, vacated judgment, and remanded the case to the Eighth Circuit. See Fleck, 139 S. Ct. 590. The case is currently being briefed. Appellant's supplemental brief was filed on February 15, 2019,3 and appellee ' s supplemental brief is due by March 15, 2019. See Order, Fleck v. Wetch, No. 16-1564 (8th Cir. Jan. 11, 2019).

The Court's remand of Fleck does nothing to disturb the binding nature of Keller . It "is wellsettled" that a "grant, vacate, and remand" order like the one the Supreme Court issued in Fleck "has no precedential weight and does not dictate how the lower court should rule on remand." Texas v. United States , 798 F.3d 1108, 1116 (D.C. Cir. 2015). Additionally, the "opt-out" procedure for non-germane expenditures at issue in Fleck is not applicable to the Texas State Bar. As previously stated, the 2018 Board of Directors Policy Manual expressly requires that all State Bar expenditures comply with Keller. See Board Policy Manual§ 3.14.01. Accordingly , the Court ' s remand in Fleck has little , if any, implication for the constitutionality of the State Bar ' s current practices regarding mandator y bar fees.

2. The Texas legislature did not violate the Fourteenth Amendment by designating three State Bar Board of Directors positions for TYLA officers, even though only TYLA members are permitted to vote for TYLA officers.

The Attorney General has been asked whether TYLA' s election procedures violate the Fourteenth Amendment ' s Equal Protection Clause because only State Bar members who have been licensed for five years or less or who are 36 years old or younger are eligible to vote for TYLA's president , who (along with TYLA' s president-elect and immediate past president) serves as a voting member of the State Bar Board. For at least two independent reasons, TYLA ' s elections procedures are consistent with the Equal Protection Clause. First , the Supreme Court has held that the Fourteenth Amendment generally does not preclude states from imposing age-based restrictions on the right to vote

3 The appellant in Fleck argues that "the question of whether lawyers may constitutionally be forced to join a bar association has never been resolved by a decision of the U.S. Supreme Court ." Brief of Appellant at 5, Fleck v. Wetch, No . 16-1564 (8th Cir. Feb . 15, 20 19) . That argument , howe ver, squarel y conflict s with the pla in language of Keller. Keller, 496 U.S. at 13-14 (" [T]he compell ed associat ion and integrat ed bar are j ustified by the Stat e's interes t in regulating the legal profession and impro ving the quality of legal service s. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members."); see also supra pp. 7-8. lt also ignores Harris's recent reaffirmation of Keller. See supra p. 13. We can provide the Attorney General with supplemental briefing on further developments in Fleck as they occur .



in elections for state offices. See Oregon v. Mitchell , 400 U.S. 112, 118 (1970) (opinion of Black, J.) ( announcing Court ' s judgment that Fourteenth Amendment does not authorize "Congress [to] interfere with the age for voters set by the States for state and local elections"); accord id. at 212-13 (Harlan , J ., concurring in part and dissenting in part) ; id. at 293-96 (Stewart, J., joined by Burger, C.J., and Blackmun, J., concurring in part and dissenting in part); see also Hill v. Stone, 421 U.S. 289,297 (1975) (voting restrictions based on "residence, age, [or] citizenship" not subject to heightened scrutiny under Equal Protection Clause (emphasis added)); cf Gregory v. Ashcroft , 501 U.S. 452, 470 (1991) ("[A]ge is not a suspect classification under the Equal Protection Clause.") . Under that rule, the State Bar's eminently rational decision to limit the franchise for the leader of an organization representing the interests of recently admitted attorneys based on age or length of licensure easily survives review under the Equal Protection Clause.

Second, TYLA's election procedures comply with the Equal Protection Clause for the separate, independent reason that TYLA elections are "special interest" elections , which receive a lower level of equal-protection scrutiny. For general-interest elections, "restrictions on the franchise other than residence , age, and citizenship" must satisfy strict scrutiny-i.e ., they must be necessary to promote "a compelling state interest. " Hill , 421 U.S. at 295. By contrast, limitations on voting rights for "special interest" elections are subject only to highly deferential rational-basis review. That means that "[i]n a special interest election , the State need only show the voting scheme under attack 'bears a reasonable relationship to its statutory objectives .'" Carlson v. Wiggins, 675 F.3d 1134, 1140 (8th Cir. 2012) (quoting Ball v. James , 451 U.S. 355, 371 (1981)).

Special-interest elections typically involve a state agency that disproportionately affects a select constituency and that does not exercise "general governmental powers ," such as "impos[ing] ad valorem property taxes or sales taxes ," enacting generally applicable laws, or "administer[ing] such normal functions of government as the maintenance of streets, the operation of schools, or sanitation , health , or welfare services. " Ball , 451 U.S. at 362-66; see also, e.g. , Salyer Land Co. v. Tulare Lake Basin Storage Dist. , 410 U.S . 719, 728 (1973) (water storage district is a special-interest body). For instance , courts have held that nominating commissions for state judicial candidates are special-interest bodies , that seats on such commissions may be reserved for state bar members , and that the electorate for those attorney-only seats can be limited to members of the state bar. See Carlson, 675 F.3d at 1140-41; Dool v. Burke , 497 F. App 'x 782 (10th Cir. 2012) (per curiam).

Elections for members of the State Bar Board, including TYLA' s president , qualify as specialinterest elections . The State Bar is "an administrati ve agency of the judicial department" of the Texas government . Tex. Gov't Code Ann.§ 81.011. The State Bar Act enumerates seven limited purpose s of the State Bar to ensure "that the public responsibilities of the legal profession may be more effectively discharged." Id. § 81.012. These include, among others, "to aid the courts in carrying on and improving the administrati on of justice "; "to foster and maintain on the part of those engaged in the practice of law



high ideals and integrity, learning, competence in public service, and high standards of conduct"; "to provide proper professional services to the members of the state bar"; and "to provide forums for the discussion of subjects pertaining to the practice of law." Id.§ 81.012.

Given the statutorily defined, limited purposes of the State Bar under§ 81.012 of the State Bar Act, the State Bar Board is not an entity that performs government functions "general enough" and with "sufficient impact throughout the [state]" to subject its voting procedures to strict scrutiny. Carlson, 675 F.3d at 1139 (quoting Bd. of Estimate of City ofN.Y v. Morris, 489 U.S. 688,696 (1989)). Rather, the Board has "a 'special limited purpose and . . . [a] disproportionate effect' on a definable group of constituents." Id. at 1140 (quoting Salyer Land, 410 U.S. at 728). The work of the State Bar Board regulates only a select population: Texas-licensed attorneys. Accordingly, the State Bar Board is a "special interest" elected body whose election procedures are subject only to rational-basis review under the Fourteenth Amendment.

That conclusion is supported by well-established precedent. In Sullivan v. Alabama State Bar, 295 F. Supp. 1216, 1222 (M.D. Ala. 1969) (per curiam), an Alabama lawyer argued that the Alabama State Bar's Board of Commissioners was malapportioned, in violation of the equal-protection principle of"one-person, one-vote" recognized in Reynolds v. Sims, 377 U.S. 533 (1964). The three-judge district court rejected that claim, holding that "the constitutional principle of 'one man, one vote' has no relevancy to the Board of Commissioners of the Alabama State Bar." 295 F. Supp. at 1222. On direct appeal, the Supreme Court summarily affirmed. See Sullivan v. Ala. State Bar, 394 U.S. 812 (1969) (per curiam). Subsequent cases have similarly rejected "one-person, one-vote" challenges to state-bar election procedures. See Brady v. State Bar of Cal., 533 F.2d 502, 502-03 (9th Cir. 1976) (per curiam) ("The Supreme Court has held that malapportionment of representation on a state bar governing body is not a violation of fourteenth amendment rights."); Hoffman v. State Bar of Cal., 6 Cal. Rptr. 3d 592, 600, 604-07 (Ct. App. 2003) (holding that California bar board of governors voting procedures, which denied active, non-resident bar members the right to vote for members of the board, did not violate the California Constitution's Equal Protection Clause , which "is similar" to the federal Equal Protection Clause).

The State Bar election procedures challenged here easily satisfy the rational-basis standard applicable to special-interest elections. There can be no dispute that it is reasonable to limit the electorate for TYLA's president to the members of that organization-i .e., Texas lawyers under the age of 37 or in their first five years of practice . And it was also reasonable for the Texas legislature to designate TYLA's president , president-elect, and immediate past president as ex officio voting members of the State Bar Board. See Tex. Gov ' t Code Ann. § 81.020(b)(2). Lawyers benefit from experience and from the breadth of professional relationships developed over the course of a career. Young and newly licensed attorneys are generally lacking in both. Furthermore , young and newly licensed attorne ys have a particularl y acute need for legal training to ensure their compliance with professional



and ethical standards. A Bar Board lacking any members who are under the age of 37 or in their first five years of practice would likely be less attuned to these concerns and the other needs of new lawyers. Yet new lawyers may lack the professional standing and connections to win a board seat in a general election in which they are forced to compete against more experienced attorneys. Accordingly, it was eminently reasonable for the legislature to designate three of the 46 voting director positions on the State Bar Board for TYLA officers. By doing so, the legislature has ensured that the distinct interests of recently licensed Texas attorneys will be represented on the Board.

3. There is no precedent invalidating voting procedures similar to the TYLA election procedures under the Twenty-Sixth Amendment.

The Twenty-Sixth Amendment provides: "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age." U.S. Const. amend. XXVI, § 1. Ratified against the backdrop of the Vietnam War, in which young adults were drafted into combat even though they were too young to vote, the principal purpose of the Twenty-Sixth Amendment was "to establish a minimum age qualification at 18 for all elections." The Constitution of the United States of America: Analysis and Interpretation 2321 (Interim Edition 2017) (prepared by the Congressional Research Service and the Library of Congress as authorized by 2 U.S.C. § 168 (2012)); see also, e.g., S. Rep. No. 92-26, at 5-7, 18 (1971) (setting forth, in Senate committee report on joint resolution proposing Twenty-Sixth Amendment, "the case for 18-year-old voting," and concluding that "the time has come to lower the voting age to 18" ( capitalization omitted)); Jenny Diamond Cheng, Voting Rights for Millennials: Breathing New Life into The TwentySixth Amendment, 67 Syracuse L. Rev. 653, 670 (2017). Case law interpreting the Twenty-Sixth Amendment is relatively sparse . But there does not appear to be any precedent invalidating election procedures similar to TYLA's under the Amendment. Furthermore, the Amendment's purpose of addressing perceived discrimination against young adults by lowering the minimum voting age hardly supports invalidating a program establishing a voting-qualification ceiling of 36 years of age or five years oflicensure. Invalidating TYLA's election procedures under the Twenty-Sixth Amendment would be particularly unwarranted because Texas lawyers of any age are eligible to vote for TYLA's president as long as they have not practiced law for more than five years. Therefore, TYLA's election procedures do not deny or abridge the right to vote solely "on account of age ." U.S. Const. amend. XXVI, § 1.



4. The State Bar's current election procedures do not violate § 81.0242, which requires the State Bar to "promote ... participation of members of the state bar in elections under this chapter," because TYLA elections are not "elections under" Chapter 81, and, even if they were, the State Bar fulfills its responsibility under § 81.0242 by promoting participation in TYLA elections by the members who are eligible to vote in those elections.

Section 81.0242 of the State Bar Act provides that the State Bar, "in the manner provided by the supreme court, shall ... promote and monitor participation of members of the state bar in elections under this chapter." Tex. Gov't Code Ann.§ 81.0242 (emphasis added). President Langley's letter suggests that the State Bar's current election methods may violate this provision by failing to "promote" TYLA elections, given that only TYLA members are permitted to vote for TYLA officers. TYLA elections are not, however, "elections under" Chapter 81. See id. And, even if they were, the State Bar fulfills its responsibility under§ 81.0242 by promoting participation in TYLA elections by members eligible to vote in those elections. In other words, § 81.0242 says nothing about who is eligible to vote; it just calls on the State Bar to promote participation by those who are eligible to vote.

A. Elections for TYLA officers are not elections under Chapter 81.

TYLA elections are not elections under Chapter 81 because elections of the State Bar under that chapter are elections for "officers of the state bar" and for the State Bar Board members "elected by the membership from their district." Tex. Gov't Code Ann.§§ 81.019-.020, 81.0242, 81.053. TYLA's officers do not fall within either category.

First, TYLA officers are not "officers of the state bar." The State Bar Act provides that the "officers of the state bar" are the State Bar's "president, president-elect, and immediate past president"-a list that excludes TYLA's officers. Id. § 81.019; see also State Bar Rules, art. IV,§ 10, Officers ("The officers of the State Bar shall be the president, the president-elect and the immediate past president."). Elections for "officers of the state bar" are governed by the provisions of Chapter 81. See Tex. Gov't Code Ann.§ 81.019(b) ("[T]he officers shall be elected in accordance with rules for the elections of officers and directors prepared and proposed by the supreme court as provided by Section 81.024."). But because TYLA officers are not officers of the State Bar, an election for TYLA officers is not an election under Chapter 81. This is further evidenced by the fact that in 1979, when the Texas legislature amended the State Bar Act to make TYLA officers voting members of the Board of Directors in accordance with a 1973 change to the State Bar Rules, the legislature also declined to codify TYLA officer election procedures under Chapter 81. See Rules Governing the State Bar of Texas, art. VI, § 1 (as amended December 1973). Instead, TYLA elections were (and still are) governed by the TYLA bylaws . Accordingly , TYLA election procedures are not invalid under § 81.0242 , which only applies to elections under Chapter 81.



Second, TYLA officers are not elected to the State Bar Board of Directors, but instead serve as ex officio Board Members by virtue of their positions as TYLA officers. See State Bar Rules, art. I, Definitions ("'Ex Officio' means by virtue or because of an office ."). The only persons directly elected to the Board of Directors under Chapter 81 are the thirty "members of the state bar elected by the membership from their district." Tex. Gov't Code Ann.§ 81.020; see also State Bar Rules, art. IV,§ 7, Nominees for Office of Elected Director (setting forth election procedures for "the office of elected director" of the State Bar). In contrast, TYLA officers are ex officio appointees to the Board. Cf id., art. IV, § 8, Director Vacancies and How Filled ("In case of a vacancy as to an elected director, the president, shall appoint a member whose principal place of practice is within the district within which the vacancy has occurred. Vacancies in ex officio directorships shall be filled by the person who succeeds to the office in the State Bar or in the Texas Young Lawyers Association to which such directorship is incident .. . . " (emphasis added)). The election of TYLA officers is therefore not an "election" of such persons to the State Bar Board under Chapter 81. Accordingly, TYLA election procedures do not violate § 81.0242, which regulates elections under Chapter 81.

B. Even if TYLA elections are elections under Chapter 81, the State Bar does not violate § 81.0242 because it promotes participation in TYLA elections by Bar members who are eligible to vote in TYLA elections.

Even if TYLA elections are elections under Chapter 81, the State Bar does not violate § 81.0242 because it promotes participation in TYLA elections by Bar members who are eligible to vote in those elections. Specifically, the State Bar publishes information regarding State Bar and TYLA elections, and disseminates joint ballots to TYLA members for the State Bar and TYLA elections. Although § 81.0242 requires the State Bar to promote State Bar elections "in the manner provided by the supreme court," as set forth in the State Bar Rules, Tex. Gov't Code Ann.§ 81.0242, no provision of the State Bar Rules authorizes the participation of all members in every election conducted by the State Bar. Cf State Bar Rules , art . IV, § 11.F, President-Elect, Nominations and Elections ("The ballot shall be distributed to each member of the State Bar of Texas entitled to vote .. .. " (emphasis added)). It is indisputable that the State Bar fulfills its obligation under § 81.0242 with respect to a director elected from a district by promoting participation in the election by bar members within that district . See Tex. Gov't Code Ann. § 81.020(b)(3). No one could plausibly argue that§ 81.0242 requires the State Bar to promote participation in district elections by attorneys ineligible to vote because they live and work outside of the district at issue. Similarly , the State Bar fulfills its responsibility under § 81.0242 with respect to TYLA' s officers because it promotes participation in TYLA elections by any member who is eligible to vote in those elections.



5. The State Bar does not violate § 81.053 by prohibiting non-TYLA members from voting for TYLA officers because § 81.053 does not confer an unlimited right to active members to vote in all State Bar elections, but rather, merely restricts the voting rights of inactive and associate members.

Section 81.052 of the State Bar Act sets forth four membership classes of the State Bar: active, inactive, emeritus, and associate. See Tex. Gov't Code Ann.§ 81.052. By default, "[e]ach licensed member of the state bar is an active member until the person requests to be enrolled as an inactive member. " Id.

Section 81.053 governs the "status of certain membership classes." Id. § 81.053. It prohibits two member classes-inactive members and associate members-from (1) holding an office in the State Bar, and (2) voting in any election conducted by the State Bar. Id. Section 81.053 does not, however, govern the rights of active members to vote in any election conducted by the State Bar . Accordingly, the State Bar does not violate § 81.053 by limiting the right of certain active Bar members to vote in TYLA officer elections, because that section only governs voting restrictions on some Bar member classes. In other words, § 81.053 does not confer an unlimited right on all active Bar members to vote in any State Bar-related election.

Conclusion

The State Bar respectfully requests that the Attorney General either conclude that he lacks statutory authority to provide an opinion in response to President Longley's letter, or answer the questions in that letter in accordance with the analysis set forth above.

Respectfullv--s:ttOTnm~

~ ( Thomas S. Leatherb

cc: Joe K. Longley President, State Bar of Texas

Virginia K. Hoelscher Office of the Attorney General of Texas Chair, Opinion Committee


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