United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED July 2, 2021 No. 20-50448 Lyle W. Cayce Clerk

Tony K. McDonald; Joshua B. Hammer; Mark S. Pulliam,

Plaintiffs—Appellants,

versus

Joe K. Longley, Immediate Past President of the State Bar of Texas; Randall O. Sorrels, President of the State Bar of Texas; Laura Gibson, Member of the State Bar Board of Directors and Chair of the Board; Jerry C. Alexander, Member of the State Bar Board of Directors; Alison W. Colvin, Member of the State Bar Board of Directors,

Defendants—Appellees.

Appeal from the United States District Court for the Western District of Texas No. 1:19-CV-219

Before Smith, Willett, and Duncan, Circuit Judges. Jerry E. Smith, Circuit Judge: Three Texas attorneys sued officers and directors of the State Bar of Texas under 42 U.S.C. § 1983. They allege that the Bar is engaged in political and ideological activities that are not germane to its interests in regulating the legal profession and improving the quality of legal services and that therefore, Case: 20-50448 Document: 00515924611 Page: 2 Date Filed: 07/02/2021

No. 20-50448

compelling them to join the Bar and subsidize those activities violates their First Amendment rights. We vacate in part, render in part, and remand.

I. A. State bar associations are of two types: (1) “mandatory” and (2) “vol- untary.” Mandatory bars, also known as “integrated” bars, require that attorneys join and pay compulsory dues “as a condition of practicing law in a State.” Keller v. State Bar of Cal., 496 U.S. 1, 5 (1990). Voluntary bars do not. See Jarchow v. State Bar of Wis., 140 S. Ct. 1720, 1720 (2020) (Thomas, J., dissenting from denial of certiorari). Thirty-one states and the District of Columbia have mandatory bars, while most of the others have voluntary bars. 1 The State Bar of Texas is mandatory. See Tex. Gov’t Code § 81.051(b). All licensed Texas attorneys, more than 120,000 as of May 2019, must join the Bar, which “is a public corporation and an administrative agency” controlled by the Supreme Court of Texas. Id. § 81.011(a), (c). The Bar serves the following statutorily enumerated purposes: (1) to aid the courts in carrying on and improving the ad- ministration of justice; (2) to advance the quality of legal services to the public and to foster the role of the legal profession in serving the public; (3) to foster and maintain on the part of those engaged in

1 See Ralph H. Brock, “An Aliquot Portion of Their Dues:” A Survey of Unified Bar Compliance with Hudson and Keller, 1 Tex. Tech J. Tex. Admin. L. 23, 24 (2000); Leslie C. Levin, The End of Mandatory State Bars, 109 Geo. L.J. Online 1, 2 (2020). Most states have either a mandatory or voluntary bar, but California has switched to a hybrid model in which core functions are performed by a mandatory state bar, while other functions previously per