dissenting:
I respectfully dissent from the majority’s holding that this case is not governed by Thomas v. Kadish, 748 F.2d 276 (5th Cir.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985).26 The majority distinguishes Thomas on two grounds. In my opinion, neither is substantial.
First, the majority contends that in Thomas, the Texas Board of Law Examiners (the Board) was essentially an agent of the Texas Supreme Court, while here the Texas Commission on Judicial Conduct (the *214Commission), according to the majority, is “largely independent of the state courts” and “cannot be viewed as their agent.” In this respect, however, the majority ignores the intimate relationship of the Commission to the Texas Supreme Court specifically and to the Texas judiciary in general. The Commission is provided for by Article V, § 1-a, of the Texas Constitution, Article V being the article of the Texas Constitution devoted to “the judicial department.” The only business of the Commission is dealing with the State’s judiciary; it has no other function. Further, its relationship to the Texas Supreme Court is extremely close. Section l-a(ll) provides that “[t]he Supreme Court shall by rule provide for the procedure before the Commission” and section l-a(9) provides that any public censure, retirement, or removal decision is subject to ultimate review by the Texas Supreme Court. Of the Commission’s eleven members, five are judges appointed by the Texas Supreme Court, and two are lawyers appointed by the Board of Directors of the State Bar of Texas. Art. V, § l-a(2). The State Bar of Texas is, itself, in large measure controlled by the Texas Supreme Court.27
Moreover, it is questionable whether Thomas can properly be understood as resting on the proposition that the Board’s there complained of decision was in substance the decision of the Texas Supreme Court. It evidently was not that Court’s decision, because under Texas law the plaintiff there had the right to “obtain judicial review by filing suit in a specified [state] district court.” Thomas, 748 F.2d at 280. If the complained of decision in Thomas had in substance been that of the Texas Supreme Court, it obviously would not have been subject to review in the state district court.
The majority concedes that the Commission in this instance was acting in a judicial capacity, and that its reprimand of Scott “was a judicial act.” Given this, and the nature of the Commission, it seems to me that the Commission here in substance functioned as a court. See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908) (assuming, arguendo, that State Corporation Commission could be a court if its action had been judicial in nature, in which event it “would be protected from interference on the part of courts of the United States”); New Orleans Public Service, Inc. v. Council of City of New Orleans, — U.S. -, 109 S.Ct. 2506, 2519-20, 105 L.Ed.2d 298 (1989) (discussing Prentis and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)). See also North Pacific S.S. Co. v. Industrial Accident Commission, 23 F.2d 109 (D.Cal.1918) (State Industrial Accident Commission is a court).
The other ground on which the majority relies to distinguish Thomas is that here there was no express statutory or constitutional provision for review of the Commission’s reprimand,28 while in Thomas the relevant State Bar rule expressly allowed review by suit in a specified state district court. The majority takes the view that Scott had no vehicle other than a suit (in federal or state court) under 42 U.S.C. § 1983 to challenge the Commission’s action. This is incorrect, inasmuch as Texas law provided Scott with an implied right of appeal to the Texas district courts (with review in the state appellate courts) to raise any state (or federal) constitutional challenge to the action in question. See, e.g., City of Amarillo v. Hancock, 150 Tex. *215231, 239 S.W.2d 788 (1951).29 Accordingly, Scott, just like the plaintiff in Thomas, had available to him, but chose not to utilize, a state law-based suit in the state district court, not under section 1983, to challenge the complained of action. Thus, the majority’s second ground for distinguishing Thomas is insubstantial. Further, in any event, it would appear that, even if a Hancock action were not available or were to be viewed as collateral in nature, nevertheless the Commission in the instant case was acting as a court and review of its decision could be had directly in the United States Supreme Court.
Accordingly, I conclude that Scott’s section 1983 suit was barred under the rationale of Thomas.
As the majority reaches the merits, I will briefly comment in that respect also. It must be understood that as this case comes to us, Scott does not challenge the Commission’s reprimand. All he wants is a portion of the reasons for that reprimand deleted. When the district court decided this case, Scott no longer held any judicial, or other public, office whatever, nor has he at any time since then.30 It is undisputed that neither the Commission’s reprimand nor the challenged portion thereof had any legal effect whatever on Scott, either individually or in his position as justice of the peace. It did not in any way restrict any of his personal or official rights or powers, or put him under any legal disability whatever. It did not affect his conditions of employment. The Commission did not order Scott to do or refrain from doing anything. It did not make him eligible for other action by the Commission that he would not have been legally eligible for or subject to had this reprimand not been entered or had it not included the complained of language. The Commission’s complained of action amounted in substance to nothing more than the expression of its opinion that what Scott did was “improper” because it tended to be “destructive of public confidence in the judiciary.” As the majority points out, Scott was an independent, elected public judicial officer, and was not an employee of the Commission or of any other state official, agency, or court.
I would not reach the question of whether Scott’s First Amendment rights would have been violated had the Commission taken some action which materially and adversely altered Scott’s conditions of employment or which placed Scott, individually or in his former position as justice of the peace, under some legal disability, or caused him in either capacity to lose legal rights he would otherwise have had, or to be legally subject to some sort of adverse consequence of which he would otherwise have been legally free. Clearly, if stated by a private individual, the challenged portion of the Commission’s reprimand would have been that character of pure expression of opinion which the First Amendment protects against libel and slander claims. See Milkovich v. Lorain Journal Co., — U.S. -, -, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990).31 Scott does not claim that in this respect the Commission made or in any way implied any misstatement of fact. He merely quarrels with its opinion that his undisputed conduct was “improp*216er” because it tended to be “destructive of public confidence in the judiciary.” Even a factually false libelous official statement by a governmental actor does not invade a liberty interest where it has no legal consequences and is not made in connection with termination of (or similar adverse change in conditions of) governmental employment. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 1161-64, 47 L.Ed.2d 405 (1976). Whether or not the rule of Paul v. Davis would carry over to First Amendment claims need not be resolved for, as noted, here there is in substance nothing but the expression of opinion, which itself would be constitutionally protected on the part of nongovernmental actors.
Whether one views Scott as not having been legally “injured” or suffered a “deprivation” under section 1983, or whether one reads the First Amendment as not forbidding governmental actors from merely stating their opinion, with no factually false connotations, concerning the impropriety of the way in which some other governmental official may have previously exercised his First Amendment rights, is not important in the present context. One approach or the other is called for here, and under either Scott’s present section 1983 claim should fail.32
Accordingly, I respectfully dissent.
.Following oral argument, we asked the parties to brief that issue, and in their brief appel-lees have contended that this suit is barred under the doctrine of Thomas.
. Texas Gov’t Code Ann., § 81.011, provides:
"(a) The state bar is a public corporation and an administrative agency of the judicial department of government.
"(b) This chapter 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.
"(c) The Supreme Court of Texas, on behalf of the judicial department, shall exercise administrative control over the state bar under this chapter.”
See also id., § 81.024(a) (“The supreme court shall promulgate the rules governing the state bar....”).
. Had the action against Scott been a formal public censure or order for suspension, removal, or retirement, it would have been subject to express provision for various stages of review, ultimately culminating in the Texas Supreme Court. Tex. Const. Art. V, § l-a(6), (8), (9).
. Scott admits the availability of review under Hancock, as he states in his initial brief in this Court:
"He [Scott] could have brought that challenge in state court, either under 42 U.S.C. § 1983, ... or under the Texas state court’s inherent right to review the constitutionality of administrative actions, Hancock v. City of Amarillo [City of Amarillo v. Hancock, 150 Tex. 231], 239 S.W.2d 788 (Tex.1951)....” (Emphasis added.)
. Scott went out of office sometime before April 1986. Scott has advised us, however, that he intends to be an independent candidate for judge of a Texas court of appeals in the 1990 general election. As of the time that Scott so informed this Court, he had not yet qualified as such a candidate, and whether he has done so since then is unclear.
Under the circumstances, Scott has no standing to seek declaratory or injunctive relief in respect to his future conduct as an appellate judge, see Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th Cir.1984), and in any event this suit in its present posture does not seek such relief. Scott seeks no damages.
.In Milkovich, the Court recognized "that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection,” as will also "statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” Id. — *216U.S. at-, 110 S.Ct. at 2706 (footnote omitted).
. I am aware of the passage in footnote 8 of Rutan v. Republican Party of Illinois, - U.S. -, -n. 8, 110 S.Ct. 2729, 2738 n. 8, 111 L.Ed.2d 52 (1990), where the Court observed:
“Moreover, the First Amendment, as the court below noted, already protects state employees not only from patronage dismissals but 'even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights.’”
In this passage, the Supreme Court was quoting from the decision below of the Seventh Circuit in Rutan v. Republican Party of Illinois, 868 F.2d 943, 954 n. 4 (7th Cir.1989), where the Seventh Circuit in turn was characterizing its decision in Bart v. Telford, 677 F.2d 622 (7th Cir.1982). Actually, Bart held no such thing. To the contrary, Bart clearly implied that such trivial action as failing to hold a birthday party would not of itself be actionable under section 1983, even if taken in retaliation for the exercise of First Amendment rights. Bart, at 625. Rather, Bart held that the complaint was sufficient because it alleged “an entire campaign of harassment which though trivial in detail may have been substantial in gross. It is a question of fact whether the campaign reached the threshold of actionability under section 1983.” Id. I believe it would be a serious mistake to take literally the Supreme Court's apparently offhand dicta about birthday parties in footnote 8 of Rutan. In the body of the opinion in Rutan, the Court stressed that the case before it involved "significant penalties ... imposed for the exercise of rights guaranteed by the First Amendment.” — U.S. at -, 110 S.Ct. at 2736. Nothing of that kind is involved here.