Regulatory considerations

As TRAIL and Texas State Bar grapples with the possibilities and effects of Artificial Intelligence, especially regarding standards and guidelines, practitioners, judges, and should understand several key principles regarding Artificial Intelligence and its regulation: 

AI regulation is fluid, complex, and changing almost as quickly as the technology.

• Almost 100 bills have already been introduced in the current legislative session that address or mention artificial intelligence (“AI”).[1] Staying informed and complying with regulations may be difficult, but TRAIL remains committed to tracking changes and informing members of the bar of important changes in this evolving field.
• Specific, long-lasting, relevant regulations applicable to emerging technologies can be extremely difficult to create. Taeihagh, A., Ramesh, M., & Howlett, M. (2021). Assessing the regulatory challenges of emerging disruptive technologies. Regulation & Governance, 15(4), 1009–1019. https://doi.org/10.1111/rego.12392
• Policy makers disagree about whether and how AI regulation will stifle innovation, promote ethical AI behavior, improve AI quality, and affect industry and user costs. See Bradford, Anu 2024. “The False Choice Between Digital Regulation and Innovation.” Northwestern University Law Review 118:2. October 6, 2024, Available at SSRN: https://doi.org/10.2139/ssrn.4753107.or; John Simons, The Creator of ChatGPT Thinks AI Should Be Regulated, TIME (Feb. 5, 2023, 9:00 AM), https://time.com/6252404/mira-murati-chatgpt-openai-interview/.
• Especially with the already-widespread use of AI, significant AI regulation could function similarly to prohibition, creating criminals instead of altering behavior. See Barnett, R. E. 2009. The harmful side effects of drug prohibition. Utah Law Review 1:11–34. https://scholarship.law.georgetown.edu/facpub/817/.

The Texas State Bar and the Judicial Branch do not directly enact broad AI policy. 

• Especially in the area of public policy, the judicial branch’s role under the Texas Constitution’s separation of powers provision “should be one of restraint.” Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 726 (Tex. 1995), as modified (Feb. 16, 1995). The people of Texas, through their legislature, evaluate and enact policy. The Texas Supreme Court states that its job is “not to judge the wisdom of the policy choices of the Legislature, or to impose a different policy of our own choosing.” Id. While the Texas State Bar plays an important role in this process, the State Bar’s power is limited by the Texas Constitution and the State Bar Act. See Tex. Const. art II § 1; Tex. Gov't Code § 81.102. 
• Even unauthorized practice of law litigation against an AI vendor would be controlled by Texas statutes, not bar regulations. See Tex. Gov't Code Ann. § 81.101(a); see also Tex. Penal Code Ann. § 38.123. 
• The Texas Center for Legal Ethics has issued ethical guidance to Texas attorneys regarding complying with their professional obligations regarding AI. Texas State Bar Committee on Ethics, Op. No. 705 (Feb. 2025).

[1] https://capitol.texas.gov/Search/TextSearchResults.aspx?CP=1&LegSess=89R&House=true&Senate=true&TypeB=true&TypeR=false&TypeJR=true&TypeCR=false&VerInt=true&VerHCR=true&VerEng=true&VerSCR=true&VerEnr=true&DocTypeB=true&DocTypeFN=true&DocTypeBA=true&DocTypeAM=true&Srch=custom&Custom=%22artificial+intelligence%22&All=&Any=&Exact=&Exclude=