                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         '
                                                                            No. 08-13-00069-CV
                                                         '
    IN RE: THERESA CABALLERO,                                        AN ORIGINAL PROCEEDING
                                                         '
                                     Relator.                                 IN MANDAMUS
                                                         '


                                                  OPINION

         Theresa Caballero, Relator, has filed a petition for writ of mandamus against the

Honorable George D. Gilles, seeking relief from two orders entered by him in a disciplinary

action instituted against her by the Commission for Lawyer Discipline.1 In a case of first

impression, we must decide whether a district judge has the discretion to reject a Rule 11

settlement agreement entered into between an attorney and the Commission. This issue is

decided by a divided panel. While we disagree about the resolution, none of us should be heard

as condoning the conduct alleged.

                            FACTUAL AND PROCEDURAL SUMMARY

         During the trial of a criminal case in 2011, the Honorable Steve Smith found Caballero in

contempt of court and filed a misconduct complaint against her with the Commission for Lawyer


1
  Judge Gilles is the Judge of the 142nd District Court in Midland County, Texas. The Texas Supreme Court
appointed Judge Gilles to preside in the disciplinary action filed in the 448th District Court, El Paso County, Texas.
See TEX.RULES DISCIPLINARY P. 3.02, 3.03, reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (West
2013).
Discipline.2 The Commission filed a disciplinary petition against Caballero alleging that she

committed professional misconduct in violation of Texas Disciplinary Rules of Professional

Conduct 3.02, 3.04(a), 3.04(c)(5), 3.04(d), 8.04(a)(1), 8.04(a)(3), and 8.04(a)(4).                            This

disciplinary action3 is based exclusively on the allegations of misconduct arising out of the

criminal trial and made by Judge Smith. On August 20, 2012, the Honorable Juanita Vasquez-

Gardner, who was assigned to hear the de novo contempt proceeding, found Caballero in

contempt of court and assessed punishment at a fine of $100 for each violation for a total of

$900, but the court probated the entire fine.4

        On August 28, 2012, the Commission filed a motion for partial summary judgment based

on the contempt judgment. It alleged that Caballero was collaterally estopped from relitigating

the issues decided in the contempt proceeding. The Commission specifically sought partial

summary judgment on the ground that Caballero’s contemptuous acts constituted professional

misconduct in violation of Rule 3.04(c)(5) which prohibits conduct intended to disrupt

proceedings before a tribunal and Rule 8.04(a)(4) which prohibits conduct constituting

obstruction of justice. The Commission did not move for summary judgment on any of the


2
  The defendant in the criminal case obtained an order expunging the records related to that case. Accordingly, the
opinion will not include the defendant’s name, the cause number, or any of the facts related to that case. See
TEX.CODE CRIM.PROC.ANN. art. 55.03 (West 2006)(prohibiting the release, maintenance, dissemination, or use of
the expunged records and files for any purpose).
3
   The Texas Rules of Disciplinary Procedure distinguishes between a “Disciplinary Action” and a “Disciplinary
Proceeding.” A “Disciplinary Action” means a proceeding brought by or against an attorney in a district court or
any judicial proceeding covered by the rules other than an evidentiary hearing. TEX. RULES DISCIPLINARY P.
1.06(J), reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (West 2013). “Disciplinary Proceedings”
include the processing of a grievance, the investigation and processing of an inquiry or complaint, presentation of a
complaint before a summary disposition panel, and the proceeding before an evidentiary panel. TEX. RULES
DISCIPLINARY P. 1.05(L). The opinion will refer to the procedure in this case as a disciplinary action in accordance
with Rule 1.06(J).
4
  See TEX.GOV’T CODE ANN. § 21.002 (d)(West 2004)(providing that an officer of a court who is held in contempt
by a trial court shall, on proper motion filed in the offended court, be released on her own personal recognizance
pending a determination of her guilt or innocence; the presiding judge of the administrative judicial region in which
the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the
judge of the offended court to determine the guilt or innocence of the officer of the court).

                                                       -2-
remaining allegations. Judge Gilles conducted a hearing on the motion on October 19, 2012, but

he did not immediately rule. In late October or early November, the Commission and Caballero

engaged in settlement negotiations and entered into an agreed judgment (1) finding that

Caballero had engaged in professional misconduct in violation of Rule 3.04(c)(5); and (2)

suspending her from the practice of law for nine months, but fully probating the suspension. The

agreed judgment recited that the probated suspension would begin on December 1, 2012 and end

on August 31, 2013. Caballero and her attorney signed the judgment as did the Commission.

        On November 9, 2012, Judge Gilles notified the parties that he would grant the motion

for partial summary judgment. The judge did not include a signed order with the letter because

he believed that any order had to be signed in El Paso County. 5 Ten days later, Judge Gilles sent

a letter to Caballero and the Commission stating that he had received the agreed judgment

reflecting the “contemplated settlement,” but he would not accept the settlement proposed by

counsel. Judge Gilles did not provide a reason for rejecting the settlement agreement. The letter

also informed the parties that the jury trial would begin on November 27, 2012.                                  On

November 20, 2012, the Commission sent a letter to Judge Gilles inquiring about the entry of the

order granting partial summary judgment since an order had not yet been signed. The letter also

informed him that the Commission did not intend to proceed to trial on the remaining allegations

of professional misconduct, and consequently, jurors would not be necessary because the sole

issue would be the appropriate sanction for the established misconduct.                         That same day,

Caballero filed a motion to recuse Judge Gilles based on his refusal to enter the agreed judgment

in accordance with the settlement agreement. The judge assigned to hear the motion to recuse

5
  The Commission noted in a subsequent letter to the trial court that the geographical constraints imposed by Article
V, Section 7 of the Texas Constitution and Section 74.094(e) of the Texas Government Code do not apply in a
disciplinary action. See Acevedo v. Commission for Lawyer Discipline, 131 S.W.3d 99, 102-04 (Tex.App.--
San Antonio 2004, pet. denied).


                                                       -3-
denied it on December 21, 2012. Judge Gilles granted the Commission’s motion for partial

summary judgment on February 13, 2013 finding that Caballero engaged in acts of professional

misconduct in violation of Rules 3.04(c)(5) and 8.04(a)(4). Shortly thereafter, Caballero filed a

mandamus petition in this court challenging the trial court’s refusal to enter judgment in

accordance with the parties’ agreement.

                          THE RULES OF DISCIPLINARY PROCEDURE

        We begin with an overview of the disciplinary structure. The rules are divided into

fifteen parts and the titles are telling. Part I addresses “General Rules.” Section 1.03 informs us

that:

        These rules are to be broadly construed to ensure the operation, effectiveness,
        integrity, and continuation of the professional disciplinary and disability system.

Part II creates the district grievance committees and provides for its governance. Herein we find

the rule creating the election available to a respondent attorney.

        2.15. Election

        A Respondent given written notice of the allegations and rule violations
        complained of, in accordance with Rule 2.14, shall notify the Chief Disciplinary
        Counsel whether the Respondent seeks to have the Complaint heard in a district
        court of proper venue, with or without a jury, or by an Evidentiary Panel of the
        Committee. . . .

The rules that follow describe the procedure for Evidentiary Panel hearings.          There is no

incorporation of the Texas Rules of Civil Procedure. Discovery is limited. The Evidentiary

Panel may order the Commission and the respondent to participate in mandatory alternative

dispute resolution as provided by Chapter 154 of the Civil Practice and Remedies Code or as

otherwise provided by law when deemed appropriate. With regard to evidence, the panel chair

shall admit all such probative and relevant evidence deemed necessary for a fair and complete

hearing, “generally in accord with the Texas Rules of Evidence; provided, however, that

                                                -4-
admission or exclusion of evidence shall be in the discretion of the Evidentiary Panel chair. . . .”

Rule 2.17(E), (K) and (L). Rule 2.18 relates to the imposition of sanctions:

       2.18. Imposition of Sanctions

       The Evidentiary Panel may, in its discretion, conduct a separate hearing and
       receive evidence as to the appropriate Sanctions to be imposed. Indefinite
       Disability sanction is not an available Sanction in a hearing before an Evidentiary
       Panel. In determining the appropriate Sanctions, the Evidentiary Panel shall
       consider:

               A. The nature and degree of the Professional Misconduct for which the
                  Respondent is being sanctioned;
               B. The seriousness of and circumstances surrounding the Professional
                  Misconduct;
               C. The loss or damage to clients;
               D. The damage to the profession;
               E. The assurance that those who seek legal services in the future will be
                  insulated from the type of Professional Misconduct found;
               F. The profit to the attorney;
               G. The avoidance of repetition;
               H. The deterrent effect on others;
               I. The maintenance of respect for the legal profession;
               J. The conduct of the Respondent during the course of the Disciplinary
                  Proceeding;

       In addition, the Respondent’s disciplinary record, including any private
       reprimands, is admissible on the appropriate Sanction to be imposed.
       Respondent’s Disability may not be considered in mitigation, unless Respondent
       demonstrates that he or she is successfully pursuing in good faith a program of
       recovery or appropriate course of treatment.

Part III is entitled “Trial in District Court.” These rules address the assignment of a judge; filing,

service and venue; answer of the respondent; and discovery. Rule 3.06 provides for trial by jury:

       3.06. Trial by Jury

       In a Disciplinary Action, either the Respondent or the Commission shall have the
       right to a jury trial upon timely payment of the required fee and compliance with
       the provisions of Rule 216, Texas Rules of Civil Procedure. The Complainant has
       no right to demand a jury trial.




                                                -5-
Rule 3.08 sets out the applicable rules for a trial in district court. Here, the Texas Rules of Civil

Procedure do apply:

       3.08. Additional Rules of Procedure in the Trial of Disciplinary Actions

       In all Disciplinary Actions brought under this part, the following additional rules
       apply:

           A. Disciplinary Actions are civil in nature.
           B. Except as varied by these rules, the Texas Rules of Civil Procedure
              apply.

                                                    *****

           G. It shall be the policy of the Commission to participate in alternative
           dispute resolution procedures where feasible; provided, however, that
           Disciplinary Actions shall be exempt from any requirements of
           mandatory alternative dispute resolution procedures as provided by
           Chapter 154 of the Civil Practice and Remedies Code or as otherwise
           provided by law. [Emphasis added].

Rules 3.09 and 3.10 explain the bifurcated trial procedure.

       3.09. Judgment

       If the trial court fails to find from the evidence in a case tried without a jury, or
       from the verdict in a jury trial, that the Respondent’s conduct constitutes
       Professional Misconduct, the court shall render judgment accordingly. If the
       court finds that the Respondent’s conduct does constitute Professional
       Misconduct, the court shall determine the appropriate Sanction or Sanctions to be
       imposed. . . . The trial court shall promptly enter judgment after the close of
       evidence (in the case of a nonjury trial) or after the return of the jury’s verdict. . . .

       3.10. Imposition of Sanctions

       The trial court may, in its discretion, conduct a separate hearing and receive
       evidence as to the appropriate Sanctions to be imposed. Private reprimand is not
       an available Sanction. Indefinite Disability suspension is not an available
       Sanction. In determining the appropriate Sanctions, the court shall consider:

               A. The nature and degree of the Professional Misconduct for which the
                  Respondent is being sanctioned;
               B. The seriousness of and circumstances surrounding the Professional
                  Misconduct;
               C. The loss or damage to clients;

                                                 -6-
               D. The damage to the profession;
               E. The assurance that those who seek legal services in the future will be
                  insulated from the type of Professional Misconduct found;
               F. The profit to the attorney;
               G. The avoidance of repetition;
               H. The deterrent effect on others;
               I. The maintenance of respect for the legal profession;
               J. The conduct of the Respondent during the course of the Committee
                  action;
               K. The trial of the case; and
               L. Other relevant evidence concerning the Respondent’s personal and
                  professional background.

       In addition, the Respondent’s disciplinary record, including any private
       reprimands, is admissible on the appropriate Sanction to be imposed.
       Respondent’s Disability may not be considered in mitigation, unless Respondent
       demonstrates that he or she is successfully pursuing in good faith a program of
       recovery or appropriate course of treatment.

What is unmistakenly clear, and highly significant, is that when a respondent attorney elects a

jury trial, the jury may only render a verdict on whether the attorney has committed acts of

misconduct. The jury is not permitted to determine sanctions. Therein lies the dispute between

the majority opinion and the dissent. We conclude that the language requiring the judge to

determine sanctions and enter judgment relates to the procedure for trial on the merits and does

not relate to settlement agreements. Following a bench trial, the judge shall determine sanctions

and enter judgment at the conclusion of the evidence. In a jury trial, upon return of the verdict

the trial court shall determine sanctions and enter judgment. These procedural specifications

neither contemplate nor define the discretion of the trial court to reject a Rule 11 agreement. But

as part of the Texas Rules of Civil Procedure, Rule 11 is indeed implicated.

                REFUSAL TO ENFORCE RULE 11 AGREED JUDGMENT

       In three related issues, Caballero contends that trial court clearly abused its discretion by

refusing to enter the Rule 11 agreed judgment to settle the disciplinary case and by proceeding to

rule on the Commission’s motion for partial summary judgment. To be entitled to mandamus

                                               -7-
relief, a relator must meet two requirements. First, the relator must show that the trial court

clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124,

135 (Tex. 2004). Second, the relator must demonstrate it has no adequate remedy by appeal. Id.

at 136.

                                     The Disciplinary Process

          Under Article II, Section 1 of the Texas Constitution and Section 81.011(c) of the State

Bar Act, the Texas Supreme Court has the power to regulate the practice of law in the State of

Texas.     In re State Bar of Texas, 113 S.W.3d 730, 732 (Tex. 2003).          The Court has the

constitutional and statutory responsibility within the state of Texas for the lawyer discipline and

disability system, and it has inherent power to maintain appropriate standards of professional

conduct and to dispose of individual cases of lawyer discipline and disability. TEX.RULES

DISCIPLINARY P. Preamble, reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (West

2013). The Supreme Court has delegated the responsibility for administering and supervising

lawyer discipline and disability to the Board of Directors of the State Bar of Texas. Id. The

Board is vested with authority to adopt rules of procedure and administration consistent with the

Texas Rules of Disciplinary Procedure.        Id.   The Commission for Lawyer Discipline is a

permanent committee of the State Bar of Texas. TEX.GOV’T CODE ANN. § 81.076(b)(West

2013); TEX.RULES DISCIPLINARY P. 1.06(D). Each attorney admitted to practice in Texas and

each attorney specially admitted by a court of this state for a particular proceeding (pro hoc vice)

is subject to the disciplinary and disability jurisdiction of the Supreme Court and the

Commission for Lawyer Discipline. TEX.GOV’T CODE ANN. § 81.071. Likewise, each attorney

is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of

Professional Conduct. TEX.GOV’T CODE ANN. § 81.072(d).



                                                -8-
          When a respondent attorney elects to have a complaint heard in a district court of proper

venue, the Commission’s chief disciplinary counsel is required to notify the Supreme Court of

the election by transmitting a copy of the disciplinary petition to the Supreme Court. TEX.RULES

DISCIPLINARY P. 3.01. Thus, the Supreme Court has original jurisdiction of the disciplinary

action.    See Acevedo, 131 S.W.3d at 103-04 (stating that the Supreme Court has original

jurisdiction of the disciplinary petition). The Supreme Court then appoints an active district

judge who does not live within the administrative judicial district in which the respondent resides

to preside in the case, and a copy of the appointment order is transmitted to the chief disciplinary

counsel. TEX.RULES DISCIPLINARY P. 3.02. After the trial judge has been appointed, the chief

disciplinary counsel must promptly file the disciplinary petition with the district clerk of the

county of alleged venue. TEX.RULES DISCIPLINARY P. 3.03. Disciplinary actions are civil in

nature and the Texas Rules of Civil Procedure apply unless the Rules of Disciplinary Procedure

require a different procedure. TEX.RULES DISCIPLINARY P. 3.08(A), (B).

                                       No Adequate Remedy?

          We consider first whether Caballero has an adequate remedy by appeal. It is undisputed

that Caballero will be able to appeal the final judgment of the trial court.            TEX.RULES

DISCIPLINARY P. 3.16 (providing that a final judgment of the district court may be appealed as in

civil cases generally). But that does not mean that the ability to appeal is an adequate remedy.

The Supreme Court has recognized that the operative word, “adequate,” has no comprehensive

definition.     Prudential, 148 S.W.3d at 136.        The term demands a careful balance of

jurisprudential considerations that determine when appellate courts will use original mandamus

proceedings to review the actions of lower courts. Id. These considerations implicate both

public and private interests. Id. Mandamus relief will not be granted when the law provides



                                                -9-
another plain, adequate, and complete remedy. In re Texas Dept. of Family and Protective

Services, 210 S.W.3d 609, 613 (Tex. 2006); In re Prudential, 148 S.W.3d at 136.

       While a final judgment of the district court in a disciplinary action is appealable pursuant

to Rule 3.16, Caballero is not permitted to supersede that judgment if the court disbars her.

TEX.RULES DISCIPLINARY P. 3.14 (providing that a district court judgment of disbarment cannot

be superseded or stayed). The judgment can only be stayed in the event of a judgment of

suspension, and even then, only if the respondent attorney petitions the court and carries the

burden of proving that the respondent’s continued practice of law does not pose a continuing

threat to the welfare of the respondent’s clients or the public. Id. If the trial court disbars

Caballero or suspends her license to practice law and refuses to stay the judgment during the

pendency of an appeal, Caballero will be harmed even if it is subsequently determined that the

trial court abused its discretion by refusing to enter the agreed judgment in accordance with the

parties’ settlement of the disciplinary action. We conclude that the remedy offered by direct

appeal is inadequate and incomplete.

                                   Clear Abuse of Discretion?

       A trial court clearly abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error. Walker v. Packer, 827 S.W.2d 833,

839 (Tex. 1992). With respect to resolution of factual issues or matters committed to the trial

court’s discretion, the reviewing court may not substitute its judgment for that of the trial court.

Id. at 839-40. The relator must establish that the trial court could reasonably have reached only

one decision.   Id. at 840.    Review of a trial court’s determination of the legal principles

controlling its ruling is much less deferential. Id. A trial court has no discretion in determining

what the law is or applying the law to the facts even when the law is unsettled. In re Prudential,



                                               - 10 -
148 S.W.3d at 135. Consequently, a clear failure by the trial court to analyze or apply the law

correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840. The question is not

whether Judge Gilles abused his discretion. In this context, the specific question is whether the

rules accorded Judge Gilles any discretion to reject the agreement.

       The parties raise a number of arguments and counter-arguments, but we believe there are

four primary issues presented by the mandamus petition: (1) whether the agreed judgment

signed by the parties is a valid Rule 11 agreement; (2) whether the Commission validly withdrew

its consent to the Rule 11 agreement; (3) whether performance of the agreement is impossible

due to the passage of time and change in circumstances; and (4) whether the trial court had

discretion to reject or disapprove the Rule 11 agreed judgment because this is a disciplinary

proceeding. A Rule 11 agreement must be in writing and signed and filed with the court unless it

is made in open court. See TEX.R.CIV.P. 11. The filing requirement creates the imprimatur of a

court record. ExxonMobil Corporation v. Valence Operating Company, 174 S.W.3d 303, 309

(Tex.App.--Houston [1st Dist.] 2005, pet. denied). A settlement agreement must comply with

Rule 11 to be enforceable. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); Broderick v.

Kaye Bassman International Corp., 333 S.W.3d 895, 904-05 (Tex.App.--Dallas 2011, no pet.).

A trial court has a ministerial duty to enforce a valid Rule 11 agreement. Fortis Benefits v.

Cantu, 234 S.W.3d 642, 651 (Tex. 2007); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex.

1996); In re Guardianship of White, 329 S.W.3d 591, 592 (Tex.App.--El Paso 2010, no pet.).

                     Was the Agreed Judgment a Valid Rule 11 Agreement?

       It is undisputed that the agreed judgment is in writing and signed by both the

Commission and Caballero. The Commission argues, however, that the agreed judgment signed

by the parties was not filed with the El Paso County District Clerk until November 21, 2012.



                                              - 11 -
While Rule 11 requires the writing to be filed in the court record, it does not say when it must be

filed. Padilla, 907 S.W.2d at 461. The purpose of the filing requirement is to put the agreement

before the court. Id. The trial court faxed a letter to the parties on November 19, 2012 which

stated in part that: “The Court has received the proposed judgment reflecting the contemplated

settlement in the above-styled and numbered cause. The Court will not accept the settlement

proposed by counsel.” The only reasonable conclusion that can be drawn from the letter is that

the agreed judgment signed by the parties was put before the court and presented for his

signature. There is no evidence that the Commission withdrew its consent to the Rule 11

agreement on or before November 19, 2012.          In fact, the Commission sent a letter dated

December 11, 2012 to the judge hearing the motion to recuse, and stated that it “does not dispute

an agreement between the parties as to a sanction to be imposed, but is unconvinced that

agreement is absolutely binding on Judge Gilles.” Therefore, at the time the trial court refused to

sign the agreed judgment, it was a valid Rule 11 agreement.

             Did the Commission Withdraw its Consent to the Rule 11 Agreement?

       The Commission asserts in its response and supplemental response that it no longer

consents to the Rule 11 agreement. A party has the right to revoke its consent to a Rule 11

agreement at any time before the rendition of judgment. Quintero v. Jim Walter Homes, Inc.,

654 S.W.2d 442, 444 (Tex. 1983). Withdrawal of consent must be effectively communicated to

the trial court. Baylor College of Medicine v. Camberg, 247 S.W.3d 342, 346-47 (Tex.App.--

Houston [14th Dist.] 2008, pet. denied); First Heights Bank, FSB v. Marom, 934 S.W.2d 843,

845 (Tex.App.-Houston [14th Dist.] 1996, no writ). Ordinarily, when one party withdraws

consent to a Rule 11 agreement, another party can still seek to enforce it as a contract through an

amended pleading or a counterclaim. Ford Motor Company v. Castillo, 279 S.W.3d 656, 663



                                              - 12 -
(Tex. 2009); Padilla, 907 S.W.2d at 461; see Kanan v. Plantation Homeowner’s Association

Inc., 407 S.W.3d 320, 334 (Tex.App.--Corpus Christi 2013, no pet.h.)(Where consent to a

Rule 11 agreement has been withdrawn, a court may enforce it through a separate breach of

contract claim). Generally, these rules are applied in cases where the trial court rendered

judgment pursuant to a Rule 11 agreement and one party is claiming that it withdrew its consent

to the agreement, but we believe they must be applied in this case where the partial summary

judgment granted by the trial court is contrary to the Rule 11 agreement.

        There is no evidence in the mandamus record that the Commission ever took any steps in

the trial court to withdraw its consent to the Rule 11 agreed judgment before the trial court

granted the Commission’s motion for partial summary judgment on February 13, 2013. The

Commission asserted in its initial mandamus response that Caballero had requested that the

agreed judgment be entered in accordance with the parties’ agreement, but the Commission

“cannot agree to the entry of an agreed judgment under such circumstances” because the

beginning date of the probated suspension had already passed. In its supplemental response filed

on May 24, 2013, the Commission stated it no longer consents to the agreed judgment because

the circumstances have changed since the parties entered into the agreement.6 More specifically,

the Commission asserts that it does not agree to the amount of attorney’s fees Caballero is

ordered to pay because it has had to expend additional resources defending against the motion to

recuse Judge Gilles and against this mandamus proceeding. The Commission faults Caballero,

but it is readily apparent that it would have been unnecessary for Caballero to file the motion to

recuse or the mandamus petition had the trial court performed its ministerial duty to sign the

agreed judgment when asked to do so by the parties.


6
  This case was originally set for submission on June 6, 2013, but the court vacated the setting. The supplemental
response was filed less than two weeks before that date.

                                                     - 13 -
       We have found no cases holding that withdrawal of consent to a Rule 11 agreement can

be effectively done for the first time in a mandamus proceeding. Significantly, the Commission

did not withdraw its consent until after the trial court had granted partial summary judgment

contrary to the Rule 11 agreement. The only issue remaining to be determined by the trial court

is determination of the sanction. The Commission’s withdrawal of consent at this late hour and

in this forum prejudices Caballero because the trial court has already rendered judgment in a

manner contrary to the Rule 11 agreement. Caballero cannot seek to enforce the Rule 11

agreement through an amended pleading or counterclaim asserting a breach of contract claim.

We conclude that the Commission’s withdrawal of consent came too late because it occurred

after the trial court had already rendered judgment contrary to the Rule 11 agreement.

                          Is Performance of the Agreement Impossible?

       In its response and supplemental response, the Commission maintains that the Rule 11

agreement cannot be enforced because the date on which the probated suspension was to start

has long since passed. The Commission relies on the rule that a judgment rendered on a Rule 11

settlement agreement must be “in strict or literal compliance” with the terms recited into the

record and cannot remove or add material terms. See Chisholm v. Chisholm, 209 S.W.3d 96, 98

(Tex. 2006). It argues, in effect, that the starting and ending dates of the probated suspension are

material terms of the agreement.

       Rule 11 agreements are contracts relating to litigation and are subject to general rules of

contract construction.   Trudy’s Texas Star, Inc. v. City of Austin, 307 S.W.3d 894, 914

(Tex.App.--Austin 2010, no pet.). Our primary objective in construing a written contract is to

ascertain and give effect to the intentions the parties have objectively manifested in the written

instrument. Trudy’s Texas Star, 307 S.W.3d at 914, citing Frost National Bank v. L & F



                                               - 14 -
Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005). Contract terms are given their plain,

ordinary, and generally accepted meanings, and contracts are to be construed as a whole in an

effort to harmonize and give effect to all provisions of the contract. Trudy’s Texas Star, 307

S.W.3d at 914, citing Valence Operating Company v. Dorsett, 164 S.W.3d 656, 663 (Tex. 2005).

If a contract can be given a certain or definite legal meaning or interpretation, it is not ambiguous

and is construed as a matter of law. Trudy’s Texas Star, 307 S.W.3d at 914, citing Coker v.

Coker, 650 S.W.2d 391, 393 (Tex. 1983).

       Generally, time of performance is not a material term of an agreement. Deep Nines, Inc.

v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex.App.--Dallas 2008, no pet.); Shaw v. Kennedy, Ltd.,

879 S.W.2d 240, 246 (Tex.App.--Amarillo 1994, no writ). The fact that a contract states a date

for performance does not, in itself, mean that time is of the essence. Breof BNK Texas, L.P. v.

D.H. Hill Advisors, Inc., 370 S.W.3d 58, 64 (Tex.App.--Houston [14th Dist.] 2012, no pet.);

Shaw, 879 S.W.2d at 246. For timely performance to be a material term, the contract must

expressly provide that time is of the essence or there must be something in the nature of the

subject matter or connected with the purpose of the contract and the circumstances surrounding it

which makes it apparent that the parties intended that the contract be performed at or within the

time specified. Deep Nines, 246 S.W.3d at 846.

       The Rule 11 agreement provided that the nine-month period of probated suspension

would begin on December 1, 2012 and conclude on August 31, 2013 but it does not clearly

manifest that the parties intended for time to be of the essence. Further, we do not perceive

anything in the nature of a disciplinary hearing or the circumstances surrounding the Rule 11

agreement to make it apparent that the parties intended for time to be of the essence. The

material terms of the Rule 11 agreement are that Caballero’s license to practice law would be



                                               - 15 -
suspended for nine months, the suspension would be fully probated, and she would pay the

Commission $1,000 as attorney’s fees.

       Did the Trial Court Have Discretion to Approve or Reject the Rule 11 Agreement?

       The Commission cites State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994)

as authority for its position that the trial court has broad discretion to determine the appropriate

sanction for professional misconduct. Kilpatrick certainly states that the trial court has broad

discretion to determine whether an attorney guilty of professional misconduct should be

reprimanded, suspended, or disbarred. Id. But it did not involve a situation where the trial court

rejected a Rule 11 settlement agreement so we do not read it to stand for the proposition that a

trial court has authority or discretion to reject such an agreement between the parties.

       Texas law strongly favors and encourages voluntary settlement and orderly dispute

resolution. Wright v. Sydow, 173 S.W.3d 534, 551 (Tex.App.--Houston [14th Dist.] 2004, pet.

denied), citing Schlumberger Technology Corporation v. Swanson, 959 S.W.2d 171, 178 (Tex.

1997). In Hernandez v. Telles, this court noted that “[t]he law has always favored the resolution

of controversies through compromise and settlement rather than through litigation and it has

always been the policy of the law to uphold and enforce such contracts if they are fairly made

and are not in contravention of some law or public policy.” Hernandez v. Telles, 663 S.W.2d 91,

93 (Tex.App.--El Paso 1983, no writ).         This strong public policy in favor of voluntary

settlements is reflected in Section 154.002 of the Civil Practice and Remedies Code:

       It is the policy of this state to encourage the peaceable resolution of disputes, with
       special consideration given to disputes involving the parent-child relationship,
       including the mediation of issues involving conservatorship, possession, and
       support of children, and the early settlement of pending litigation through
       voluntary settlement procedures.




                                               - 16 -
TEX.CIV.PRAC.&REM.CODE ANN. § 154.002 (West 2011). Further, it is the responsibility of all

trial and appellate courts and their court administrators to carry out the policy under Section

154.002. TEX.CIV.PRAC.&REM.CODE ANN. § 154.003.

        The Rules of Disciplinary Procedure address the policy embodied in Chapter 154 in two

instances. First, in a case where the respondent attorney has elected to have the complaint heard

by an Evidentiary Panel, Rule 2.17(K) provides that the panel chair, upon motion or otherwise,

may order the Commission and the respondent attorney to participate in mandatory alternative

dispute resolution as provided by Chapter 154. TEX.RULES DISCIPLINARY P. 2.17(K).7 Second,

in a case where the respondent attorney has elected to have the complaint heard in the district

court, Rule 3.08(G) states that it is the policy of the Commission to participate in alternative

dispute resolution procedures where feasible, but disciplinary actions are exempt from any

requirement of mandatory alternative dispute resolution procedures under Chapter 154 of the

Civil Practice and Remedies Code or as otherwise provided by law. TEX.RULES DISCIPLINARY P.

3.08(G).8

        We have found no cases holding that a trial court has discretion in every civil case to

approve or reject a settlement agreement entered into by the parties. There are a few instances

where approval of a settlement agreement is required. Approval of settlement agreements

entered into by the guardian to settle a personal injury suit is required in the guardianship

context.    See In re Guardianship of DeLuna, 286 S.W.3d 379, 384-86 (Tex.App.--Corpus

Christi-Edinburg 2008, orig. proceeding). The Texas Rules of Civil Procedure require trial court


7
   The respondent attorney is required to make an election whether he or she seeks to have a complaint heard in
district court or by an evidentiary panel of the grievance committee. TEX. RULES DISCIPLINARY P. § 2.15.
8
   In an evidentiary hearing under Rule 2.17, the chair of the Evidentiary Panel, upon motion made or otherwise,
may order the Commission and the respondent attorney to participate in mandatory alternative dispute resolution
under Chapter 154 or as otherwise provided by law when deemed appropriate. TEX. RULES DISCIPLINARY P. §
2.17(K).

                                                    - 17 -
approval of a settlement or compromise agreement in a class action. TEX.R.CIV.P. 42(e)(1)(a)

(providing that “[t]he court must approve any settlement, dismissal, or compromise of the claims,

issues, or defenses of a certified class.”). Under Federal Rule of Civil Procedure 23.1(c), a

shareholder derivative action may be settled, voluntarily dismissed, or compromised only with

the court’s approval.   FED.R.CIV.P. 23.1(c).     The Federal Rules of Bankruptcy Procedure

authorize the bankruptcy court, upon motion of the trustee, to approve a settlement or

compromise of a debtor’s claim. FED.R.BANK.P. 9019(a).

       Some states and the District of Columbia require judicial approval of the settlement of

attorney discipline matters. See e.g., Kentucky Bar Association v. Robinson, 386 S.W.3d 739,

743-44 (Ky. 2012)(discussing Kentucky’s Supreme Court Rule 3.480(2) which permits the

Supreme Court to consider negotiated sanctions and provides specific procedures for the

attorney, bar counsel, and the trial commissioner to follow; the Supreme Court may approve the

negotiated sanction or remand the case for hearing or other proceedings); In re Fling, 44 A.3d

957, 957-58 (Ct.App. D.C. 2012)(approving a petition for negotiated attorney discipline made

pursuant to D.C. Bar R. XI, § 12.1); In re Hanna, 657 S.E.2d 766, 767 (S.C. 2008)(in attorney

disciplinary proceedings, the attorney and South Carolina’s Office of Disciplinary Counsel

sought judicial approval of agreement for discipline by consent).

       The Texas Rules of Disciplinary Procedure do not provide procedures for the settlement

of a disciplinary action nor do the rules require judicial approval of the settlement agreement.

Consequently, we return to the procedural hierarchy established by the rules. In so doing we

reiterate what we noted at the outset. The language requiring the judge to determine sanctions

and enter judgment relates to the procedure for trial on the merits and does not relate to




                                              - 18 -
settlement agreements.     These procedural specifications neither contemplate nor define the

discretion of the trial court to reject a Rule 11 agreement.

       We also must emphasize that stare decisis results in predictability in the law, which

allows people to rationally order their conduct and affairs.         Grapevine Excavation, Inc. v.

Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000). There is evidence in the mandamus record that

the Commission entered into a similar Rule 11 settlement agreement with Relator’s co-counsel in

the criminal trial who had also been held in contempt, but a different judge was assigned to hear

that disciplinary proceeding. In contrast with what happened here, the trial judge in co-counsel’s

case signed the agreed judgment. Application in disciplinary proceedings of the established rule

that a trial court has a ministerial duty to enforce a Rule 11 settlement agreement promotes

consistency, fairness, and predictability.

       Because we conclude that the trial court had a ministerial duty to sign the parties’ Rule 11

agreed judgment, we sustain Issues One through three.          Having found that Caballero has

established her entitlement to mandamus relief, we conditionally grant her petition for writ of

mandamus and order the trial court to vacate the partial summary judgment entered on

February 13, 2013 and to enter judgment in accordance with the parties’ agreement as to the

material terms. We are confident the trial court will comply and the writ will issue only if it does

not.


April 23, 2014
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, J., and Barajas, C.J. (Senior Judge)
Barajas, C.J. (Senior Judge), sitting by assignment
Rivera, J., dissenting




                                                - 19 -
