      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00167-CV



                             Kristofer Thomas Kastner, Appellant

                                                v.

                           Texas Board of Law Examiners, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-GN-09-000548, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is an appeal from the district court’s judgment affirming a December 17, 2008

order of the Texas Board of Law Examiners (“the Board”). The issue on appeal is whether the

Board’s order, in which the Board determined that appellant does not possess the present good moral

character and fitness for admission to the practice of law in Texas, is supported by substantial

evidence. Finding that the Board’s order is supported by substantial evidence, we will affirm the

trial court’s judgment.


                                        BACKGROUND

               Appellant Kristofer Thomas Kastner (“Kastner”) applied for admission to practice

law in the State of Texas in 1999. After a hearing, the Texas Board of Law Examiners issued its

January 2000 written order finding that Kastner did not possess the present good moral character or

fitness required for admission to the Bar; the Board further determined that he suffered from
chemical dependency. The Board ordered that Kastner could petition for redetermination of his

character and fitness no earlier than July 19, 2001. Kastner did not appeal or seek judicial review

of this order, and it became final. See Tex. R. Gov. Bar Admis. XV(k)(1). Thus, he may not attack

the January 2000 order in this suit for review of the December 2008 order.

                In June 2005, Kastner filed a Supplemental Investigation form and what he termed

an “Affidavit Addressing TBLE Order.” He requested the opportunity to show that he had satisfied

the curative measures specified in the January 2000 order. The Board staff investigated and, on

October 18, 2005, issued a Preliminary Determination Letter indicating that Kastner still did not

satisfy the requirements of good moral character and fitness and that he had failed to satisfy at least

four curative measures stated in the January 2000 order.

                Kastner requested a hearing, which was originally scheduled for August 2006. The

Board sent Kastner a notice letter which set out the issues to be considered at the hearing, including

whether he could establish that he had been rehabilitated from the problems noted in the January

2000 order and whether he had complied with the curative measures detailed in the order. For a

variety of reasons, including the need for time for additional investigation into the issues, the hearing

was continued and rescheduled for November 24, 2008. A letter from the Board’s counsel to Kastner

contained details on what would be addressed at the hearing. At Kastner’s request, on November

10, 2008, the Board staff provided him supplemental written notice identifying specific issues to be

addressed concerning his character and fitness, including matters and incidents occurring since the

original notice letter in 2005.




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                The hearing was held November 24, 2008. The Board issued its written order

December 17, 2008. The Board found from the evidence that Kastner had not complied with a

number of curative measures it had directed him to complete; that certain of his conduct is indicative

of dishonesty, a lack of trustworthiness in carrying out responsibilities, and a lack of respect for the

law; and that Kastner lacked the present good moral character or fitness required for admission to

practice law in Texas. The Board further concluded that there was a clear and rational connection

between these shortcomings and Kastner’s history of mental instability and personality disorder,

finding it likely that, if licensed, Kastner would harm a client, obstruct the administration of justice,

or violate the Texas Disciplinary Rules of Professional Conduct. The Board also concluded that

there was a clear and rational connection between Kastner’s history of mental instability and

personality disorder and the likelihood that, if licensed, Kastner would fail to carry out his duties to

clients, courts, or the profession, or harm a client, obstruct the administration of justice, or violate

the Texas Disciplinary Rules of Professional Conduct.


                                    STANDARD OF REVIEW

                An applicant for admission to the bar is entitled to judicial review of a negative

character determination by the Board. See Tex. Rules Govern. Bar Adm’n R. XV(k) (West 2008);

Board of Law Exam’rs v. Coulson, 48 S.W.3d 841, 844 (Tex. App.—Austin 2001, pet. denied).

When the matter involves a redetermination of the applicant’s character and fitness, the applicant

and not the Board has the burden to demonstrate that he has been rehabilitated and that he currently

possesses the present good moral character and fitness to practice law. Tex. Rules Govern. Bar

Adm’n R. XV(j)(2) (West 2008). The Board’s decision is reviewed under a substantial evidence

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standard; the reviewing court may either affirm the Board’s determination if it is reasonably

supported by substantial evidence or remand the matter to the Board. See id. R. XV (k)(5); Coulson,

48 S.W.3d at 844. An applicant complaining of the Board’s decision has the burden of showing a

lack of substantial evidence in the record. Unglaub v. Board of Law Exam’rs, 979 S.W.2d 842, 845

(Tex. App.—Austin 1998, pet. denied). The findings, inferences, conclusions, and decisions of an

administrative agency are presumed to be supported by substantial evidence, and the burden is on

the one complaining to prove otherwise. Texas Health Facilities Comm’n v. Charter Med.-Dallas,

Inc., 665 S.W.2d 446, 452 (Tex. 1984).

               When reviewing a decision for substantial evidence, the test is “whether the evidence

as a whole is such that reasonable minds could have reached the conclusion that the agency must

have reached in order to justify its action.” Texas State Bd. of Dental Exam’rs v. Sizemore,

759 S.W.2d 114, 116 (Tex. 1988). We consider only the record on which the Board relied in

reaching its decision and will not substitute our judgment for that of the Board. Coulson, 48 S.W.3d

at 844. Our review requires that there be more than a scintilla of evidence, but the evidence may

actually preponderate against the decision of the Board and still amount to substantial evidence. Id.

If reasonable minds could have reached the conclusion reached by the Board on the record

presented, the appellate court must uphold the Board’s decision. Board of Law Exam’rs v. Stevens,

868 S.W.2d 773, 778 (Tex. 1994).


                                          DISCUSSION

               The Texas Government Code provides that the Board cannot recommend denial of

a law license to an applicant on the grounds of moral character and fitness unless the Board finds a

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clear and rational connection (1) between the applicant’s character trait and the likelihood that

applicant would injure a client or obstruct the administration of justice if licensed, or (2) between

the applicant’s present mental or emotional condition and the likelihood that the applicant will not

properly discharge the responsibilities to a client if licensed. Tex. Gov’t Code Ann. § 82.028 (West

2005). The rules promulgated by the Texas Supreme Court incorporate these statutory provisions

and further expand on the basis and purpose of good moral character and fitness requirements. See

Tex. Rules Govern. Bar Adm’n R. IV(b), (c). The Texas Disciplinary Rules of Professional Conduct

also guide the Board’s licensing determination in assessing the state’s interest in protecting

prospective clients and the Texas system of justice. Stevens, 868 S.W.2d at 777.

               The Board’s January 2000 order directed Kastner to perform or refrain from a number

of curative measures in order to demonstrate his good moral character and fitness to practice law.

Among these, he was required to commit no offense against the laws of Texas or any other state, to

maintain suitable employment, to conduct his business and personal dealings in an ethical manner,

to abstain from using alcohol or any mind-altering drug, and to attend meetings of Alcoholics

Anonymous and keep records of attendance. At the November 24, 2008 hearing, it was Kastner’s

burden to prove his rehabilitation and possession of present good moral character and fitness. The

record reflects that he had not met the Board’s requirements and contains substantial evidence of

these and additional matters that support the Board’s unfavorable finding with respect to his request

for redetermination.




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               Kastner attempts to assert a number of complaints on appeal, which he terms “Issues

Presented,” all of which he combines in one paragraph set out below in the manner exactly as

written:


       The Texas Board of Law Examiners committed egregious and intentional error in the
       case and denied Kristofer Thomas Kastner due process and due course of law.
       insufficient time to argue the case. There was a failure of notice and failure to meet
       Texas Government Code 82.08. The 2008 order contained falsity and inaccuracy
       BLE ignored fact and law for the cases which were found in the record. BLE fails
       to meet any standards for failure to work or work at a law firm, miscounted the
       Guttermaxx case and ignored the law on whether Kastner can says he is a lawyer.
       BLE falsely alleged Kastner attempted to alter his medical records and that he failed
       to produce medical records. The testimony of Charles Covert should not have been
       allowed or found in the order. In total, BLE has issued a false order based on a gross
       violation of Kristofer Thomas Kastner’s rights.


               The purpose of the November 2008 hearing was to determine whether Kastner could

show that he had complied with the Board’s 2000 order and could demonstrate that he possessed the

present good moral character and fitness to practice law. The Board failed to find that Kastner had

met this burden and, in fact, found that Kastner did not possess the required criteria. We will

interpret Kastner’s issues to be an attempt to complain that the Board’s December 2008 order was

not supported by substantial evidence.

               The Board’s 2000 order required that Kastner commit no offense against the laws of

Texas, any other state, or the United States. The record includes the following evidence. Kastner

was arrested in Colorado on February 14, 2001 for driving under the influence, driving without a

valid Colorado license, obstructing a peace officer, and having an unattended vehicle. Kastner

pleaded guilty to driving under the influence and obstructing a peace officer and was placed



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on probation for six months. He was arrested in Houston on December 7, 2002 for driving

while intoxicated. He pleaded guilty and his sentence was assessed at 180 days in jail, probated for

two years. He later violated the terms of his probation, to which violations he pleaded true, and his

probation was revoked. On January 7, 2005, he was arrested, and on January 8th he was charged

with criminal trespass at his mother’s home in Harris County. The state moved to dismiss the

charges at his mother’s request, which the court granted, but he was subjected to a sixty-day

restraining order containing a finding that he had been charged with family violence. While in Harris

County jail in July of 2007, Kastner was charged with felony assault on a public servant, for which

he later pleaded no contest in district court to the reduced charge of Class A misdemeanor assault

with bodily injury. The evidence before the court substantiated Kastner’s guilt, but the court

deferred a finding of guilt and placed him on community supervision for two years. He did not

submit to the Board proof that he had paid the fines and fees associated with the assault case. He was

on probation at the time of the hearing in November 2008.

               The Board had ordered Kastner in 2000 to work faithfully at suitable employment as

far as possible. Kastner was unemployed a majority of the time during 2001 through 2004. Kastner

was employed at Guttermaxx in Houston when, on January 19, 2006, he was terminated for

insubordination for threatening his boss and calling him names. He had previously been warned for

similar conduct. The record shows that Kastner had not worked for a law firm or for any employer

involving the practice of law, or attended any continuing legal education, since 1999.

               The Board’s 2000 order required Kastner to conduct his business and personal

dealings in such a way as to avoid the appearance of sacrificing ethical behavior in the interest of



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personal gain. The record reflects that Kastner filed a civil action pro se representing to that court

that he is a lawyer, which he is not, and asking for damages to his law license, which he does not

possess. He claimed to be a lawyer at his November 2008 hearing. In other civil litigation, he

requested his treating physician, Dr. Charles Covert, to alter his medical records before Kastner

produced them to the opposing party: “. . . destroy the old record and re-write the record without the

reference.” Further, he was sanctioned by a Harris County district court for discovery abuse and

ordered to pay attorney’s fees to the Attorney General. He also had filed several actions against the

Board, at least one of which had been dismissed as frivolous by a federal court.1

               In its 2000 order, the Board ordered Kastner to abstain from using alcohol and

mind-altering drugs. The record shows that he was arrested in Harris County on December 7, 2002.

He had just left a bar and had consumed alcohol. His breathalyzer test revealed blood alcohol levels

of .217 and .218. On February 26, 2001, he was admitted to a hospital in Colorado for treatment and


       1
         We note for information only that this Court decided two other cases involving Kastner on
August 18, 2011: Kastner v. Texas Bd. of Law Exam’rs, Nos. 03-10-00355-CV & 03-10-00462-CV;
2011 WL 3659146 (Tex. App.—Austin Aug. 18, 2011, no pet. h.) (mem. op.). Both opinions
include the following:

       For the past decade, Kastner has been litigating claims against the State, the board
       of law examiners, and several of the board’s present and former members, executive
       directors, and employees alleging they have violated various constitutional and
       statutory requirements in refusing to issue him a law license, despite his having
       passed the bar in 1999, based on the moral character and fitness requirement. These
       and similar complaints—including claims concerning Kastner’s alleged
       indigence—have been litigated in numerous federal and state courts including this
       one. On March 2, 2010, the district court declared Kastner a vexatious litigant. See
       Tex. Civ. Prac. & Rem. Code Ann. § 11.051-.54 (West 2002).

Id. at *1. This information was not in the Board’s record, and we do not rely on it in deciding this
appeal.

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was diagnosed with alcohol intoxication and withdrawal. His blood alcohol level was .454. Kastner

informed the hospital staff that he had been drinking almost two liters of alcohol the last four days

and he did this every six to eight months. He also stated that he has depression and suicidal thoughts

that occur when he is “delirium tremoring from alcohol.” In medical treatment he had been advised

not to drink at all. He drank alcohol on at least six occasions since his hospital release in 2002. At

the 2008 hearing, he admitted that in the Board’s supplemental investigation form he had admitted

that he had been addicted to alcohol and that he had been treated for bipolar disorder in connection

with alcohol use. He stated in a sworn affidavit in 2005, “I have not remained abstinent from alcohol

or mind-altering drugs since September of 1999.” He admitted that he had not attended Alcoholics

Anonymous meetings with the frequency directed, and he did not keep attendance records. In his

“Affidavit of Abstinence” submitted to the Board in 2008, he stated, “I will not rule out wine for

health reasons or for the experience of fine wine or champagne later in life.”

               The Board had ordered Kastner to attend Alcoholics Anonymous (“AA”) meetings

at least twice a week and to document his attendance. The record does not reflect that Kastner

complied. He admittedly did not do so.

               In August 2001, Kastner submitted to a psychiatric evaluation by Dr. Charles Covert,

a psychiatrist licensed in Texas. Kastner admitted alcoholism, drug abuse, and liver disease.

Dr. Covert determined that Kastner suffered from alcohol dependence, alcohol-induced psychotic

disorder, polysubstance dependence, and Bipolar I disorder. Dr. Covert diagnosed Kastner as having

antisocial personality disorder, with features including passive-aggressive, self-defeating, sadistic,

and paranoid personality traits. At the December 2008 hearing, Dr. Covert testified at length.



                                                  9
According to Dr. Covert, Kastner’s personality disorder is incurable and untreatable. He reviewed

records of Kastner’s behavior from their first visit until October 2007; Dr. Covert believed those

records confirmed and were consistent with his earlier diagnosis.

               In its October 18, 2005 preliminary determination letter to Kastner, the Board

directed Kastner to provide copies of his treatment records from another one of his doctors,

Dr. Bernard Rosenberg. The Board also directed him to obtain a current psychiatric assessment and

review by a psychiatrist approved by the Board. The record reflects that he did not comply with

these directives.

               We have attempted to decipher and address Kastner’s arguments on appeal. Our

review of the record leads to the conclusion that none of Kastner’s complaints has merit.

               Kastner argues that the curative measures suggested by the Board were permissive,

not mandatory; therefore, failure to comply should not be considered. Further, he contends that the

2005 preliminary determination was “too dated to be of current value.” He complains that he was

not given notice of what was to be addressed at the November 24th hearing, that he was prevented

from calling a witness, and that he was given insufficient time to argue his case; further, he directs

many of his complaints to the January 2000 order of the Board, which is final and not subject to

collateral attack, and events before that order. Kastner also attempts among other things to explain

away his criminal history, lack of work history, termination from Guttermaxx and litigation related

to the termination, and what he views as improper trial court rulings with respect to discovery

sanctions in a civil case. Kastner also insists that “a person can be an attorney before being

licensed.” “[A] man with the title juris doctor who passed the state ethics and academic bar



                                                 10
examinations, in representing himself can call himself a lawyer.” He further argues that his “citation

in litigation, of damages to his law license is true.”

                As for his alcohol consumption, chemical dependency, lack of AA attendance, mental

health issues, and related medical records, Kastner offers arguments, explanations, and excuses. He

also attacks the testimony of Dr. Covert, claiming that the Board abused its discretion in calling

Dr. Covert to testify and that the doctor based his testimony on false and incomplete information

provided him by the Board. He also contends that the diagnoses relating to his alcohol dependence

were out of date. He argues that he provided the Board with medical records of a Dr. Rosenberg,

which are not in the record and which the Board refutes, but that in any event he provided

Dr. Rahm Bailey’s records, a physician he visited only once, and whose brief report does not address

any information relating to Kastner’s mental fitness.

                The Board found that Kastner had not met the curative criteria it had directed in its

January 2000 order. The Board found that Kastner had not met the directives in its October 18, 2005

preliminary determination letter. Altogether, the Board made thirty-seven extensive and specific

findings based upon Kastner’s actions and conduct since the January 2000 order. In many of these,

the Board found that Kastner’s conduct was indicative of dishonesty, a lack of trustworthiness in

carrying out responsibilities, a lack of respect for the law, a lack of good moral character, and mental

instability. The Board then made five conclusions of law based upon its findings. Ultimately, the

Board determined that Kastner does not possess the present good moral character or fitness required

for admission to the practice of law in Texas. We hold that substantial evidence in the record

supports all the Board’s findings and conclusions.



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                                            CONCLUSION

                We must give appropriate deference to the Board’s determination of whether there

is a clear and rational connection between Kastner’s failure to meet his obligations under previous

Board orders, his conduct since that time, and the possibility of harm to future clients or the

obstruction of justice; we must affirm if there is substantial evidence supporting the Board’s

decision. See Stevens, 868 S.W.2d at 778. We hold that substantial evidence in the record supports

the Board’s December 2008 order finding that Kastner does not currently possess the present good

moral character or fitness required for admission to the practice of law in Texas. We hold that

substantial evidence in the record supports the Board’s conclusion that there is a clear and rational

connection between Kastner’s dishonesty, lack of trustworthiness in carrying out responsibilities,

lack of respect for the law, and the likelihood that Kastner would harm a client, obstruct the

administration of justice, or violate the Texas Disciplinary Rules of Professional Conduct if the

Board were to approve his good moral character and fitness. We hold that substantial evidence in

the record supports the Board’s conclusion that there is a clear and rational connection between

Kastner’s history of mental instability and personality disorder and the likelihood that he would fail

to carry out his duties to clients, courts, or the profession or harm a client, obstruct the administration

of justice, or violate the Texas Disciplinary Rules of Professional Conduct if the Board were to

approve his good moral character and fitness.

                We overrule Kastner’s points of error and affirm the trial court’s judgment.




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                                             _____________________________________________

                                             Marilyn Aboussie, Justice

Before Justices Puryear, Rose and Aboussie*

Affirmed

Filed: August 31, 2011

* Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code Ann. § 74.003(b) (West 2005).




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