                                                                                        ACCEPTED
                                                                                    03-15-00007-CV
                                                                                            5478951
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                               5/29/2015 4:41:03 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                          NO. 03-15-00007-CV
                  __________________________________
                                                                   FILED IN
                                                            3rd COURT OF APPEALS
                  IN THE THIRD COURT OF APPEALS                 AUSTIN, TEXAS
                           AUSTIN, TEXAS                    5/29/2015 4:41:03 PM
                  _________________________________           JEFFREY D. KYLE
                                                                    Clerk
                                JOHN DOE
                                 Appellant

                             V.
     BOARD OF DIRECTORS OF THE STATE BAR OF TEXAS,
COMMISSION FOR LAWYER DISCIPLINE; AND LINDA ACEVEDO, IN
HER OFFICIAL CAPACITY AS THE CHIEF DISCIPLINARY COUNSEL
               OF THE STATE BAR OF TEXAS
                          Appellees
               ______________________________

   On Appeal from the 126th Judicial District Court of Travis County, Texas
                      Cause No. D-1-GN-14-001635
                   ______________________________

                     APPELLANT’S REPLY BRIEF
                    ______________________________

WEST, WEBB, ALLBRITTON & GENTRY,         GAINES WEST
P.C.                                     State Bar No. 21197500
1515 Emerald Plaza                       gaines.west@westwebblaw.com
College Station, Texas 77845
Telephone ~ (979) 694-7000               JENNIFER D. JASPER
Facsimile ~ (979) 694-8000               State Bar No. 24027026
                                         jennifer.jasper@westwebblaw.com




                    ORAL ARGUMENT REQUESTED
                                            TABLE OF CONTENTS



Index of Authorities ................................................................................................. iii

I. Rule 2.16 ................................................................................................................. 1

II. Sovereign Immunity Does Not Bar Doe’s Claims ................................................ 2

         A. Appellees cannot validly apply Rule 2.16 to Doe ...................................... 2

         B. Doe properly asserts an ultra vires claim against the CDC ........................ 5

III. Statutory Immunity Does Not Bar Doe’s Claims ................................................ 3

IV. Doe’s Claims are Justiciable................................................................................ 4

         A. The trial court has the authority to grant the relief Doe Seeks ................... 4

         B. Doe does not seek an advisory opinion ...................................................... 6

Conclusion ................................................................................................................. 7

Prayer ......................................................................................................................... 7

Certificate of Compliance .......................................................................................... 8

Certificate of Service ................................................................................................. 9




APPELLANT’S REPLY BRIEF                                                                                                         ii
                                    INDEX OF AUTHORITIES

Cases

Bd. of Disciplinary Appeals v. McFall,
 888 S.W.2d 471, 472 (Tex. 1994) ......................................................................5, 6

City of El Paso v. Heinrich,
 284 S.W.3d 366, 372 (Tex. 2009) ..........................................................................3

Estate of Terrell v. Sisk,
 111 S.W.3d 274, 282 (Tex. App.—Texarkana 2003, no pet).................................4

In re State Bar of Tex.,
  440 S.W.3d 621 (Tex. 2014) ..................................................................................5

Love v. State Bar of Tex.,
 982 S.W.2d 939, 942 (Tex. App. —Houston [1st Dist.] 1998, no pet.) .................5

State Bar of Tex. v. Gomez,
  891 S.W.2d 243, 244—45, 246 (Tex. 1994)) .....................................................4, 5

State Bar of Tex. v. Jefferson,
  942 S.W.2d 575, 576 (Tex. 1997) ..........................................................................5

State v. Sewell,
  487 S.W.2d 716 (Tex. 1972) ..................................................................................5

RULES AND CODES

TEX. R. DISCIPLINARY P. 1.06L ..............................................................................2, 3

TEX. R. DISCIPLINARY P. 2.13. ...................................................................................6

TEX. R. DISCIPLINARY P. 2.16 .......................................................................... passim



APPELLANT’S REPLY BRIEF                                                                                        iii
TEX. R. DISCIPLINARY P. 15.09 ..............................................................................3, 4

TEX. DISCIPLINARY R. PROF’L CONDUCT, Preamble ¶ 8. ...........................................7

TEX. GOV’T CODE ANN. § 81.072(b)(10) ...............................................................1, 3




APPELLANT’S REPLY BRIEF                                                                                      iv
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellant, John Doe, files the following Reply Brief to respond to matters

raised by Appellees in their Amended Brief.

I.    RULE 2.16

      The underlying question in this case is whether Rule 2.16 requires

“Disciplinary Proceedings” to be kept confidential from complainants. It does not,

and because it does not, there is no authority for the CDC to deny Doe’s request for

a copy of its recommendation to the SDP.

      The express language of Rule 2.16 does not contemplate excluding

complainants. In relevant part, Rule 2.16 states, “[a]ll members and staff of the

Office of Chief Disciplinary Counsel, Board of Disciplinary Appeals, Committees,

and Commission shall maintain as confidential all Disciplinary Proceedings and

associated records . . . .” TEX. R. DISCIPLINARY P. 2.16. Rule 2.16 omits any

language requiring Disciplinary Proceedings to be kept confidential from the

complainant, the very person who started the proceedings in the first place.

      Furthermore, the Texas Government Code expressly allows the complainant

to be physically present at some “Disciplinary Proceedings,” including Evidentiary

Panel proceedings. TEX. GOV’T CODE ANN. § 81.072(b)(10); see TEX. R.

DISCIPLINARY P. 1.06L (defining “Disciplinary Proceedings” to include the

proceeding before an Evidentiary Panel); see also TEX. R. DISCIPLINARY P. 2.16.



APPELLANT’S REPLY BRIEF                                                             1
      The CDC’s interpretation of Rule 2.16, as requiring “Disciplinary

Proceedings” to remain confidential from the complainant, cannot stand. This is

particularly evident because Disciplinary Proceedings include Evidentiary Panel

proceedings, before which the complainant has an express right to appear.

Because Rule 2.16 does not apply to complainants, this Court should reverse the

trial court’s dismissal and remand this case for rulings on the substantive issues

presented in Doe’s pleadings.

II.   SOVEREIGN IMMUNITY DOES NOT BAR DOE’S CLAIMS

      Appellees assert that neither exception to the doctrine of sovereign immunity

applies. See APPELLEE’S BRIEF at **20–24. First, Appellees claim that Doe did

not challenge Rule 2.16’s validity. Id. at **20–22. Then, appellees claim that the

ultra vires exception does not apply because Doe seeks to compel a government

official to affirmatively perform a discretionary act. Id. at **22–24.

      A.     Appellees cannot validly apply Rule 2.16 to Doe

      Despite Appellees’ characterizations of Doe’s arguments, the issue Doe

raises is whether Rule 2.16 can be applied to him, not how Rule 2.16 is applied.

See APPELLEES’ BRIEF at **20–21. In his live pleading, and on appeal, Doe

contends that Rule 2.16 does not apply to complainants, including himself. See,

e.g., infra I. As the complainant, Doe is a participant in the proceedings, not

merely an uninvolved member of the public, so Rule 2.16 does not apply to him.



APPELLANT’S REPLY BRIEF                                                              2
See TEX. GOV’T CODE ANN. § 81.072(b)(10); TEX. R. DISCIPLINARY P. 1.06L, 2.16.

Because Rule 2.16 does not apply to Doe, the trial court erred in dismissing the

case on this ground.

       B.    Doe properly asserts an ultra vires claim against the CDC

       Doe’s claim is a proper ultra vires claim. He alleges that Linda Acevedo,

the CDC, denied him a copy of the CDC’s recommendation to the SDP, without

legal authority to do so. That is the very nature of an ultra vires claim: a

governmental official takes an action that it lacked authority to take. See, e.g., City

of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Because Rule 2.16 did

not authorize Linda Acevedo to take the action she did (withhold from Doe a copy

of the CDC’s recommendation to the SDP), she acted ultra vires, and the trial court

erred in dismissing the case on this ground.

III.   STATUTORY IMMUNITY DOES NOT BAR DOE’S CLAIMS

       Appellees argue that Rule 15.09 blankets them with immunity. APPELLEES’

BRIEF at **24–26. However, Rule 15.09 applies only to (1) individuals who are

(2) acting in the course of their official duties. TEX. R. DISCIPLINARY P. 15.09.

Because Appellees are not individuals, Rule 15.09 does not apply. Further, Doe

sued the CDC in her official capacity, which is not a lawsuit against her as an

individual. See, e.g., Estate of Terrell v. Sisk, 111 S.W.3d 274, 282 (Tex. App.—

Texarkana 2003, no pet) (noting that an official-capacity suit against a



APPELLANT’S REPLY BRIEF                                                               3
governmental employee is not a suit against the employee but against the

governmental-unit employer). But even if it were a lawsuit against her

individually, Doe alleged that she acted without legal authority, which means that

she was not acting in the course of her official duties, as is required for Rule 15.09

to provide immunity in this case. TEX. R. DISCIPLINARY P. 15.09. Thus, the trial

court erred in dismissing the case on this ground.

IV.   DOE’S CLAIMS ARE JUSTICIABLE

      Appellees argue that Doe’s claims are not justiciable because he asks the

trial court to exercise authority it does not have, and because a declaratory

judgment in this matter would be advisory because the SDP has already dismissed

his complaint. APPELLEES’ BRIEF at ** 26-31.

      A.     The trial court has the authority to grant the relief Doe seeks

      Citing the plurality in Gomez, Appellees argue that granting Doe’s requested

declarations in this case would cause the trial court to usurp the Texas Supreme

Court’s authority. APPELLEE’S BRIEF at *27 (citing State Bar of Tex. v. Gomez,

891 S.W.2d 243, 244—45, 246 (Tex. 1994)). Appellees further allege that lower

courts lack authority to interfere in disciplinary proceedings at any point in the

process. Id. at *28 (citations omitted). However, none of the cases Appellees cite

apply here because in each case, the plaintiff asked the court to either create a new

rule or obligation, or to enjoin the disciplinary proceedings. Id. at **27–28 (citing



APPELLANT’S REPLY BRIEF                                                                  4
In re State Bar of Tex., 440 S.W.3d 621 (Tex. 2014) (orig. proceeding) (finding

trial court cannot order Commission for Lawyer Discipline to turn over

investigative records); Gomez, 891 S.W.2d at 244–45, 246 (holding trial court

cannot order state bar to create a new program); State Bar of Tex. v. Jefferson, 942

S.W.2d 575, 576 (Tex. 1997) (orig. proceeding) (concluding trial court cannot

enjoin disciplinary investigative proceedings); Bd. of Disciplinary Appeals v.

McFall, 888 S.W.2d 471, 472 (Tex. 1994) (orig. proceeding) (per curiam) (finding

that trial court cannot enjoin a disciplinary suspension); State v. Sewell, 487

S.W.2d 716 (Tex. 1972) (orig. proceeding) (holding trial court cannot enjoin

disciplinary investigative proceedings).

      In the present case, Doe is not asking the court to create a new rule, institute

a new program, insert a new requirement, promulgate a new policy or regulation,

or enjoin disciplinary proceedings. Doe is merely asking the court to declare that

Rule 2.16 does not require the CDC to withhold from Doe its recommendation to

the SDP. Appellees did not cite any case holding that a trial court cannot review a

rule of disciplinary procedure. And in fact, a trial court is well within its authority

in reviewing a rule of disciplinary procedure. See, e.g., Love v. State Bar of Tex.,

982 S.W.2d 939, 942 (Tex. App. —Houston [1st Dist.] 1998, no pet.) (noting that

disciplinary rules have the force and effect of a statute and should be construed in




APPELLANT’S REPLY BRIEF                                                                   5
accordance with rules of statutory construction). Thus, the trial court erred in

dismissing the case on this ground.

      B.     Doe does not seek an advisory opinion

      Appellees argue that because the SDP has already dismissed Doe’s

complaint, any opinion in this matter would be advisory, thus, this issue is moot.

APPELLEES’ BRIEF at **29–31. However, as discussed in Doe’s opening brief, this

case satisfies the “public interest” exception to the mootness doctrine. See

APPELLANT’S BRIEF at **9–11.

      Appellees attempt to hide behind the SDP, asserting that any future

grievance Doe may file will not be “handicapped” by the CDC’s refusal to provide

a copy of its recommendation to the SDP. This is so because, Appellees contend,

the SDP, not the CDC, decides to dismiss complaints. Therefore, Appellees argue,

Doe will receive no benefit from reviewing the CDC’s recommendation.

However, it is the CDC who determines whether “just cause” exists to further

investigate a complaint, and it is the CDC who recommends dismissal to the SDP.

See TEX. R. DISCIPLINARY P. 2.13.

      Reviewing the CDC’s recommendation in this matter will provide Doe, the

complainant, with information as to why his sixteen-page complaint failed, in the

CDC’s eyes, to provide “just cause.” Such information will play a critical role in

aiding a member of the public, aggrieved by the behavior of an attorney, in



APPELLANT’S REPLY BRIEF                                                              6
adequately presenting the issues to the CDC. Therefore, an opinion in this matter

will not be advisory, and the trial court erred in dismissing the case on this ground.

                                  CONCLUSION

      “The legal profession has a responsibility to assure that its regulation is

undertaken in the public interest rather than in furtherance of parochial or self-

interested concerns of the bar . . . [n]eglect of these responsibilities compromises

the independence of the profession and the public interest which it serves.” TEX.

DISCIPLINARY R. PROF’L CONDUCT, Preamble ¶ 8. Allowing the CDC to hide its

recommendation to the SDP from the complainant violates the principles espoused

in the Preamble mentioned above. Rule 2.16 does not require such secrecy. The

trial court erred in dismissing this case on the procedural grounds raised by

Appellees.

                                      PRAYER

      Appellant John Doe prays that this Court reverse the trial court’s dismissal

and remand this case for further proceedings.




APPELLANT’S REPLY BRIEF                                                                7
                               Respectfully submitted,

                               WEST, WEBB, ALLBRITTON & GENTRY, P.C.
                               1515 Emerald Plaza
                               College Station, Texas 77845-1515
                               Telephone: (979) 694-7000
                               Facsimile: (979) 694-8000

                               By: /s Gaines West
                                 GAINES WEST
                                 State Bar No. 21197500
                                 gaines.west@westwebblaw.com
                                 JENNIFER D. JASPER
                                 State Bar No. 24027026
                                 jennifer.jasper@westwebblaw.com

                                  COUNSEL FOR APPELLANT
                                  JOHN DOE




                     CERTIFICATE OF COMPLIANCE

       I certify that this APPELLANT’S REPLY BRIEF complies with the typeface
and word-count requirement set forth in the Rules of Appellate Procedure. This
motion has been prepared, using Microsoft Word, in 14-point Times New Roman
font for the text and 12-point Times New Roman font for any footnotes. This
motion contains 1,549 words, as determined by the word count feature of the word
processing program used to prepare this document, excluding those portions of the
notice exempted by TEX. R. APP. P. 9.4(i)(1).

                                            /s Gaines West
                                            Gaines West




APPELLANT’S REPLY BRIEF                                                         8
                          CERTIFICATE OF SERVICE

       On May 29, 2015, the undersigned certifies that he served a copy of this
Brief of Appellee on the following in the manner listed below, in compliance with
Texas Rules of Appellate Procedure 9.5 and 25.1(e):

PAUL HOMBURG, III                           Via email: phomburg@texasbar.com
Disciplinary Counsel                        and Certified Mail, RRR
Office of the Chief Disciplinary Counsel
State Bar of Texas
711 Navarro, Suite 750
San Antonio, Texas 78205

Rebecca Stevens                             Via email: bstevens@texasbar.com
Disciplinary Counsel                        and Certified Mail, RRR
Office of the Chief Disciplinary Counsel
State Bar of Texas
P. O. Box 12487
Austin, Texas 78711-2487

Cynthia Canfield Hamilton                   Via email: chamilton@texasbar.com
Office of the Chief Disciplinary counsel    and Certified Mail, RRR
State Bar of Texas
P. O. Box 12487
Austin, Texas 78711-2487


                                            /s Gaines West
                                            Gaines West




APPELLANT’S REPLY BRIEF                                                             9
Board of Disciplinary Appeals v. McFall, 888 S.W.2d 471 (1994)
38 Tex. Sup. Ct. J. 110

                                                                 compliance with a supervision agreement, which required
                                                                 Smith to “remain abstinent from all alcohol and other mind
    Original Image of 888 S.W.2d 471 (PDF)                       altering drugs.”
                       888 S.W.2d 471
                   Supreme Court of Texas.                       In March of 1994, a member of the Board of Disciplinary
                                                                 Appeals observed Smith drinking alcohol in a hotel bar.
    BOARD OF DISCIPLINARY APPEALS, Relator
                                                                 The State Bar subsequently filed a motion to revoke Smith's
                      v.
                                                                 probation. At an evidentiary hearing, Smith admitted to
             The Honorable John R.                               having used alcohol while on probation. The Board of
          McFALL, Judge, Respondent.                             Disciplinary Appeals revoked the probation and suspended
                                                                 Smith from the practice of law. Smith filed a Notice of Appeal
             No. 94–0960.        |   Dec. 1, 1994.
                                                                 with this Court but did not request a stay of his suspension.
Board of Disciplinary Appeals sought writ of mandamus            The decision of the Board of Disciplinary Appeals was
to vacate district court's injunction against suspension of      affirmed on October 6, 1994.
attorney and writ of prohibition barring further proceedings
in district court. The Supreme Court held that district court    The day after filing his appeal, Smith petitioned for a
lacks jurisdiction to enjoin suspension of attorney.             Temporary Restraining Order from the 237th District Court in
                                                                 Lubbock. Judge McFall granted the Temporary Restraining
Relief granted.                                                  Order and scheduled a hearing on a temporary injunction.
                                                                 After the hearing, Judge McFall took the matter under
                                                                 advisement and extended the restraining order pending
Attorneys and Law Firms                                          further hearings. The Board of Disciplinary Appeals then
                                                                 petitioned for a writ of mandamus and a writ of prohibition.
*472 Christine E. McKeeman and Thomas H. Watkins,
Austin, for relator.                                              [2] A writ of mandamus and writ of prohibition are
                                                                 appropriate when a district court issues an order beyond
John R. McFall and Mark S. Smith, Lubbock, for respondent.
                                                                 its jurisdiction. Crouch v. Craik, 369 S.W.2d 311, 314
                                                                 (Tex.1963). The district court lacked jurisdiction under the
                                                                 Rules of Disciplinary Procedure to enjoin Smith's suspension.
          ON PETITIONS FOR WRITS OF                              Section 81.071 of the Texas Government Code provides
          MANDAMUS AND PROHIBITION                               that each attorney practicing in Texas is “subject to the
                                                                 disciplinary and disability jurisdiction of the supreme court
PER CURIAM.
                                                                 and the Commission for Lawyer Discipline, a committee
 [1] The Board of Disciplinary Appeals requests a writ of        of the state bar.” Pursuant to this authority, this court has
mandamus to vacate the district court's injunction against the   established a comprehensive system of lawyer discipline
suspension of an attorney and a writ of prohibition barring      governed by the Rules of Disciplinary Procedure.
further proceedings in that court. Because the district court
lacked jurisdiction to enjoin these disciplinary proceedings,    The rules provide for appeals directly to this Court.
we grant the requested relief.                                   TEX.R.DISCIPLINARY P. 7.11. If the appeal is
                                                                 unsuccessful, Smith may seek reinstatement in district court,
In 1992, the State Bar initiated a disability disciplinary       with a jury trial if he desires one. TEX.R.DISCIPLINARY
action against Mark S. Smith in accordance with                  P. 12.06. The rules do not, however, provide for interim
TEX.R.DISCIPLINARY P. 12.01 (1992). At a hearing                 equitable relief, and the district court did not have the power
before the District Disability Committee, Smith stipulated to    to enjoin Smith's suspension.
his disability and the Committee recommended a probated
suspension. The Board of Disciplinary Appeals accepted the       In State v. Sewell, 487 S.W.2d 716 (Tex.1972), we
recommendation and issued a Judgment Probating Disability        granted mandamus to vacate an injunction barring Grievance
Suspension, setting out the terms and conditions of Smith's      Committee proceedings, holding that an injunction by a
probation. One of the terms of Smith's probation was             district court “is an interference with the grievance procedures



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Board of Disciplinary Appeals v. McFall, 888 S.W.2d 471 (1994)
38 Tex. Sup. Ct. J. 110

                                                                  the Texas Rules of Appellate Procedure, without hearing oral
authorized by ... the State Bar Act and constitutes a clear
                                                                  argument, a majority of the court grants the writ of mandamus
abuse of discretion.” Id. at 719. We did not even reach
                                                                  and the writ of prohibition.
the question of whether an adequate remedy at law existed
because the case was one “affecting the state as a whole
and in which the orderly processes of government have been
                                                                  Parallel Citations
disturbed.” Id. (quoting *473 State v. Ferguson, 133 Tex.
60, 125 S.W.2d 272, 274 (1939)). Pursuant to Rule 122 of          38 Tex. Sup. Ct. J. 110

End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689


                                                                  Stewart W. Forbes, Forbes & Forbes, El Paso, for
    Original Image of 284 S.W.3d 366 (PDF)                        Respondent.
                    284 S.W.3d 366
                 Supreme Court of Texas.                          Philip Durst, Deats Durst Owen & Levy, P.L.L.C., Austin, for
                                                                  Amicus Curiae Texas State Association of Fire Fighters.
       The CITY OF EL PASO, et al., Petitioners,
                                                                  Kristofer S. Monson, Asst. Solicitor Gen., Austin, for Amicus
                          v.
                                                                  Curiae State of Texas.
           Lilli M. HEINRICH, Respondent.
                                                                  Opinion
              No. 06–0778. | Argued Nov.
          13, 2007. | Decided May 1, 2009.                        Chief Justice JEFFERSON delivered the opinion of the Court.

Synopsis                                                           [1] [2] [3] “Sovereign immunity protects the State from
Background: Police officer's widow brought action against         lawsuits for money damages.” Tex. Nat. Res. Conservation
city, public employee's pension fund, board of trustees of        Comm'n v. IT–Davy, 74 S.W.3d 849, 853 (Tex.2002). But
pension fund, and named individuals, alleging that board          “an action to determine or protect a private party's rights
breached its fiduciary duty by reducing her pension benefits      against a state official who has acted without legal or
by one-third, and seeking total pension benefits allegedly        statutory authority is not a suit against the State that sovereign
owed to her plus cost of living allowances. The 346th District    immunity bars.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,
Court, El Paso County, 2005 WL 4926502, Angie Barill,             405 (Tex.1997). Today we examine the intersection of these
J., denied defendants' plea to the jurisdiction. Defendants       two rules. We conclude that while governmental immunity
appealed. The Court of Appeals, 8th District, El Paso, 198         *369 generally bars suits for retrospective monetary relief, it
S.W.3d 400, Richard Barajas, C.J., affirmed, and defendants       does not preclude prospective injunctive remedies in official-
appealed.                                                         capacity suits against government actors who violate statutory
                                                                  or constitutional provisions. We affirm in part and reverse in
                                                                  part the court of appeals' judgment and remand this case to
                                                                  the trial court for further proceedings.
Holdings: The Supreme Court, Jefferson, C.J., held that:

[1] widow's declaratory judgment and injunction action
regarding pension was not barred by sovereign immunity;                                         I

[2] widow's lawsuit regarding reduction of pension did
                                                                                          Background
not implicate constitutional prohibition of bill of attainder,
ex post facto law, retroactive law, or any law impairing          Lilli M. Heinrich is the widow of Charles D. Heinrich, a
obligation of contracts; and                                      member of the El Paso Police Department who died in August
                                                                  1985 from wounds received in the line of duty. Shortly after
[3] fact questions precluded grant of plea to the jurisdiction.   Charles died, the El Paso Firemen & Policemen's Pension
                                                                  Fund began paying Heinrich monthly survivor benefits equal

Affirmed in part, reversed in part, and remanded.                 to 100% of the monthly pension her husband had earned. 1
                                                                  The parties contest how those payments were apportioned.
                                                                  The City of El Paso, the El Paso Firemen & Policemen's
Attorneys and Law Firms                                           Pension Fund (“the Fund”), the Fund's Board of Trustees
                                                                  (“the Board”), and the individual board members contend that
*368 Jennifer F. Callan, Laura P. Gordon, Asst. City Attys.,      the Fund's bylaws assigned only two-thirds of this payment
Michele Little Locke, John Lomax Anderson, El Paso, Eric          to Heinrich, the other third being paid to her on behalf of
G. Calhoun, Richard J. Pradarits Jr., Travis & Calhoun, P.C.,     her then-minor child. Heinrich, on the other hand, contends
Dallas, Robert D. Klausner, Stuart A. Kaufman, Klausner &         that, notwithstanding the bylaws, the Board voted to award
Kaufman, P.A., Plantation, FL, for Petitioners.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

her 100% of Charles' pension benefits in her own right, as         repeatedly that the Legislature is in the best position to waive
more fully explained below.                                        or abrogate immunity, “because this allows the Legislature
                                                                   to protect its policymaking function.” IT–Davy, 74 S.W.3d at
Accordingly, when in 2002 the Board reduced the monthly            854 (citations omitted) (collecting cases).
payments to Heinrich by one-third after Heinrich's son turned
23, Heinrich filed this lawsuit, alleging that petitioners         Heinrich concedes that the City, Fund, and Board enjoy
violated the statute governing the Fund by reducing her            governmental immunity from suit, but argues that because her
benefits retroactively. Heinrich sought both declaratory relief    claim alleges a reduction in her benefits that was unauthorized
and an injunction restoring Heinrich to the “status quo from       by law, it is not barred. This is so, she says, because “[p]rivate
[the] date of the illegal act.” Petitioners filed pleas to the     parties may seek declaratory relief against state officials who
jurisdiction asserting that governmental immunity shielded         allegedly act without legal or statutory authority.” Id. at
the governmental entities from suit and that the individual        855 (citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432
board members enjoyed official immunity. The trial court           (Tex.1994) (suit challenging state officials' construction of
denied the pleas, and petitioners filed an interlocutory appeal.   compulsory school-attendance law)); see also Fed. Sign., 951
                                                                   S.W.2d at 404 (“A private litigant does not need legislative
The court of appeals affirmed, holding that “a party may           permission to sue the State for a state official's violations of
bring a suit seeking declaratory relief against state officials    state law.”) (citations omitted). We explained the rationale
who allegedly act without legal or statutory authority and         behind this exception to governmental immunity in Federal
such suit is not a ‘suit against the state.’ ” 198 S.W.3d 400,     Sign:
406. The court acknowledged that, if successful, Heinrich
would be entitled to past and future benefits, but held that                    A state official's illegal or
Heinrich's suit made a valid claim for her vested right to                      unauthorized actions are not acts of
pension benefits rather than money damages. Id. at 407. We                      the State. Accordingly, an action to
granted the petition for review in order to clarify the types                   determine or protect a private party's
                                                                                rights against a state official who
of relief that may be sought without legislative consent. 2 50
                                                                                has acted without legal or statutory
Tex. Sup.Ct. J. 910 (June 22, 2007).
                                                                                authority is not a suit against the
                                                                                State that sovereign immunity bars.
                                                                                In other words, we distinguish suits
                              II                                                to determine a party's rights against
                                                                                the State from suits seeking damages.
                                                                                A party can maintain a suit to
                          Discussion
                                                                                determine its rights without legislative
                                                                                permission.
                               A
                                                                   Fed. Sign, 951 S.W.2d at 404 (citations omitted).

                     Ultra Vires Claims
                                                                    [4]     [5] On this basis, Heinrich argues that rather than
Petitioners contend that although Heinrich requests                money damages, she seeks only equitable and injunctive
declaratory and equitable relief, her claim is essentially for     relief under the Uniform Declaratory Judgment Act. That
past and future money damages, and that governmental               Act is a remedial statute designed “to settle and to afford
immunity therefore bars her suit. As we said in Reata              relief from uncertainty and insecurity with respect to rights,
Construction Corp. v. City of Dallas, “ ‘[s]overeign immunity      status, and other legal relations.” TEX. CIV. PRAC. &
protects the State from lawsuits for money damages.’ Political     REM.CODE § 37.002(b). It provides: “A person ... whose
subdivisions of the state ... are entitled to such immunity        rights, status, or other legal relations are affected by a
— *370 referred to as governmental immunity—unless it              statute, municipal ordinance, contract, or franchise may have
has been waived.” Reata, 197 S.W.3d 371, 374 (Tex.2006)            determined any question of construction or validity arising
(citations omitted); see also Wichita Falls State Hosp. v.         under the ... statute, ordinance, contract, or franchise and
Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). We have said          obtain a declaration of rights, status, or other legal relations
                                                                   thereunder.” Id. § 37.004(a). The Act, however, does not


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

enlarge a trial court's jurisdiction, and a litigant's request for   leaving no room for discretion, a suit alleging a government
                                                                3    official's violation of that law is not barred, even though it
declaratory relief does not alter a suit's underlying nature.
 *371 IT–Davy, 74 S.W.3d at 855; State v. Morales, 869               necessarily involves a contract. We explained this distinction
S.W.2d 941, 947 (Tex.1994). It is well settled that “private         in W.D. Haden Co. v. Dodgen:
parties cannot circumvent the State's sovereign immunity
                                                                                  [A]lthough [Epperson ] ar[ose] out
from suit by characterizing a suit for money damages ... as
                                                                                  of [ ] contract transaction ... [it]
a declaratory-judgment claim.” IT–Davy, 74 S.W.3d at 856
                                                                                  appears to fall into the class of cases
(citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d
                                                                                  projected by United States v. Lee, [106
838, 842 (1958)).
                                                                                  U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171

 [6] Heinrich relies on State v. Epperson, 121 Tex. 80, 42                        (1882) ]. 4 In that class of cases it is
S.W.2d 228, 231 (1931), in which we held that a suit against                      held that suits for property alleged to
a tax collector for the recovery of money (alleged to be due                      be unlawfully or wrongfully withheld
under a contract and withheld unlawfully) was not barred                          from the rightful owner by officers
by immunity. There, we noted that the tax collector had                           of the state are not suits against the
no discretion under the governing law to deny payment on                          sovereign itself and may be maintained
Epperson's contract:                                                              without permission of the sovereign.

             By legislative act the state has                        158 Tex. 74, 308 S.W.2d 838, 841 (1958). In other
             constituted the tax collector of the                    words, where statutory or constitutional provisions create an
             county its agent to receive delinquent                  entitlement to payment, suits seeking to require state officers
             taxes collected under such contract,                    to comply with the law are not barred by immunity merely
             and it is the duty of such officer                      because they compel the state to make those payments.
             to pay all fees and commissions                         This rule is generally consistent with the letter and spirit of
             lawfully incurred in the collection                     our later caselaw. In IT–Davy, we distinguished permissible
             thereof to the various parties who                      declaratory-judgment suits against state officials *372
             may be entitled thereto. Under such                     “allegedly act[ing] without legal or statutory authority”
             circumstances, the tax collector's duty                 from those barred by immunity: “In contrast [to suits not
             with reference to money belonging to                    implicating sovereign immunity], declaratory-judgment suits
             persons who are entitled under valid                    against state officials seeking to establish a contract's validity,
             contracts to receive the same from him                  to enforce performance under a contract, or to impose
             is purely ministerial. If he withholds                  contractual liabilities are suits against the State. That is
             the payment of such funds when a                        because such suits attempt to control state action by imposing
             person is lawfully entitled to receive                  liability on the State.” 74 S.W.3d at 855–56 (citations
             same, he has failed to discharge a duty                 omitted) (emphasis added).
             imposed upon him by law and his act
             is a wrongful one.                                       [7] From this rationale, it is clear that suits to require
                                                                     state officials to comply with statutory or constitutional
Epperson, 42 S.W.2d at 231. We therefore concluded that
                                                                     provisions are not prohibited by sovereign immunity, even if
although the trial court would “not possess jurisdiction to
                                                                     a declaration to that effect compels the payment of money.
enforce the specific performance of the contract relied upon
                                                                     To fall within this ultra vires exception, a suit must not
by Epperson or to award damages for any breach of said
                                                                     complain of a government officer's exercise of discretion,
contract,” Epperson's suit was “simply an action to compel an
                                                                     but rather must allege, and ultimately prove, that the officer
officer, as agent of the state, to pay over funds to a party who
                                                                     acted without legal authority or failed to perform a purely
claims to be lawfully entitled thereto.” Id.
                                                                     ministerial act. Compare Epperson, 42 S.W.2d at 231 (“the
                                                                     tax collector's duty ... is purely ministerial”) with Catalina
Thus, the rule arising out of Epperson is that while suits for
                                                                     Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706
contract damages against the state are generally barred by
                                                                     (Tex.2003) (newly elected commissioners court immune
immunity, where a statute or the constitution requires that
                                                                     from suit where it “acted within its discretion to protect
government contracts be made or performed in a certain way,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

the perceived interests of the public” in rejecting contract       Sign, 951 S.W.2d at 404 (“A private litigant does not need
approved by predecessor), and Dodgen, 308 S.W.2d at                legislative permission to sue the State for a state official's
842 (suit seeking “enforcement of contract rights” barred          violations of state law.”) (citations omitted), with IT–Davy,
by immunity in the absence of any “statutory provision             74 S.W.3d at 855 (“Private parties may seek declaratory
governing or limiting the manner of sale”). Thus, ultra vires      relief against state officials who allegedly act without legal
suits do not attempt to exert control over the state—they          or statutory authority.”) (citations omitted). It seems to us,
attempt to reassert the control of the state. 5 Stated another     however, that because the rule that ultra vires suits are not
way, these suits do not seek to alter government policy but        “suit[s] against the State within the rule of immunity of the
rather to enforce existing policy.                                 State from suit” derives from the premise that the “acts of
                                                                   officials which are not lawfully authorized are not acts of the
Further, while “[a] lack of immunity may hamper                    State,” Cobb, 190 S.W.2d at 712, it follows that these suits
governmental functions by requiring tax resources to be used       cannot be brought against the state, which retains immunity,
for defending lawsuits ... rather than using those resources for   but must be brought against the state actors in their official
their intended purposes,” Reata Constr. Corp., 197 S.W.3d          capacity. 7 This is true even though the suit is, for all practical
at 375, this reasoning has not been extended to ultra vires        purposes, against the state. See Brandon v. Holt, 469 U.S.
suits, see Fed. Sign, 951 S.W.2d at 404 (citing Dir. of the        464, 471–72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) (“[A]
Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex.,          judgment against a public servant ‘in his official capacity’
600 S.W.2d 264, 265–66 (Tex.1980) (legislative consent not         imposes liability on the entity that he represents provided, of
required for suit for injunctive relief against state agency to    course, the public entity received notice and an opportunity to
halt unauthorized printing equipment and printing activities),     respond.”); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d
Tex. Highway Comm'n v. Tex. Ass'n of Steel Imps., Inc., 372        835, 844 (Tex.2007) (“It is fundamental that a suit against
S.W.2d 525, 530 (Tex.1963) (legislative consent not required       a state official is merely ‘another way of pleading an action
for declaratory judgment suit against Highway Commission           against the entity of which [the official] is an agent.’ ”)
to determine the parties' rights), and Cobb v. Harrington,         (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct.
144 Tex. 360, 190 S.W.2d 709, 712 (1945) (legislative              3099, 87 L.Ed.2d 114 (1985)).
consent not required for declaratory judgment suit against
State Comptroller to determine parties' rights under tax
statute)). Further, extending immunity to officials using state
                                                                                                   C
resources in violation of the law would not be an efficient
way of ensuring those resources are spent as intended. This
is particularly true since, as discussed below, suits that lack                          Permissible Relief
merit may be speedily disposed of by a plea to the jurisdiction.
                                                               [11] But the ultra vires rule is subject to important
See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
                                                              qualifications. Even if such a claim may be brought, the
217, 226 (Tex.2004).
                                                              remedy may implicate immunity. Cf. 13 CHARLES ALAN
                                                              WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
                                                              & PROCEDURE § 3524.3 (under federal *374 immunity
                              B                               law, an ultra vires suit may be brought but “if the defendant
                                                              is a state officer, sovereign immunity bars the recovery of
                      Proper Parties                          damages from the state treasury in a private suit”). This is a
                                                              curious situation: the basis for the ultra vires rule is that a
 [8]    [9]    [10] Nonetheless, as a technical matter, the government official is not following the law, so that immunity
governmental entities themselves—as opposed to their          is not implicated, but because the suit is, for all practical
officers in *373 their official capacity—remain immune        purposes, against the state, its remedies must be limited. Cf.
from suit. We have been less than clear regarding the         Fla. Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670,
permissible use of a declaratory remedy in this type of ultra 685, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) (“There is a
           6                                                  well-recognized irony in Ex parte Young; unconstitutional
vires suit. Must it be brought directly against the state or
its subdivisions? Or must it be brought against the relevant  conduct by a state officer may be ‘state action’ for purposes
government actors in their official capacity? Compare Fed.    of the Fourteenth Amendment yet not attributable to the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

State for purposes of the Eleventh.”). We recently held            action to restrain a government official from unconstitutional
that retired firefighters could not pursue a declaratory           conduct was not barred by immunity. Later, in Edelman, the
judgment action against the City to recover amounts allegedly      Court recognized that the distinction between prospective
previously withheld from lump-sum termination payments in          and retrospective relief “will not in many instances be that
violation of the Local Government Code. City of Houston            between day and night” and cautioned that a fiscal impact on
v. Williams, 216 S.W.3d 827, 828 (Tex.2007). Without               the *375 State did not necessarily implicate immunity:
discussing Epperson, we applied the rule from IT–Davy
and Dodgen that the declaratory judgment act cannot be                         The injunction issued in Ex parte
used to circumvent immunity, noting that “[t]he only injury                    Young was not totally without effect
the retired firefighters allege has already occurred, leaving                  on the State's revenues, since the
them with only one plausible remedy—an award of money                          state law which the Attorney General
damages.” Id. at 829. Williams stands for the proposition,                     was enjoined from enforcing provided
then, that retrospective monetary claims are generally barred                  substantial monetary penalties against
by immunity.                                                                   railroads which did not conform
                                                                               to its provisions. Later cases from
We also stated that “in every suit against a governmental                      this Court have authorized equitable
entity for money damages, a court must first determine the                     relief which has probably had greater
parties' contract or statutory rights; if the sole purpose of                  impact on state treasuries than did
such a declaration is to obtain a money judgment, immunity                     that awarded in Ex parte Young.
is not waived.” Id. This does not mean, however, that a                        In Graham v. Richardson, 403 U.S.
judgment that involves the payment of money necessarily                        365, 91 S.Ct. 1848, 29 L.Ed.2d 534
implicates immunity. Drawing the line at monetary relief                       (1971), Arizona and Pennsylvania
is itself problematic, as “[i]t does not take much lawyerly                    welfare officials were prohibited from
inventiveness to convert a claim for payment of a past due                     denying welfare benefits to otherwise
sum (damages) into a prayer for an injunction against refusing                 qualified recipients who were aliens.
to pay the sum, or for a declaration that the sum must be                      In Goldberg v. Kelly, 397 U.S.
paid, or for an order reversing the agency's decision not to                   254, 90 S.Ct. 1011, 25 L.Ed.2d
pay.” Bowen v. Massachusetts, 487 U.S. 879, 915–16, 108                        287 (1970), New York City welfare
S.Ct. 2722, 101 L.Ed.2d 749 (1988) (Scalia, J., dissenting)                    officials were enjoined from following
(discussing section 702 of the Administrative Procedure Act,                   New York State procedures which
which waives sovereign immunity in actions against federal                     authorized the termination of benefits
agencies as long as the plaintiff seeks “relief other than money               paid to welfare recipients without prior
damages”) (quoting 5 U.S.C. 702 (2000)).                                       hearing. But the fiscal consequences
                                                                               to state treasuries in these cases were
Parsing categories of permissible relief in cases                              the necessary result of compliance
implicating immunity inevitably involves compromise. See,                      with decrees which by their terms
e.g., DOUGLAS LAYCOCK, MODERN AMERICAN                                         were prospective in nature. State
REMEDIES 482 (3d ed. 2002) (“The law of remedies against                       officials, in order to shape their
governments and government officials is a vast and complex                     official conduct to the mandate of the
body of doctrine, full of technical distinctions, fictional                    Court's decrees, would more likely
explanations, and contested compromises.”). The United                         have to spend money from the state
States Supreme Court has held that, under federal immunity                     treasury than if they had been left
law, claims for prospective injunctive relief are permissible,                 free to pursue their previous course
while claims for retroactive relief are not, as such an award                  of conduct. Such an ancillary effect
is “in practical effect indistinguishable in many aspects from                 on the state treasury is a permissible
an award of damages against the State.” Edelman v. Jordan,                     and often an inevitable consequence of
415 U.S. 651, 668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).                       the principle announced in Ex parte
This rule originated in Ex parte Young, 209 U.S. 123, 28 S.Ct.                 Young, supra.
441, 52 L.Ed. 714 (1908), in which the Court held that an



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           5
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

                                                                    Williams, dichotomy between declaratory and injunctive
Id. at 667–68, 94 S.Ct. 1347 (footnote omitted). The                claims regarding past statutory violations and those seeking
retroactive portion of the Edelman district court's decree          only to compel the city to follow the law in the future;
was different, however, as “[i]t require[d] payment of state        the government was immune from the former but not the
funds, not as a necessary consequence of compliance in              latter); Bell v. City of Grand Prairie, 221 S.W.3d 317,
the future with a substantive federal-question determination,       325 (Tex.App.-Dallas 2007, no pet.) (holding that, under
but as a form of compensation to those whose applications           Williams, firefighters' requested declaration regarding past
were processed on the slower time schedule at a time when           statutory violation was barred, but to the extent the requested
petitioner was under no court-imposed obligation to conform         declaration concerned future violations, the claim was not
to a different standard.” Id. at 668, 94 S.Ct. 1347.                barred, providing the firefighters did not seek an award
                                                                    of money damages). And finally, it ensures that statutes
While “[t]he line between prospective and retrospective             specifically directing payment, like any other statute, can be
remedies is neither self-evident nor self-executing,”               judicially enforced going forward.
LAYCOCK, MODERN AMERICAN REMEDIES at 483,
the Supreme Court shed further light on the issue in Milliken        [12] This approach is inconsistent with Epperson, however,
v. Bradley, 433 U.S. 267, 269, 97 S.Ct. 2749, 53 L.Ed.2d            in which we held that, if successful, Epperson would be
745 (1977), a case involving desegregation of the Detroit           entitled to “the sum of $93,000 which belonged to him
school system. The Supreme Court upheld a trial court's order       as his commission for services rendered.” Epperson, 42
requiring state officials to spend $6 million on education to       S.W.2d at 229. In that respect, Epperson conflicts with
remedy effects of segregation. Milliken, 433 U.S. at 290, 97        Williams, in which we implied that prospective remedies
S.Ct. 2749. The Court held that this relief was permissible         might not be barred even though retrospective monetary ones
under Edelman: “That the programs are also ‘compensatory’           were. Williams, 216 S.W.3d at 829 (noting that “[t]he only
in nature does not change the fact that they are part of a plan     injury the retired firefighters allege has already occurred,
that operates prospectively to bring about the delayed benefits     leaving them with only one plausible remedy—an award of
of a unitary school system.” Id.; see also 13 CHARLES               money damages” and that “they assert no right to payments
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL                             from the City in the future”). The best way to resolve this
PRACTICE & PROCEDURE § 3524.3 (noting that, under                   conflict is to follow the rule, outlined above, that a claimant
Edelman, “[i]njunctions requiring expenditure of state funds        who successfully proves an ultra vires claim is entitled to
are acceptable, so long as the order is prospective” but            prospective injunctive relief, as measured from the date of
“[r]etroactive relief, including compensatory damages from          injunction. Cf. Edelman, 415 U.S. at 669, 94 S.Ct. 1347
state funds are barred”).                                           (using entry of injunction to distinguish retrospective from
                                                                    prospective relief). Thus, while the ultra vires rule remains
This compromise between prospective and retroactive relief,         the law, see Federal Sign, 951 S.W.2d at 404, Epperson's
while imperfect, best balances the government's immunity            retrospective remedy does not.
with the public's right to redress in cases involving ultra vires
actions, and this distinction “appear[s] in the immunity of the      [13] But this rule is not absolute. For example, a claimant
United States, and in the law of most states' immunity from         who successfully proves a takings claim would be entitled
state-law claims.” LAYCOCK, MODERN AMERICAN                         to compensation, and the claim would not be barred by
REMEDIES at 482. It also comports with the modern                   immunity even though the judgment would require the
justification for immunity: protecting the public fisc. *376        government to pay money for property previously taken. Gen.
Tooke v. City of Mexia, 197 S.W.3d 325, 331–32 (Tex.2006)           Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591,
(observing that immunity “shield[s] the public from the             598 (Tex.2001) (noting that governmental immunity “does
costs and consequences of improvident actions of their              not shield the State from an action for compensation under
governments”); Federal Sign, 951 S.W.2d at 417 (Enoch, J.,          the takings clause”); cf. WRIGHT & MILLER, FEDERAL
dissenting) (noting that suits against the state would deplete      PRACTICE & PROCEDURE § 3524.3 (“If the state cannot
treasury resources and tax funds necessary to operate the           invoke its immunity, retroactive relief against it is allowed.”).
government). Moreover, it is generally consistent with the
way our courts of appeals have interpreted Williams. See,            [14] Heinrich has not alleged a takings claim. In the trial
e.g., City of Round Rock v. Whiteaker, 241 S.W.3d 609, 633–         court, Heinrich alleged only that “a suit for equitable relief
34 (Tex.App.-Austin 2007, pet. denied) (approving, under


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              6
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

against a governmental entity for violation of a provision           Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099 (citations
of the Texas Bill of Rights is excepted from ... sovereign           omitted). Here, the injunctive relief Heinrich seeks would
immunity under Texas Constitution article [I], section 29”           necessarily come from the Board, rather than the individual
without specifying which provision of the Bill of Rights             members. Considering “the nature of the liability sought to be
had been violated. In the court of appeals, however, she             imposed,” id., and construing Heinrich's pleadings liberally,
clarified that her constitutional complaint was a “violation         Miranda, 133 S.W.3d at 226, we conclude that she has sued
of Article 1, section 16.” TEX. CONST. art. I, § 16 (“No             the Board members in their official capacities, and her claims
bill of attainder, ex post facto law, retroactive law, or any        are therefore not automatically barred by immunity. 10 To the
law impairing the obligation of contracts, shall be made.”).         extent that the court of appeals held that the suit is against the
Petitioners contend that she waived this argument by failing to      Board members in their individual capacities, we reverse that
 *377 raise it in the trial court. See Tex. Dep't of Protective &    portion of its judgment.
Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex.2001)
(“ ‘[A]s a rule, a claim, including a constitutional claim,
must have been asserted in the trial court in order to be
raised on appeal.’ ”') (citations omitted). Even if Heinrich's                                       D
constitutional argument was properly presented, however,
it has no merit. Heinrich does not challenge the governing                  Evidence That Petitioners Acted Ultra Vires
statute or bylaws, but rather the Board's actions under those
provisions. Indeed, Heinrich argues that “[t]he Pension Board         [15]    In their second issue, petitioners argue that
and its individual members acted outside their authority and         governmental immunity prohibits *378 Heinrich's suit
in violation of the Texas Constitution when they reduced             because Heinrich has offered no evidence that the reduction
[Heinrich's] benefits.” Because Heinrich does not allege that        in her benefits was illegal or unauthorized. We conclude,
any law sanctioned the retroactive reduction in her benefits,        however, that Heinrich has presented evidence raising a fact
her constitutional argument fails. 8                                 question on this issue.


As we have repeatedly noted, the Legislature is best                  [16] “When a plea to the jurisdiction challenges the
positioned to waive immunity, and it can authorize                   pleadings, we determine if the pleader has alleged facts that
retrospective relief if appropriate. See, e.g., TEX. LOCAL           affirmatively demonstrate the court's jurisdiction to hear the
GOV'T CODE § 180.006 (enacted after Williams and waiving             cause. We construe the pleadings liberally in favor of the
immunity for firefighter and police officer claims for back          plaintiffs and look to the pleaders' intent.” Miranda, 133
pay and civil penalties). There are cases in which prospective       S.W.3d at 226 (citations omitted). Here, Heinrich alleges that
relief is inadequate to make the plaintiff whole, but the            petitioners violated article 6243b, section 10A(b) of the Texas
contours of the appropriate remedy must be determined by             Revised Civil Statutes when they reduced her benefits. Thus,
the Legislature.                                                     if Heinrich's allegations are true, her suit would fall within the
                                                                     ultra vires exception to governmental immunity as described
Thus, Heinrich's claims for prospective relief may be brought        above.
only against the appropriate officials in their official capacity,
and her statutory claims for future benefits against the City,        [17]     [18] This is not the end of our analysis, however:
                                                                     “if a plea to the jurisdiction challenges the existence of
Fund, and Board must be dismissed. 9 Heinrich's pleadings
                                                                     jurisdictional facts, we consider relevant evidence submitted
are unclear as to the capacity or capacities in which she
                                                                     by the parties when necessary to resolve the jurisdictional
has sued the individual Board members. The United States
                                                                     issues raised, as the trial court is required to do.” Id. at 227.
Supreme Court has observed that, “[i]n many cases, the
                                                                     If there is no question of fact as to the jurisdictional issue, the
complaint will not clearly specify whether officials are sued
                                                                     trial court must rule on the plea to the jurisdiction as a matter
personally, in their official capacity, or both.” Kentucky v.
                                                                     of law. Id. at 228. If, however, the jurisdictional evidence
Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d
                                                                     creates a fact question, then the trial court cannot grant the
114 (1985); see also United States ex rel. Adrian v. Regents
                                                                     plea to the jurisdiction, and the issue must be resolved by the
of Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004). In these
                                                                     fact finder. Id. at 227–28. This standard mirrors our review
cases, “ ‘[t]he course of proceedings' in such cases typically
                                                                     of summary judgments, and we therefore take as true all
will indicate the nature of the liability sought to be imposed.”


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 7
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

evidence favorable to Heinrich, indulging every reasonable         place in every station or substation of a department to
inference and resolving any doubts in her favor. Id. at 228.       which the change would directly apply and in the city hall;

Petitioners argue that, in accordance with the governing         TEX.REV.CIV. STAT. art. 6243b, § 10A (emphasis added).
bylaws, the payments to Heinrich were reduced when her son       Under this statute, while benefits may be increased if certain
ceased to be eligible to receive them, and asserts that the      procedures are followed, the Board has no discretion to
statutory provisions Heinrich relies upon are “inapplicable.”    retroactively lower pensions. Petitioners, however, cite the
Conversely, Heinrich alleges that she was awarded 100% of        provisions of the 1980 bylaws, under which the reduction
her husband's pension in accordance with these provisions,       would be proper due to Heinrich's son's age. They therefore
and that petitioners' subsequent retroactive reduction of her    suggest that Heinrich erroneously relies on 1985 changes to
benefits violated, among others, article 6243b, section 10A(a)   the bylaws that increased the surviving spouse's share but
(1) of the Texas Revised Civil Statutes. The relevant portions   were prospective only in nature and do not apply to Heinrich.
of article 6243b, section 10A provide:
                                                                 Heinrich submitted an affidavit from John Batoon, former
  (a) Notwithstanding anything to the contrary in other parts    Assistant City Attorney for El Paso. 11 Batoon's affidavit
  of this Act and subject to Subsections (b) and (c) of this     provided:
  section, the Board of Trustees may, by majority vote of the
  whole board, make from time to time one or more of the
  following changes, or modifications:                             I was serving as an Assistant City Attorney for the
                                                                   City of El Paso in 1985. I reviewed and approved the
  (1) modify or change prospectively or retroactively in any       award to Ms. Lilli M. Heinrich of 100% of her deceased
  manner whatsoever any of the benefits provided by this           husband's, Charles D. Heinrich, benefits from The El Paso
  Act, except that any retroactive change or modification          Firemen & Policemen's Pension Fund. All procedures were
  shall only increase pensions or benefits;                        followed according to the Plan and according to law. The
                                                                   membership voted and approved of the benefits awarded
  ***
                                                                   Ms. Heinrich as was required by the Plan. Because Mr.
  (b) None of the changes made under Subsection (a) of this        Heinrich had been an outstanding police officer for the City
  section may be made unless all of the following conditions       of El Paso and because he was killed in the line of duty, the
  are sequentially complied with:                                  Board of Trustees and the membership voted to award Ms.
                                                                   Heinrich 100% of Mr. Heinrich's benefits.
  (1) the change must be approved by a qualified actuary
  selected by a four-fifths vote of the Board; the actuary's          Consideration of the amount of benefits awarded Ms.
  approval must be based on an actuarial finding that                 Heinrich was not based, in any way, on the fact that she
  the change is supported by the existing funding status              had a minor child at that time. Ms. Heinrich was awarded
  of the fund; the actuary, if an individual, must be a               100% of the benefits because Mr. Heinrich had been a
  Fellow of the Society of Actuaries or a Fellow of the               well-loved officer and his death was a terrible loss for the
  Conference of Actuaries in Public Practice or a Member              police department. It was the Board of Trustees and the
  of the American Academy of Actuaries; the actuary,                  membership's way of paying tribute to a fallen officer.
  if an actuarial consulting firm, must be established in        Along with this sworn testimony, the evidence included a
  the business of providing actuarial consulting services        pair of October 16, 1985 letters from the chief of police,
  to pension plans and have experienced personnel able           one signed by the then-Board members, stating that “Mrs.
  to provide the requested *379 services; the findings           Heinrich will receive 100% of her husband's final pension
  upon which the properly selected and qualified actuary's       amount,” and one unsigned, stating that 100% would go to
  approval are based are not subject to judicial review;         “Mrs. Heinrich and her dependent children.” The minutes
                                                                 of the November 20, 1985 Board meeting also indicate that
  (2) the change must be approved by a majority of               the membership had previously voted to change benefits so
  all persons then making contributions to the fund as           that surviving spouses' benefits would increase from 66 2/3
  employees of a department to which the change would            to 100% of the pension amount. The Board contends that
  directly apply, voting by secret ballot at an election held    these bylaw changes do not apply to Heinrich, but even if
  after ten (10) days' notice given by posting at a prominent    they do not, Batoon's affidavit and the letters raise a fact


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             8
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

                                                                      hold that Heinrich has not sued the Board members in
question as to whether Heinrich's individual benefits were
                                                                      their individual capacities, official immunity is inapplicable
increased to 100% of her husband's pension payments under
the provisions of article 6243b and subsequently reduced in           here. 12
violation thereof. We conclude that the trial court correctly
denied that portion of the plea to the jurisdiction *380
challenging Heinrich's claims against the individuals in their                                       III
official capacities. Miranda, 133 S.W.3d at 227–28.

                                                                                                Conclusion

                               E                                      In sum, because there is a question of fact as to whether
                                                                      Heinrich's pension payments have been reduced in violation
                                                                      of state law, her claims for prospective declaratory and
                 The Individuals' Immunity
                                                                      injunctive relief against the Board members and the mayor
In their final issue, petitioners assert that the trial court         in their official capacities may go forward, but we dismiss
erred in denying the individual board members' plea to the            her retrospective claims against them. All of her claims
jurisdiction based on governmental and official immunity.             against the City, Fund, and Board, however, are barred by
With the limited ultra vires exception discussed above,               governmental immunity, and we dismiss them. Finally, we
governmental immunity protects government officers sued               hold that the Board members have not been sued in their
in their official capacities to the extent that it protects their     individual capacities, and to the extent the court of appeals
employers. See Univ. of Tex. Med. Branch v. Hohman,                   held otherwise, we reverse its judgment. We affirm in part and
6 S.W.3d 767, 776 (Tex.App.-Houston [1st Dist.] 1999,                 reverse in part the court of appeals' judgment and remand this
pet. dism'd w.o.j.). Because of this exception, however,              case to the trial court for further proceedings. TEX.R.APP.
governmental immunity does not bar Heinrich's claims                  P. 60.2(a),(d).
against the individuals in their official capacities. Official
immunity, by contrast, is an affirmative defense protecting
                                                                      Parallel Citations
public officials from individual liability. See Telthorster v.
Tennell, 92 S.W.3d 457, 459–60 (Tex.2002). Because we                 52 Tex. Sup. Ct. J. 689


Footnotes
1       The City withheld a percentage of Charles's compensation (and that of other officers) to fund the plan.
2       The State of Texas and the Texas State Association of Fire Fighters submitted amicus curiae briefs.
3       We recently dismissed a claim for declaratory and injunctive relief against the Houston Municipal Employees Pension
        System in which the “plaintiffs ... requested that the trial court issue an injunction directing the pension board to comply
        with the trial court's interpretation of Article 6243h,” the governing statute. Houston Mun. Employees Pension Sys. v.
        Ferrell, 248 S.W.3d 151, 158–59 (Tex.2007). Under Article 6243h, the Houston board's “interpretation of [the] Act [is] final
        and binding on any interested party,” TEX.REV.CIV. STAT. art. 6243h § 2(y), and we held that this language precluded
        judicial review. Ferrell, 248 S.W.3d at 158 (“There is no right to judicial review of an administrative order unless a statute
        explicitly provides that right or the order violates a constitutional right.”) (citations omitted). Here, however, Article 6243b
        contains no language similar to that in 6243h granting the Board exclusive authority to interpret the act, see TEX.REV.CIV.
        STAT. art. 6243b, and, in any case, Heinrich does not challenge petitioners' interpretation of 6243b, but rather alleges
        that they have violated that statute under an undisputed reading thereof. See Ferrell, 248 S.W.3d at 160 (Brister, J.,
        concurring) (“A different case might be presented if the plaintiffs alleged the board was clearly violating some provision
        of the statute. Article 6243h gives the pension board complete discretion to interpret the statute, but not to violate it.”).
4       The Dodgen Court expressly declined to limit Epperson based on changes in federal immunity jurisprudence. Dodgen,
        308 S.W.2d at 843.
5       Because the policy embodied in the law extends only as far the amount wrongfully withheld, claims for amounts beyond
        those alleged to be due under the relevant law, such as consequential damages, remain barred by immunity.
6       For claims challenging the validity of ordinances or statutes, however, the Declaratory Judgment Act requires that
        the relevant governmental entities be made parties, and thereby waives immunity. TEX. CIV. PRAC. & REM.CODE §



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  9
City of El Paso v. Heinrich, 284 S.W.3d 366 (2009)
52 Tex. Sup. Ct. J. 689

       37.006(b) (“In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be
       made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the
       attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.”); see Wichita
       Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697–698 (Tex.2003) (“[I]f the Legislature requires that the State be joined
       in a lawsuit for which immunity would otherwise attach, the Legislature has intentionally waived the State's sovereign
       immunity.”); Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (“The DJA expressly provides that persons
       may challenge ordinances or statutes, and that governmental entities must be joined or notified. Governmental entities
       joined as parties may be bound by a court's declaration on their ordinances or statutes. The Act thus contemplates that
       governmental entities may be—indeed, must be—joined in suits to construe their legislative pronouncements.”). Here,
       Heinrich is not challenging the validity of the bylaws or the governing statute, but rather petitioners' actions under them.
7      State officials may, of course, be sued in both their official and individual capacities. Judgments against state officials in
       their individual capacities will not bind the state. See Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d
       636 (1999) (“Even a suit for money damages may be prosecuted against a state officer in his individual capacity for
       unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the
       state treasury but from the officer personally.”).
8      Further, although the parties do not address it, we note that the reduction in Heinrich's survivor payments occurred before
       the effective date of article XVI, section 66 of the Texas Constitution (“Protected Benefits Under Certain Public Retirement
       Systems”), and we do not consider whether it would otherwise apply in this case.
9      While this case was pending on interlocutory appeal, the Legislature enacted 271.151–.160 of the Local Government
       Code, waiving immunity from suit for certain claims against cities and other governmental entities. Heinrich does not
       argue that her claims fall within these provisions, and we express no opinion on that subject.
10     Because the mayor of El Paso, who is also a Board member, was named as a defendant in his official capacity, Heinrich
       may seek liability from the City through that officer, although her claims against the City itself must be dismissed.
11     The Fund, the Board, and the Board members objected to this evidence. The trial court did not explicitly rule on the
       objections, and the petitioners do not raise any evidentiary issues on appeal.
12     The court of appeals failed to draw this distinction, instead discussing the protections available to officials from
       governmental immunity. 198 S.W.3d at 407. This conflict gives us jurisdiction over this interlocutory appeal. TEX. GOV'T
       CODE § 22.225(c), (e).


End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              10
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)


                                                                       jurisdiction filed by Rains County and Robert M. Sisk, the
                                                                       county judge of Rains County, and dismissing the Terrell
                      111 S.W.3d 274
                                                                       family's lawsuit. We affirm.
                 Court of Appeals of Texas,
                        Texarkana.
                                                                       The lawsuit stemmed from an automobile accident resulting
     Odell TERRELL, on Behalf of the ESTATE                            in serious personal injuries to, and ultimately the deaths of,
       OF J.R. TERRELL, Jr., and on Behalf of                          J.R. Terrell, Jr., and his wife, Virginia. The accident was
     the Estate of Virginia Terrell, David Elkins,                     caused by June Goble, Judge Sisk's secretary, while on her
                                                                       way to a doctor's appointment. The Terrell family alleged that
       and Jimmy Wayne Terrell, Appellants,
                                                                       Goble was in a drug-induced stupor, that Judge Sisk knew
                           v.
                                                                       she had been misusing prescription drugs but made no effort
 Robert M. SISK and Rains County, Texas, Appellees.
                                                                       to control the situation through her employment, and that her
                                                                       medical visit on the date of the accident was “in furtherance of
        No. 06–02–00174–CV. | Submitted
                                                                       County business.” The lawsuit was filed against Rains County
      June 19, 2003. | Decided July 16, 2003.
                                                                       and Judge Sisk. 2 The County and Judge Sisk raised sovereign
Survivors of motorists killed in collision with county                 immunity and official immunity as defenses.
employee brought action against county and county judge
alleging failure to supervise, failure to train, failure to control,   In the sole issue presented for review, the Terrell family
negligent implementation of policy, and negligent hiring. The          challenges the trial court's order granting the plea to the
402nd Judicial District Court, Wood County, G. Timothy                 jurisdiction. The Terrell family has presented a number of
Boswell, J., dismissed for lack of subject matter jurisdiction.        arguments in an effort to support that contention. We will
Survivors appealed. The Court of Appeals, Ross, J., held               address those as necessary, but recognize that the main thrust
that: (1) county employee driving her own car to doctor's              of their contentions is that, as to the County and Judge
appointment was not acting within scope of her employment;             Sisk, sovereign immunity has been waived by the Texas Tort
(2) joint enterprise did not exist between employee, judge,            Claims Act. 3 They contend there is a cause of action for
and county; (3) judge did not act in bad faith by failing              failure to supervise, for failure to train, for failure to control,
to request drug test of employee; and (4) official immunity            for negligent implementation of policy, negligent hiring (or
barred negligence claims against judge.                                retention), and that “joint enterprise” applies.

Affirmed.                                                               [1] As to the claims against Rains County, the only question
                                                                       is whether sovereign immunity has been waived. If not, then
                                                                       no claim against the County can prevail. Under the doctrine of
Attorneys and Law Firms
                                                                       sovereign immunity, a governmental unit is not liable for the
*276 Christopher A. Kalis, Law Offices of Christopher A.               torts of its officers or agents in the absence of a constitutional
Kalis, Dallas, for appellants.                                         or statutory provision creating such liability. Dallas County
                                                                       Mental Health & Mental Retardation v. Bossley, 968 S.W.2d
Robert T. Bass, Allison, Bass & Associates, LLP, Austin, for           339, 341 (Tex.1998). In the absence of the state's consent to
appellees.                                                             suit, a trial court lacks subject matter jurisdiction and must
                                                                       dismiss. The Tort Claims Act creates that limited waiver of
Before MORRISS, C.J., ROSS and CARTER, JJ.
                                                                       sovereign immunity. See TEX. CIV. PRAC. & REM.CODE
                                                                       ANN. § 101.021 (Vernon 1997).

                           OPINION                                     As a governmental unit, Rains County is immune from both
                                                                       suit and liability unless the Tort Claims Act has waived
Opinion by Justice ROSS.
                                                                       that immunity. *277 Section 101.021 of the Tort Claims
Odell Terrell, on behalf of the estates of J.R. Terrell, Jr., and      Act has been interpreted as waiving sovereign immunity in
Virginia Terrell, David Elkins, and Jimmy Wayne Terrell (the           three general areas: “use of publicly owned automobiles,
                                                                       premises defects, and injuries arising out of conditions or
Terrell family) 1 appeal from an order granting a plea to the
                                                                       use of property.” Tex. Dep't of Transp. v. Able, 35 S.W.3d


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)


608, 611 (Tex.2000), quoting Lowe v. Tex. Tech Univ., 540
S.W.2d 297, 298 (Tex.1976). Pursuant to Section 101.021, a            The facts alleged by the Terrell family are that the damage
governmental unit in the state is liable for:                         was caused by the private vehicle of the driver (Judge Sisk's
                                                                      secretary) while that driver was on her way to a doctor's
  (1) property damage, personal injury, and death                     appointment. There is no allegation of an express waiver of
  proximately caused by the wrongful act or omission or               immunity. Thus, in order to fall under the Tort Claims Act
  the negligence of an employee acting within his scope of            exception, the Terrell family must show that the use of the
  employment if:                                                      vehicle was part of the scope of the driver's employment
                                                                      by the County. “Scope of employment” is defined as “the
     (A) the property damage, personal injury, or death arises
                                                                      performance for a governmental unit of the duties of an
     from the operation or use of a motor-driven vehicle or
                                                                      employee's office or employment *278 and includes being
     motor-driven equipment; and
                                                                      in or about the performance of a task lawfully assigned to
     (B) the employee would be personally liable to the               an employee by competent authority.” TEX. CIV. PRAC. &
     claimant according to Texas law; and                             REM.CODE ANN. § 101.001(5) (Vernon Supp.2003).

  (2) personal injury and death so caused by a condition              There are no allegations in the Terrell family's pleadings that
  or use of tangible personal or real property if the                 can reasonably be interpreted as showing that the driver was
  governmental unit would, were it a private person, be liable        acting within the scope of her employment at the time of
  to the claimant according to Texas law.                             the accident. She was not traveling at the direction of her
                                                                      employer. There is nothing to suggest this trip to the doctor
TEX. CIV. PRAC. & REM.CODE ANN. § 101.021.                            was any part of the performance of her duties as an employee;
                                                                      rather, the pleadings show conclusively it was a personal
The lack of subject matter jurisdiction is properly raised by         activity away from the workplace.
a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones,
8 S.W.3d 636, 638 (Tex.1999) (correcting a number of                  The Terrell family also alleged, however, that Goble's trip to
misunderstandings on that point). 4 The plaintiff has the             the doctor was a part of her employment—and thus her use
burden to show that jurisdiction exists by alleging facts that        of her car was actionable under the vehicle exception to the
affirmatively demonstrate that the trial court has subject            Tort Claims Act. They argue that this theory applies because
matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control           Judge Sisk had, on an earlier occasion, directed Goble to go
Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Midland v.               home, and because he permitted her to leave on this occasion.
Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd
w.o.j.). In the context of suit against a governmental unit,          The underlying principle is that an employee is generally
the plaintiff must allege consent to suit either by reference to      not in the course and scope of employment while driving
statute or express legislative permission. Jones, 8 S.W.3d at         his or her own vehicle to or from his or her place of
638; Sullivan, 33 S.W.3d at 6.                                        employment. Mata v. Andrews Transp., Inc., 900 S.W.2d
                                                                      363, 366 (Tex.App.-Houston [14th Dist.] 1995, no writ).
In our analysis, the question of subject matter jurisdiction is a     This rule is based on the premise that an injury occurring
legal question which we review de novo. Sullivan, 33 S.W.3d           while traveling to or from work has nothing to do with the
at 6. We examine the pleadings, taking as true the facts pled,        risks associated with a place of employment. Smith v. Tex.
and we determine whether those allegations of fact support            Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192, 193
jurisdiction in the trial court. Tex. Ass'n of Bus., 852 S.W.2d       (1937).
at 446. In so doing, we construe the pleadings in favor of
the pleader. Id. If necessary, we may review the entire record        There is an exception to this rule that applies when an
to determine if there is jurisdiction. Id. If the petition does       employee undertakes a special mission for his or her
not allege jurisdictional facts, the plaintiff's suit is subject to   employer. Direkly v. ARA Devcon, Inc., 866 S.W.2d 652,
dismissal only when it is impossible to amend the pleadings           654 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.).
to confer jurisdiction. See id. In this case, special exceptions      A special mission is a specific errand that an employee
directed at this matter were raised, and the Terrell family had       undertakes at the specific request of the employer. Wilie
the opportunity to amend their pleadings.                             v. Signature Geophysical Servs., Inc., 65 S.W.3d 355, 359



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)


(Tex.App.-Houston [14th Dist.] 2001, pet. denied); Upton v.         Arguably, there was an agreement, and a common purpose,
Gensco, Inc., 962 S.W.2d 620, 621–22 (Tex.App.-Fort Worth           between Goble and the County, as the Terrell family alleges.
1997, pet. denied). However, the Terrell family's counsel has       However, neither the “pecuniary interest” nor the “equal right
explicitly stated in a post-submission letter to this Court that    to control” elements make any sense in the context of a
the “special mission” concept does not apply to the facts of        benefit provided for an employee by an employer. There is no
this case. We will therefore not further address that theory.       real pecuniary interest involved as a profit-making business
                                                                    arrangement between the parties. The County provided health
There is no allegation of fact to show that, on the occasion of     insurance as a benefit. That was arguably a pecuniary benefit
this accident, the employee went to the doctor at the specific      to Goble. The health benefits are provided by doctors, who
request of Judge Sisk. There is also no allegation of fact to       presumably receive a pecuniary benefit from their use. In
support the Terrell family's theory that Rains County had a         return, the County receives—not money—but a worker who
duty to keep Goble from leaving her workplace. There is             is more satisfied with his or her employment and is thus more
nothing in the Terrell family's pleadings that can be read to       likely to remain employed by the County.
support the application of the Tort Claims Act to allow them
to pursue a cause of action against Rains County. The plea to       Further, the mere fact that an employee has the ability to
the jurisdiction was therefore properly granted.                    choose the doctor whom he or she will visit does not indicate
                                                                    such employee has “control” over a joint enterprise. It simply
 [2] The Terrell family also contends the County has waived         shows that the employee has the ability under the provided
its sovereign immunity because it was in a joint enterprise         insurance contract to choose which doctor he or she will visit.
with Goble. They so contend because Judge Sisk allowed
Goble to use her personal vehicle to occasionally run errands       In light of the fact the Texas Supreme Court has held that
for the County and because the County's health insurance            even business relationships such as a franchisor, wholesaler,
plan provided the drugs Goble was taking, and Judge Sisk            or supplier do not have a “community of pecuniary interest”
allowed her to go to the doctor to obtain those drugs and did       adequate to show the existence of a joint enterprise, neither
not attempt to stop her.                                            can we find any indication a joint enterprise exists in this
                                                                    situation. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 528
In Able, the Texas Supreme Court held that “a governmental          (Tex.2002).
unit that enters into a joint enterprise can be liable under the
waiver of sovereign immunity found in the Tort Claims Act.”          [4] The Terrell family then takes a different direction in
Able, 35 S.W.3d at 610. In that case, the plaintiffs alleged a      their pleadings concerning Judge Sisk. They allege that Judge
premises defect involving a state highway. See id. at 612. The      Sisk was the negligent party and that his negligence was the
plaintiffs also alleged that a joint enterprise existed between     proximate cause of the deaths because of his failure to enforce
the Texas *279 Department of Transportation (TxDOT)                 the County's drug-testing policy. The policy, as stated in the
and the Houston Metropolitan Transit Authority (Metro) with         Terrell family's brief, provided that an “employee suspected
respect to the highway. See id. at 610. As a party to a joint       of drug/alcohol abuse may be requested to take a test. If an
enterprise with Metro, the plaintiffs contended TxDOT was           employee refuses to take this test or fails a test, they are
equally responsible for the premises defect. See id. at 613.        subject to immediate dismissal.”

 [3] A plaintiff must show four elements to prove the               The initial question is whether this alters the analysis set
existence of a joint enterprise: (1) an agreement, express or       out above for Judge Sisk in his official capacity as the
implied, among the members of the group; (2) a common               county judge. Article IX, Section 1 of the Texas Constitution
purpose to be carried out by the group; (3) a community of          provides that counties are legal subdivisions of the state. TEX.
pecuniary interest in that purpose, among the members; and          CONST. art. IX, § 1. A suit against a government official in
(4) an equal right to a voice in the direction of the enterprise,   his or her official capacity seeks to impose liability only on the
which gives an equal right of control. Id.; Tex. Dep't of           governmental entity the official represents, and any judgment
Transp. v. City of Floresville Elec. Power & Light Sys., 53         in this type of suit is collectible only against the governmental
S.W.3d 447, 456 (Tex.App.-San Antonio 2001, no pet.).               entity, not against the official's personal assets. Kentucky v.
                                                                    Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d
                                                                    114 (1985); Herring v. Houston Nat'l Exch. Bank, 113 Tex.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)


264, 253 S.W. 813 (1923); Harris County v. Walsweer, 930           would be personally liable under Texas law. A government
S.W.2d 659, 665 (Tex.App.-Houston [1st Dist.] 1996, writ           employee is entitled to official immunity for (1) the
denied); Winograd v. Clear Lake City Water *280 Auth.,             performance of discretionary duties (2) that are within the
811 S.W.2d 147, 162 (Tex.App.-Houston [1st Dist.] 1991,            scope of the employee's authority, (3) provided the employee
writ denied); see also Bowles v. Reed, 913 S.W.2d 652,             acts in good faith. City of Lancaster v. Chambers, 883 S.W.2d
655 (Tex.App.-Waco 1995, writ denied) (suit against county         650, 653 (Tex.1994); see also DeWitt v. Harris County, 904
official is a suit solely against the county); Bowles v. Wade,     S.W.2d 650, 652 (Tex.1995).
913 S.W.2d 644, 649, 649 n. 13 (Tex.App.-Dallas 1995, writ
denied) (suits against public officials are suits against the      In deciding whether the facts alleged fall outside the scope
entities for whom they work and official-capacity judgments        of official immunity, we recognize that the basis for alleged
impose liability on the entity).                                   liability is the County's policy, which explicitly provides
                                                                   that requiring a drug test of an employee is absolutely
 [5] As a public official sued in his official capacity, Judge     discretionary, and that the Terrell family has alleged the
Sisk is protected by the same sovereign immunity enjoyed           accident was caused by Judge Sisk while acting within the
by the state agency he represents. Tex. Dep't of Health            scope of his official duties. The sole disputed question then
v. Rocha, 102 S.W.3d 348, 353 (Tex.App.-Corpus Christi,            becomes whether he acted in good faith.
2003, no pet.); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454,
460 (Tex.App.-Tyler 1999, pet. denied); Morris v. Copeland,        If Judge Sisk was performing a discretionary function, then
944 S.W.2d 696, 698–99 (Tex.App.-Corpus Christi 1997,              he is protected by official immunity, regardless of whether he
no writ). Because a suit against a state officer in his or         was negligent in the exercise of his public duties. See City of
her official capacity is equivalent to a suit against the          Wichita Falls v. Norman, 963 S.W.2d 211, 215 (Tex.App.-
state, employees acting in their official capacity share their     Fort Worth 1998, pet. dism'd w.o.j.). The Terrell family
employer's sovereign immunity. Rocha, 102 S.W.3d at 353;           cannot breach the immunity wall merely because Judge Sisk
Denson, 63 S.W.3d at 460; Morris, 944 S.W.2d at 698–               was negligent—they can only do so if Judge Sisk exercised
99; see also Sykes v. Harris County, 89 S.W.3d 661, 669            his discretionary authority in *281 bad faith. See Harless v.
(Tex.App.-Houston [1st Dist.] 2002, pet. filed); Univ. of          Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.).
Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d
767, 775 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd           The Terrell family must do more than show that a reasonably
w.o.j.) (holding employee sued in her official capacity was        prudent supervisor could have acted differently; they must
shielded by sovereign immunity). Accordingly, a plea to the        show that no reasonable person in Judge Sisk's position could
jurisdiction is procedurally the proper method of contesting       have thought the facts were such that they justified his acts.
the propriety of the lawsuit against him or her as a public        See Chambers, 883 S.W.2d at 657. Good faith is not defeated
official.                                                          simply by a showing of negligence. Wadewitz v. Montgomery,
                                                                   951 S.W.2d 464, 467 n. 1 (Tex.1997).
The Terrell family alleges Judge Sisk is liable to them for
two main reasons: 1) the judge knew his secretary at least         Good faith is established when it is proved that a reasonably
occasionally had problems (i.e., sleeping on the job) caused       prudent government official, under the same or similar
by her use of prescription medications, but had negligently        circumstances, could have believed that his actions were
failed to exercise the County's policy to require her to undergo   justified. Chambers, 883 S.W.2d at 656. A government
drug testing; and 2) the judge knew on that particular occasion    employee acts in bad faith only if that employee could not
that his secretary was in no condition to drive her automobile     have reasonably reached the decision in question. Univ. of
and was thus negligent in allowing her to drive to her             Houston v. Clark, 38 S.W.3d 578, 581 (Tex.2000). Good
doctor's appointment. We will first analyze these allegations      faith can be established as a matter of law when the factual
as viewed through the window of sovereign/official immunity        recitation by the governmental unit's employee is otherwise
of a public servant.                                               supported by the evidence. Dovalina v. Nuno, 48 S.W.3d 279,
                                                                   283 (Tex.App.-San Antonio 2001, no pet.); Alamo Workforce
 [6] In determining whether a waiver of the application            Dev., Inc. v. Vann, 21 S.W.3d 428, 434–35 (Tex.App.-San
of sovereign immunity is shown in this context, a critical         Antonio 2000, no pet.). The Terrell family alleged negligence.
question is whether the employee of a governmental unit            Although they also used the term “good faith” throughout



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)


                                                                         official is an agent. Will v. Mich. Dep't of State Police, 491
their pleadings, the allegations involving that language are the
                                                                         U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); City
same ones used in their allegations of negligence. 5
                                                                         of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-
                                                                         Houston [1st Dist.] 1995, no writ). The suit is therefore the
The facts concerning the accident alleged by the Terrell
                                                                         same as one brought directly against the state. Will, 491 U.S.
family do not support a finding that Judge Sisk acted in bad
                                                                         at 71, 109 S.Ct. 2304; Kmiec, 902 S.W.2d at 122. The United
faith, either for failing to require Goble to undergo a drug
                                                                         States Supreme Court has held that “neither a State nor its
test, or in connection with her driving to her doctor's office
                                                                         officials acting in their official capacities are ‘persons' under
in her own vehicle. Requiring a drug test was discretionary
                                                                         § 1983.” Will, 491 U.S. at 71, 109 S.Ct. 2304; see Harrison v.
on the part of the county judge, and there are no facts alleged
                                                                         Tex. Dep't of Criminal Justice–Institutional Div., 915 S.W.2d
showing any directive by Judge Sisk to Goble to drive her
                                                                         882, 889–90 (Tex.App.-Houston [1st Dist.] 1995, no writ).
automobile. Taking the allegations at their most extreme
                                                                         The Court went on to explain that, “As such, it is no different
possible meaning, with maximal inferences applied, they at
                                                                         from a suit against the State itself.” Will, 491 U.S. at 71, 109
most show questionable judgment, and thus possibly show
                                                                         S.Ct. 2304.
negligence. They do not show the absence of good faith,
which is necessary to avoid the sovereign immunity bar.
                                                                         Therefore, as a government official in his official capacity,
Accordingly, the trial court did not err by concluding Judge
                                                                         Judge Sisk is not a “person” under Section 1983. Section 1983
Sisk, riding on the coattails of sovereign immunity of his
                                                                         of the Civil Rights Act provides as follows:
county, is not amenable to suit in his official capacity.
                                                                                       Every person who, under color of
 [7]    [8] We next consider whether claims were raised                                any statute, ordinance, regulation,
against Judge Sisk in his individual capacity. State employees                         custom, or usage, of any State or
sued in their individual capacities may be liable for their                            Territory or the District of Columbia,
negligence if they do not have official immunity. Sykes, 89                            subjects, or causes to be subjected,
S.W.3d at 669; Denson, 63 S.W.3d at 460.                                               any citizen of the United States or
                                                                                       other person within the jurisdiction
We have reviewed the pleadings in detail. Although there                               thereof to the deprivation of any rights,
are places where the Terrell family referred to claims against                         privileges, or immunities secured by
Judge Sisk in his personal capacity, there were no claims                              the Constitution and laws, shall be
raised involving any act by the judge outside of his public                            liable to the party injured in an action
servant persona. This is not a situation where there is a                              at law, suit in equity, or other proper
mixture of allegations, some of which are directed at actions                          proceeding for redress.
taken outside a public capacity. In this case, all allegations
were of claimed wrongdoing or negligence by Judge Sisk in                42 U.S.C.A. § 1983 (West Supp.2003).
actions he was able to take only because of his position as a
public servant. Under these circumstances, we conclude that         Section 1983 was not designed to override sovereign
a fair reading of the Terrell family's pleadings is that there      immunity. Will, 491 U.S. at 66, 109 S.Ct. 2304. Accordingly,
 *282 was no effective pleading against Judge Sisk in his           the Section 1983 claim made against Judge Sisk in his official
individual capacity.                                                capacity could not serve to avoid the application of sovereign
                                                                    immunity and the claim was properly the subject of the plea
 [9] [10] The Terrell family has also raised a federal Section to the jurisdiction.
1983 claim against Judge Sisk. A suit against a state official
in his or her official capacity is not a suit against the official, We affirm the judgment.
but against the official's office and the state for which the


Footnotes
1      Odell Terrell is a surviving brother of J.R. Terrell, Jr. David Elkins is the surviving son of Virginia Terrell, and Jimmy Wayne Terrell
       is the surviving son of J.R. Terrell, Jr.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         5
Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274 (2003)


2      The style of the lawsuit in the Terrell family's pleadings does not specify whether Judge Sisk was sued in his personal capacity or
       in his capacity as county judge (and the supervisor of his secretary). We will therefore review the pleadings to determine the nature
       of the Terrell family's claims.
3      TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(1)(A), (B) (Vernon 1997).
4      Since as early as 1847, the law in Texas has been that, absent the state's consent to suit, a trial court lacks subject matter jurisdiction.
       Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). A party may contest a trial court's subject matter jurisdiction by filing
       a plea to the jurisdiction. Id.
5      “When a petition fails to specify the capacity in which a person is sued, we will look at the ‘course of the proceedings' to determine
       the nature of the liability the plaintiff seeks to impose.” Harless v. Niles, 100 S.W.3d 390 (Tex.App.-San Antonio 2002, no pet.),
       quoting Nueces County v. Ferguson, 97 S.W.3d 205, 215 (Tex.App.-Corpus Christi 2002, no pet.).


End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                             6
In re State Bar of Texas, 440 S.W.3d 621 (2014)
57 Tex. Sup. Ct. J. 1253


                                                                    Opinion
    Original Image of 440 S.W.3d 621 (PDF)
                     440 S.W.3d 621                                 Justice DEVINE delivered the opinion of the Court, in
                 Supreme Court of Texas.                            which Chief Justice HECHT, Justice GREEN, Justice
                                                                    JOHNSON, Justice GUZMAN, Justice LEHRMANN, and
            In re The STATE BAR OF TEXAS.                           Justice BROWN joined.

            No. 13–0161. | Argued Feb. 6,                           A person wrongfully arrested for a crime “is entitled to have
           2014. | Decided Aug. 22, 2014.                           all records and files relating to the arrest” expunged, if certain
                                                                    conditions are met. TEX.CODE CRIM. PROC. art. 55.01(a).
Synopsis                                                            One such condition is an acquittal. Id. art. 55.01(a)(1)(A). The
Background: Commission for Lawyer Discipline petitioned             statute thus serves to protect wrongfully-accused people by
for a writ of mandamus to the district court regarding its ruling   eradicating their arrest records.
that expunction order in case underlying alleged prosecutorial
misconduct precluded the Commission from relying on any             In this original mandamus proceeding, the Commission
expunged records.                                                   for Lawyer Discipline complains that a former prosecutor,
                                                                    facing allegations of prosecutorial misconduct, has used an
                                                                    expunction order to block the Commission's prosecution. A
                                                                    district court has refused the Commission access to expunged
[Holding:] The Supreme Court, Devine, J., held that order
                                                                    criminal records for use in the disciplinary proceeding against
denying request by Commission to use expunged records was
                                                                    the former prosecutor and has ordered the Commission to
an abuse of discretion.
                                                                    turn over investigative records. The grievance panel in the
                                                                    collateral disciplinary proceeding has construed the district
Writ conditionally granted.                                         court's actions as a bar to the disciplinary proceeding and
                                                                    granted the former prosecutor's summary judgment motion.
Boyd, J., concurred in the judgment and filed opinion in            Because we conclude that the expungement order does not bar
which Willett, J., joined.                                          the Commission from using records from the criminal trial in
                                                                    the grievance proceeding, we conditionally grant the writ.

Attorneys and Law Firms

 *622 Gregory Max Hasley, Jennifer A. Hasley, Hasley                                                I
Scarano, L.L.P., Houston, TX, for Other interested party Jon
                                                                    This mandamus relates to a disciplinary proceeding against
L. Hall.
                                                                    former prosecutor Jon L. Hall, who allegedly suppressed
Barry C. Willey, Donald S. Glywasky, Jack Duane Roady,              exculpatory evidence in an aggravated robbery prosecution.
Galveston County Crim. Dist., Galveston, TX, for Other              The Commission's involvement began in November 2011,
Interested Party Jack Roady.                                        when it received a news article about the aggravated robbery
                                                                    trial. The article reported that *623 Joshua Bledsoe was
Christopher L. Tritico, Lloyd James Krell, Ron S. Rainey,           acquitted because the prosecutor suppressed exculpatory
Tritico Rainey PLLC, Houston, TX, for Other interested party        evidence.
Vikram Vu.
                                                                    The Commission began by interviewing, among others
Taft Foley, The Foley Law Firm, Houston, TX, for Real Party
                                                                    familiar with the case, the judge who presided over the
in Interest Joshua Bledsoe.
                                                                    trial and the attorney who represented Bledsoe. Shortly
Cynthia Canfield Hamilton, Senior Appellate Disciplinary            thereafter, the Commission anonymously received a partial
Counsel, Laura Kathryn Bayouth, Linda A. Acevedo, Office            trial transcript that included discussions between the trial
of the Chief Disciplinary Council, Austin, TX, for Relator          judge and counsel regarding the prosecution's suppression of
State Bar of Texas.                                                 evidence, including a 911 tape.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
In re State Bar of Texas, 440 S.W.3d 621 (2014)
57 Tex. Sup. Ct. J. 1253

In that tape, the robbery victim made statements that she           the Commission's stay request and, based on the trial court's
later contradicted during trial. At trial, the victim identified    order, granted Hall's summary judgment motion.
Bledsoe as one of the robbers based partially on his race,
but in the 911 call, the same witness claimed that she could        The Commission has appealed the panel's summary judgment
not provide any description of the robbers, including race,         to the Board of Disciplinary Appeals and has sought review of
because they wore masks.                                            the trial court's order in the court of appeals. The Commission
                                                                    advises that both reviews have been stayed, pending our
Following its investigation, the Commission commenced               review of the Commission's petition for writ of mandamus.
a disciplinary action against Hall, the lead prosecutor in
the aggravated robbery case, and Vikram Vij, an assistant           The Commission submits that mandamus relief in this Court
prosecutor. The Commission subsequently dismissed the               is appropriate because the court of appeals cannot redress
action against Vij. Hall elected to have his disciplinary action    the ultimate consequence of the trial *624 court's order—
proceed before a grievance panel rather than in district court.     the dismissal of the Commission's disciplinary action. That
                                                                    dismissal can only be challenged in a separate appeal to the
In answer to the Commission's evidentiary petition, Hall            Board of Disciplinary Appeals. The Commission submits
complained that he did not have access to records necessary to      that the attendant risk of conflicting appellate decisions that
his defense because all records from the aggravated robbery         can only be reconciled in this Court suggests the present
case had been expunged. After receiving Hall's answer, the          mandamus as the appropriate remedy. See, e.g., In re State
Commission, with Bledsoe's consent, filed a motion in the           Bar of Texas, 113 S.W.3d 730, 732 (Tex.2003) (concluding
trial court that had presided over the criminal prosecution and     that mandamus was the appropriate remedy to correct district
signed the expunction order. The motion sought access to the        court's interference in the regulation of the legal practice). We
expunged records for use in the pending disciplinary action.        turn then to that review.
Although Hall had complained about not having access to
the criminal-case records, he nevertheless responded to the
Commission's motion by urging the trial court to deny access
                                                                                                   II
to the expunged records.
                                                                     [1]    [2]    [3] Expunction is not a right; it is a statutory
The Commission's motion was assigned to a visiting judge,           privilege. T.C.R. v. Bell Cnty. Dist. Attorney's Office,
sitting by assignment for the trial court. Following a hearing,     305 S.W.3d 661, 663 (Tex.App.-Austin 2009, no pet.).
the visiting judge concluded that the underlying expunction         The expunction statute is an exception to the established
order precluded the Commission from relying on any of the           principle that court proceedings and records should be open
expunged records and ordered the Commission to turn over            to the public. See, e.g., Express–News Corp. v. MacRae,
all information in its possession related to Bledsoe's arrest,      787 S.W.2d 451, 452 (Tex.App.-San Antonio 1990, orig.
including the partial trial transcript. The order also barred for   proceeding) (recognizing constitutional right to public trials
any purpose “any document or other evidence derived from            and presumptively open court records); TEX.CODE CRIM.
the underlying criminal case and subject to the District Court's    PROC. art. 1.24 (requiring public trials). The statute is
expunction order or derived from the arrest of J.B. and subject     designed to protect wrongfully-accused people from inquiries
to the District Court's expunction order.”                          about their arrests. See Ex parte S.C., 305 S.W.3d 258, 263–
                                                                    64 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (stating
Meanwhile, in response to Hall's requests, the grievance panel      “statute was enacted to prevent the record of a wrongful arrest
chair ordered restrictions on the Commission's discovery in         from negatively impacting a person for the remainder of his
the disciplinary action. The order recited that the Commission      life”).
could not acquire or use any documents or other evidence
related to the underlying criminal case and expungement             The statute provides for a truncated expunction procedure that
order until the trial court amended the expungement, if it did.     requires neither filing a petition nor a hearing. TEX.CODE
Hall subsequently moved to strike the evidentiary petition,         CRIM. PROC. art. 55.02 § 1. The truncated procedure
to dismiss the disciplinary proceeding, and for summary             commences with a defendant's request for expunction, such
judgment. The Commission sought a stay so that it could seek        as a request made orally on the record by defense counsel.
relief from the trial court's order. The grievance panel denied     Id. The acquitted defendant must provide the trial court



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
In re State Bar of Texas, 440 S.W.3d 621 (2014)
57 Tex. Sup. Ct. J. 1253

with certain information, including a list of all officials and       order did not name the Commission as a respondent in
agencies to be named in the expunction order and notified             possession of records to be expunged. Nor did the order make
of the expunction proceedings. Id. art. 55.02 §§ 1, 2(b).             an exception for the Commission to use expunged records in
Within thirty days of acquittal, the trial court is to enter the      its prosecution.
expunction order, which is prepared and filed by defense
counsel or by the prosecutor, if the acquitted defendant is not       The Commission filed its Original Evidentiary Petition in
represented by counsel. Id. art. 55.02 § 1. The court clerk           the disciplinary proceeding in July 2012. Hall answered in
then sends a certified copy of the expunction order to the            August, complaining that the expunction order handicapped
Department of Public Safety and to each of the officials and          his ability to defend himself. In response, the Commission
agencies named in the order. Id. art. 55.02 § 3(c).                   moved to modify the expunction order in the criminal trial
                                                                      court. The motion recited that the Commission had recently
“On receipt of the order, each official or agency or other            learned of the order's possible existence but that it had not
governmental entity named in the order” is required to return         been served with a certified copy of the order nor been given
to the court all records and files that are subject to the order      notice of an expunction hearing. See TEX.CODE OF CRIM.
or, if their return is impracticable, to obliterate all information   PROC. art. 55.02 § 3(c). The Commission requested access
identifying the acquitted defendant. Id. art. 55.02 § 5(a)(1).        to records and files in the underlying criminal case for the
Any of the entities named in the order may appeal the order           purpose of prosecuting disciplinary proceedings against third
as in civil cases generally. Id. art. 55.02 § 3(a). The clerk         parties.
is directed to destroy the collected files and records in some
cases, but the files and records are not destroyed in the case of     The trial court denied the request. It further ordered the
an acquittal. Id. art. 55.02 § 5(d). In acquittal cases, the clerk    Commission to turn over any material in its investigation
maintains the expunged records and files but generally only           file related to Bledsoe's arrest and broadly ordered the
the acquitted defendant has access to them. Id. art. 55.02 §          Commission not to use any evidence derived from the
5(c).                                                                 underlying criminal case in any manner. This order, signed
                                                                      by the visiting judge on December 11, 2012, is the subject of
Expunction, however, is not absolute. The statute provides            the Commission's request for mandamus relief.
for exceptions, permitting the retention of records and files,
if they may be needed in future criminal or civil proceedings.        The Commission argues that the court's order perverts the
Id. art. 55.02 § 4. Article 55.02 provides two exceptions for         expunction statute's purpose. It submits that a statute designed
acquittal cases which apply if “(1) the records and files are         to protect an acquitted defendant's reputation has been
necessary [to investigate and prosecute] a person other than          applied to impede the disciplinary prosecution of the person
the person who is the subject of the expunction order; or (2)         accused of violating the acquitted defendant's rights. The
the state establishes that the records and files are necessary        Commission further notes that the acquitted defendant fully
for use in (A) another criminal case ...; or (B) a *625 civil         supports the Commission's use of the expunged records in the
case, including a civil suit or suit for possession of or access      disciplinary case against the former prosecutor. In fact, the
to a child.” Id. art. 55.02 § 4(a–2)(1), (2).                         acquitted defendant filed a brief supporting the Commission's
                                                                      mandamus petition in this Court, and his lawyer appeared at
                                                                      oral argument. The Commission concludes that the court's
                                                                      application of the expunction statute is a clear abuse of
                               III
                                                                      discretion because it ignores the acquitted defendant's wishes,
Bledsoe was acquitted in the underlying criminal prosecution          contravenes the statute's primary purpose, and interferes with
on June 17, 2011. Despite the statute's directive that the            the Commission's ability to prosecute the disciplinary action
court enter the expunction order “not later than the 30th             before the grievance panel.
day after the acquittal,” the expunction order was not signed
until December 28, 2011. By that time, the Commission's                [4]    [5] We agree that the court's December 11 order,
preliminary investigation into prosecutorial misconduct was           denying the Commission's request to use expunged records in
virtually complete. The Commission, of course, had no                 the disciplinary action, is an abuse of discretion. A person can,
direct connection to the criminal prosecution and no apparent         in effect, “unexpunge” his records by putting those records
knowledge of the expunction proceedings. The expunction               at issue in another proceeding. See, e.g., W.V. v. State, 669



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
In re State Bar of Texas, 440 S.W.3d 621 (2014)
57 Tex. Sup. Ct. J. 1253

S.W.2d 376, 378–79 (Tex.App.-Dallas 1984, writ ref'd n.r.e.)        Antonio 2000, pet. denied) (concluding that civil service
(holding that retention of files was not necessary to afford        commission did not rely on expunged records or files but
protection from potential civil action because expunged             on officers' testimony about their personal observations). The
records would be held by district clerk and could be retrieved      statute thus cannot reasonably be construed to apply to all
if needed for subsequent proceedings); see also Thomas v.           investigative files and records generated by a state agency,
City of Selma, 2006 WL 2854405, *3 (W.D.Tex. Oct. 4,                like the Commission in this case.
2006) (holding that district clerk must produce arrest records
for use in suit based on arrest). Bledsoe has done precisely        The grievance panel, however, interpreted the visiting judge's
 *626 that, making his arrest and prosecution a matter of           order as precluding the Commission from proceeding in
public record, by filing a federal lawsuit against Hall and         the disciplinary action. The Commission argued against
other defendants based on his arrest and prosecution. The           that construction and presented evidence independent of the
Commission advises that Hall filed the full transcript of           expunged records, including the affidavit from the judge
Bledsoe's trial as a summary judgment exhibit in federal court      who presided over the criminal trial, but to no avail. The
and that it is publicly available on the Internet. See Bledsoe v.   panel chair concluded that there was “no way we can get
Galveston Cnty. Dist. Attorney's Office, No. 4:13–CV–00469,         the evidence” and that “as [the trial court's] order stands,
Document 52–2 (S.D. Tex. filed Feb. 21, 2013) (available at         then we have to grant the no-evidence motion for summary
https:// www.pacer.gov).                                            judgment.”

The Commission argues that if an acquitted defendant can            In barring the Commission's use of any document or other
make expunged records public by filing a lawsuit based on           evidence derived from the underlying criminal case, the court
his wrongful prosecution, he should likewise be able to make        construes the expunction statute at odds with the acquitted
the records public by participating in a grievance proceeding       defendant's interests. A process intended to protect acquitted
based on the wrongful prosecution. Thus, if Hall can use the        defendants has been used as a shield against charges of
expunged records to defend himself in federal court, he can         prosecutorial misconduct. Moreover, the court's order fails to
also use them to defend himself in the disciplinary action.         consider that an expunction order may except records needed
And, if Hall has the right to use the expunged records, they        for future investigations and proceedings by a prosecutor or
should also be available to the Commission. The acquitted           a law enforcement agency. TEX.CODE CRIM. PROC. art.
defendant supports the Commission's use of the expunged             55.02 § 4(a–2). The exception extends not only to criminal
records in the disciplinary case, and we conclude that he has       matters, but *627 to civil cases as well. Id. art. 55.02 § 4(a–
the right to voluntarily waive his expunction rights for this       2)(2)(B). And, as already mentioned, an acquitted defendant
purpose. In re Expunction of Jones, 311 S.W.3d 502, 505             who obtains an expunction may subsequently waive the
(Tex.App.-El Paso 2009, no pet.) (citing TEX.CODE CRIM.             statute's protection. Given the waiver expressed by the
PROC. art. 1.14(a)). We conclude further that the court             acquitted defendant, the relevance of the expunged records to
abused its discretion in disregarding the acquitted defendant's     the disciplinary proceeding, and the Commission's expressed
voluntary waiver, particularly in light of the Commission's         need for those records, the trial court abused its discretion
expressed need for the records to prosecute the disciplinary        by extending the expungement order to the Commission and
proceeding.                                                         thereby interfering in the disciplinary proceeding.

 [6] The expunction statute's purpose is not to eradicate           An order that directly interferes with the Commission's ability
all evidence of wrongful conduct. See Gomez v. Tex. Educ.           to collect and present evidence is as much a direct interference
Agency, 354 S.W.3d 905, 917–18 (Tex.App.-San Antonio                in the disciplinary process as an order directed to a grievance
2011, pet. denied) (holding that a police officer's eyewitness      panel itself. See State Bar of Tex. v. Jefferson, 942 S.W.2d
testimony in a contested case administrative hearing was not        575 (Tex.1997) (orig. proceeding) (granting mandamus relief
barred by an expunction order issued before the hearing,            against district court that enjoined disciplinary proceedings
but after the administrative petition); Ex parte S.C., 305          before a grievance panel); State v. Sewell, 487 S.W.2d 716
S.W.3d at 266 (holding an expunction order overbroad                (Tex.1972) (orig.proceeding) (same). Because the court's
because it included state securities board's investigation          order interferes with the disciplinary process, disrupting the
records mentioning S.C.); Bustamante v. Bexar Cnty. Sheriff's       regulatory scheme promulgated by this Court to govern cases
Civil Serv. Comm'n, 27 S.W.3d 50, 53–54 (Tex.App.-San               of attorney discipline, we conditionally grant relief and direct



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
In re State Bar of Texas, 440 S.W.3d 621 (2014)
57 Tex. Sup. Ct. J. 1253

the trial court to vacate its order of December 11, 2012. We
                                                                       Article 1.14 of the Texas Code of Criminal Procedure affirms
are confident the district court will comply, and the writ will
                                                                       that a defendant in a criminal prosecution “may waive
issue only if it does not.
                                                                       any rights secured him by law.” TEX.CRIM. PROC.CODE
                                                                       art. 1.14(a). Article 55.01 provides a defendant a right to
                                                                       expunction that may be waived. See, e.g., In re Expunction
Justice BOYD filed a concurring opinion, in which Justice              of Jones, 311 S.W.3d 502 (Tex.App.-El Paso 2009, no pet.)
WILLETT joined.                                                        (holding that a defendant knowingly waived his rights to
                                                                       expunction under article 1.14). The defendant in this case
Justice BOYD, joined by Justice WILLETT, concurring in
                                                                       consented to the Commission's motion for access to the
the judgment.
                                                                       expunged records for use in the pending disciplinary action
The Court concludes in this case “that [an] expungement
                                                                       and has filed a brief in support of the Commission's petition
order does not bar the Commission [for Lawyer Discipline]
                                                                       in this Court. Article 55.01 grants a right to the defendant, not
from using records from [a] criminal trial in [a subsequent]
                                                                       the prosecutor, and I agree that in this case the defendant has
grievance proceeding.” Ante at 622. The Court reaches
                                                                       waived that right.
this conclusion because (1) the defendant in the criminal
case “has the right to voluntarily waive his expunction
                                                                       There is no need in this case for the Court to consider whether
rights” and has done so here, ante at 626; (2) the trial
                                                                       the trial court's order “contravenes” the expunction statute's
court's construction of the expunction statute “contravenes the
                                                                       unexpressed purpose or “interferes with the disciplinary
statute's primary purpose” and is “at odds with the acquitted
                                                                       process.” Because the defendant has waived his rights under
defendant's interests,” ante at 626; and (3) the trial court's
                                                                       the expunction statute, I agree that the trial court abused its
order “interferes with the disciplinary process, disrupting the
                                                                       discretion by denying *628 the Commission access to the
regulatory scheme promulgated by this Court to govern cases
                                                                       criminal trial record.
of attorney discipline,” ante at 627. In my view, the latter two
reasons, even if true, provide an inadequate basis to ignore
the unambiguous language of the expunction statute. But I              Parallel Citations
agree with the Court's first reason and therefore concur in the
judgment.                                                              57 Tex. Sup. Ct. J. 1253


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
Love v. State Bar of Texas, 982 S.W.2d 939 (1998)


                                                                    Love was brought under article X of the former State Bar
                                                                    Rules or the current Texas Rules of Disciplinary Procedure.
    Original Image of 982 S.W.2d 939 (PDF)                          We hold that the State Bar Rules apply, and affirm the
                     982 S.W.2d 939                                 judgment of the trial court.
                 Court of Appeals of Texas,
                   Houston (1st Dist.).

            Jack Edward LOVE, Appellant,                                            Facts and Procedural History
                         v.
                                                                    On June 21, 1990, Love appeared as counsel for a criminal
         THE STATE BAR OF TEXAS, Appellee.
                                                                    defendant in Harris County Criminal Court at Law No. 10.
         No. 01–95–01340–CV. | Dec. 17,                             After arriving an hour late for a 9:00 a.m. hearing, Love
                                                                    attempted to obtain a trial setting, but was directed by the
    1998. | Rehearing Overruled Dec. 17, 1998.
                                                                    court to confer with the prosecution before attempting to set
State Bar filed disciplinary petition against attorney. The         a trial date. While court was still in session, Love left the
270th District Court, Harris County, J.F. Clawson, J., entered      courtroom without resetting or otherwise disposing of his
post-answer default judgment and disbarred attorney. He             client's case and without conferring with the prosecution as
appealed. On denial of motion for rehearing en banc, the            instructed by trial judge. Love did not return for two hours.
Court of Appeals, Schneider, C.J., held that: (1) allegations in
petition were sufficient to support application of prior State      The court concluded all other matters, and, along with Love's
Bar rules rather than the new Texas Rules of Disciplinary           client, awaited his return. The court eventually reset the cause
Procedure; (2) evidence was sufficient to show attorney             and directed Love's client to return the following day. After
violated former State Bar disciplinary rules; and (3) trial court   the trial judge retired to chambers, Love returned to the
did not abuse its discretion in disbarring attorney.                courtroom. The court coordinator explained to Love that the
                                                                    court had reset the cause for the next day. Love became angry
Judgment affirmed.                                                  and in the presence of court personnel, made antisemitic
                                                                    remarks regarding the trial judge.

Attorneys and Law Firms                                             On August 14, 1990, Love was found guilty of three counts of
                                                                    misdemeanor contempt. For each count, Love was assessed
*941 Jack E. Love, Houston, for Appellant.
                                                                    punishment of six months in jail and a fine of $500. Love
Linda A. Acevedo, Mary Klapperich, Houston, Austin, for             filed a writ of habeas corpus to the Texas Court of Criminal
Appellee.                                                           Appeals. The Court, en banc, upheld the first two findings
                                                                    of contempt and set aside the third. Love then filed a writ
Before Chief Justice SCHNEIDER and Justices WILSON                  of habeas corpus in federal district court. This writ was
and HEDGES.                                                         dismissed.

                                                                    On July 29, 1994, the State Bar filed its first disciplinary
                          OPINION                                   petition against Love. The petition was based on the first two
                                                                    contempt findings and violations of Texas Disciplinary Rules
MICHAEL H. SCHNEIDER, Chief Justice.                                of Professional Conduct 3.02, 3.04(c)(5), 8.04(a)(2) and (4).
                                                                    TEX DISCIPLINARY R. PROF'L CONDUCT 3.02, 3.04,
The Court considered the appellee's motion for rehearing en         8.04, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit, G
banc. A majority of the justices of the Court voted to deny the     app. A (Vernon Supp.1997) (TEXAS STATE BAR R. art. X,
motion. However, the panel withdraws its prior opinion, and         § 9). Although Love was properly notified and had an answer
issue this opinion in its place.                                    on file, he did not appear at trial. Thus, the trial court entered a
                                                                    post-answer default judgment against Love, and, based on the
This is an attorney disciplinary action that resulted in the        evidence presented by the State Bar, disbarred Love. Love's
disbarment of appellant, Jack Edward Love. The controlling          motion for new trial was denied, and this appeal followed.
issue in this case is whether the disciplinary action against



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
Love v. State Bar of Texas, 982 S.W.2d 939 (1998)


                                                                   pleading requirements on the State Bar to prosecute claims
                                                                   under the old State Bar Rules. Therefore, we must presume
      The Applicable Rules of Professional Conduct
                                                                   that the absence of such language was intentional. See Martin,
The disposition of the case ultimately hinges on which set         102 S.W.2d at 1039.
of disciplinary rules applies to the disciplinary action against
Love. To make that determination, we must determine what           Moreover, Texas Rule of Disciplinary Procedure 1.03
                                                                   requires us to broadly construe the new rules “to ensure
effect the Texas Rules of Disciplinary *942 Procedure, 1
                                                                   the operation, effectiveness, integrity, and continuation of
which became effective on May 1, 1992, had on then pending
                                                                   the professional disciplinary and disability system.” TEX.
disciplinary matters involving attorney conduct that occurred
                                                                   R. DISCIPLINARY P. 1.033. If we were to accept Love's
prior to May 1, 1992. Texas Rule of Disciplinary Procedure
                                                                   contention that the State Bar was required to plead and prove
1.04 provides in pertinent part:
                                                                   a pending disciplinary investigation, we would essentially be
                                                                   reading Texas Rule of Disciplinary Procedure 1.04 to do away
   These rules apply prospectively to all attorney professional    with an entire class of disciplinary matters that were based
   disciplinary and disability proceedings commenced on            on conduct that occurred prior to May 1, 1992, but that were
   and after [May 1, 1992] ... [T]he State Bar Rules ... are       not commenced until after the Texas Rules of Disciplinary
   repealed except to the extent that they apply to then pending   Procedure became effective. We decline to accept Love's
   disciplinary matters.                                           reading of rule 1.04. Such a construction would not only
   TEX.R. DISCIPLINARY P. 1.04 (emphasis added).                   hamper the State Bar's efforts to control attorney conduct, but
Love argues that the disciplinary rules in effect at the time      would engraft additional requirements on the State Bar not
of trial apply, absent the State Bar pleading and proving that     expressly imposed by the Texas Supreme Court. See Sharp v.
the disciplinary investigation against him was pending prior       House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991) (noting
to May 1, 1992. Love contends the language in rule 1.04            that court construing a statute should consider consequences
implementing the Rules of Disciplinary Procedure effectively       of construction).
engrafts additional pleading and proof requirements on the
State Bar in disciplinary matters prosecuted under the former  Therefore, we hold that the State Bar was not required to plead
State Bar Rules. We disagree.                                  and prove that there was a pending disciplinary investigation
                                                               against Love prior to May 1, 1992, to prosecute Love under
 [1] [2] Promulgated rules have the same force and effect the State Bar rules. To invoke the jurisdiction of the trial court,
as statutes. Missouri Pac. R.R. Co. v. Cross, 501 S.W.2d 868,  all that was required of the State Bar was that they plead
872 (Tex.1973). Consequently, rules should be interpreted in   sufficient facts to show that the trial court had jurisdiction.
accordance with the rules of statutory construction. Knight    Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440,
v. Intern. Harvester Credit Corp., 627 S.W.2d 382, 384         446 (Tex.1993).
(Tex.1982). The primary goal of interpretation is to determine
what the enacting body intended. Id. Here, our goal is          [5] In its First Amended Disciplinary Petition, the State Bar
to determine what the Texas Supreme Court intended by          referred to the applicable rules in pertinent part as follows:
enacting Texas Rule of Disciplinary Procedure 1.04 and the
                                                                                *943      Petitioner    brings this
resulting effect on disciplinary investigations commenced
                                                                               disciplinary action pursuant to the
before May 1, 1992. We must interpret rule 1.04, and, in
                                                                               State Bar Act, Tex. Gov't.Code Ann.
the process, harmonize and give effect to the entire set of
                                                                               § 81.000, et seq. (Vernon 1988) and
disciplinary rules. See Martin v. Sheppard, 129 Tex. 110, 102
                                                                               the State Bar rules. The complaints
S.W.2d 1036, 1039 (Tex.1937).
                                                                               which forms (sic) the basis of the
                                                                               First Amended Disciplinary Petition
 [3]    [4] A cardinal rule of statutory construction is that
                                                                               were filed prior to May 1, 1992.
every word used must be presumed to have been used for
                                                                               The acts and conduct of Respondent,
a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d
                                                                               as hereinafter described, constitute
535, 540 (Tex.1981). It is also presumed that words excluded
                                                                               professional misconduct under the
were left out for a purpose. Id. The language of rule 1.04
                                                                               State Bar Rules. Art. X, § 57.
is absolutely silent regarding the existence of any additional



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Love v. State Bar of Texas, 982 S.W.2d 939 (1998)


                                                                 of the truth of their allegations. Stanley, Harris, Rice &
The State Bar's petition specifically stated they were bringing  Assoc. v. Lewis, 410 S.W.2d 533, 534 (Tex.Civ.App.—Dallas
“this disciplinary action pursuant to the State Bar Act, TEX.    1966, no writ); Kroger Co. v. Warren, 410 S.W.2d 194, 196
GOV'T. CODE ANN. § 81.000, et seq. (Vernon 1988) and             (Tex.Civ.App.—Tyler 1966, no writ). Moreover, a defendant
the State Bar rules.” They specifically referred to complaints   with an affirmative defense who fails to appear at trial, and
that had been filed against Love prior to the effective date of  offers no evidence to support that defense, effectively waives
the Texas Rules of Disciplinary Procedure.                       that affirmative defense. Stoner v. Thompson, 578 S.W.2d
                                                                 679, 685 (Tex.1979); RE/MAX of Texas, Inc. v. Katar Corp.,
 [6]    [7] We find this language sufficient to support the 961 S.W.2d 324, 327 (Tex.App.—Houston [1st Dist.] 1997,
application of the State Bar Rules. See State Bar of Texas       no writ); TEX. R. CIV. P. 94.
v. Dolenz, 893 S.W.2d 113, 114–15 (Tex.App.—Dallas
1995, writ denied) (holding that disciplinary action based       Here, there is no evidence in the record proving or disproving
on conduct occurring before effective date of Texas Rules        Love's statute of limitations claims. Therefore, we overrule
of Disciplinary Procedure governed by State Bar Rules).          Love's first point of error.
Where pleadings do not affirmatively show an absence of
jurisdiction, a presumption exists in favor of jurisdiction. See
Peek v. Equipment Servc. Co. of San Antonio, 779 S.W.2d
802, 804 (Tex.1989). Here, the State Bar's pleadings do not                      Violation of Disciplinary Rules
affirmatively show that the State Bar Rules do not apply.
                                                                 Love also contends the State Bar did not meet its burden of
Therefore, it was incumbent on Love to show the trial court
                                                                 proving a violation of disciplinary rules. We disagree.
why the State Bar Rules should not apply. 2 Having failed to
show up for trial, Love did not meet this burden.

In conclusion, we decline Love's invitation to impose                                  Standard of Review
additional pleading requirements on the State Bar absent
                                                                   [13] An appellant, who did not have the burden of proof
some legislative directive. The State Bar's petition did
                                                                  on an issue at trial, and who attacks the legal sufficiency of
not affirmatively show the trial court lacked jurisdiction.
                                                                  an adverse *944 finding on that issue, must demonstrate
Therefore, we presume the action against Love was properly
                                                                  that there is no evidence to support the finding. Croucher v.
before the trial court, and hold the trial court did not err in
                                                                  Croucher, 660 S.W.2d 55, 58 (Tex.1983); Stephanz v. Laird,
applying the State Bar Rules rather than the new Texas Rules
                                                                  846 S.W.2d 895, 898 (Tex.App.—Houston [1st Dist.] 1993,
of Disciplinary Procedure.
                                                                  writ denied). In reviewing a no evidence point, we consider
                                                                  only the evidence and inferences that tend to support the
                                                                  finding. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992).
                   Statute of Limitations                         If there is any evidence to support the finding, then the finding
                                                                  will be upheld. Southern States Transp., Inc. v. State, 774
 [8] Love argues the trial court erred in entering a post-        S.W.2d 639, 640 (Tex.1989).
answer default judgment against him because the disciplinary
action was barred by the statute of limitations. Love did not   [14] [15] [16] Additionally, when a party, like Love in the
appear at trial or offer any evidence. However, he argues the  present case, fails to request findings of fact and conclusions
State Bar did not controvert his verified answer that asserted of law, the appellate court presumes the trial court made all
the action was barred by limitations.                          necessary findings to support its judgment. See Worford v.
                                                               Stamper, 801 S.W.2d 108, 109 (Tex.1990); Magill v. Magill,
 [9]    [10]    [11]   [12] A statute of limitations plea is an816 S.W.2d 530, 532 (Tex.App.—Houston [1st Dist.] 1991,
affirmative defense. TEX.R. CIV. P. 94. The defendant bears    writ denied). In determining whether some evidence supports
the initial burden of proving an affirmative defense. See      the judgment, we consider only the evidence most favorable
Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517          to the judgment and disregard all evidence that is opposed
(Tex.1988). A defendant relying on an affirmative defense      to it or contrary in nature. See Worford, 801 S.W.2d at 109;
must plead, prove, and secure findings to sustain the defense. Ulrich v. Ulrich, 652 S.W.2d 503, 506 (Tex.App.—Houston
Id. Pleadings, even those that are verified, are not evidence  [1st Dist] 1983, no writ). The judgment of the trial court must


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Love v. State Bar of Texas, 982 S.W.2d 939 (1998)


be affirmed if the judgment is supported by any evidence in         sanction, the trial court must consider the relevant factors set
the record. See In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984).       forth in Rule 3.10, including: (1) the nature and degree of
                                                                    the misconduct; (2) loss or damage to clients; (3) damage to
                                                                    the profession, assurance that others will be insulated from
                                                                    the type of misconduct found; (4) profit to the attorney; (5)
                          Discussion
                                                                    avoidance of repetition; (6) deterrent effect on others; (7)
 [17] Here, when Love returned to the courtroom after a two         maintenance of respect for the legal profession; (8) conduct
hour absence, and without conferring with the prosecution,          of the attorney during Committee action; (9) trial of the
the court coordinator explained to him that the trial judge had     cause; and (10) other relevant evidence concerning attorney's
reset his case for the following day. Love, to say the least, was   personal and professional background. Id. We will only
not pleased. In the presence of court personnel, Love became        reverse the trial court's decision if an abuse of discretion is
angry, abusive, and then proceeded to personally attack the         shown. A trial court abuses its discretion when it acts without
trial judge. Love stated:                                           reference to any guiding rules and principles and the test is
                                                                    whether the trial court's act was arbitrary and unreasonable.
  “There was a time that Jews could not serve on the bench.         Downer *945 v. Aquamarine Operators, Inc., 701 S.W.2d
  That little Jew will never call me a liar again.” He further      238, 241 (Tex.1986). However, the mere fact that a trial court
  stated: “Do you remember or understand what happened in           may decide a matter differently than an appellate court does
  France to the Jews? The Jews were dug up from the grave           not demonstrate an abuse of discretion. Id.
  and hung. That little Jew is not going to get away with this.
  That little Jew doesn't know this but I will have a cross
  burned in his front yard tonight. The Klu Klux Klan will
                                                                                              Discussion
  not put up with this. That little Jew is not going to call me a
  liar ever again. I will see to it that that judge is impeached     [20]     The trial court found that Love had violated
  just like that drunk Don Hendrix.”                                Rules 3.04(a)(5), 8.04(a)(2), and 8.04(a)(4) of the Texas
                                                                    Disciplinary Rules of Professional Conduct. Additionally,
We find this evidence more than sufficient to support the           the court took notice of Love's two prior criminal
trial court's finding that Love violated the disciplinary rules.    contempt convictions for professional misconduct. Love's
Therefore, we overrule his second point of error.                   punishment for these prior convictions consisted of a two-
                                                                    year suspension, one year active and one year probated,
                                                                    and a 24–day active suspension, respectively. Taking into
                   Excessive Punishment                             consideration the nature of Love's misconduct, the bad light
                                                                    in which he cast the legal profession, the potential damage to
Finally, Love argues that disbarment was excessive                  his client, the desire to deter similar conduct in the future, and
punishment, disproportionate to the conduct alleged, and            Love's prior professional misconduct, we find the trial court
amounted to an abuse of discretion. We find his contention          did not abuse its discretion.
without merit.
                                                                    We overrule Love's third point of error.


                     Standard of Review
                                                                                              Conclusion
 [18] [19] A trial court has broad discretion to determine the
consequences of professional misconduct. State Bar of Texas         The rules governing lawyer conduct serve many purposes.
v. Kilpatrick, 874 S.W.2d 656, 659 (Tex.1994). However, the         However, in their most basic form, the rules are designed
judgment of a trial court in a disciplinary proceeding may be       to insure integrity for the legal system and those who work
so light or heavy as to amount to an abuse of discretion. Id.       within that system. “[T]he right to practice law is a very
The guiding rules and principles to determine the appropriate       great privilege. With this privilege comes an equal dose of
sanction for an attorney guilty of professional misconduct are      responsibility.” State Bar of Texas v. Moore, 932 S.W.2d
set out in Texas Rule of Disciplinary Procedure 3.10. TEX.R.        132, 138 n. 4 (Tex.App.—El Paso), vacated, 938 S.W.2d
DISCIPLINARY P. 3.10. To determine the appropriate                  717 (Tex.1997). As an officer of the court, Love had a


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Love v. State Bar of Texas, 982 S.W.2d 939 (1998)


                                                                     The judgment of the trial court is affirmed.
responsibility and “duty to protect its integrity.” Gentile v.
State Bar of Nevada, 501 U.S. 1030, 1076, 111 S.Ct. 2720,
2745, 115 L.Ed.2d 888 (1991). We hold Love breached this
duty by his conduct.                                                 A majority of the justices of the Court voted to deny appellee's
                                                                     motion for rehearing en banc. TEX.R.APP. P. 49.7.


Footnotes
1      The Texas Rules of Disciplinary Procedure superceded article X of the State Bar Rules. Amended Order for
       Implementation of the Texas Rules of Disciplinary Procedure, 833–834 S.W.2d (Texas Cases) XXXVII (Tex.1991).
2      Additionally, we note that the State Bar's pleading provided fair and adequate notice to Love that the disciplinary action
       against him was being brought under the former State Bar Rules. If Love believed the State Bar's petition was vague,
       ambiguous, or misleading, he had an opportunity to complain by special exception. He failed to do so and, therefore,
       waived his objection. Hitt v. Mabry, 687 S.W.2d 791, 795–96 (Tex.App.—San Antonio 1985, no writ).


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140


                                                                   Opinion
    Original Image of 891 S.W.2d 243 (PDF)
                     891 S.W.2d 243                                CORNYN, Justice, delivered the opinion of the Court, in
                 Supreme Court of Texas.                           which PHILLIPS, Chief Justice, and HECHT and ENOCH,
                                                                   Justices, join.
  THE STATE BAR OF TEXAS, James Parsons, III,
                                                                   The sole question presented for our determination is whether
 in his capacity as President of the State Bar of Texas
                                                                   the district court below has jurisdiction of this suit, which
   and Karen Johnson, in her capacity as Executive
                                                                   complains of the failure of the State Bar of Texas to compel
    Director of the State Bar of Texas, Petitioners,
                                                                   member lawyers to provide free legal services to Texans who
                           v.                                      cannot pay for those services. We conclude that the district
     Maria GOMEZ, Alicia Naveja, and Leonardo                      court correctly dismissed the case for lack of jurisdiction.
         Chavez, on Behalf of Themselves and                       Thus, we reverse the judgment of the court of appeals and
        Others Similarly Situated, Respondents.                    remand this case to the district court with instructions to
                                                                   dismiss. 1
            No. D–4218. | Argued Jan. 20,
           1994. | Decided Dec. 22, 1994.
                                                                   After being refused free legal services, Maria Gomez, Alicia
Indigents brought action for declaratory and injunctive            Naveja, and Leonardo Chaves, on behalf of themselves
relief to require State Bar or Supreme Court to implement          and others similarly situated (collectively, Gomez), filed
mandatory pro bono program for state lawyers. The 353rd            suit in a Travis County district court against the State
Judicial District Court, Travis County, Joseph H. Hart, J.,        Bar of Texas and two of its officials at that time, James
dismissed for lack of subject matter jurisdiction, and indigents   Parsons III, President, and Karen Johnson, Executive Director
appealed. The Court of Appeals, J. Woodfin Jones, J., 856          (collectively, State Bar). Gomez contends that the State Bar,
S.W.2d 804, reversed and remanded. On application for writ         by not effectively encouraging attorneys to volunteer free
of error, the Supreme Court, Cornyn, J., held that indigents'      legal services, has illegally failed to meet the legal needs of
action to compel State Bar or Supreme Court to implement           indigent Texans. Specifically, Gomez alleges violations of the
mandatory pro bono program did not present justiciable             following provisions of the Texas Constitution: (1) Article
controversy and, therefore, district court lacked jurisdiction     I, Section 13 (open courts); (2) Article I, Section 3 (equal
over action.                                                       protection); (3) Article I, Section 3a (equal rights); (4) Article
                                                                   I, Section 19 (due course of law); and (5) Article I, Section 29
Reversed and remanded.                                             (inviolate nature of the Bill of Rights). Gomez further asserts
                                                                   violations of the Texas antidiscrimination statute, 2 the Texas
Gonzalez, J., concurred and filed opinion.                         Disciplinary Rules of Professional Conduct, 3 and the Texas
                                                                   Lawyer's Creed. 4
Hightower, J., dissented and filed opinion in which Gammage
and Spector, JJ., joined.
                                                                   The district court dismissed the case, concluding it lacked
                                                                   jurisdiction under Article V, Section 8, of the Texas
Doggett, J., noted his dissent.
                                                                   Constitution. 5 The court of appeals reversed, holding that the
                                                                   district court had jurisdiction to decide the merits of Gomez's
Attorneys and Law Firms                                            claims, but because of this Court's exclusive authority to
                                                                   regulate the legal profession in Texas, it held that the district
 *244 Lynn Liberato, Houston, Linda A. Acevedo, Austin,            court could levy only a prohibitory, and not a mandatory
Alene Ross Levy, Jeffrey T. Nobles, Houston, Broadus A.            injunction against the State Bar. 856 S.W.2d 804 (Tex.1993).
Spivey, Eric R. Galton, James M. McCormack, Austin, for            The court of appeals explained:
petitioners.

Virginia Agnew, Charles Herring, Jr., James C. Harrington,           We conclude that a district court does not have authority
Austin, for respondents.                                             to grant relief that would *245 unreasonably usurp the



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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

   supervisory control vested exclusively in the supreme          of powers dictated by Article II, Section 1 of the Texas
   court. By vesting the supreme court with supervisory           Constitution). Those duties include our obligation, as the head
   control of the practice of law, the constitution and the       of the judicial department, to regulate judicial affairs. Because
   State Bar Act grant the supreme court discretion to decide     the admission and practice of Texas attorneys is inextricably
   issues concerning the State Bar and the practice of law.       intertwined with the administration of justice, the Court must
   Whether a district court has authority to grant a particular   have the power to regulate these activities in order to fulfill
   form of injunctive relief depends, we believe, on whether      its constitutional role. See generally JIM R. CARRIGAN,
   granting such relief would effectively exercise the kind       INHERENT POWERS OF THE COURTS 2 (1973) (defining
   of supervisory discretion that is vested exclusively in the    inherent powers as those “reasonably required to enable a
   supreme court.                                                 court to perform efficiently its judicial functions, to protect
   856 S.W.2d at 815. We agree with the court of appeals'         its dignity, independence and integrity, and to make its lawful
   identification of the issue but not its conclusion.            actions effective”). The Court's inherent powers, such as the
 [1] [2] The jurisdictional question presented is complex         power to regulate the practice of law, are not jurisdictional
and in some ways unique. As a general proposition, before         powers. See Eichelberger, 582 S.W.2d at 399. These powers
a court may address the merits of any case, the court must        are administrative powers, necessary to the preservation of
have jurisdiction over the party or the property subject to       the judiciary's independence and integrity.
the suit, jurisdiction over the subject matter, jurisdiction to
enter the particular judgment, and capacity to act as a court.  [5] [6] Because the Court's power to regulate the practice
See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d        of law is an administrative one, the exercise of that power
878, 881 (Tex.1973). Subject matter jurisdiction requires that does not in and of itself deprive lower courts of general
the party bringing the suit have standing, that there be a     subject matter jurisdiction over challenges to that governance.
live controversy between the parties, and that the case be     They do not, however, have jurisdiction over all such
justiciable. See Texas Ass'n of Business v. Texas Air Control  challenges because in every individual case, jurisdiction
Bd., 852 S.W.2d 440, 443–46 (Tex.1993). If the district court  also depends on justiciability. And, as the court of appeals
lacks jurisdiction, in any of these senses, then its decision  acknowledged, for a controversy to be justiciable, there must
would not bind the parties. See Austin Indep. Sch. Dist., 495  be a real controversy between the parties that will be actually
S.W.2d at 881 (noting that collateral attacks on a judgment    resolved by the judicial relief sought. 856 S.W.2d 804, 811
are allowed when the district court lacked jurisdiction). And, (citing Texas Ass'n of Business, 852 S.W.2d at 446 and *246
a decision that does not bind the parties is, by definition, anBoard of Water Eng'rs v. City of San Antonio, 155 Tex.
advisory opinion prohibited by Texas law. See Texas Ass'n of   111, 283 S.W.2d 722, 724 (1955)). While we do not find it
Business, 852 S.W.2d at 444 (citing Article II, Section 1, of  necessary to set the precise boundaries of the district court's
the Texas Constitution as prohibiting advisory opinions).      jurisdiction under these circumstances, we hold that these
                                                               facts do not present a justiciable controversy and that the
 [3]     [4] The unique aspect of this jurisdictional inquiry, district court therefore has no jurisdiction.
as the court of appeals recognized, arises out of this Court's
power to regulate the practice of law in the State of Texas.    [7] Gomez seeks to compel either the State Bar or this
This power is derived from both statutory and inherent         Court to implement a mandatory pro bono program for Texas
powers. The primary statutory grant of power is found in       lawyers. To the extent a remedy is sought against the State
the State Bar Act, which gives the Court administrative        Bar, Gomez seeks relief from an entity that is powerless,
control over the State Bar and provides a statutory mechanism  acting alone, to implement that remedy. The State Bar's
for promulgating regulations governing the practice of law.    authority is limited to proposing regulations to this Court,
See TEX.GOV'T CODE § 81.011(c). The other source of            which may accept or reject any recommendation, in whole or
this court's power to regulate the practice of law in this     in part. See TEX.GOV'T CODE § 81.024(a). For example,
state, its inherent power, is not secured by any legislative   when the latest amendment to the rules governing lawyer
grant or specific constitutional provision, but is necessarily advertising was recommended by the State Bar, we modified
implied to enable the Court to discharge its constitutionally  the proposed amendment before promulgation. See Amended
imposed duties. See Eichelberger v. Eichelberger, 582          Order of Promulgation and Adoption of Disciplinary Rules,
S.W.2d 395, 398–99 (Tex.1979) (noting that doctrine of         West's Texas Cases Advance Sheet 884–885 issue 49, pp.
inherent power is derived, in part, from the separation        LXIX–LXXXI. Thus, the relief sought against the State Bar,



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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

even if granted by the trial court, could not resolve the dispute   a justiciable controversy. Once again, acknowledging the
between these litigants.                                            limitations on the district court's authority in this area,
                                                                    the dissenting justices nevertheless contend, “The district
 [8] Moreover, to the extent the remedies are sought against        court does, however, have jurisdiction to issue a mandatory
the Supreme Court, they would clearly impinge on the                injunction which requires the State Bar to implement a more
Court's exclusive authority to regulate the practice of law.        effective voluntary pro bono program calculated to meet
The Legislature itself implicitly acknowledged the Court's          constitutional and statutory demands which may exist.” Infra,
fundamental authority in this area when it enacted the State        891 S.W.2d at 252 (emphasis added). We are at a loss to
Bar Act as an aid to the Court in carrying out this function.       understand, and the dissenting justices do not explain, how a
See TEX.GOV'T CODE § 81.011(b). No subordinate court in             mandatory injunction to enforce a voluntary program could
Texas has the power to usurp our authority or responsibility in     ever be enforced by any court. By limiting the district court's
this area. The dissenting justices acknowledge this limitation      jurisdiction to such illusory relief, the dissenting justices
when they say, “An injunction mandating this court or the           have, in effect, conceded that the *247 trial court cannot
State Bar to implement a mandatory pro bono program would           grant plaintiffs the real relief they seek.
be improper. It would inappropriately involve the district
court in the regulation of the practice of law.” Infra, 891         Our decision that the district court lacks jurisdiction does not,
S.W.2d at 252 (citations omitted).                                  however, leave the parties without a forum in which to seek
                                                                    redress of their grievances. This Court, in the exercise of its
This is not to say that all remedies bearing upon the regulation    constitutional responsibilities, wants and needs input from
of the legal profession would be unacceptable infringements         interested persons concerning its supervisory responsibility
on the inherent powers of the Court. Had this Court actually        over Texas lawyers. Ordinarily, interested parties would be
promulgated rules establishing a pro bono program and had           free to informally petition this Court in its administrative
Gomez challenged the constitutionality of such rules, the           capacity, to urge reconsideration of the proper constitutional
district court would have jurisdiction to decide, in the first      mandates for this Court's regulation of attorney conduct.
instance, whether such rules met constitutional standards. See      However, given the potentially far-reaching effects of this
O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988) (upholding          particular challenge to our scheme of regulation, we direct
the trial court's decision on a constitutional challenge to the     that this matter be placed on the Court's administrative
rules of disciplinary conduct promulgated by the Court).            agenda for further consideration. All interested parties have
In due course, we would review any adverse determination            until April 14, 1995, to submit their written arguments on
in our adjudicative capacity. See Cameron v. Greenhill,             the merits of the underlying claims. Cf. Barger v. Brock,
582 S.W.2d 775, 777 & n. 3 (Tex.1979) (holding that                 535 S.W.2d 337, 342 (Tenn.1976) (ordering a lower court
the Court could both promulgate a rule and determine its            to dismiss a challenge to the Supreme Court's rules but
constitutionality). The important distinction between such a        directing the lower court to forward the petitions for further
case and the one at hand is that in the former case, the            consideration as a direct motion in the Supreme Court).
district court would not be cast in the impermissible role of
effectively promulgating policies and regulations governing         Accordingly, we reverse the judgment of the court of appeals
Texas lawyers. Such a case would be justiciable because             and remand to the district court with instructions to dismiss
the district court would be capable of rendering a judgment         for want of jurisdiction.
that accords the parties complete relief, subject of course to
appellate review.

                                                                    DOGGETT, J., dissents.
But when, as here, the essence of a complaint is that
this Court has failed to establish rules governing some             GONZALEZ, Justice, concurring.
aspect of lawyer conduct, a district court has no authority         This case presents significant issues of public policy.
to assume this Court's authority to regulate the legal              Respondents seek a court declaration that indigent citizens
profession. This prohibition includes the rendition of orders       of our State are entitled to free legal services in civil cases.
that would, as a practical matter, preempt this Court's             They also seek an injunction that would require the State Bar
authority. Because the district court cannot effect a remedy        of Texas to implement a program mandating pro bono legal
that would resolve this dispute, this case does not present
                                                                    services from all attorneys licensed to practice law in Texas. 1


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

For the reasons stated in the majority opinion, I agree with         1988, we signed an order that made the IOLTA program
the trial court and this Court that this case does not present       mandatory. Id. (amended December 13, 1988). We took this
a justiciable controversy within the trial court's jurisdiction. I   action under our authority to regulate the practice of law.
thus concur in the judgment.
                                                                     Realistically, the Court has progressed as far as it can to
I write separately because I disagree with the Court                 extend legal services to the poor. A mandatory pro bono
prolonging resolution of the mandatory pro bono issue by             program is quite different from the IOLTA program. This
placing the matter “on the Court's administrative agenda for         Court lacks the resources and/or the political will to attempt
further consideration.” 891 S.W.2d at 247. This procedure            further resolution of the profound problem of providing
is unnecessary, and it gives Respondents false hope that a           legal services for indigent citizens. I would tell Respondents
majority of the Court is seriously considering implementing          frankly that we are not going to order mandatory pro bono.
such a sweeping change in the practice of law in Texas. As           The Legislature is better suited to tackle this social problem.
for the invitation for interested parties to submit more briefs
to the Court, I think that any information which anyone gives
the Court will merely duplicate what we already have for             HIGHTOWER, Justice, joined by GAMMAGE and
determining the merits of Respondents' request. The issue of         SPECTOR, Justices, dissenting.
how to provide legal services for the indigent is a problem in       Because I believe that the district court has jurisdiction of this
our society that has been widely debated and studied. More           suit and that the Court would effectively deny the Plaintiffs'
hearings, briefs, or argument before us will be of little utility.   access to a meaningful forum in which to seek redress of their
                                                                     grievances, I respectfully dissent.
Mandating any program for legal services to the poor
is a political question, over which this Court in its
administrative capacity and the Legislature would have                                               I.
jurisdiction. However, in my opinion, any attempt to draft
and implement such a program would unnecessarily divert              The jurisdictional inquiry begins with Article V, Section 8 of
the Court from its primary business of adjudicating disputes.        the Texas Constitution which provides in part:
The Legislature is better suited to undertake the activities
                                                                                  District Court jurisdiction consists
necessary for drafting and implementing a program to provide
                                                                                  of exclusive, appellate, and original
indigents legal services. Different program options, as well
                                                                                  jurisdiction of all actions, proceedings
as their legal and constitutional ramifications, will need to be
                                                                                  and remedies, except in cases where
considered. Since the problem of access to legal services faces
                                                                                  exclusive, appellate, or original
society as a whole, the burden of resolving it does not solely
                                                                                  jurisdiction may be conferred by this
rest on the legal profession.
                                                                                  Constitution or other law on some
                                                                                  other court, tribunal or administrative
I acknowledge that a very real problem exists for individuals
                                                                                  body.
who seek legal representation but lack the financial resources
to retain counsel. Studies clearly document that our poor            Tex. Const. art. V, § 8 (emphasis added). The district
citizens need greater access to legal services. See, e.g.,           court held that it lacked jurisdiction because the legislature
COMMITTEE ON LEGAL SERVICES TO THE POOR IN                           had conferred jurisdiction over matters concerning the
CIVIL MATTERS, STATE BAR OF TEXAS, REPORT                            administration of the State Bar upon this Court in the State
ON MANDATORY PRO BONO (1991); STATE BAR                              Bar Act. See Tex.Gov't Code Ann. § 81.011(c) (West 1988).
OF TEXAS ET AL., LEGAL NEEDS OF THE POOR                             I disagree.
ASSESSMENT PROJECT (1991). This need led the Court
to create the Texas Equal Access to Justice foundation in            What the legislature conferred upon this Court was
1984 to administer the voluntary *248 IOLTA (Interest on             “administrative control over the state bar.” Tex.Gov't
Lawyers' Trust Accounts) program. 2 See TEXAS EQUAL                  Code Ann. § 81.011(c) (West 1988) (emphasis added).
ACCESS TO JUSTICE PROGRAM §§ 1–9 (effective May                      “Jurisdiction” within the meaning of Article V, Section 8
19, 1994), reprinted in TEX.GOV'T CODE, tit. 2, subtit. G            includes only the judicial powers of the courts. These judicial
app. (STATE BAR RULESS art. XI, §§ 1–9). In December,                powers are typically the only ones at issue when the Court



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

makes statements such as: “[J]udicial power is divided among         to regulate the practice of law.” Tex.Gov't Code Ann. §
the various named courts by means of express grants of               81.011(b) (West 1988).
‘jurisdiction.’ ” Eichelberger v. Eichelberger, 582 S.W.2d
395, 398 (Tex.1979) (citing Morrow v. Corbin, 122 Tex.               The State Bar's actual power in this regard is limited to
553, 62 S.W.2d 641 (1933)). But Texas courts have duties in          proposing regulations to this Court, which could reject or
addition to their judicial responsibilities.                         amend any such recommendation. Under a strict concept
                                                                     of justiciability, one could argue that there is no justiciable
I do not disagree that this Court's inherent power to regulate       controversy between the State Bar and the Plaintiffs. See
the practice of law is more expansive than the administrative        Board of Water Eng'rs v. City of San Antonio, 155 Tex.
authority that the legislature has “granted” to us. See Daves v.     111, 283 S.W.2d 722, 724 (1955) (defining “justiciable
State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, writ              controversy” as the requirement that there shall be a
ref'd n.r.e.) (noting the Court's inherent power to adopt rules      real controversy between the parties that will actually be
governing the practice of law by extra-statutory means); see         determined by the judicial declaration sought). On the
also Tex.Gov't Code Ann. § 81.011(b) (West 1988) (stating            other hand, more modern notions of justiciability would
that the State Bar was a legislative creation passed to aid          acknowledge that the State Bar is an acceptable “surrogate
the Court in exercising its judicial power). See State Bar v.        defendant” for the Court in this matter. In fact, the State Bar
Heard, 603 S.W.2d 829, 831 (Tex.1980). Even so, it does              has served as such a surrogate in several recent cases. See,
not necessarily follow that this inherent power is so great          e.g., O'Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988); State
that it deprives the state's courts of general jurisdiction of the   Bar v. Tinning, 875 S.W.2d 403 (Tex.App.—Corpus Christi
authority to hear a challenge pertaining to the governance of        1994, writ denied); Musslewhite v. State Bar, 786 S.W.2d 437
the legal profession.                                                (Tex.App.—Houston [14th Dist.] 1990, writ denied); Daves
                                                                     v. State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985,
The proper question to determine whether the district court          writ ref'd n.r.e.). 2 For these reasons, I conclude that the
has jurisdiction over this case is not whether this Court, in        district court's jurisdiction is not suspect on this basis.
its administrative capacity, could act in a manner that would
decide or moot the issues raised. Rather, three questions must
be asked: (1) *249 whether the State Bar and its officers
are the proper parties in this case; (2) if so, whether the                                         II.
district court is an appropriate forum to hear a matter over
                                                                     Next we must decide whether the district court has subject
which this Court exercises such extensive authority; and (3)
                                                                     matter jurisdiction over a challenge to an administrative
whether the failure to act, as opposed to an affirmative action,
                                                                     decision of this Court. I believe the answer is yes.
nevertheless presents an issue over which the district court
                                                                     Promulgating court rules in our administrative capacity does
may exercise authority. I would answer all three questions in
                                                                     not and cannot imply a concomitant determination by this
the affirmative.
                                                                     Court in its judicial capacity that such rules are constitutional
                                                                     in every respect. Hopefully, this Court does not abandon its
However couched, the Plaintiffs' claims are actually directed
                                                                     collective knowledge of the Constitution when it exercises
not so much at the State Bar 1 as at an alleged deficiency           its rulemaking authority, and surely it would not knowingly
in the current system of lawyer regulation established by            promulgate any rule it regarded as violating the United States
this Court and the legislature. This Court, both by legislative      or Texas Constitutions. However, we are not omniscient. It is
grant and its inherent powers, possesses authority to regulate       simply beyond the capacity of this or *250 any other court to
the practice of law and exercises control over the State             envision every possible constitutional ramification or factual
Bar. See Tex.Gov't Code Ann. §§ 81.011, 81.024(a) (West              application of its orders or rules, particularly before it has
1988) (clarifying this Court's supervisory role over the State       the benefit of a case and controversy that vigorously explores
Bar); State Bar v. Heard, 603 S.W.2d at 831 (“The State              both sides of the issues. See Order of the Supreme Court of
Bar Act was passed in aid of this court's exercise of its            February 28, 1966, Transmitting Amendments to Rules of
inherent power to regulate the practice of law.”) (footnotes         Civil Procedure, 383 U.S. 1029, 1032 (Black, J., dissenting)
omitted). The legislature recognized the Court's fundamental         (stating that “the Court's transmittal does not carry with it a
responsibility in this area when it passed the State Bar Act “in     decision that the amended rules are all constitutional” because
aid of the judicial department's powers under the constitution       “such a decision would be the equivalent of an advisory


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

opinion which, I assume the Court would unanimously                  is doubtful that the Legislature has the power to impose a
agree, we are without constitutional power to give.”); Grand         mandatory pro bono system upon the State Bar.
Bahama Petroleum Co. v. Canadian Transp. Agencies, 450
F.Supp. 447, 450 (W.D.Wash.1978) (holding that the district          Some state supreme courts have expressly provided for the
court had jurisdiction to consider a constitutional challenge        filing of petitions challenging their orders and rules directly
to a federal rule of civil procedure, noting that “[w]hile           with that court. See, e.g., Aldridge v. Watling Ladder Co.,
the [United States Supreme] Court certainly considers the            275 Ark. 225, 628 S.W.2d 322, 323 (1982) (holding that
constitutionality of a rule recommended by a committee, it is        a case involving construction of supreme court rule should
not possible for its members to anticipate every constitutional      have been certified to supreme court under Supreme Court
objection.”). This is especially true when, as here, it is the       Rule 29(1)(c)); *251 Goetz v. Harrison, 153 Mont. 403, 457
failure to provide for some constitutionally mandated system         P.2d 911, 912 (1969) (stating that questions involving the
that is alleged.                                                     constitutionality of a supreme court rule should be presented
                                                                     to the supreme court in an “appropriate original proceeding.”)
Nor would the mere determination by the district court that
the current system is constitutionally deficient invade this         This Court has, with narrow exceptions, never provided such
Court's inherent power to regulate the practice of law. We           a procedure. 4 Because supreme court rules must comport
have no inherent power to create a system that violates the          with the Constitution and because the judicial branch is
Constitution, just as the legislature has no power to pass           entrusted with interpreting the Constitution, jurisdiction to
unconstitutional statutes. See Reese v. State, 772 S.W.2d 288,       consider challenges to rules must exist at the district court
290 (Tex.App.—Waco 1989, pet. ref'd) (reasoning that a               level. This view comports with the general understanding of
court may not enact a procedural rule that conflicts with a          Texas law, and with what is probably the majority rule in most
provision of the constitution); Picard v. State, 631 S.W.2d          of the states that have been confronted with the issue. See,
761, 763 (Tex.App.—Beaumont 1981, no writ) (holding that             e.g., Beard v. North Carolina State Bar, 320 N.C. 126, 357
the rule-making authority of any court may not conflict with         S.E.2d 694, 695 (1987) (holding that a “direct challenge of the
constitutional provisions and that any unconstitutional rule         constitutionality of an order of this Court ... must be litigated
is inoperative). For example, the Constitution provides that         as an original action in the General Court of Justice.”);
this Court may not appoint to the State Commission on                Berberian v. Kane, 425 A.2d 527, 528 n. 2 (R.I.1981)
Judicial Conduct more than one judge from the same Supreme           (holding that a rule may be challenged in a case seeking
Judicial District. Tex. Const. art. V, § 1–a(2). If the Court        declaratory judgment that the rule was unconstitutional).
breached this restriction, surely it would be answerable to
the legal system. If this be conceded, there can be only two
possible mechanisms to enforce constitutional restrictions on
the Court acting in its administrative capacity: a suit against                                    III.
the Court in a lower court or an original proceeding in the
                                                                     The question remains whether this case is nonjusticiable
Court itself. Either of these courses is permissible, but at least
                                                                     because the district court does not have jurisdiction to grant
one is necessary. Under the Court's analysis, however, there
                                                                     the relief sought. Plaintiffs seek a declaratory judgment
is no mechanism to enforce constitutional restrictions on the
                                                                     that the State Bar is violating their constitutional and
Court acting in its administrative capacity. In this case, the
                                                                     statutory rights. Among other things, Plaintiffs requested
Plaintiffs are left without a meaningful forum in which to
                                                                     that the district court “[d]eclare that the official policies,
seek redress of their grievances. The Court has directed “that
                                                                     actions, and failure to act alleged herein, which involve the
this matter be placed on the Court's administrative agenda
                                                                     refusal to Defendants to adequately provide for the legal
for further consideration.” In essence, the Court suggests that
                                                                     services needed by Plaintiffs and the class, violate the Texas
the Plaintiffs directly petition the Court for redress of their
                                                                     Constitution and Tex.Civ.Prac. & Rem.Code § 106.001.”
“complaint.” However, the Court is not required to consider
                                                                     Plaintiffs also seek an injunction prohibiting the State Bar
or take any action on the “petition”—ever! Obviously this
                                                                     from continuing to violate the rights of indigent citizens
does not constitute a meaningful forum. 3 It is also unclear         and an injunction mandating the State Bar to implement
whether the Plaintiffs could seek redress of their grievances in     an adequate and more effective pro bono program. First,
the Legislature. Based upon the Court's expansive description        declaratory relief is proper whether or not further relief is
of its inherent powers to regulate the practice of law, it           or could be claimed. See Tex.Civ.Prac. & Rem.Code Ann.


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The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

§ 37.003(a). The district court has the authority to render a      do not now instruct the legislature as to the specifics of the
judgment declaring the constitutional and statutory rights of      legislation it should enact....”
Plaintiffs and, also, to declare whether such rights have been
violated. See Tex.Civ.Prac. & Rem.Code Ann. § 37.003. I fail       Moreover, a court should not overstep the line between
to see the distinction between the district court's jurisdiction   adjudication and regulation. Regulation of the practice of
to determine the constitutionality of the official policies,       law is within the exclusive control of this Court. Tex.Gov't
actions, and failure to act caused by the refusal of the State     Code Ann. § 81.011(c) (Vernon 1986); Daves v. State Bar,
Bar to adequately provide for the legal services needed by         691 S.W.2d 784, 788–89 (Tex.App.—Amarillo 1985, writ
Plaintiffs and the district court's jurisdiction to determine      ref'd n.r.e.). An injunction mandating this Court or the State
the constitutionality of rules proposed by the State Bar           Bar to implement a mandatory pro bono program would be
and promulgated by this Court. In both cases, the district         improper. It would inappropriately involve the district court
court's determination could be reviewed by this Court in its       in the regulation of the practice of law. See Edgewood Indep.
adjudicative capacity. Contrary to the Court's assertion, the      Sch. Dist. v. Kirby, 777 S.W.2d at 399; Edgewood Indep. Sch.
determination of the constitutionality of the refusal to the       Dist. v. Kirby, 804 S.W.2d at 493–94. The district court does,
State Bar to adequately provide for the legal services needed      however, have jurisdiction to issue a mandatory injunction
by Plaintiffs would not cast the district court in the role of     which requires the State Bar to propose and implement a
effectively promulgating policies and regulations governing        more effective voluntary pro bono program calculated to meet
Texas lawyers.                                                     constitutional and statutory demands which may exist. Id. In
                                                                   addition, the district court would have jurisdiction to issue a
Concerning injunctive relief, a prohibitory injunction, one        mandatory injunction which requires the State Bar to propose
prohibiting the State Bar from continuing to violate Plaintiffs'   regulations creating a mandatory pro bono program to this
rights, would be proper in the event the district court holds      Court.
such rights are being violated. It is axiomatic that a court
has the power to enforce its orders determining the legal          Finally the question remains whether this case is
rights of the parties. Morrow v. Corbin, 122 Tex. 553, 62          nonjusticiable because it alleges constitutional sins of
S.W.2d 641, 644–45 (1933). “Reason and experience argue            omission. I believe that the Plaintiffs' complaint that
that courts empowered ... [to decide] constitutional mandates      the State Bar has failed to act as required by various
cannot be left without the means to order appropriate relief.”     constitutional and statutory provisions does not affect the
Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex.1991).               justiciability of their claims. Distinctions between an act and
Furthermore, a mandatory injunction could also be proper.          an omission in this context are not helpful. See generally
See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391,           Lisa E. Heinzerling, Note, Actionable Inaction: Section
399 (Tex.1989); Edgewood Indep. Sch. Dist. v. Kirby, 804           1983 Liability for Failure to Act, 53 U.CHI.L.REV. 1048,
S.W.2d 491, 494 (Tex.1991); Terrazas, 829 S.W.2d at 717–           1057–63 (1986) (criticizing the entire act/omission analysis
20. However, courts should tread lightly when dealing with         in the context of governmental responsibilities under the
powers traditionally reserved to other areas of government.        Constitution, primarily because its tort-based reasoning is ill-
For example, in Terrazas, although we held that the courts         suited to explain existing doctrine). If this Court concluded
could order apportionment, we were careful to state,               that the district court lacked jurisdiction over the Plaintiffs'
                                                                   claims because they allege an omission rather than an act,
              *252 [T]hat power ought to be used                   the Plaintiffs could simply recast their allegations. Thus,
             only after investigation and careful                  the difference between acts and omissions in this highly
             consideration of the many, diverse                    unusual context seems semantic. See David A. Fischer,
             interests affected, after due deference               Causation in Fact in Omission Cases, 1992 UTAH L.REV.
             to the Legislature to rectify its own                 1335, 1339 (“[A]s a matter of semantics, any omission
             statutes, and after due regard for the                can be characterized as part of a larger encompassing
             effect of the court's order on the                    act.”). The mere fact that the Plaintiffs have alleged an
             election process.                                     unconstitutional omission cannot deprive the district court of
                                                                   jurisdiction when it clearly would have jurisdiction to review
829 S.W.2d at 718. Likewise, in Edgewood Indep. Sch. Dist.
                                                                   an unconstitutional act.
v. Kirby, 777 S.W.2d at 399, we stated, “Although we have
ruled the school financing system to be unconstitutional, we


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
The State Bar of Texas v. Gomez, 891 S.W.2d 243 (1994)
38 Tex. Sup. Ct. J. 140

For the foregoing reasons, I respectfully dissent.
                                                                     Parallel Citations

                                                                     38 Tex. Sup. Ct. J. 140


Footnotes
1      This disposition of the limited issue before us means that we do not, as Justice Gonzalez's concurring opinion does,
       comment on the merits of the underlying claims.
2      TEX.CIV.PRAC. & REM.CODE § 106.001. This statute generally prohibits the state or its agents from discriminating
       against persons because of race, religion, color, sex, or national origin. Remedies available to a successful litigant include
       injunctive relief, attorney's fees, and court costs. Id. § 106.002. A person who knowingly violates this statute is subject
       to a fine and confinement in the county jail. Id. § 106.003.
3      TEX.DISCIPLINARY R.PROF.CONDUCT, pmbl. ¶ 6, reprinted in TEX.GOV'T CODE, tit. 2, subtit. G app. (West
       Supp.1992) (STATE BAR RULES art. X, § 9) (“The provision of free legal services to those unable to pay reasonable
       fees is a moral obligation of each lawyer as well as the profession generally.”).
4      Texas Lawyer's Creed—A Mandate for Professionalism (adopted by the Supreme Court of Texas and the Court of
       Criminal Appeals of Texas, Nov. 7, 1989), reprinted in TEXAS RULES OF COURT 487 (West 1994). In the Creed, lawyers
       are urged to commit themselves “to an adequate and effective pro bono program.” Id.
5      Section 8 defines the district courts' jurisdiction, but excepts those cases where jurisdiction has been conferred on some
       other court. See TEX. CONST. art. V, § 8. The district court held that this Court's power to regulate the practice of law
       was sufficient to bring this case within Section 8's exception.
1      Respondents deny that they are seeking a mandatory pro bono program, but they do not suggest any other method of
       providing legal services to the indigent.
2      The IOLTA foundation administers a program wherein lawyers convert their non-interest bearing trust accounts to interest
       bearing accounts. Financial institutions remit all interest earned on IOLTA accounts to the IOLTA foundation. The
       foundation in turn channels money to organizations that deliver civil legal services to the poor. Since inception of the
       mandatory IOLTA program, the foundation has distributed approximately $42 million to assist people unable to afford
       an attorney in civil actions.
1      The current pro bono policy was adopted by the State Bar of Texas Board of Directors in May 1992. The policy includes
       an aspirational goal of fifty (50) hours per year and an annual voluntary pro bono reporting system.
2      We need not decide in this case whether Plaintiffs could have proceeded against this Court itself. Like other state courts
       of last resort, we have been named defendants in district court at least once before. Cameron v. Greenhill, 582 S.W.2d
       775 (Tex.1979); see also CWA Local 1044 v. Chief Justice of the Sup. Ct., 118 N.J. 495, 572 A.2d 613 (1990) (challenging
       a New Jersey Supreme Court decision made in the course of labor negotiations with its judicial employees); American
       Trial Lawyers Ass'n v. New Jersey Sup. Ct., 66 N.J. 258, 330 A.2d 350 (1974) (challenging a New Jersey Supreme
       Court order limiting contingent attorney's fees in certain tort cases); Vermont Sup. Ct. Admin. Directive No. 17 v. Vermont
       Sup. Ct., 154 Vt. 217, 576 A.2d 127 (1990) (challenging a Vermont Supreme Court order postponing civil jury trials due
       to budgetary shortfalls). But some jurisdictions expressly proscribe suing the state's highest court. See, e.g., Goetz v.
       Harrison, 153 Mont. 403, 457 P.2d 911 (1969) (holding that a lower court has no supervisory control over the Supreme
       Court and thus cannot entertain a challenge to a Supreme Court rule relating to bar admissions).
3      It is unclear whether the Court is creating a “parallel administrative docket” in which interested persons could petition the
       Court for various forms of relief. Are these “petitioners” entitled to timely consideration of their petition and oral argument?
       See Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.1976) (“[I]n order that the parties may have their insistences considered,
       we direct that all pleadings in this cause be delivered to the Clerk of this Court at Nashville forthwith. This Court will treat
       the pleadings as constituting a motion to vacate or modify Rule 42. This matter will be docketed for oral argument, in
       Knoxville, at the heel of the calendar on 7 May 1976. Briefs will be filed with the Clerk in Nashville by 23 April 1976. The
       sole issue before the Court is the constitutionality of Rule 42.”).
4      Our lack of an original proceeding may actually be salutary. This Court's resolution of complex questions concerning
       the constitutionality of our rules would most likely be enhanced by the fuller development of issues and arguments that
       usually attend the appellate process.


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  8
State Bar of Texas v. Jefferson, 942 S.W.2d 575 (1997)
40 Tex. Sup. Ct. J. 463, 41 Tex. Sup. Ct. J. 717

                                                                    including the State Bar's use of special assistant disciplinary
                                                                    counsel to prosecute the case, the investigatory panel's refusal
    Original Image of 942 S.W.2d 575 (PDF)                          to attempt to negotiate a sanction with the lawyers, the
                     942 S.W.2d 575                                 panel's failure to make findings specifying what rules of
                 Supreme Court of Texas.                            professional conduct were violated, and the Bar's alleged
                                                                    dissemination of confidential information concerning this
       The STATE BAR OF TEXAS, Relator,
                                                                    case. The two lawyers have made the same complaints in
                        v.
                                                                    an original proceeding in this Court, In re Hearing before a
  The Honorable Dwight JEFFERSON, Respondent.                       Panel of the District 4–C Disciplinary Committee, No. 97–
                                                                    0243 (Tex. filed March 18, 1997). Proceedings in the district
              No. 97–0276.       |   April 2, 1997.
                                                                    court have been sealed under Rule 76a(5), TEX.R.CIV.P.
State bar petitioned for writs of mandamus and prohibition
directing district court not to interfere in pending attorney        [1] In Board of Disciplinary Appeals v. McFall, 888
grievance proceedings. Supreme Court, held that: (1) district       S.W.2d 471 (Tex.1994), we issued writs of mandamus and
court had no authority to issue temporary restraining order         prohibition to prevent a district court's enjoining the Board
(TRO) enjoining attorney discipline proceedings; (2) district       of Disciplinary Appeals from revoking an attorney's *576
court had jurisdiction to address attorneys' claims to the extent   probation and suspending him from practice. We held:
resolution of issues did not interfere with specific grievance
                                                                      A writ of mandamus and writ of prohibition are appropriate
proceeding; and (3) mandamus was unavailable to unseal
                                                                      when a district court issues an order beyond its jurisdiction.
papers in district court action.
                                                                      Crouch v. Craik, 369 S.W.2d 311, 314 (Tex.1963).
                                                                      The district court lacked jurisdiction under the Rules
Leave to file petition granted; partial relief conditionally
                                                                      of Disciplinary Procedure to enjoin Smith's suspension.
granted.
                                                                      Section 81.071 of the Texas Government Code provides
                                                                      that each attorney practicing in Texas is “subject to the
Attorneys and Law Firms                                               disciplinary and disability jurisdiction of the supreme court
                                                                      and the Commission for Lawyer Discipline, a committee
 *575 Steven Wayne Young, Linda A. Acevedo, Austin,                   of the state bar.” Pursuant to this authority, this court has
Cathleen C. Herasimchuk, Rusty Hardin, Houston, Lonny                 established a comprehensive system of lawyer discipline
Morrison, Wichita Falls, Broadus A. Spivey, Austin, for               governed by the Rules of Disciplinary Procedure.
relator.
                                                                      The rules provide for appeals directly to this
Thomas R. McDade, Houston, Luther H. Soules, III, Brad                Court. TEX.R.DISCIPLINARY P. 7.11. If the appeal
L. Sklencar, Robinson C. Ramsey, San Antonio, T. Gerald               is unsuccessful, Smith may seek reinstatement in
Treece, Richard P. Keeton, James R. Leahy, Houston, for               district court, with a jury trial if he desires one.
respondent.                                                           TEX.R.DISCIPLINARY P. 12.06. The rules do not,
                                                                      however, provide for interim equitable relief, and the
Opinion                                                               district court did not have the power to enjoin Smith's
                                                                      suspension.
PER CURIAM.
                                                                      In State v. Sewell, 487 S.W.2d 716 (Tex.1972), we granted
In this original proceeding, the State Bar of Texas petitions for
                                                                      mandamus to vacate an injunction barring Grievance
writs of mandamus and prohibition to direct the district court
                                                                      Committee proceedings, holding that an injunction by
not to interfere in pending attorney grievance proceedings.
                                                                      a district court “is an interference with the grievance
Two of the four lawyers subject to grievance proceedings
                                                                      procedures authorized by ... the State Bar Act and
in State Bar File No. HO119614117 successfully petitioned
                                                                      constitutes a clear abuse of discretion.” Id. at 719. We
the district court to issue a temporary restraining order
                                                                      did not even reach the question of whether an adequate
staying proceedings before an investigatory panel of the
                                                                      remedy at law existed because the case was one “affecting
District 4–C Disciplinary Committee and preserving the
                                                                      the state as a whole and in which the orderly processes
jurisdiction of that panel. The two lawyers complain of
numerous irregularities in the conduct of the proceeding,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
State Bar of Texas v. Jefferson, 942 S.W.2d 575 (1997)
40 Tex. Sup. Ct. J. 463, 41 Tex. Sup. Ct. J. 717

                                                                         Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). We
  of government have been disturbed.” Id. (quoting State v.
                                                                         therefore decline to grant such broad relief.
  Ferguson, 133 Tex. 60, 125 S.W.2d 272, 274 (1939)).

Id. at 472–473.                                                           [3] Finally, the Bar requests that all papers filed in the
                                                                         district court case be unsealed. The district court ordered the
The two lawyers in this case contend that, unlike the lawyer             papers temporarily sealed under Rule 76a(5), TEX.R.CIV.P.
in McFall who had other remedies besides an injunction                   The order provides for further proceedings as required by
—namely, an appeal and an action for reinstatement—they                  Rule 76a. The Bar may yet obtain from the district court the
have no other recourse for redress of their complaints. That             relief it seeks, and if it does not, it may appeal under Rule
contention simply overlooks the fact that the two lawyers                76a(8). Mandamus is therefore unavailable.
in this case have requested the same relief from this Court
in another proceeding, No. 97–0243. Given that avenue of                 Accordingly, we grant leave to file the petition for writs of
review, there is no more authority for the district court to grant       mandamus and prohibition and without hearing oral argument
injunctive relief in this case than there was in McFall. The             conditionally grant partial relief. We direct the district court
Bar is therefore entitled to the same relief granted in McFall.          to vacate immediately its temporary restraining order issued
                                                                         March 19, 1997, and to directly interfere no further in the
 [2] The Bar also requests that the district court be directed           proceedings in State Bar File No. HO119614117. We deny
to dismiss the action for lack of subject matter jurisdiction,           all further relief. We are confident that the district court will
or alternatively, to proceed no further in the case. The two             comply without delay. Writs will issue only if it does not.
lawyers raise a number of complaints in the case, including
the contention that the Texas Rules of Disciplinary Procedure
are unconstitutional. To the extent that resolution of these             Parallel Citations
issues does not interfere with a specific grievance proceeding,          40 Tex. Sup. Ct. J. 463, 41 Tex. Sup. Ct. J. 717
the district court has jurisdiction to address them. See State

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
State v. Sewell, 487 S.W.2d 716 (1972)




                                                                Most of the relevant facts are included in the recitals of the
    Original Image of 487 S.W.2d 716 (PDF)                      injunctive order which is under attack. Frank B. McGregor is
                      487 S.W.2d 716                            a practicing attorney in Hillsboro and is the District Attorney
                  Supreme Court of Texas.                       Elect for the 66th Judicial District. The Grievance Committee
                                                                in late November, 1971, gave written notice to McGregor of
          The STATE of Texas et al., Relators,                  a hearing set for December 9, 1971, concerning complaints
                         v.                                     of his alleged mishandling of funds during the time that he
        James C. SEWELL, Judge, Respondent.                     had previously served as District Attorney. At the December
                                                                9 meeting the Grievance Committee determined to file a
             No. B—3685.       |    Nov. 29, 1972.              formal complaint seeking McGregor's disbarment. That suit
                                                                was filed on March 1, 1972, in the District Court of Hill
The Grievance Committee of the Bar Association brought
                                                                County.
action for writ of mandamus commanding vacation of order
of the 13th Judicial District Court enjoining the Committee     The Grievance Committee later gave notice to McGregor of a
from conducting hearing on matters considered by Committee      hearing on May 30, 1972, concerning an additional complaint
at earlier hearings. The Supreme Court, Pope, J., held that     arising out of his representation of a client in a court case
where Grievance Committee's decisions at prior hearings         in Hill County. After conducting that hearing, the Grievance
upon two complaints were not final determinations of merits     Committee decided that it did not then have sufficient basis
of complaints, injunction preventing Grievance Committee        upon which to institute any disciplinary action.
from conducting a hearing on matters which were considered
by Committee at two earlier hearings was an interference with   On June 2, 1972, McGregor sought a temporary injunction
the grievance procedures authorized by the State Bar Act and    in the disbarment suit pending in Hill County seeking to
granting thereof constituted a clear abuse of discretion.       enjoin the Grievance Committee from pursuing any further
                                                                investigation procedures following the institution of the
Injunction vacated.                                             disbarment suit. McGregor urged that, upon the filing of the
                                                                disbarment suit, discovery procedures were then governed
                                                                by the usual Rules of Civil Procedure, Article XII, State
Attorneys and Law Firms                                         Bar Rules, 1A Vern.Tex.Civ.Stats., p. 221. He alleged that
                                                                the Committee was exercising its inquisitorial powers after
 *717 Davis Grant, Gen. Counsel, State Bar of Texas, Austin,
                                                                suit was filed. The trial court denied McGregor's prayer
for relator.
                                                                for injunction, but the court of civil appeals reversed that
Beard & Kultgen, Pat Beard, Waco, Charles B. McGregor,          order and directed the trial court to enjoin the Grievance
Houston, Reynolds, White, Allen & Cook, Joe H. Reynolds,        Committee from holding any further hearings or making
Houston, for respondent.                                        any further investigation without complying with the Rules
                                                                of Civil Procedure. McGregor v. State, 483 S.W.2d 559
Opinion                                                         (Tex.Civ.App., writ pending).

POPE, Justice.                                                  On November 1, 1972, the Grievance Committee took a non-
                                                                suit on the disbarment case in Hill County. Its alleged purpose
The members of the Grievance Committee District No. 6,          in doing so was to begin anew and to satisfy strictly the
State Bar of Texas, acting in their official and individual     objections which McGregor had lodged to the procedures
capacities, ask that this court issue its writ of mandamus      leading to the institution of that suit. The order for non-suit
commanding the Honorable James C. Sewell, Judge of the          was without prejudice to the rights of the Committee to refile
13th Judicial District Court of Navarro County, to vacate an    the disbarment suit.
order which temporarily enjoins the Grievance Committee
from conducting ‘A hearing on matters before the Committee’     On November 1, 1972, the day the Grievance Committee
which were considered by the Committee at two earlier           took its non-suit in the Hill County disbarment suit, Steve
hearings. It is our opinion that the injunctive decree should   Latham, the Judge of the 66th Judicial District, lodged
be vacated.                                                     a new complaint with the Grievance Committee, and the
                                                                Committee set a hearing date for November 16, 1972, and


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
State v. Sewell, 487 S.W.2d 716 (1972)


so notified McGregor. McGregor then filed a petition for           that one who seeks an original mandamus to command a trial
injunction in the 13th Judicial District in a neighboring          court to vacate an order has a heavy burden. He must establish
county. The respondent, Judge James Sewell, first granted          that the issuance of the questioned order was a clear abuse of
a restraining order without notice and *718 then upon              discretion. In Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434
hearing on November 13, 1972, temporarily enjoined the             (1959), we also wrote:
Grievance Committee from conducting any hearing which                        While it is the general rule that a
would reconsider any of the matters which were before the                    mandamus will not issue to control the
Committee at its hearing either on December 9, 1971, or                      action of an inferior court . . . in a matter
May 31, 1972. The order excepted from the injunction two                     involving discretion, the writ may issue
complaints which appeared to be entirely new and which                       in a proper case to correct a clear abuse of
were not previously considered by the Committee. It is this                  discretion. Southern Bag & Burlap Co. v.
injunction order which is now before us.                                     Boyd, supra; (120 Tex. 418, 38 S.W.2d
                                                                             565 (1931)) Womack v. Berry, 156 Tex.
Judge Sewell states the basis for his injunctive decree by
                                                                             44, 291 S.W.2d 677, 682 (1956).
recitals in the decree. It says that the Grievance Committee
was barred by res judicata since it had already met and
reached a decision at its December 9, 1971, meeting to
institute a disbarment suit and it had also met and decided    In measuring the abuse of discretion, this court has looked
on May 30, 1972, that it would not institute any disciplinary  with disfavor upon injunctive encroachments upon delegated
action grounded upon the other complaint.                      administrative and executive powers which affect the state as
 [1] [2] [3] The order dismissing the formal complaint to      a whole. In State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272,
disbar McGregor was without prejudice to the Committee's       274 (1939), the members of The Public Safety Commission of
right to refile the suit. Such an order is not a bar to the    Texas asked for a writ of mandamus commanding a trial judge
institution of the same suit. The Grievance Committee asserts  to set aside a temporary restraining order which interfered
that there are other evidences of misconduct which need        with the peace officers of Texas in the enforcement of certain
investigation, but the breadth of the injunctive order is      provisions of the penal code. The court acknowledged that
such that even the calling of a meeting may subject the        an adequate remedy in another court ordinarily is sufficient
members to contempt procedures. It says there is an urgent     reason for the denial of a writ of mandamus. Smith v. Conner,
need to discover and preserve documentary evidence which       98 Tex. 434, 84 S.W. 815 (1905); Aycock v. Clark, 94 Tex.
otherwise may be lost. The Grievance Committee's prior         375, 60 S.W. 665 (1901). The court went *719 on to say,
investigations and its decision to take disciplinary action    however, that the rule ‘will not be followed in a case affecting
or to forego such action have been inquisitorial in nature,    the state as a whole and in which the orderly processes of
but they have not been decisions upon the merits of the        government have been disturbed.’ The court then declared
complaints. The preliminary investigation of an attorney for   that the state's peace officers could proceed in the discharge
alleged misconduct has been compared to an inquisition by      of their official duties freed of the restraints of the writs issued
a grand jury. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487,    by trial judges.
60 A.L.R. 851, 859 (1928). Surely the further investigation of  [6] Ours is a society which lives under law, and lawyers,
other misconduct would not be barred by the prior hearings by  as well as the courts, are its chief protectors. This court
the Grievance Committee. The Committee's prior decisions       is charged with the duty of making rules and regulations
did not ever rise to the level of a final determination of the for disciplining, suspending, and disbarring attorneys after
merits of the complaints before them, and they are not res     appropriate investigation and trial. Section 4, Article 320a
judicata.                                                      —1. This distasteful task is the work of the Grievance
                                                               Committee, and restraints against the performance of its
 [4] [5] Relief, ordinarily, by way of the writ of mandamus functions run afoul the purposes of Article XII, State Bar
is granted with respect to orders which are void and for which Rules, 1A Vern.Tex.Civ.Stats. The Grievance Committee is
there is no ordinary adequate remedy such as an appeal.        an administrative agency of the judicial department and is the
Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). The      arm of the Supreme Court in the discharge of its professional
writ may, however, be granted in some instances when there     policing duties. In a different context, but concerning the
has been a gross abuse of discretion. In Lutheran Social       frustration of the functions of administrative agencies, we
Service, Inc. v. Meyers, 460 S.W.2d 887 (Tex.1970), we said


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
State v. Sewell, 487 S.W.2d 716 (1972)


                                                                         determination has been made.’ See also Texas Aeronautics
said in Texas State Board of Examiners in Optometry v. Carp,
                                                                         Commission v. Betts, 469 S.W.2d 394, 398 (Tex.1971).
162 Tex. 1, 343 S.W.2d 242 (1961): ‘(a) board or commission
created by the Legislature with authority and responsibility
                                                                          [7] The injunction granted by the judge of the 13th Judicial
for determining in the first instance whether certain action
                                                                         District is an interference with the grievance procedures
shall be taken is not subject to restraint by the courts whenever
                                                                         authorized by Article XII of the State Bar Act and constitutes
it appears that an erroneous conclusion has been reached
                                                                         a clear abuse of discretion. The injunction decree granted
on some preliminary or procedural question. Any other rule
                                                                         on November 13, 1972, in cause 383—72, styled Frank B.
would afford an opportunity for constant delays in the course
                                                                         McGregor v. Gladney, et al., is vacated. No motion for
of administrative proceedings, and there is no real need for
                                                                         rehearing will be allowed.
equitable relief in the ordinary case until a final administrative


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
1.06. Definitions, TX ST RULES DISC P 1.06




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part I. General Rules

                              V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 1.06

                                                       1.06. Definitions

                                                          Currentness


A. “Address” means the registered address provided by the attorney who is the subject of the Grievance, as that address is
shown on the membership rolls maintained by the State Bar on behalf of the Clerk of the Supreme Court at the time of receipt
of the Grievance by the Chief Disciplinary Counsel.


B. “Board” means the Board of Directors of the State Bar of Texas.


C. “Chief Disciplinary Counsel” means the person serving as Chief Disciplinary Counsel and any and all of his or her assistants.


D. “Commission” means the Commission for Lawyer Discipline, a permanent committee of the State Bar of Texas.


E. “Committee” means any of the grievance committees within a single District.


F. “Complainant” means the person, firm, corporation, or other entity, including the Chief Disciplinary Counsel, initiating a
Complaint or Inquiry.


G. “Complaint” means those written matters received by the Office of the Chief Disciplinary Counsel that, either on the
face thereof or upon screening or preliminary investigation, allege Professional Misconduct or attorney Disability, or both,
cognizable under these rules or the Texas Disciplinary Rules of Professional Conduct.


H. “Director” means a member of the Board of Directors of the State Bar of Texas.


I. “Disability” means any physical, mental, or emotional condition that, with or without a substantive rule violation, results in
the attorney's inability to practice law, provide client services, complete contracts of employment, or otherwise carry out his or
her professional responsibilities to clients, courts, the profession, or the public.


J. “Disciplinary Action” means a proceeding brought by or against an attorney in a district court or any judicial proceeding
covered by these rules other than an Evidentiary Hearing.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
1.06. Definitions, TX ST RULES DISC P 1.06




K. “Disciplinary Petition” means a pleading that satisfies the requirements of Rule 3.01.


L. “Disciplinary Proceedings” includes 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.


M. “District” means disciplinary district.


N. “Evidentiary Hearing” means an adjudicatory proceeding before a panel of a grievance committee.


O. “Evidentiary Panel” means a panel of the District Grievance Committee performing an adjudicatory function other than that
of a Summary Disposition Panel with regard to a Disciplinary Proceeding pending before the District Grievance Committee
of which the Evidentiary Panel is a subcommittee.


P. “Evidentiary Petition” means a pleading that satisfies the requirements of Rule 2.17.


Q. “General Counsel” means the General Counsel of the State Bar of Texas and any and all of his or her assistants.


R. “Grievance” means a written statement, from whatever source, apparently intended to allege Professional Misconduct by a
lawyer, or lawyer Disability, or both, received by the Office of the Chief Disciplinary Counsel.


S. “Inquiry” means any written matter concerning attorney conduct received by the Office of the Chief Disciplinary Counsel
that, even if true, does not allege Professional Misconduct or Disability.


T. “Intentional Crime” means (1) any Serious Crime that requires proof of knowledge or intent as an essential element or (2)
any crime involving misapplication of money or other property held as a fiduciary.


U. “Just Cause” means such cause as is found to exist upon a reasonable inquiry that would induce a reasonably intelligent
and prudent person to believe that an attorney either has committed an act or acts of Professional Misconduct requiring that
a Sanction be imposed, or suffers from a Disability that requires either suspension as an attorney licensed to practice law in
the State of Texas or probation.


V. “Penal Institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.


W. “Professional Misconduct” includes:


  1. Acts or omissions by an attorney, individually or in concert with another person or persons, that violate one or more of
  the Texas Disciplinary Rules of Professional Conduct.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
1.06. Definitions, TX ST RULES DISC P 1.06




  2. Attorney conduct that occurs in another state or in the District of Columbia and results in the disciplining of an attorney in
  that other jurisdiction, if the conduct is Professional Misconduct under the Texas Disciplinary Rules of Professional Conduct.


  3. Violation of any disciplinary or disability order or judgment.


  4. Engaging in conduct that constitutes barratry as defined by the law of this state.


  5. Failure to comply with Rule 13.01 of these rules relating to notification of an attorney's cessation of practice.


  6. Engaging in the practice of law either during a period of suspension or when on inactive status.


  7. Conviction of a Serious Crime, or being placed on probation for a Serious Crime with or without an adjudication of guilt.


  8. Conviction of an Intentional Crime, or being placed on probation for an Intentional Crime with or without an adjudication
  of guilt.


X. “Reasonable Attorneys' Fees,” for purposes of these rules only, means a reasonable fee for a competent private attorney,
under the circumstances. Relevant factors that may be considered in determining the reasonableness of a fee include but are
not limited to the following:


  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the
  legal service properly;


  2. The fee customarily charged in the locality for similar legal services;


  3. The amount involved and the results obtained;


  4. The time limitations imposed by the circumstances; and


  5. The experience, reputation, and ability of the lawyer or lawyers performing the services.


Y. “Respondent” means any attorney who is the subject of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary
Action.


Z. “Sanction” means any of the following:


  1. Disbarment.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
1.06. Definitions, TX ST RULES DISC P 1.06




  2. Resignation in lieu of discipline.


  3. Indefinite Disability Suspension.


  4. Suspension for a term certain.


  5. Probation of suspension, which probation may be concurrent with the period of suspension, upon such reasonable terms
  as are appropriate under the circumstances.


  6. Interim suspension.


  7. Public reprimand.


  8. Private reprimand.

The term “Sanction” may include the following additional ancillary requirements.


  a. Restitution (which may include repayment to the Client Security Fund of the State Bar of any payments made by reason
  of Respondent's Professional Misconduct); and


  b. Payment of Reasonable Attorneys' Fees and all direct expenses associated with the proceedings.


AA. “Serious Crime” means barratry; and felony involving moral turpitude; any misdemeanor involving theft, embezzlement,
or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another
to commit any of the foregoing crimes.


BB. “State Bar” means the State Bar of Texas.


CC. “Summary Disposition Panel” means a panel of the Committee that determines whether a Complaint should proceed or
should be dismissed based upon the absence of evidence to support a finding of Just Cause after a reasonable investigation by
the Chief Disciplinary Counsel of the allegations in the Grievance.


DD. “Wrongfully Imprisoned Person” has the meaning assigned by Section 501.101, Government Code.


Credits
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by orders of Dec. 29, 2003, eff. Jan. 1, 2004;
May 14, 2008, Aug. 20, 2008, eff. Sept. 1, 2008; Oct. 14, 2013, eff. Nov. 1, 2013.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
1.06. Definitions, TX ST RULES DISC P 1.06


               <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme
              Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>



Notes of Decisions (26)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 1.06, TX ST RULES DISC P 1.06
Current with amendments received through 3/15/2015

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
2.13. Summary Disposition Setting, TX ST RULES DISC P 2.13




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part II. The District Grievance Committees

                              V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.13

                                            2.13. Summary Disposition Setting

                                                         Currentness


Upon investigation, if the Chief Disciplinary Counsel determines that Just Cause does not exist to proceed on the Complaint,
the Chief Disciplinary Counsel shall place the Complaint on a Summary Disposition Panel docket. At the Summary Disposition
Panel docket, the Chief Disciplinary Counsel will present the Complaint together with any information, documents, evidence,
and argument deemed necessary and appropriate by the Chief Disciplinary Counsel, without the presence of the Complainant or
Respondent. The Summary Disposition Panel shall determine whether the Complaint should be dismissed or should proceed. If
the Summary Disposition Panel dismisses the Complaint, both the Complainant and Respondent will be so notified. There is no
appeal from a determination by the Summary Disposition Panel that the Complaint should be dismissed or should proceed. All
Complaints presented to the Summary Disposition Panel and not dismissed shall be placed on the Hearing Docket. The fact that
a Complaint was placed on the Summary Disposition Panel Docket and not dismissed is wholly inadmissible for any purpose
in the instant or any subsequent Disciplinary Proceeding or Disciplinary Action. Files of dismissed Disciplinary Proceedings
will be retained for one hundred eighty days, after which time the files may be destroyed. No permanent record will be kept
of Complaints dismissed except to the extent necessary for statistical reporting purposes. In all instances where a Complaint is
dismissed by a Summary Disposition Panel other than where the attorney is deceased or is not licensed to practice law in the
State of Texas, the Chief Disciplinary Counsel shall refer the Inquiry to a voluntary mediation and dispute resolution procedure.


Credits
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.12 and amended by order
of Dec. 29, 2003, eff. Jan. 1, 2004.

               <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme
              Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>


V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.13, TX ST RULES DISC P 2.13
Current with amendments received through 3/15/2015

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
2.16. Confidentiality, TX ST RULES DISC P 2.16




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part II. The District Grievance Committees

                              V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16

                                                    2.16. Confidentiality

                                                         Currentness


A. All members and staff of the Office of Chief Disciplinary Counsel, Board of Disciplinary Appeals. Committees, and
Commission shall maintain as confidential all Disciplinary Proceedings and associated records, except that:


  1. the pendency, subject matter, status of an investigation, and final disposition, if any, may be disclosed by the Office of
  Chief Disciplinary Counsel or Board of Disciplinary Appeals if the Respondent has waived confidentiality, the Disciplinary
  Proceeding is based on conviction of a serious crime, or disclosure is ordered by a court of competent jurisdiction;


  2. if the Evidentiary Panel finds that professional misconduct occurred and imposes any sanction other than a private
  reprimand.


     a. the Evidentiary Panel's final judgment is a public record from the date the judgment is signed; and


     b. once all appeals, if any, have been exhausted and the judgment is final, the Office of Chief Disciplinary Counsel shall,
     upon request, disclose all documents, statements, and other information relating to the Disciplinary Proceeding that came
     to the attention of the Evidentiary Panel during the Disciplinary Proceeding;


  3. the record in any appeal to the Board of Disciplinary Appeals from an Evidentiary Panel's final judgment, other than an
  appeal from a judgment of private reprimand, is a public record; and


  4. facts and evidence that are discoverable elsewhere are not made confidential merely because they are discussed or
  introduced in the course of a Disciplinary Proceeding.


B. The deliberations and voting of an Evidentiary Panel are strictly confidential and not subject to discovery. No person is
competent to testify as to such deliberations and voting.


C. Rule 6.08 governs the provision of confidential information to authorized agencies investigating qualifications for admission
to practice, attorney discipline enforcement agencies, law enforcement agencies, the State Bar's Client Security Fund, the State




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
2.16. Confidentiality, TX ST RULES DISC P 2.16


Bar's Lawyer Assistance Program, the Supreme Court's Unauthorized Practice of Law Committee and its subcommittees, and
the Commission on Judicial Conduct.


Credits
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Renumbered from Rule 2.15 and amended by orders
of Dec. 29, 2003, eff. Jan. 1, 2004. Amended by order of Dec. 7, 2009, eff. Jan. 1, 2010.

               <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme
              Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>



Notes of Decisions (1)

V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 2.16, TX ST RULES DISC P 2.16
Current with amendments received through 3/15/2015

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
15.09. Immunity, TX ST RULES DISC P 15.09




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              a-1. Rules of Disciplinary Procedure (Refs & Annos)
                Part XV. Miscellaneous Provisions

                              V.T.C.A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 15.09

                                                       15.09. Immunity

                                                         Currentness


No lawsuit may be instituted against any Complainant or witness predicated upon the filing of a Grievance or participation
in the attorney disciplinary and disability system. All members of the Commission, the Chief Disciplinary Counsel (including
Special Assistant Disciplinary Counsel appointed by the Commission and attorneys employed on a contract basis by the Chief
Disciplinary Counsel), all members of Committees, all members of the Board of Disciplinary Appeals, all members of the
District Disability Committees, all officers and Directors of the State Bar, and the staff members of the aforementioned entities
are immune from suit for any conduct in the course of their official duties. The immunity is absolute and unqualified and extends
to all actions at law or in equity.


Credits
Adopted by orders of Feb. 26, 1991, and Oct. 9, 1991, eff. May 1, 1992. Amended by order of June 15, 1994, as corrected by
order of Sept. 12, 1994, eff. Oct. 1, 1994. Renumbered from Rule 15.11 and amended by order of Dec. 29, 2003, eff. Jan. 1, 2004.

               <An order of the Supreme Court dated Feb. 26, 1991, as amended by an order of the Supreme
              Court dated Oct. 9, 1991, adopted the Texas Rules of Disciplinary Procedure, eff. May 1, 1992.>


V. T. C. A., Govt. Code T. 2, Subt. G App. A-1, Disc. Proc., 15.09, TX ST RULES DISC P 15.09
Current with amendments received through 3/15/2015

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Title 2, Subtitle G--Appendix
              A. State Bar Rules
                Article X. Discipline and Suspension of Members
                   Section 9. Texas Disciplinary Rules of Professional Conduct (Refs & Annos)
                     Preamble: A Lawyer's Responsibilities

                             V.T.C.A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Preamble

                                           Preamble: A Lawyer's Responsibilities

                                                          Currentness


1. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for
the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this
role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation
of lawyers is to maintain the highest standards of ethical conduct.

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed
understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer
zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous
to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks
to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as
evaluator by examining a client's affairs and reporting about them to the client or to others.

3. In all professional functions, a lawyer should zealously pursue clients' interests within the bounds of the law. In doing so,
a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the
representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure
is required or permitted by the Texas Disciplinary Rules of Professional Conduct or other law.

4. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's
business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or
intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other
lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also
a lawyer's duty to uphold legal process.

5. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service
rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond
its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be
mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor,
cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A
lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

6. A lawyer should render public interest legal service. The basic responsibility for providing legal services for those unable
to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble


of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional
workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The
provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the
profession generally. A lawyer may discharge this basic responsibility by providing public interest legal services without fee, or
at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable
organization representation, the administration of justice, and by financial support for organizations that provide legal services
to persons of limited means.

7. In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from
apparent conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interests. The
Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minimum
standards of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of these
Rules many difficult issues of professional discretion can arise. The Rules and their Comments constitute a body of principles
upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral
judgment. In applying these rules, lawyers may find interpretive guidance in the principles developed in the Comments.

8. The legal profession has a responsibility to assure that its regulation is undertaken in the public interest rather than in
furtherance of parochial or self-interested concerns of the bar, and to insist that every lawyer both comply with its minimum
disciplinary standards and aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the
independence of the profession and the public interest which it serves.

9. Each lawyer's own conscience is the touchstone against which to test the extent to which his actions may rise above the
disciplinary standards prescribed by these rules. The desire for the respect and confidence of the members of the profession
and of the society which it serves provides the lawyer the incentive to attain the highest possible degree of ethical conduct. The
possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles,
the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.


Credits
Adopted by order of Oct. 17, 1989, eff. Jan. 1, 1990.

                          <The original Rules Governing the State Bar of Texas, consisting of former
                          articles 1 to 13, were approved by the Supreme Court February 22, 1940.>

          <Articles 1 through 9 of the State Bar Rules were adopted and former articles 1 through 11 of the Rules
       Governing the State Bar of Texas were repealed by Order of the Texas Supreme Court dated March 14, 1983.>

                <Article 10 of the State Bar Rules was adopted and article 12, §§ 1 to 7 and 9 to 36, as well as
                article 13, of the Rules Governing the State Bar were repealed by Order of the Texas Supreme
                  Court dated February 29, 1984, effective March 1, 1984. That same order also restated and
                continued article 12, § 8, of the Rules Governing the State Bar (the Texas Code of Professional
                 Responsibility) and promulgated such art. 12, § 8 as article 10, § 9, of the State Bar Rules.>

          <Article 11 of the State Bar Rules was adopted by order of the Texas Supreme Court dated May 9, 1984.>

                            <Article 12 of the State Bar Rules, effective June 1, 1986, was adopted
                              by order of the Texas Supreme Court dated December 19, 1985.>

                               <Article 13 of the State Bar Rules, effective May 15, 1988, was
                            adopted by order of the Texas Supreme Court dated March 14, 1988.>


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Preamble: A Lawyer's Responsibilities, TX ST RPC Preamble




V. T. C. A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9 Preamble, TX ST RPC Preamble
Current with amendments received through 3/15/2015

End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle G. Attorneys
           Chapter 81. State Bar (Refs & Annos)
              Subchapter E. Discipline (Refs & Annos)

                                            V.T.C.A., Government Code § 81.072

                                § 81.072. General Disciplinary and Disability Procedures

                                                 Effective: September 1, 2013
                                                         Currentness


(a) In furtherance of the supreme court's powers to supervise the conduct of attorneys, the court shall establish disciplinary and
disability procedures in addition to the procedures provided by this subchapter.


(b) The supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system.
The standards and procedures for processing grievances against attorneys must provide for:


  (1) classification of all grievances and investigation of all complaints;


  (2) a full explanation to each complainant on dismissal of an inquiry or a complaint;


  (3) periodic preparation of abstracts of inquiries and complaints filed that, even if true, do or do not constitute misconduct;


  (4) an information file for each grievance filed;


  (5) a grievance tracking system to monitor processing of grievances by category, method of resolution, and length of time
  required for resolution;


  (6) notice by the state bar to the parties of a written grievance filed with the state bar that the state bar has the authority
  to resolve of the status of the grievance, at least quarterly and until final disposition, unless the notice would jeopardize an
  undercover investigation;


  (7) an option for a trial in a district court on a complaint and an administrative system for attorney disciplinary and disability
  findings in lieu of trials in district court, including an appeal procedure to the Board of Disciplinary Appeals and the supreme
  court under the substantial evidence rule;


  (8) an administrative system for reciprocal and compulsory discipline;




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




  (9) interim suspension of an attorney posing a threat of immediate irreparable harm to a client;


  (10) authorizing all parties to an attorney disciplinary hearing, including the complainant, to be present at all hearings at
  which testimony is taken and requiring notice of those hearings to be given to the complainant not later than the seventh
  day before the date of the hearing;


  (11) the commission adopting rules that govern the use of private reprimands by grievance committees and that prohibit a
  committee:


     (A) giving an attorney more than one private reprimand within a five-year period for a violation of the same disciplinary
     rule; or


     (B) giving a private reprimand for a violation:


       (i) that involves a failure to return an unearned fee, a theft, or a misapplication of fiduciary property; or


       (ii) of a disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to
       the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas
       Disciplinary Rules of Professional Conduct; and


  (12) distribution of a voluntary survey to all complainants urging views on grievance system experiences.


(b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection
(b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges
a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from
a penal institution.


(b-2) For purposes of Subsection (b-1):


  (1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or
  information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule
  3.09(d), Texas Disciplinary Rules of Professional Conduct.


  (2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.


  (3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




(c) In addition to the minimum standards and procedures provided by this chapter, the supreme court, under Section 81.024 shall
prepare, propose, and adopt rules it considers necessary for disciplining, suspending, disbarring, and accepting resignations
of attorneys.


(d) Each attorney is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional
Conduct.


(e) The state bar shall establish a voluntary mediation and dispute resolution procedure to:


  (1) attempt to resolve each allegation of attorney misconduct that is:


     (A) classified as an inquiry under Section 81.073(a)(2)(A) because it does not constitute an offense cognizable under the
     Texas Disciplinary Rules of Professional Conduct; or


     (B) classified as a complaint and subsequently dismissed; and


  (2) facilitate coordination with other programs administered by the state bar to address and attempt to resolve inquiries and
  complaints referred to the voluntary mediation and dispute resolution procedure.


(e-1) All types of information, proceedings, hearing transcripts, and statements presented during the voluntary mediation and
dispute resolution procedure established under Subsection (e) are confidential to the same extent the information, proceedings,
transcripts, or statements would be confidential if presented to a panel of a district grievance committee.


(f) Responses to the survey provided for in Subsection (b)(12) may not identify either the complainant or attorney and shall
be open to the public. The topics must include:


  (1) treatment by the grievance system staff and volunteers;


  (2) the fairness of grievance procedures;


  (3) the length of time for grievance processing;


  (4) disposition of the grievance; and


  (5) suggestions for improvement of the grievance system.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




(g) A person may not maintain an action against a complainant or witness in a disciplinary proceeding based on a communication
made by the complainant or witness to the commission, a grievance committee, or the chief disciplinary counsel. The immunity
granted by this subsection is absolute and unqualified.


(h) The state bar or a court may not require an attorney against whom a disciplinary action has been brought to disclose
information protected by the attorney-client privilege if the client did not initiate the grievance that is the subject of the action.


(i) A panel of a district grievance committee of the state bar that votes on a grievance matter shall disclose to the complainant
and the respondent in the matter the number of members of the panel:


  (1) voting for a finding of just cause;


  (2) voting against a finding of just cause; and


  (3) abstaining from voting on the matter.


(j) A quorum of a panel of a district grievance committee of the state bar must include one public member for each two attorney
members.


(k) A member of a panel of a district grievance committee of the state bar may vote on a grievance matter to which the panel
was assigned only if the member is present at the hearing at which the vote takes place.


(l) A person may be appointed to serve on a panel of a district grievance committee of the state bar only if the person is a
member of the district grievance committee from which the panel was assigned and the person was appointed to serve on the
committee in strict accordance with the Texas Rules of Disciplinary Procedure.


(m) A panel of a district grievance committee of the state bar may not be changed in size for the purpose of obtaining a quorum
on the panel without the approval of the complainant and the respondent in the grievance matter to which the panel was assigned.


(n) A member of a panel of a district grievance committee of the state bar may not be substituted with another member of the
district grievance committee on the day of the hearing for which the panel was assigned without the approval of the complainant
and the respondent in the grievance matter.


(o) Whenever a grievance is either dismissed as an inquiry or dismissed as a complaint in accordance with the Texas Rules
of Disciplinary Procedure and that dismissal has become final, the respondent attorney may thereafter deny that a grievance
was pursued and may file a motion with the tribunal seeking expunction of all records on the matter, other than statistical or
identifying information maintained by the chief disciplinary counsel pertaining to the grievance.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
§ 81.072. General Disciplinary and Disability Procedures, TX GOVT § 81.072




Credits
Added by Acts 1987, 70th Leg., ch. 148, § 3.01, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 795, § 20, eff. Sept.
1, 1991; Acts 2001, 77th Leg., ch. 1436, § 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 227, §§ 15, 16, eff. Sept. 1, 2003;
Acts 2013, 83rd Leg., ch. 450 (S.B. 825), § 1, eff. Sept. 1, 2013.



Notes of Decisions (20)

V. T. C. A., Government Code § 81.072, TX GOVT § 81.072
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
