THE BOARD OF LAW EXAMINERS OF THE STATE OF TEXAS, RELATOR v. THE HONORABLE LEE
GABRIEL, RESPONDENT
No. 96-0605
SUPREME COURT OF TEXAS
953 S.W.2d 227;
1997 Tex. LEXIS 85;
40 Tex. Sup. J. 898
July 9, 1997, Delivered
DISPOSITION:
[**1] MANDAMUS RELIEF DENIED.
COUNSEL: FOR RELATOR: Hamilton, Ms. Laquit, Vega, Mr. Jorge, Morales, The Honorab.
FOR RESPONDENT: Douthitt, Mr. Frank, Young, Mr. Steven Wa, Acevedo, Ms. Linda A.
JUDGES: JUSTICE HECHT delivered the opinion of the Court, joined by CHIEF JUSTICE
PHILLIPS, JUSTICE SPECTOR, JUSTICE OWEN, and JUSTICE ABBOTT. JUSTICE GONZALEZ
issued a dissenting opinion, joined by JUSTICE CORNYN, JUSTICE ENOCH, and
JUSTICE BAKER.
OPINIONBY: NATHAN L.
HECHT
OPINION:
[*227] ON PETITION FOR WRIT OF
MANDAMUS
The principal question in this original
mandamus proceeding is whether the
Board of Law Examiners is authorized by the
Rules of Disciplinary Procedure to
investigate the
moral character and the mental and
emotional
fitness to practice law of a person petitioning for
reinstatement to membership in the State Bar of Texas. The answer is no.
Jack G. Neal was
disbarred in 1985 as a result of his conviction of a felony (official misconduct). Neal
now seeks
reinstatement.
[*228] The
Rules of Disciplinary Procedure prescribe the process for
reinstatement after
disbarment or resignation in lieu of disciplinary action. TEX. R. DISCIPLINARY P.
11.01-11.08,
reprinted
[**2]
in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A-1 (Vernon Supp. 1997). A person
must file a verified petition in the district
court containing, among other things,
"[a] statement that at the time of the filing of the petition, the petitioner is
of
good moral character, possesses the mental and
emotional
fitness to practice law, and during the five years
immediately preceding the filing of the petition, has been living a life of
exemplary conduct."
Id. 11.02(E). The petitioner must serve notice of the petition for
reinstatement on the State Bar's Chief Disciplinary Counsel and publish notice as a paid
classified
announcement in the
Texas Bar Journal.
Id. 11.04.
Neal fully complied with these rules. He filed a verified petition in the
district court alleging:
"At the time of the filing of this petition, Jack G. Neal is of
good moral character and possesses the mental and
emotional
fitness to practice law. Jack G. Neal has
lived a life of
exemplary conduct during the five years
immediately preceding the filing of this
petition." He served the Chief Disciplinary Counsel, who filed an answer on behalf of the
Bar. Neal's
classified
announcement was published in the
[**3]
Texas Bar Journal.
58 TEX. BAR J. 860 (Sept. 1995).
The rules further provide that at trial,
"petitioner has the burden of establishing by a preponderance of the evidence
that the best interests of the public and the
profession, as well as the ends of justice, would be served by his or her
reinstatement." TEX. R. DISCIPLINARY P. 11.03. The rule requires the court to
"deny the petition for
reinstatement if it contains any false statement of a material fact or if the petitioner
fails to meet the burden of proof."
Id. The rules also prescribe the requisite findings and the available relief:
If the court is satisfied after hearing all the evidence, both in support and
in opposition to the petition, that the material allegations of the petition
are true and that the best interests of the public and the
profession, as well as the ends of justice, will be served, the court
may
render judgment authorizing the petitioner to be
reinstated upon his or her compliance within eighteen months from the date of the
judgment with Rule II of the
Rules Governing Admission to the Bar of Texas in effect as of the date upon which judgment authorizing
reinstatement is entered. The judgment
[**4] shall direct the
Board of Law Examiners to admit the petitioner to a
regularly scheduled
bar examination in accordance with that board's rules and procedures relating to the
examination of persons who have not previously been licensed as lawyers in
Texas or in any other state.
Id. 11.06.
Thus, to grant a petition for
reinstatement, the district court must find two things. First, the court must find that the
petitioner has proven true by a preponderance of the evidence the material
statements in the petition. Because the petition must state that petitioner is
of
good moral character, is fit to practice law, and has led an
exemplary life for the
preceding five years, the court must find these things to be true before it can
grant the petition. Second, the court must find that
reinstatement will serve the the public's and
profession's best interests as well as the ends of justice.
Neal and the Bar appeared at trial by counsel and presented evidence and
argument. The district court then made the following findings:
The Court has considered the pleadings and all of the evidence both in support
and in opposition to the petition. The Court finds that the material allegations
[**5] of the petition are true and that all prerequisites to the filing and
maintaining of same have been met. The Court also finds that at the time of the
filing of this petition, Jack G. Neal is of
good moral character and possesses the mental and
emotional
fitness to practice law and he has
lived a life of
exemplary conduct during the five years
immediately preceding the filing of the petition and that the best interests of the public and the
profession, as well as the ends of justice, will be served, if the court
renders a judgment authorizing the Petitioner, Jack G. Neal, to be
reinstated upon
[*229] passing a
bar examination regularly administered by the Texas
Board of Law Examiners within eighteen months from the date of this judgment.
Based on these findings, the court rendered judgment as follows:
1. That the
license to practice law of Petitioner Jack G. Neal, be
reinstated upon passing a
bar examination regularly administered by the Texas
Board of Law Examiners within eighteen months from the date of this judgment.
2. That the
Board of Law Examiners admit the Petitioner, Jack G. Neal, to a
regularly scheduled
bar examination for the examination of persons
[**6] who have not previously been licensed as lawyers in Texas or in any other
state.
3. That the
Board of Law Examiners not make additional inquiry into the moral
fitness or character of Petitioner, Jack G. Neal.
4. That
upon successfully passing a
regularly scheduled
bar examination Petitioner, Jack G. Neal, shall be admitted to the practice of law in the
State of Texas.
5. That all costs are adjudged against Petitioner, Jack G. Neal.
The Bar did not appeal, and the judgment has become final.
Having completed the process prescribed by the
Rules of Disciplinary Procedure, Neal next requested and received from the
Board of Law Examiners an application for admission to the bar
exam. The Board accepted Neal's application and allowed him to take the bar
exam, which he passed. However, the Board has refused to recommend Neal for
reinstatement because it believes that it cannot do so under the
Rules Governing Admission to the Bar without first investigating his character and
fitness as it would every other applicant's, and such an investigation is prohibited
by the district court's order. To resolve the conflict between what the Board
perceives as its duty and the district
[**7] court's order, the Board petitioned this Court
for
mandamus directing the district court to modify its order to remove the prohibition
against the Board's investigation of Neal's character and
fitness.
The Board's duty to
investigate character and
fitness derives from Rule IV of the
Rules Governing Admission to the Bar, which states in part:
(a) No one shall be
eligible for
admission to the Texas Bar or for certification as a Foreign Legal Consultant until the
investigation of such person's
moral character and
fitness has been completed, and it has been determined by the Board that such
individual possesses
good moral character and
fitness.
TEX. R. GOVERN. BAR ADMIS. IV (West Supp. 1997) (emphasis added). By its own
terms, Rule IV applies only to persons applying for admission, not persons
applying for
reinstatement.
Rule II of the
Rules Governing Admission to the Bar states in pertinent part:
(a) To be
eligible
for admission
or
reinstatement as a licensed attorney in Texas, the Applicant shall:(1) comply with all applicable requirements of these Rules;
* * *
(3) be of present
good moral character and
fitness . . . .
[**8]
Id. II (emphasis added). Unlike Rule IV, Rule II does not provide for the Board
to
investigate an applicant's character and
fitness. Rule II provides only that an applicant for admission or
reinstatement
be of
good moral character and
fitness, not that the Board make a determination to that effect. A judicial finding in
a
reinstatement proceeding that petitioner is of
good character and
fitness satisfies Rule II.
This, of course, only makes sense. To require the Board to
investigate the character and
fitness of petitioners for
reinstatement would lead to absurd results. One of the two core findings a district court
must make in granting
reinstatement is that
"petitioner is of
good moral
character, possesses the mental and
emotional
fitness to practice law, and during the five years
immediately preceding the filing of the petition, has been living a life of
exemplary conduct." TEX. R.
[*230] DISCIPLINARY P. 11.02(E). If the
Board of Law Examiners were required to redetermine petitioner's character and
fitness immediately after the district court has made its finding, the Board,
considering all the same evidence, might disagree with the district court. If
the Board is to
[**9] make the final decision, why have a court proceeding? The district courts have
better things to do than screen
reinstatement petitions for the
Board of Law Examiners. If the court's decision is final, why have the Board redetermine it? The Board
certainly has better things to do than reinvestigating, to no avail, issues
that courts have just tried.
The scheme of the
Rules of Disciplinary Procedure is to require a petitioner for
reinstatement to obtain a judicial determination of the essential conditions for
reinstatement. The district court's
role in the process is certainly not essential. The
Board of Law Examiners is as capable as the district court of determining character and
fitness; after all, the Board makes such determinations for everyone admitted to the
State Barnd
fitness findings for
reinstatement, then there is no reason to require the district court to make them. There is
certainly no reason for the Board to make findings
de novo after a court has rendered judgment.
There is a good reason for the
reinstatement procedures to be as they are. Besides character and
fitness, the other core finding that must be made is that
reinstatement serves public's and
profession's
[**10] interests and the ends of justice. The
Board of Law Examiners is not incapable of making such a finding, but the issue is more appropriately
addressed to the court. If the court should make this finding, it only makes
sense that the court would also determine character and
fitness. It would not do for the court to determine that
reinstatement served the public, the
profession, and justice, only to have the Board find that petitioner was not fit to
practice law. If one entity should make both determinations, there are reasons
why that entity should be the court rather than the Board.
The dissent argues that to allow district courts to determine the character and
fitness of petitioners for
reinstatement allows for
"home-town" justice which could be prevented if the determinations were made by the Board.
If this is a legitimate concern, the
Rules of Disciplinary Procedure should be changed. But the argument does not justify ignoring the existing
rules. The dissent also argues that the Board has an interest in
reinstatement proceedings that is not protected by the presence of the State Bar as a party.
Again, if this is true, the rules should be changed to make the Board a party
to
reinstatement
[**11] proceedings either in addition to or in lieu of the Bar. The argument does not
justify allowing the Board to second-guess district judges or collaterally
attack their findings. Finally, the dissent
argues that we should
"find it a comfort" and both a district court and the Board would be
"checking and rechecking a
disbarred lawyer's character". We do not. We think the court and the Board are both able to perform this
function, but we see absolutely no reason to burden both of them with the same
inquiry, nor can we accept that the Board can choose not to be bound by the
court's determination.
The district court in Neal's case was not authorized to prohibit the Board from
inquiring into Neal's character and
fitness, but since the Board has no power to make such inquiry, the court's error was
inconsequential. If the Board were impeded from exercising its
responsibilities, of course,
mandamus might be appropriate.
State Bar of Texas v. Jefferson, 942 S.W.2d 575 (Tex. 1997). But that, as we have explained, is not the case. The
court should also have ordered that Neal not be
reinstated until he complied with Rule II of the
Rules Governing Admission to the
Bar. However, since Neal has
[**12] fully complied with Rule II, that error is moot.
Accordingly, without hearing oral argument, the Court concludes that the Board
is not entitled to
mandamus relief. TEX. R. APP. P. 170. The Board should certify Jack G. Neal to this
Court for
reinstatement to membership in the State Bar upon his passing the bar
exam and without further investigation into his character and
fitness.
Nathan L. Hecht
Justice
Opinion delivered: July 9, 1997
DISSENTBY: RAUL A.
GONZALEZ
DISSENT:
[*231] JUSTICE GONZALEZ filed a dissenting opinion, in which JUSTICE CORNYN, JUSTICE
ENOCH, and JUSTICE BAKER join.
Barely two months ago, we issued
mandamus because a trial court lacked the power to
enjoin a grievance committee proceeding.
State Bar of Tex. v. Jefferson, 942 S.W.2d 575 (Tex. 1997). We held that a district court lacks such power because
the Texas
Rules of Disciplinary Procedure do not
authorize such equitable relief.
Id. at 576;
see also
Board of Disciplinary Appeals v. McFall, 888 S.W.2d 471, 472-73 (Tex. 1994);
State v. Sewell, 487 S.W.2d 716, 718-19 (Tex. 1972). Today, the Court allows a district court to
enjoin the
Board of Law Examiners from discharging
[**13] its responsibility, despite the fact that the Board was not a party to any
proceeding in that court. Because I believe that
mandamus is warranted in this case, I dissent.
This original proceeding arises from Jack G. Neal's attempts to regain his
license to practice law. His
license was suspended in 1977 and again in 1983. In 1985, he was
disbarred after being convicted of felony abuse of office while he was district
attorney. In 1995, he petitioned the trial court for
reinstatement. Although the State Bar appeared in the proceeding, the
Board of Law Examiners was not made a party or given notice. After a hearing, the trial court granted
the petition for
reinstatement and found that Neal presently possessed
good moral character and had
lived a life of
exemplary conduct for the previous five years. The trial court ordered (1) that Neal's
law
license be
reinstated upon his passing the
bar examination, and (2) that
"the
Board of Law Examiners not make additional inquiry into the moral
fitness or character of Petitioner, Jack G. Neal."
A proceeding for
reinstatement of a law
license is initiated by serving a copy of the petition on the Chief Disciplinary
Counsel for the State Bar and
[**14] placing a
classified
announcement in the
Texas Bar Journal. TEX. R. DISCIPLINARY P. 11.04. Rule 11.06 provides the terms of the judgment
the trial court may render:
If the court is satisfied after hearing all the evidence, both in support and
in opposition to the petition, that the material allegations of the petition
are true and that the best interests of the public and the
profession, as well as the ends of justice, will be served, the court may
render judgment authorizing the petitioner to be
reinstated upon his or her compliance . . . with Rule II of the
Rules Governing Admission to the Bar of Texas . . . . The judgment shall direct the
Board of
Law Examiners to admit the petitioner to a
regularly scheduled
bar examination in accordance with that board's rules and procedures relating to the
examination of persons who have not previously been licensed as lawyers in
Texas or in any other state. No Judgment of
reinstatement may be rendered by default. If after hearing all the evidence the court
determines that the petitioner is not
eligible for
reinstatement, the court may, in its discretion, either enter a judgment denying the petition
or direct that the petition be held
[**15] in abeyance for a reasonable period of time until the petitioner provides
additional proof that he or she has satisfied the requirements of these rules.
The court's judgment may include such other orders as protecting the public and
the petitioner's potential clients may require.
TEX. R. DISCIPLINARY P. 11.06. This rule does not give the trial court the
power to order
reinstatement on the sole condition that Neal
pass the
bar examination, or to
enjoin the Board from investigating Neal's
moral character. Therefore, under
Jefferson and
McFall,
mandamus should issue to set aside that part of the trial court's order.
The Court states that the rules exempt
candidates for
reinstatement from the investigation the Board conducts on
candidates for admission to the Bar. The Court's interpretation ignores the history of
Texas Rule of Disciplinary Procedure 11.06. Until 1994, that rule stated that
the trial court may
"render judgment authorizing the petitioner to be
reinstated upon his or her passing a
bar examination. . . ." TEX. R. DISCIPLINARY P. 11.06 (amended 1994). In 1994, we amended Rule 11.06
to provide that a judgment may
authorize
reinstatement upon the petitioner's
[**16]
"compliance within eighteen
[*232] months. . . with Rule II [of the
Rules Governing Admission to the Bar]." Rule II details the general eligibility requirements for admission to the
Texas Bar, such as
age, character and
fitness, law study, and citizenship status, in addition to passing the
bar examination.
RULES GOVERNING ADMISSION TO THE BAR OF TEX. II(a) (1992). Under the 1994 amendment to Disciplinary Rule
11.06, a petitioner for
reinstatement is now subject to the same requirements as anyone else seeking a
license. Under Admission Rule IV, no one is
"eligible for admission to the Texas Bar . . . until the investigation of such person's
moral character and
fitness has been completed, and it has been determined by the Board [of Law Examiners]
that such individual possesses
good moral character and
fitness."
RULES GOVERNING ADMISSION TO THE BAR OF TEX. IV(a)(1992). Thus, a trial court's finding of fact -- that
a petitioner for
reinstatement possesses
good character -- does not exempt the petitioner from the Boards iconsistent readmission
standards from district to district. Disciplinary Rule 11.06 does
not
authorize a judgment exempting one seeking
reinstatement from any
[**17] of the requirements of Admission Rule II.
The Court argues that the rules could not possibly mean that two different
institutions are empowered to inquire whether a
disbarred attorney has sufficiently reformed to entrust him with a law
license. The Court gives
res judicata effect to the district court's finding of
good character on the date of judgment, as if
good character were an immutable trait to be decided once and for all time. Under the Court's
reasoning, a lawyer with the district court's stamp of
good character could thereafter confess to the most heinous of crimes, and the
Board of Law Examiners would have to let him sit for the bar
exam. If he passes, our Clerk would have to give him his
license. I would think the court would find it a comfort, rather than an anomaly, that
the rules provide for checking and rechecking a
disbarred lawyer's character before setting him loose on the public.
Moreover, the Board did not receive notice of proceedings that could result in
affirmative relief granted against it in the form of an injunction. Rule 11.06
does not purport to give the trial court jurisdiction over the Board for all
purposes. Nor were the Board's interests represented
[**18] by the presence of the State Bar in the proceeding. The Board and the State
Bar are separate entities with distinctly different interests. Section 82.004
of the Texas Government Code makes the Board the administrative body to
"determine the eligibility of
candidates for examination for a
license to practice law in this state." Additionally, Section 81.061 of the Texas Government Code expressly withholds
from the State Bar the authority to
"regulate or administer . . . admission standards." The State Bar's appearance in the
reinstatement hearing did not represent the interests of the Board.
Therich was never a party to the proceeding.
See TEX. R. CIV. P.
124 ("In no case shall judgment be rendered against any defendant unless upon
service, or acceptance or waiver of process, or upon an appearance by the
defendant, as prescribed in these rules, except where otherwise expressly
provided by law or these rules.");
Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) (judgment against one not a party to suit is error which may be raised for the
first time on appeal).
The Court's misinterpretation of the rules is contrary to their plain meaning
and advances only bad policy.
[**19] I therefore dissent.
Raul A. Gonzalez
Justice
OPINION DELIVERED: July 9, 1997
