Bailey v. State

575 S.W.2d 418, 1978 Tex. App. LEXIS 4100

• Court: Court of Appeals of Texas
• Decided: December 28, 1978
• Docket: 18108
• Status: Published

Opinions

OPINION

SPURLOCK, Justice.

Appeal from the denial of an injunction to enjoin grievance committee from prosecuting suit to disbar an attorney after he was convicted of theft. Question is whether automatic suspension after felony probation pursuant to Tex.Rev.Civ.Stat.Ann. art. 320a-l § 6 (1973) (State Bar Act) is exclusive so as to prohibit a subsequent suit to disbar. Trial court held that although the section is automatic and mandatory, it is not exclusive.

We affirm.

FACTS

H. Dale Bailey is an attorney licensed to practice law in Texas. He was convicted in Wichita County of felony theft over $10,-000.00. He was assessed a four year sentence probated for four years. The grievance committee states in its brief that Bailey was suspended from the practice of law as one of the terms of his probation. After successfully completing about one-third of his probation he was dismissed therefrom on February 3, 1978.

On May 24,1978 the grievance committee for State Bar Dist. No. 14A filed suit in Wichita County to disbar Bailey, asserting the theft as grounds. Bailey answered by a general denial and filed in the same cause an original petition for writ of injunction to enjoin the committee from prosecuting their suit to disbar. The trial court rendered a show cause order on the petition for injunction and held a hearing on the merits. The court denied Bailey’s petition.

ON MOTION TO DISMISS THE APPEAL

The committee moves to dismiss Bailey’s appeal claiming we have no jurisdiction. It claims his petition is nothing more than a plea of res judicata which should have been pled as an affirmative defense under Tex.R. Civ.P. 94. It would have us construe the trial court’s order denying his petition as a denial of a plea of res judicata. The committee correctly states that a denial of a plea of res judicata is a non-appealable, interlocutory order. They, therefore, conclude we lack jurisdiction to hear the appeal. We disagree.

It is well settled that injunctions preventing litigation are never favored and are to be used very sparingly. We want the door to remain closed which bars would-be defendants from frivolously seeking to enjoin plaintiffs from prosecuting legitimate causes of action against them and delaying disposition of the cases by frivolous appeals. The enjoining of the prosecution of a suit has very limited application. It has been authorized to prevent a multiplicity of suits; to avoid vexatious litigation; or to prohibit the use of judicial process for the purpose of harassment. University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426 (1961).

After carefully reviewing Bailey’s petition, we conclude it would be unjust to construe it as merely a plea of res judicata. Certainly, the ideas of res judicata and double jeopardy are at the heart of Bailey’s petition. Double jeopardy is not actually alleged because it obviously does not apply, but the tenor of Bailey’s complaint advances that doctrine. His petition alleges that injunctive relief is warranted to prevent a multiplicity of suits, and because the committee’s action is vexatious, frivolous, without authority, and calculated to embarrass and harass him. If proven these allegations would seem to support the issuance of an injunction.

Further, the record reflects the parties and court all considered Bailey’s pleadings as a petition for a writ of injunction. The record is void of any indication that anyone treated Bailey’s petition as a plea of res judicata.

Basic to our overruling of the committee’s motion to dismiss are the facts that Bailey’s petition raises a legitimate question of law and if disbarred he would be suspended during any appeal. Bailey’s petition raises the issue of whether the automatic and mandatory suspension of any attorney convicted of a felony and given probation is exclusive so as to prohibit a subsequent suit to disbar. This is obviously an important question over which reasonable minds differ. Also we note that should Bailey be disbarred, he would be suspended from the practice of law during any appeal. Tex.Rev.Civ.Stat.Ann. Title 14 App. art. 12 § 30 (1973) (State Bar Rules) provides he cannot practice law, supersede or otherwise suspend the judgment during appeal. It is these two facts which gives legitimacy to his petition, and but for them we would have granted the committee’s motion.

The committee’s motion to dismiss the appeal for want of jurisdiction is overruled.