Board of Law Examiners v. Gabriel

953 S.W.2d 227, 40 Tex. Sup. Ct. J. 898, 1997 Tex. LEXIS 85, 1997 WL 378057
CourtTexas Supreme Court
DecidedJuly 9, 1997
Docket96-0605
StatusPublished
Cited by7 cases

This text of 953 S.W.2d 227 (Board of Law Examiners v. Gabriel) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Law Examiners v. Gabriel, 953 S.W.2d 227, 40 Tex. Sup. Ct. J. 898, 1997 Tex. LEXIS 85, 1997 WL 378057 (Tex. 1997).

Opinions

HECHT, Justice, delivered the opinion of the Court, joined by PHILLIPS, Chief Justice, SPECTOR, OWEN and ABBOTT, Justices.

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]*228The 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 in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-l (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 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 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 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 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]*229passing 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 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 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

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Board of Law Examiners v. Gabriel
953 S.W.2d 227 (Texas Supreme Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
953 S.W.2d 227, 40 Tex. Sup. Ct. J. 898, 1997 Tex. LEXIS 85, 1997 WL 378057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-law-examiners-v-gabriel-tex-1997.