D. Patrick Smitherman v. Commission for Lawyer Discipline

Opinion

Opinion issued June 13, 2013

In The Court of Appeals For The First District of Texas

NO. 01-13-00428-CV ____________

D. PATRICK SMITHERMAN, Appellant

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2010-10256

MEMORANDUM OPINION

This is an attempted appeal from an interlocutory order finding that appellant,

D. Patrick Smitherman, committed professional misconduct as defined by the Texas

Disciplinary Rules of Professional Conduct. Generally, appeals may be taken only

from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if authorized by statute. Bally

Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001).

Here, the record reveals that no final judgment has been entered in this

pending case. The order signed by the trial court explicitly states that it is not final,

and indicates that a final judgment will be entered after the trial court holds a

separate sanctions hearing, as permitted by the Texas Rules of Disciplinary

Procedure. See TEX. R. DISCIPLINARY P. 3.09 (after a finding of professional

misconduct, the trial court determines the appropriate sanction or sanctions),

reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. (West 2013), 3.10 (trial

court may, in its discretion, conduct a separate hearing and receive evidence as to

the appropriate sanctions to be imposed), reprinted in TEX. GOV’T CODE ANN., tit.

2, subtit. G app. (West 2013).

On May 24, 2013, the Court notified the parties of its intent to dismiss the

appeal for want of jurisdiction unless appellant filed a response demonstrating this

court’s jurisdiction on or before June 3, 2013. See TEX. R. APP. P. 42.3(a).

Appellant responded, arguing among other things that because Texas Rule of

Disciplinary Procedure 3.10 authorizes the trial court to hold a separate hearing

regarding sanctions, sanctions are not required to be included in a judgment from a

disciplinary proceeding in order for that judgment to be final. See TEX. R.

2 DISCIPLINARY P. 3.10. Appellant states that “a sanction is merely a way to enforce

a final judgment in the context of attorney disciplinary matters” and that a sanction

is “akin to an abstract of judgment or some type of post-judgment writ.” He asserts

that a sanctions hearing in the attorney disciplinary context is “a post-judgment

proceeding, separate and apart from the act of making a judgment on underlying

claims final.” He further argues that the interlocutory order “disposed of the issues

for which the trial proceeding was brought,” and therefore should be appealable.

To the contrary, sanctions are a necessary part of the final judgment in

disciplinary proceedings where there has been a finding of professional misconduct.

See TEX. R. DISCIPLINARY P. 3.09 (after a finding of professional misconduct, the

trial court shall determine the appropriate sanction or sanctions). In order for a

judgment from a disciplinary proceeding to be final, the order must actually dispose

of every pending claim and party or unequivocally state that it finally disposes of all

claims and all parties. See Lehman, 39 S.W.3d at 205; see also TEX. R.

DISCIPLINARY P. 3.16, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app.

(West 2013) (“A final judgment of the district court . . . may be appealed as in civil

cases generally.”). Here, in its petition, the Commission for Lawyer Discipline

sought a finding that appellant committed professional misconduct and sought

various forms of relief, including sanctions. The interlocutory order only makes

3 findings regarding professional misconduct, and explicitly states that a separate

hearing will be held to determine sanctions, as permitted by the Texas Rules of

Disciplinary Procedure. See TEX. R. DISCIPLINARY P. 3.10. Accordingly, until the

trial court has made a determination regarding sanctions, there is no final judgment

in the underlying trial court cause. See TEX. R. DISCIPLINARY P. 3.09, 3.10. We

have found no authority supporting appellant’s claims that sanctions are merely a

way to enforce a final judgment in a disciplinary proceeding or that a sanctions

hearing in a disciplinary proceeding is a post-judgment proceeding. Likewise,

appellant’s claim that the interlocutory order disposes of the “issues for which the

trial proceeding was brought” ignores the fact that sanctions are part of the relief

sought by the Commission in its petition, and that the trial court explicitly noted in

the interlocutory order that a separate hearing on sanctions would be held prior to

the execution of a final judgment, as permitted.

Appellant’s response does not demonstrate grounds for continuing this

appeal. Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 42.3(a), 43.2(f). We dismiss any other pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Brown, and Huddle.