Goldberg v. Commission for Lawyer Discipline

265 S.W.3d 568, 2008 WL 2611962
CourtCourt of Appeals of Texas
DecidedOctober 16, 2008
Docket01-07-01104-CV
StatusPublished
Cited by13 cases

This text of 265 S.W.3d 568 (Goldberg v. Commission for Lawyer Discipline) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldberg v. Commission for Lawyer Discipline, 265 S.W.3d 568, 2008 WL 2611962 (Tex. Ct. App. 2008).

Opinions

OPINION

TIM TAFT, Justice.

Appellant, Daniel Goldberg, appeals from a final judgment dismissing his suit for want of subject-matter jurisdiction upon the plea to the jurisdiction of appel-lees, the Commission for Lawyer Discipline (“the Commission”) and the State Bar of Texas (“SBOT”) (together, “appel-lees”). We determine whether the trial court had subject-matter jurisdiction to declare (1) that the disciplinary judgment disbarring Goldberg was void because the final conviction underlying it had been set aside and (2) that his law license be restored. We also determine whether the trial court was required to file the findings of fact and conclusions of law that Goldberg requested. We affirm.

Background

Goldberg was an attorney licensed to practice law in Texas. On July 17, 2001, he pleaded guilty to the felony offense of aggregate theft. His punishment was assessed at three years in prison and a $2,000 fine, suspended for a period of three years of community supervision. After the conviction had become final, a compulsory disciplinary action was begun against Goldberg based on his criminal conviction. See Tex.R. DISCIPLINARY P. 8.01, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-l (Vernon 2005) (“When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on [community supervision] for an Intentional Crime with or [571]*571without an adjudication of guilt, the Chief Disciplinary counsel shall initiate a Disciplinary Action.... ”). The Texas Board of Disciplinary Appeals (“BODA”) held a hearing on August 23, 2002 to consider Goldberg’s disbarment. See Tex.R. Disci-plinajry P. 8.04 (providing for BODA to hear and to determine all questions of law and fact in compulsory disciplinary proceeding). BODA concluded that Goldberg’s crime was both an “intentional crime” and a “serious crime,” as defined by the Texas Rules of Disciplinary Procedure,1 for which he had been convicted and placed on community supervision and that Goldberg thus should be disbarred. See Tex.R. DISCIPLINARY P. 8.05 (requiring disbarment of attorney who is convicted of “Intentional Crime” when conviction has become final, unless BODA allows suspension of license). Goldberg appealed the judgment of disbarment to the Texas Supreme Court, which affirmed it summarily on March 6, 2003. See Tex.R. DisciplinARY P. 7.11.

On October 20, 2004, after Goldberg had successfully completed his community supervision, the court in which Goldberg had been convicted entered the following order under Texas Code of Criminal Procedure article 42.12, section 20 (“the discharge-dismissal order”):

BE IT REMEMBERED that on this day after considering the evidence that the Defendant has satisfactorily fulfilled the conditions of community supervision and the court to insure that the Defendant is immediately released from the penalties and disabilities resulting from the offense of which the Defendant has been convicted enters this Order, it is therefore,
ORDERED that the probation/community service of DANIEL GOLDBERG be has been fulfilled in accordance with that certain Order Dismissing Cause Order Terminating Community Supervision dated July 21, 2004, and said period is declared to be terminated and DANIEL GOLDBERG is discharged from probation/community service, that the civil liberties of DANIEL GOLDBERG shall hereby be completely restored including by way of example and not limitation the right to vote, serve on juries, etc. and DANIEL GOLDBERG shall be completely released from all penalties and legal disabilities resulting from the offense or crime of which DANIEL GOLDBERG has plead guilty and verdict should be set aside and wiped away and the Defendant is hereby permitted to withdraw the plea of guilty and the plea of guilty of DANIEL GOLDBERG is hereby withdrawn, the charging instrument, accusation, complaint, and indictment against DANIEL GOLDBERG are dismissed and this prosecution is dismissed.

See Tex.Code CRiM. Proc. art. 42.12, § 20 (Vernon Supp.2007).

In October 2006, Goldberg sought a writ of mandamus in the Texas Supreme Court based upon the discharge-dismissal order; the supreme court denied the petition in March 2007 without explanation. Goldberg then filed suit against appellees in October 2007. Based on the discharge-dismissal order, he sought a declaratory judgment that (1) “immediately restor[ed]” his law license because the criminal conviction on which his disbarment had been based was rendered “a legal nullity” by the discharge-dismissal order or that (2) declared the judgment of disbarment “void.” Included in the petition was an allegation that appellees “acted hastily and prematurely] under the totality of circumstances and has caused the Petitioner a loss of his [572]*572livelihood and the abrogation of his constitutional rights without due process of law”; the petition nonetheless sought solely the declaratory relief described above.

In November 2007, appellees filed an answer that also contained a plea to the jurisdiction. The answer alleged governmental immunity from suit as an affirmative defense, but immunity from suit was not the basis of the dismissal motion. Rather, appellees’ dismissal motion asserted two different grounds. The first ground was based on the Texas Supreme Court’s exclusive authority to promulgate rules for lawyer discipline. One of those rules, Texas Rule of Disciplinary Procedure 11.01, does not allow a disbarred attorney to sue to reinstate his license until five years after completion of the attorney’s sentence. See Tex.R. DisciplinARy P. 11.01. Appellees asserted that Goldberg’s suit was, in effect, a suit seeking reinstatement, even though it was styled as a declaratory-judgment action to interpret the effect of the discharge-dismissal order. Because fewer than five years had passed from the end of Goldberg’s community supervision, appel-lees urged that the trial court lacked jurisdiction to entertain Goldberg’s suit. The jurisdictional plea’s second ground was phrased in the alternative: “Assuming for argument purposes only that this Court could entertain Goldberg’s [reinstatement] request, Goldberg has failed to state a claim for relief’ because the discharge-dismissal order did not render the disbarment judgment void.

To the jurisdictional plea, appellees attached evidence, including the July 2001 judgment of conviction, the August 2002 judgment disbarring Goldberg, the Texas Supreme court order affirming Goldberg’s disbarment, the discharge-dismissal order, and the supreme court order denying Goldberg’s petition for writ of mandamus. None of this evidence was disputed below; only its legal effect is contested.

Later in November 2007, Goldberg filed a supplement to his original petition. In pertinent part, the supplemental petition alleged as follows:

Petitioner is proceeding inter alia with its asserted cause of action(s) under Tex Const, art. I, Section 19, Tex. Const, art. V, Section 8, Tex. Gov’t Code Section 81.014 (“The state bar may sue and be sued in its own name.”), Tex. Gov’t Code Section 81.011(a) (“The state bar is a public corporation.... ”), Tex. Gov’t Code Section 81.071 (“The Lawyer Discipline, a committee of the state bar.”), Tex. Civ. Prac. & Rem.Code Ann. Uniform Declaratory Judgments Act, Chapter 37
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265 S.W.3d 568, 2008 WL 2611962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldberg-v-commission-for-lawyer-discipline-texapp-2008.