State Bar of Texas v. Sutherland

766 S.W.2d 340, 1989 WL 9209
CourtCourt of Appeals of Texas
DecidedFebruary 8, 1989
DocketNo. 08-88-00109-CV
StatusPublished
Cited by4 cases

This text of 766 S.W.2d 340 (State Bar of Texas v. Sutherland) 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
State Bar of Texas v. Sutherland, 766 S.W.2d 340, 1989 WL 9209 (Tex. Ct. App. 1989).

Opinion

OPINION

KOEHLER, Justice.

The State Bar of Texas, Appellant herein, appeals from a judgment reinstating the license of Appellee, Glen A. Sutherland, to practice law after disbarment resulting from a felony conviction. Trial was to the court “without aid of jury.” We reverse and remand.

The undisputed facts are as follows: Ap-pellee was disbarred from the practice of law on April 5, 1982, under the provisions of Article 320a-l, State Bar Act, Tex.Rev. Civ.Stat.Ann. (Vernon 1973) and Article 12, Sections 9 and 28 of the State Bar Rules then in effect (Tex.Rev.Civ.Stat.Ann. (Vernon 1973)), following conviction of a felony offense involving moral turpitude. Appel-lee was sentenced to serve two years in prison, which sentence he completed on December 5,1983. Appellee filed his application for reinstatement on October 22,1987, a date after the expiration of five years from the date of final judgment of disbarment but less than five years from the date of completion of sentence. Following the satisfactory resolution of a default judgment by an agreed order granting a new trial, not here important, Appellant filed a plea of abatement, which was subsequently denied and judgment was rendered reinstating Appellee’s right to practice law.

The State Bar’s sole point of error is that the trial court erred in applying the State Bar Rules pertaining to reinstatement in effect at the time of Appellee’s disbarment (State Bar Rules, Title 14 App., Article 12, Sections 32 and 33, Tex.Rev.Civ.Stat.Ann. (Vernon 1973),1 rather than the rules in effect at the time Appellee filed his petition for reinstatement (State Bar Rules, Title 2, Subt. G App., Article 10, Sections 28 and 29, Tex.Gov’t.Code Ann. (Vernon 1988).2

[342]*342Under Section 32 of the old reinstatement rule, the disbarred attorney had the right at any time after the expiration of five years from the date of the final disbarment judgment, to petition for reinstatement, alleging that he was of good moral character and since his disbarment, had been living a life of generally good conduct, and that he had made full restitution to anyone damaged by his previous conduct. If the court was satisfied that the material allegations in the petition were true and that the ends of justice would be subserved, the court could reinstate the petitioner.

Under Section 28 of the current rules, the disbarred attorney who had been convicted of a criminal offense, may make application for reinstatement only after five years from the date of completion of sentence. His petition must be verified and must allege a number of specific matters touching on his status and activities during the period of his disbarment. If the court is satisfied after hearing, the court may enter judgment authorizing the applicant to be reinstated upon his passing a regular bar examination.

The State Bar contends that the rules which provide for reinstatement are procedural in nature and specifically, that Sections 32 and 33 of the old Article 12 were repealed by the Order of the Supreme Court of Texas,3 effective March 1, 1984, [343]*343which adopted the current rules providing for reinstatement after disbarment in Section 28 of Article 10. The order repealing old Article 12 and adopting new Article 10 contained a “saving clause” providing that conduct occurring before March 1, 1984, “shall continue to be governed by the provisions of Section 9” of old Article 12 as it existed before the adoption of the current rules. Section 9 relates primarily to the definition of professional misconduct, not at all to the reinstatement of a disbarred attorney. The Order further states that all provisions of new Article 10, other than Section 9 of former Article 12 are effective on March 1,1984. The new rules provide a disbarred attorney with a remedy and a procedure to follow in order to obtain reinstatement, just as did the old rules.

Appellee argues that the right to apply for reinstatement is substantive because it adds to his punishment, e.g., by lengthening the time and requiring him to pass the bar examination, and that therefore he had a right to apply under old Article 12. Appellee contends that both the old and new rules are substantive in effect because their primary purpose is for punishment of an offending attorney and that to apply the new rules, which are clearly more onerous in Appellee’s case, to Appellee who was disbarred prior to the adoption of such rules would amount to a bill of attainder, retroactive law and ex post facto additional punishment for conduct for which he has previously been punished. However, disciplinary actions are procedural, not penal, in nature and a resulting suspension or disbarment, though it may be viewed by the offending attorney as punishment, is intended primarily to protect the court and the public. Bryant v. State, 457 S.W.2d 72 (Tex.Civ.App.—Eastland 1970, writ ref'd n.r.e.). Ex post facto provisions of the U.S. Constitution apply only in criminal situations. Barrios-Mafias v. Minton, 114 F.Supp. 470 (W.D.Tex.1953). A bill of attainder is any legislative act that inflicts punishment without a judicial trial and is not at all applicable to the State Bar Rules dealing with reinstatement. Disciplinary actions are civil rather than criminal in nature. Polk v. State Bar of Texas, 480 F.2d 998 (5th Cir.1973). The current rules state that disciplinary actions are civil in nature and are to be governed by the Texas Rules of Civil Procedure. Article 10, Sec. 16, State Bar Rules. The cases of Ex parte Alegria, 464 S.W.2d 868 (Tex.Crim.App.1971) and Ex parte Rutledge, 741 S.W.2d 460 (Tex.Crim.App.1987), cited variously in the trial court’s conclusions of law and in appellee’s brief, dealt with the ex post facto applications of laws changing the eligibility for parole of prison inmates and are not applicable to a civil case such as this.

Appellee has stressed that an attorney’s license to practice law is a “vested right” or a valuable property right that could be taken from the attorney only through the exercise of the police powers of the state, and we would add, by due process of law. Appellee cites several U.S. Supreme Court cases in support of this proposition, with which we agree. In this case, however, Appellee had been disbarred and his license and right, vested or otherwise, to practice had been taken from him under the law and rules then in effect. The disbarment itself is not here attacked nor could it be. Though disbarred, did he retain a property right to seek reinstatement under the then existing rules so that as to him, they could not be changed? We think not. A right to be vested must be more than a mere expectation based on the continuance of an existing law. Aetna Insurance Company v. Richardelle, 528 S.W.2d 280 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.). Appellee had at most an expectation that, under the old rules, at a certain time, he would then have the right to apply for reinstatement. He [344]*344still has that right under the new rules.

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Bluebook (online)
766 S.W.2d 340, 1989 WL 9209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-bar-of-texas-v-sutherland-texapp-1989.