In a decision that strongly reinforces the attorney disciplinary process, the Corpus Christi Court of Appeals has directed a trial court to vacate an order allowing a disbarred attorney to take the bar exam without meeting the requirements for reinstatement.
In re State Bar of Texas (No. 13-23-00009-CV; delivered March 15, 2023) arose from a petition for reinstatement filed by an attorney disbarred in 2016 in a Hidalgo County district court. In order to seek reinstatement, the petitioner must make several specific declarations, as provided by the Texas Rules of Disciplinary Procedure (TRDP), including that “the petitioner has paid all costs and fines assessed in connection with the Disciplinary Proceeding or Disciplinary Action that resulted in his or her disbarment or resignation.” Instead of making the required declaration, the petitioner stated that he had never paid the nearly $145,000 in fines and attorney’s fees he owed and asked the court to waive them on account of his alleged indigency. He then asked the court to permit him to take the bar exam without paying the fine, and, over the objection of the State Bar, the court agreed. The court further abated its determination of whether to reinstate the petitioner until receiving his bar exam results. The State Bar sought mandamus.
In an opinion by Justice Benavides, the court of appeals issued a conditional writ of mandamus ordering the trial court to vacate its order. The opinion provides an excellent overview of the procedures for reinstatement contained in the TRDP, which basically permit a disbarred attorney to petition a district court for reinstatement after five years. The petition must be verified, provide information about the petitioner’s disciplinary history and activities since disbarment, as well as affirmations that the petitioner understands the Rules of Professional Conduct and Texas Lawyer’s Creed. If the petitioner meets the requirements of the verified petition, an adversarial and evidentiary proceeding must be held with the burden of proof on the petitioner. The trial court must determine all questions of law and fact, and petitioner is not entitled to a jury trial. In order to reinstate a petitioner, the court (1) “must find that the petitioner has proven true by a preponderance of evidence the material statements in the petition . . . that petitioner is of good moral character, is fit to practice law, and has led an exemplary life for the preceding five years,” and (2) “must find that reinstatement will serve the public’s and profession’s best interests as well as the ends of justice” (citation omitted). Only if the court makes these findings may the petitioner be permitted to retake the bar.
Petitioner argued that since he could not pay the fine, requiring him to do so as a condition to reinstatement violated his unspecified constitutional rights and that the State Bar must provide him with an alternative means of payment, such as doing pro bono work. The court of appeals rejected this argument on the basis that the TRDP gave the trial court no discretion to deviate from the rules. Moreover, the court held, the trial court’s irregular process—allowing the petitioner to take the bar and abating consideration of his reinstatement petition—violated the mandatory procedures set forth in the rules. The larger principle, as noted by the court, is that the Texas Constitution and the State Bar Act give SCOTX “exclusive authority” to regulate the practice of law. Additionally, the legislature has “provided that ‘[o]nly the supreme court may issue licenses to practice law in this state’ and ‘this power may not be delegated’” (citing § 82.021, Government Code). Consequently, “[n]o subordinate court in Texas has the power to usurp [the supreme court’s] authority or responsibility in this area” (citations omitted).
Having delivered a categorial rebuke of the trial court, the court had little difficulty finding that the State Bar had no adequate remedy on appeal. Observing that “the Texas Supreme Court has ‘consistently granted mandamus relief when a lower court interferes with the disciplinary process’” (citations omitted), the court concluded that “the trial court abused its discretion by issuing an order not authorized by the Rules” and the State Bar “lacks an adequate remedy by appeal to address this abuse of discretion.”
