Bryant v. State

• Decision Date: 17 July 1970
• Docket Number: No. 4404,4404
• Citation: 457 S.W.2d 72
• Parties: William Hargiss BRYANT, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 72

457 S.W.2d 72

William Hargiss BRYANT, Appellant, v. STATE of Texas, Appellee.

No. 4404.

Court of Civil Appeals of Texas,

Eastland.

July 17, 1970.

Rehearing Denied Aug. 14, 1970.

McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellant.

Robert H. Alvis, Abilene, Davis Grant, Gen. Counsel, Austin, for appellee.

GRISSOM, Chief Justice.

Appealed from the 42nd District Court of Taylor County.

William Hargiss Bryant, a licensed Texas attorney residing in Taylor County, was convictied in a United States District Court of a felony involving moral turpitude. Mr. Bryant's appeal is pending. The State of Texas, acting through its Grievance Committee for District 17 of the State Bar of Texas, which includes Taylor County, filed this suit under the authority of Section 6, Article 320a-1, Vernon's Ann.Civ.St., as amended by Acts 1969, 61st Legislature, page 364, Chapter 134, Section 1, praying that the Court suspend Bryant from the practice of law during the pendency of his appeal. Upon a trial, he was suspended. He has appealed.

Appellant's points are that the court erred in suspending his license to practice law while his case is on appeal under the authority of Article 320a-1, as amended in 1969, because (1) the amendment is unconstitutional for the reason that its caption does not meet the requirements of the Constitution of Texas; (2) that by said amendment the legislature exercised a power previously delegated by it exclusively to the Supreme Court in Section 4 of the State Bar Act, thereby violating the 'separation of powers' provision of Section 1, Article 2, of the Texas Constitution, Vernon's Ann.St., and (3) because the 1969 amendment is void, as applied to him, by virtue of the constitutional prohibition of retroactive laws.

Under point 1 appellant says that suspension of his license while his judgment of conviction was on appeal was erroneous because the 1969 amendment of Section 6 of Article 320a-1 is unconstitutional because its caption does not meet the requirement of Section 35 of Article 3 of the Constitution of Texas that 'no bill shall contain more than one subject, which shall be expressed in its title'. He says that before the 1969 amendment, Section 6 of Article 320a-1 was a venue statute. It did then provide that:

'No disbarment proceeding shall be instituted against any attorney except in the district court located in the county of said attorney's residence, nor shall any attorney be suspended until such attorney has been convicted of the charge pending against him, in a court of competent jurisdiction in the county of such attorney's residence.'

The 1969 amendment, (House Bill 279), added the following:

'Provided, however, Upon proof of conviction of an attorney in any trial court of any felony involving moral turpitude or of any misdemeanor involving the theft, embezzlement, or fraudulent appropriation of money or other property, The district court of the county of the residence of the convicted attorney shall enter an order suspending said attorney from the practice of law during the pendency of any appeal from said conviction. An attorney who has been given probation after such conviction shall be suspended from the practice of law for the period of his probation. Upon proof of final conviction of any felony involving moral turpitude or of any misdemeanor involving theft, embezzlement, or fraudulent appropriation of money or other property, where probation has not been given or has been revoked, the district court of the county of the residence of the convicted attorney shall enter a judgment disbarring him.' (Emphasis ours.)

The caption of said 1969 amendment to Section 6 of Article 320a-1, House Bill 279, reads as follows:

'An Act amending the State Bar Act; amending Section 6, Chapter 1, page 64, General Laws, Acts of the 46th Legislature, 1939 (Article 320a--1, Vernon's Texas Civil Statutes); and declaring an emergency.'

Appellant says the caption makes no reference to the substantive changes and departures from the venue provisions in Section 6 that were made by said amendment; that prior to its amendment Section 6 was merely a venue statute; that the amendment goes beyond venue and sets forth in detail grounds for suspending and disbarring an attorney, and made the following changes:

(a) An attorney shall be suspended while a judgment of conviction for certain crimes is on appeal;

(b) An attorney given a probated sentence shall be disbarred during the period of his probation;

(c) An attorney whose conviction becomes final shall be disbarred only if he has been convicted of a felony involving moral turpitude or a misdemeanor involving theft or embezzlement. Appellant argues that none of said substantive changes is germane to the subject of Section 6, Article 320a-1, as it existed before the amendment; that, as amended, Section 6 ceased to be a mere venue statute and, in addition to provisions for venue of suits to suspend or disbar an attorney, it prescribed the conditions under which an attorney should be suspended or disbarred; that the caption of the amendment gives no notice of its contents; that no notice is given by the caption that Section 6, as amended, prescribed a ground for suspension of an attorney. Wherefore, appellant concludes that said amendment violates Section 35 of Article 3 of the Texas Constitution which provides that 'no bill shall contain more than one subject, which shall be expressed in its title.'

Appellant cites Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 726. There is language in that opinion that may be construed as supporting appellant's contention but the court held that the caption of an amendment is sufficient when it merely refers to the specific statute, or section thereof, being amended by number if the amendment is germane to the subject matter of the original act, or the portion thereof which the caption of the amendatory act declares to be amended. The court said that a reference in a caption of an amendment to the statute being amended by muerely stating the statute being amended by merely stating the only if a reading of such caption and the article being amended discloses the subject of the amendment without having to read the body of the amendatory bill . Appellant also cites 53 Tex.Jur.2d, Section 60, page 107. It is stated there that the caption of an amendment is sufficient to permit any provision in the amendment which is germane to the subject of the statute being amended if it clearly specifies the article amended, but that new substantive material in an amendment which is not germane to the subject of the article amended is invalid as legislation on a subject not expressed in the caption of the amendment. Appellant says the decision of the Court of Criminal Appeals in White v. State, 440 S.W.2d 660, 665, disposes of the question in his favor. That was an appeal from a conviction under an amended statute for selling dangerous drugs. It was held that the caption, to the amendment of the Dangerous Drug Act to include hallucinogens such as LSD, was insufficient to apprise the legislature and the public of the drastic changes in penalties and elimination of penalties for other offenses made by the amendment and, therefore, violated said constitutional provision when the caption merely recited that it was an act to include LSD and other hallucinogens in a list defining dangerous drugs. The caption there in question specified the field the amendment covered, which is not true here, where the caption does not specify the field the amendment is to cover but simply states it is 'An act amending the State Bar Act; amending Section 6, Chapter 1, page 64, General Laws, Acts of the 46th Legislature, 1939 (Article 320a-1, Vernon's Texas Civil Statutes); and declaring an emergency.' It was also stated in the White case that when the title of an original act embraces matters covered by the amendment the caption of the amendment need not state the subject of the law amended or specify the nature of the proposed amendment, but that new substantive matters in the amendment, 'not germane to the provision amended, is invalid as legislation on matter not expressed in the title of the amendatory act,' citing 53 Tex.Jur.2d, Section 60, page 107.

Appellant concludes that the caption of the amendment here in question fails to give notice of the departure in the amendment from the subject of Section 6 and, therefore, the amendment is unconstitutional because it fails to meet the requirements of Section 35 of Article 3 of the Texas Constitution. We agree with appellant's contention of what the law is. However, the real question presented is whether said amendment is germane to the subject of the original act. The general rule was announced in Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S .W.2d 722, which is cited by both appellant and appellee. It is established law that the caption of an amendment which merely states that it amends a specifically named and identified statute is sufficient if the amendment is germane to the subject matter of the original act. Germaneness depends on whether a reader of the caption of the amendment and the statute amended is able to ascertain the subject of the amendment without reading the body of the amendment. Shannon v. Rogers, 159 Tex. 29, 314 S.W.2d 810. An amendment which is not germane to the subject of the statute amended must make specific reference in its caption to the non-germane provision of the amendment so that a reader of the amendment and the statute amended may know of the change of San Antonio & A.P. Ry. v. State, 128 Tex. 33, 95 S.W.2d 680.

In Schlichting v. Texas State Board of Medical Examiners, 158 Tex. 279, 310 S.W.2d 557, our Supreme Court defined the test of germaneness by stating that it was the closeness of relationship between the new provisions, or substantial changes, to what went before. It held that a general...