Dasher v. Supreme Court of Texas

• Decision Date: 13 October 1981
• Docket Number: Nos. 78-2616,79-1253 and 79-2343,s. 78-2616
• Citation: 658 F.2d 1045
• Parties: Susan Joyce DASHER, Plaintiff-Appellee, v. The SUPREME COURT OF TEXAS, Etc., et al., Defendants-Appellants. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1045

658 F.2d 1045

Susan Joyce DASHER, Plaintiff-Appellee, v. The SUPREME COURT OF TEXAS, Etc., et al., Defendants-Appellants.

Nos. 78-2616, 79-1253 and 79-2343.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Oct. 13, 1981.

Michael H. Corley, Sp. Asst. Atty. Gen., Hunton & Williams, Richmond, Va., for defendants-appellants.

Clyde O. Bowles, Jr., Bowles & Ward, Chicago, Ill., for amicus curiae National Conference of Bar Examiners.

Gretchen E. Raatz, Austin, Tex., Mary C. Dunlap, San Francisco, Cal., for plaintiff-appellee.

Susan Joyce Dasher, Austin, Tex., pro se.

Appeals from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING

Before AINSWORTH, Circuit Judge, KUNZIG, Judge ^**, and RANDALL, Circuit Judge.

RANDALL, Circuit Judge:

On petition for rehearing by this panel, appellee, Susan Joyce Dasher, seeks reconsideration of our opinion in Dasher v. Supreme Court of Texas, 650 F.2d 711 (5th Cir. 1981). After careful consideration of Ms. Dasher's petition, we have concluded that the arguments in her petition lack merit; however, in the course of reviewing the record in this case as we considered Ms. Dasher's petition, we have ourselves discerned an error in our previous opinion which necessitates that we alter our original conclusion that the district court lacked jurisdiction to entertain Ms. Dasher's petition and that we consider the merits of the case on appeal. Therefore, Ms. Dasher's petition for rehearing is granted, the original opinion in this case is withdrawn and the following is substituted. We begin anew with a statement of the facts.

I. FACTS

In the spring of 1978, Susan Joyce Dasher, a California attorney who had practiced law in that state for approximately three years, moved to Texas and began work as an assistant attorney general in the office of the Attorney General of the State of Texas. On April 26, 1978, Ms. Dasher filed a written application with the State Board of Law Examiners to take the Texas bar examination. Ms. Dasher's application was fully and properly completed and accompanied by the required letters of recommendation and fees. There was, however, one obstacle to Ms. Dasher's admission to the bar examination scheduled for July, 1978. The San Francisco Law School, from which Ms. Dasher had received her J.D. degree, was not on the list of law schools "approved" by the Supreme Court of Texas.

Under Texas law, the Texas Supreme Court has exclusive authority to grant licenses for the practice of law, Tex.Rev.Civ.Stat.Ann. art. 306 (Vernon Supp. 1980). The Texas Supreme Court is also authorized by statute to "make such rules as in its judgment may be proper to govern eligibility for (the bar) examination." Id. The statute charges the Supreme Court with responsibility for prescribing the nature and extent of the law study an applicant must undertake before she or he is eligible to take the Texas bar examination. The statute provides, however, that "completion of prescribed study in an approved law school shall satisfy the law study requirements for taking the ... (bar) examination," id., and defines an "approved law school" as one approved by the Texas Supreme Court.

In discharging its responsibilities under this statute, the Texas Supreme Court has adopted and published a compilation of rules. Rule XII of the Rules Governing Admission to the Bar of Texas governs the admission of attorneys from other jurisdictions. Under the provisions of this rule, attorneys licensed to practice and actively engaged in practice in another state for at least seven years may, in the discretion of the Board, be admitted to the bar without taking the bar examination or upon successful completion of a short-form examination. The rules make no provision for the admission of immigrant attorneys who have not practiced elsewhere for the required period without successful completion of the regular bar examination. Rule XII(h) provides that:

The Board, in its discretion, may admit to examination upon all subjects prescribed for the regular examination any attorney who has been admitted to practice law in another jurisdiction and who meets all the other requirements of these rules, including three (3) months' residence in Texas and the prescribed pre-legal education, but who has not practiced under the conditions hereinabove set forth for the required length of time to be admitted as an immigrant attorney hereunder. (emphasis added)

Among the other requirements of the Rules Governing Admission to the Bar of Texas are those contained in Rule V which provides that in order to be eligible to take the Texas bar examination a candidate must have graduated from (or satisfied all requirements for graduation from) a law school approved by the Texas Supreme Court or have completed 80 semester hours of study toward the LL.B. degree (or its equivalent) at an approved school. Rule VI(A) of these rules sets forth the standards which the Texas Supreme Court applies in approving law schools. Rule VI(A) provides, inter alia, that

"a law school which is either provisionally or fully approved by the American Bar Association shall prima facie be deemed to comply with these standards ...."

The rules do not, however, limit approval by the Texas Supreme Court to law schools accredited by the American Bar Association. Rule VI(B) prescribes procedures relative to the approval of law schools. It is undisputed in this case that the San Francisco Law School was never approved by the American Bar Association or by the Texas Supreme Court.

Apparently, Ms. Dasher was aware, at the time she applied for admission to the bar exam, or very shortly thereafter, that her eligibility to sit for the examination was questionable. ¹ On May 9, 1978, Ms. Dasher's attorney wrote the Secretary of the Board of Law Examiners, the agency of the Supreme Court charged with responsibility for administering the Rules Governing Admission to the Bar and for administering and grading the Texas bar examination, inquiring whether Ms. Dasher would be admitted to the July, 1978 examination. On May 29, 1978, Ms. Dasher's attorney wrote the Chairman of the Board of Law Examiners, George T. Barrow, acknowledging that Ms. Dasher's alma mater, San Francisco Law School, did not appear either on the current list of schools approved by the Texas Supreme Court or on the ABA's roster of approved institutions. Counsel requested that the Board "in its discretion, grant a special exception and allow (Ms. Dasher) to take the Bar Exam based upon her meritorious legal attainments and experience." On May 30, 1978, Mr. Barrow responded that the Board would not admit Ms. Dasher to the July, 1978 bar examination. Mr. Barrow explained that the Board did not construe Rule XII(h) to authorize the Board to waive the requirement of attendance at a "law school which has been accredited by the American Bar Association."

Ms. Dasher's counsel then filed a "Motion for Leave to File Petition" in the Texas Supreme Court. The motion stated that the petition for an exception to the court's rules regarding admission to the bar was an original proceeding within the exclusive jurisdiction of the Supreme Court and prayed that the petition for exception "be filed and that the cause be placed upon the docket, and that the petition be acted upon by the Court." The Board of Law Examiners filed a response opposing Ms. Dasher's request. On July 19, 1978, the court overruled Ms. Dasher's motion, thereby denying her request for admission to the bar examination.

On the same day, Ms. Dasher filed a civil complaint in the United States District Court for the Western District of Texas. The complaint named as defendants the Supreme Court of the State of Texas and the Board of Law Examiners, and also Joe R. Greenhill and George T. Barrow, in their official capacities as Chief Justice of the Supreme Court and Chairman of the Board of Law Examiners, respectively. The complaint, grounded on 42 U.S.C. § 1983, alleged that the refusal of the Board and the Supreme Court to admit her to the Texas bar examination deprived her of due process and equal protection of the laws in violation of the fourteenth amendment. Specifically, the complaint and its supporting memorandum asserted that Mr. Barrow's statement that the Board required applicants to be graduates of ABA approved law schools improperly and retroactively altered the rules governing eligibility for the exam. Ms. Dasher argued that although the San Francisco Law School had never formally been approved by the Texas Supreme Court or the ABA, the school met the specific standards for law schools set forth in Rule VI(A) of the Rules Governing Admission to the Bar. Ms. Dasher urged that under Rule VI(B), which provides that "(t)he Supreme Court shall approve law schools which meet the standards" specified in VI(A), the Supreme Court was obligated to approve the San Francisco Law School and admit Ms. Dasher to the bar examination. The court's failure to do so, coupled with Mr. Barrow's statement that ABA approval was required, amounted, according to Ms. Dasher, to an arbitrary and capricious change in the rules, which had formerly permitted applicants to take the bar exam if they graduated from a school approved by the Supreme Court even though that school might not be ABA accredited. Ms. Dasher's complaint sought relief in the form of a temporary restraining order requiring that Ms. Dasher be admitted to the examination, scheduled to begin on July 26, 1978, a preliminary injunction enjoining the defendants from interfering with Ms. Dasher's admission to the exam and enjoining the defendants from taking any action to deprive her of admission to the bar on the same terms and conditions as any graduate of an approved law school. The complaint further requested a declaratory judgment "that the defendants Court and Board have an existent, clear legal duty to plaintiff to accredit and approve plaintiff's ...