Grievance Committee, Etc. v. Dean, 9521.

• Decision Date: 10 October 1945
• Docket Number: No. 9521.,9521.
• Parties: GRIEVANCE COMMITTEE OF STATE BAR OF TEXAS, TWENTY-FIRST CONGRESSIONAL DIST., v. DEAN.
• Court: Texas Court of Appeals

190 S.W.2d 126

GRIEVANCE COMMITTEE OF STATE BAR OF TEXAS, TWENTY-FIRST CONGRESSIONAL DIST., v. DEAN.

No. 9521.

Court of Civil Appeals of Texas. Austin.

October 10, 1945.

Appeal from District Court, San Saba County; Raymond Gray, Judge.

Suit by the Grievance Committee of State Bar of Texas, Twenty First Congressional District, against W. V. Dean for a declaratory judgment to determine whether certain acts performed by defendant constituted illegal practice of law. From a judgment in part for plaintiff and in part for defendant, plaintiff appeals.

Reformed, and as reformed affirmed.

J. Mitch Johnson, of San Saba, and J. C. Darroch, of Brownwood, for appellant.

H. C. Coryell, of San Saba, in pro per.

R. D. Cox, Jr., of McAllen, Fred Bennett, of Mercedes, A. G. Haigh, of Edinburg, Luther Hughes, of Weslaco, and E. A. McDaniel, of McAllen, Hidalgo County Bar Ass'n Grievance Committee, amici curiae.

Joyce Cox, of Houston, for Greivance Committee of State Bar of Texas, Eighth Dist., amicus curiae.

Melvin F. Adler, of Fort Worth, amicus curiae.

Dwight Whitwell, Cr. Dist. Atty., of McKinney, amicus curiae.

Aubrey J. Roberts, Harold F. Thompson, and W. C. Gowan, all of Dallas (John A. Witcher, of Dallas, of counsel), for Grievance Committee, Fifth Congressional Dist., State Bar of Texas, amici curiae.

BAUGH, Justice.

This suit was brought by the Grievance Committee of the State Bar of Texas, as integrated by the State Bar Act, Acts 1939, 46th Leg., p. 64, Art. 320a—1, Vernon's Ann. Civ.St., and under the Declaratory Judgment Act, Art. 2524—1, Vernon's Ann.Civ. St., to have determined whether the acts performed by the defendant W. V. Dean constituted the illegal practice of law. The allegations in this respect were: "That the defendant has on frequent occasions in the county of his residence prepared for others contracts, deeds, deeds of trust, leases, mechanic's liens, releases, transfers, and other forms of conveyances, and has also drawn wills and rendered opinions on titles to land, and in fact has made it a part of his business as an abstracter to do so, the performance of which acts—as plaintiff asserts—constitutes the practice of law, whether or not any charge is made for such services. That the defendant is not a member of the State Bar of Texas, and under Section 3 of the State Bar Act (Article 320a—1 of Vernon's Civil Statutes of the State of Texas), all persons not members of the State Bar are prohibited from practicing law in this State."

The case was tried upon an agreed statement of facts, the portion pertinent to our inquiry here being:

"The defendant admits, in open court, that he has, from time to time ever since the enactment of Art. 430a of the [Vernon's] Penal Code of Texas, drawn for others contracts relative to property rights, deeds of conveyance to lands, deeds of trust granting liens on lands, leases of lands, and of real property, releases of mortgages on real property, transfers of and liens on personal property, and other forms of conveyances, and that during said period of time the defendant has drawn two or three wills. That the defendant has, at the request of others, advised them of the condition of their titles to real estate, and has done so without compensation. The defendant has not advertised or solicited this character of business, but has rendered the services above mentioned, to such persons as came to him and requested such services; and the defendant admits that he has done the character of conveyancing above outlined both for compensation and without compensation.

"It is agreed between the parties hereto that in the preparation of these various types of conveyances that the defendant felt that he was acting within his rights under and by virtue of the provisions of Art. 430a of the Penal Code of Texas. It is agreed that the defendant has been pursuing this course under a claim of right since the enactment of Art. 430a of the Penal Code of Texas up to the present time.

"It is agreed that the various types of conveyances above mentioned, prepared by the defendant, related to property rights of others in which the defendant had no interest.

"It is agreed by plaintiffs and defendant that the defendant made no charge, and received no compensation, for preparing the above mentioned wills."

The trial court in its judgment herein declared:

"(B) That the preparation of others for compensation or consideration, direct or indirect, of deeds of conveyance to real estate, deeds of trust granting liens on real estate, leases of lands and real estate, releases of liens upon real estate, contracts relating to the rights and properties of others, the drawing and preparation of wills for others, and the examination of titles and the giving of title opinions, all concerning the property rights of others, when done for consideration, direct or indirect, constitutes the Practice of Law, and that such services may be rendered only by a duly qualified licensed attorney who is a member of the State Bar of Texas.

"(C) That the fact that the defendant does not advertise for or solicit this character of business, but performs such services only upon solicitation of others, does not relieve him of the charge of unauthorized practice of law without a license.

"(D) That the performance by the defendant of such services as mentioned in paragraph `B' above, for others at their solicitation, without compensation or consideration, either direct or indirect, does not constitute the practice of law, and that the defendant has the right to render such services without consideration or compensation.

"(E) That the preparation by the defendant of deeds of conveyance, conveying property, if done without consideration or compensation paid or charged, does not constitute the practice of law, and the defendant has a right to draw without compensation such instruments.

"(F) The court further declares that the defendant's claim of right to do conveyancing and prepare such instruments as are set forth in paragraph (B) above under and by virtue of the provisions of Article 430a, Sec. 2, of the Penal Code of Texas, is of no avail. Art. 430a of the Penal Code is not repealed by Art. 320a—1, of the revised statutes of Texas, (The State Bar Act) nor is the requirement of the last mentioned act that only duly licensed lawyers who are members of the State Bar may engage in the practice of law, in anywise affected by the provisions of Art. 430a of the Penal Code, particularly Sec. 2, which exempts Notaries Public from criminal prosecution on account of doing any of acts prohibited by Art. 430a. The court finds that both of these laws are in full force and effect, and that one is a criminal law, providing penalties, and that the other is a civil law, declaring who...