Hill v. State
| Decision Date | 05 May 1965 |
| Docket Number | 38164,Nos. 38163,s. 38163 |
| Citation | 393 S.W.2d 901 |
| Parties | Elbert HILL, Appellant, v. The STATE of Taxas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Pearson Grimes, of Butler, Binion, Rice, Cook & Knapp, Houston (on appeal only), for appellant.
Frank Briscoe, Dist. Atty, Carl E. F. Dally, James C. Brought and Joe Shaffer, Asst. Dist. Attys, Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The above styled causes present the same questions on appeal. Hence, they are consolidated for review and disposition. One conviction is for felony theft with the punishment assessed at ten years; the other is for burglary with the punishment assessed at two years.
On March 11, 1964, the appellant was indicted for the offense of burglary, and the offense of felony theft with two prior convictions alleged for enhancement. The appellant was also charged by indictment with two other felonies, one for theft and the other for burglary.
On November 9, 1964, Desmond E. Gay, was appointed by the court to represent the appellant in said cases. After such appointment, Gay investigated the cases and advised and counseled with the appellant. The theft and burglary cases (not the two here on appeal), and the enhancement allegations in the indictment for burglary returned March 11 were dismissed upon recommendation of the state. Following the dismissals, the appellant on November 9, 1964, entered a plea of guilty, before the court without a jury, to the burglary and theft indictments returned March 11. After all procedural requirements had been complied with, including the introduction of sufficient evidence to authorize the convictions, the court found the appellant guilty in each case, and assessed his punishment at two years in the burglary case and ten years in the theft case. Sentence was pronounced on November 9, 1964. Notice of appeal was given on November 16, 1964.
For reversal the appellant relies upon the following contentions, as stated in his brief:
'Appellant's Points of Error concern only the matter of failure of the trial court to furnish appellant with a qualified attorney at law to represent him on November 9, 1964, or, having discovered such error to grant him a new trial.'
It is undisputed that on November 9, 1964, Desmond E. Gay, was appointed by the trial court to represent the indigent appellant in the burglary case and the theft case with prior convictions alleged for enhancement; that Gay had failed to timely pay his annual State Bar dues in 1964, and was removed from the State Bar membership roll on September 1, 1964, due to non-payment of such fee; and that he was reinstated on November 30, 1964, upon payment of said fee and has continued in good standing.
The record further shows that Desmond E. Gay was admitted to the State Bar of Texas in April, 1954, and has been continuously engaged in the practice of law since that date; that he had annually tried twenty to twenty-five criminal cases upon pleas of not guilty, and that many of them were for similar offenses as those in the instant cases. After investigation and counselling, and upon the state dismissing the enhancement allegations in the instant theft case and also two other felony cases, Gay advised the appellant to plead guilty to the instant cases of theft and burglary.
The written statement of the judges of four criminal district courts in Harris County, including the judge who tried the instant cases, recites as follows:
Another judge of another criminal district court in Harris County relates facts in his written statement which show the ability of Gay in the trial of criminal cases before him; and the judge further states that, '* * * he has appeared regularly in my court (for ten years) and I consider him competent to represent defendants in criminal cases.'
To support his contentions for reversal the appellant relies upon Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66 (1958), which was followed in McKinzie v. Ellis, 5th Cir., 1961, 287 F.2d 549.
We shall first address ourselves to the Martinez case, supra. There the court-appointed attorney failed to pay his bar dues in 1946. After proper notice that he was delinquent, he made no response and his name was removed from the State Bar rolls in 1946 for non-payment of dues. This sole contention was brought before this Court on Appellant's Motion for Rehearing with a certificate attached from the book-keeper for the State Bar of Texas, dated September 3, 1958, reflecting that appellant's attorney 'has not paid his State Bar dues since June 1, 1946, a delinquent notice was sent on August 1, 1946, from which no reply was received, and he was dropped from the rolls of the State Bar on September 1, 1946, and has not been reinstated to this date.' Since this Court obviously did there consider matters not appearing in the record made in the trial court and those which attack its jurisdiction on an appeal, we think it not amiss to here state that the attorney in Martinez's case, as shown from the records of the Office of the Clerk of the Supreme Court of Texas, did pay up all of his delinquency from 1946 through 1958 on September 24, 1958. The record reflects that Martinez was indicted November 13, 1957, for an offense alleged to have been committed on October 14, 1957, the Court appointed an attorney for him on November 14, 1957, and his case went to trial on January 20, 1958, and the trial was concluded on January 24, 1958. This Court's original opinion was handed down on June 18, 1958, affirming the conviction, wherein the penalty of death was assessed for the murder of a 9 month old child. The majority opinion of this Court on Appellant's Motion for Rehearing was handed down on November 5, 1958, granting the motion for rehearing, setting aside the order of affirmance and reversing and remanding the case. We are not in accord with the Court's decision in the Martinez case. We do, however, construe the State Bar rules in the same light as this Court there did, and as the 5th Circuit did in McKinzie, supra. That is, the delinquent attorney shall cease to be a member if he doesn't pay within 30 days after he has had notice of 60 days delinquency. The section immediately preceding this one does say: '[A]ll persons not members of the State Bar are hereby prohibited from practicing law in this State'. Neither the State Bar rules nor the statutes contain a provision saying anything about such person being deprived of his license as an attorney at law. The rules of the State Bar place the judges of the various trial and appellate courts of this State in a position to refuse a delinquent attorney-member the privilege of practicing law, and these rules do place the lawyer whose name has been stricken from the rolls of the State Bar for non-payment of dues and who has not been reinstated, in the position of not being able to practice in this State, and if he persists in doing so, the lawyer's continued practice constitutes the unauthorized practice of law.
The status of a delinquent attorney not being a member of the State Bar of Texas does not place him in the position of being 'unlicensed to practice law in this State'. He only has to pay his dues (he does not vacate the office of Attorney-at-law) to resume his status as a 'practicing lawyer'. Such attorney does not have to again show his fitness or qualifications to practice law. He does not have to be re-admitted to the practice. His competency as an attorney has not been diminished. He faces no future disbarment proceedings. He automatically resumes his status as an active member of the State Bar of Texas. The payment of his delinquent dues has the same effect for him as a nunc pro tunc judgment. He, in effect, enters a nunc pro tunc judgment for himself. Ex parte Lefors, 171 Tex.Cr.R. 229, 347 S.W.2d 254, at page 255.
It is clear to us that the State Bar Act is retroactive in its applications. When the delinquent attorney-member pays his delinquent dues he then is restored to the status that he occupied prior to becoming delinquent. In Stokes v. Sundermeyer, Tex.Civ.App., 170 S.W.2d 583, the attorney, Sundermeyer, was notified that he was delinquent for the year 1941 in payment of his bar dues. He paid such dues on May 14, 1942, for the fiscal year beginning June 1, 1941, and ending May 31, 1942. The Galveston Court of Civil Appeals held that Mr. Sundermeyer was not precluded from recovering compensation for legal services rendered between February 7 and August 15, 1941, on the ground that he was disqualified to practice law during such period because of forfeiture of his bar membership for non-payment of dues. Writ of error was refused, no reversible error, by...
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