Howell v. State

• Decision Date: 23 November 1977
• Docket Number: No. 1060,1060
• Parties: Charles Ben HOWELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 432

559 S.W.2d 432

Charles Ben HOWELL, Appellant,

v. The STATE of Texas, Appellee.

No. 1060.

Court of Civil Appeals of Texas, Tyler.

Nov. 23, 1977.

Rehearing Denied Dec. 29, 1977.

Tom S. McCorkle, Jr., Dallas, Waggoner Carr, Austin, Melvyn Carson Bruder, Dallas, for appellant.

Robert C. Bass, Jr., Asst. Gen. Counsel, Austin, for appellee.

McKAY, Justice.

This is a disbarment suit brought by the State of Texas, acting by and through its Grievance Committee for the Sixth District of the State Bar of Texas, appellee, against Charles Ben Howell, appellant, alleging that certain acts and conduct of appellant constituted malpractice, fraudulent and dishonorable conduct in willful violation of the Code of Professional Responsibility which warranted the disciplining of appellant under the State Bar rules. The prayer of appellee asked that appellant be disbarred, suspended or reprimanded. Trial was had before a jury, and the trial court disregarded part of the verdict and rendered judgment that appellant was guilty of professional misconduct in engaging in conduct prejudicial to the administration of justice, and that appellant be reprimanded. Appellant has perfected his appeal.

Appellant is a duly licensed attorney of the State of Texas and a member of the State Bar of Texas. It was alleged in appellee's pleadings that appellant appeared before Judge Dee Brown Walker, 162nd District Court, sitting for the Judge of Domestic Relations Court No. 2, Dallas County, and presented Judge Walker with the file of a bill of review and divorce proceeding from Domestic Relations Court No. 2 and moved for a default judgment on the grounds that no answer had been filed. It was further alleged that appellant did not tell Judge Walker that there was another case pending between the same parties for a divorce in Domestic Relations Court No. 3, and that Judge Dan Gibbs of that court had set a hearing on both cases for the following week, and that appellant had appeared before Judge Gibbs only two days before concerning both cases. Judge Walker rendered a default judgment awarding custody of the minor children. When Judge Walker learned of the facts concerning the case pending in Domestic Relations Court No. 3 he cited appellant for contempt and transferred the matter for a hearing before another judge.

Appellant later appeared before Judge Louis Holland, a retired district judge sitting in Domestic Relations Court No. 3, to determine whether appellant was guilty of contempt of court before Judge Walker. During the hearing appellant became a witness in support of his motion for continuance, and he testified that he had attempted to employ four different lawyers to represent him, and each of them had refused due to alleged fear of prejudice in future cases before Judge Walker. The assistant district attorney representing appellee asked appellant to name the four lawyers he contacted, and appellant refused to do so. Judge Holland then instructed appellant to answer the question and name the lawyers and appellant refused to do so, asked that his motion for continuance be withdrawn, and persisted in his refusal after being advised that he would be held in contempt of court. Judge Holland then ruled that appellant was in contempt of court. (See Ex parte Howell, 488 S.W.2d 123 (Tex.Cr.App.1973) for factual statement.)

The present suit is an outgrowth of the contempt matters before Judge Walker and Judge Holland. The trial court submitted the case to a jury on ten special issues. ¹ We are concerned in this appeal with issues 9 and 10. In issue 9 the jury found appellant failed to answer a question relating to his motion for continuance when he was instructed by Judge Holland to answer, and failed to find in issue 10 that such conduct was prejudicial to the administration of justice. Upon motion of appellee the trial judge set aside the jury's answer to issue 10 and disregarded same, holding that issue 10 was a question of law which should be decided by the court. In its judgment the trial court held that, based upon the jury's answer to issue 9, in its opinion appellant was guilty of professional misconduct "in that he did engage in conduct that was prejudicial to the administration of justice." It was further ordered that appellant be reprimanded for his professional misconduct.

By his first three points appellant contends that the trial court erred in that appellant was denied due process of law, equal protection of law, and the right of trial by jury because (1) the facts do not indisputably establish the jury verdict to be so clearly wrong that reasonable minds cannot agree to the contrary; (2) the question as to whether the conduct of appellant was prejudicial to the administration of justice is not one of law to be decided by the court only; and (3) the trial court has no power to revise a jury verdict in a punitive or quasi-criminal case. The basic question raised by appellant in these points is whether a finding that conduct is prejudicial to the administration of justice is a fact issue for the jury or a question of law for the court. We hold that it is a function of the court and that the trial court properly disregarded the answer of the jury to issue 10.

Article 12, Sec. 28, State Bar Rules, V.T.C.S., provides in part "If the court shall find from the evidence in a case tried without a jury, or from the verdict of the jury, if there be one, that the defendant is guilty of no professional misconduct, he shall enter judgment so declaring and dismiss the complaint; but if he shall find the defendant guilty, he shall determine whether the party shall be (a) reprimanded, or (b) suspended from practice (in which case he shall fix the term of suspension), or (c) disbarred; and he shall enter judgment accordingly."

As we view Sec. 28 the function of the trial court is (1) to make the actual determination whether the conduct of an attorney constitutes professional misconduct; and if it finds it was professional misconduct, (2) exercise its disciplinary authority. Article 12, Sec. 9, State Bar Rules, V.T.C.S., provides in part that:

"a. Professional misconduct consists of any of the following:

"(1) Misconduct as specified in DR1-102, Code of Professional Responsibility . . . ."

Article 12, Sec. 8, DR1-102, provides in part:

"(A) A lawyer shall not:

"(5) Engage in conduct that is prejudicial to the administration of justice."

The jury found (Issue 9) that appellant refused to answer the question as to the identity of the attorneys he contacted to represent him in his contempt hearing before Judge Holland after being instructed to do so by the court. Issue 10 asks whether such conduct was prejudicial to the administration of justice, to which the jury answered "no." There were no definitions or explanations in the charge (and none requested) to guide the jury in its answers. Appellant argues that State v. Baker, 539 S.W.2d 367 (Tex.Civ.App. Austin 1976, writ ref'd n. r. e.), is authority for submitting issue 10 to the jury. We disagree. The opinion (Page 371) states that such an issue was submitted to the jury, but nowhere does it approve or disapprove of such issue as being proper.

Appellant's contention that the trial court has no power to revise a jury verdict in a punitive or quasi-criminal case is without merit. The trial here was a civil suit, and the trial court was authorized to disregard on its own motion any issue that was immaterial or one which constituted a question of law. Art. 12, Sec. 21, State Bar Rules; C & R Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Grubb v. Grubb, 525 S.W.2d 38 (Tex.Civ.App. El Paso 1975, writ ref'd n. r. e.). The case of Archer v. State, 548 S.W.2d 71 (Tex.Civ.App. El Paso 1977, writ ref'd n. r. e.), a disbarment suit, has the following language:

"Appellant contends that the Court's act of disregarding the jury's answer to Special Issue No. 1(a) violated his right of trial by jury as provided in the Code. The provision of the Code is that the accused attorney shall have the right of a trial by jury in the county of his residence. It cannot be given the construction that Appellant places on it, for the Code also says that the Rules of Civil Procedure shall govern, and, under those rules, the Court can disregard an issue. Appellant's contention has been decided otherwise in the case of State v. Baker, supra. It was there held that the trial Court erred in not granting the State's motion for judgment non obstante veredicto."

Points 1-A, 1-B, and 1-C are overruled.

By his next three points appellant maintains that Article 12, sec. 8, DR1-102(A)(5), State Bar Rules, is vague and indefinite (1) on its face, (2) as construed by the courts of Texas, and (3) as construed and applied in this case, and is unconstitutional because it violates the due process and equal protection clauses of the Constitution of Texas. We disagree. It is undisputed in the record that appellant, in the capacity of a witness, refused to answer a question after instructed to do so by the trial court and after being advised that his failure to do would result in appellant being in contempt of court. Was such conduct on the part of appellant "prejudicial to the administration of justice"? In our opinion it was. "Prejudicial" has been defined as tending to injure or impair; detrimental; harmful; hurtful; injurious. 33 Words and Phrases, page 471; Webster's Seventh New Collegiate Dictionary, G & C Merriam Co. 1969. "Administration of justice" has been described thusly: "The administration of justice consists in the trial of cases in the court, and their judicial determination and disposition by orderly procedure, under rules of law, and putting of the judgment into effect." Massey v. City of Macon, 97 Ga.App. 790, 794, 104 S.E.2d 518, 521-522 (1958).

We do not believe that the language "a lawyer shall not: . . . engage in conduct that is prejudicial to the administration of justice" is so vague and...