Humphreys, Matter of

• Decision Date: 30 March 1994
• Docket Number: No. D-3811,D-3811
• Citation: 880 S.W.2d 402
• Parties: In the Matter of Lloyd E. HUMPHREYS.
• Court: Texas Supreme Court

Page 402

880 S.W.2d 402

In the Matter of Lloyd E. HUMPHREYS.

No. D-3811.

Supreme Court of Texas.

Argued Dec. 1, 1993.

Decided March 30, 1994.

Linda A. Acevedo, Austin, for petitioner.

Lloyd E. Humphreys, Dallas, Lloyd Charles Humphreys, Garland, Lowell S. Jones, Dallas, for respondent.

CORNYN, Justice, delivered the opinion of the Court, joined by PHILLIPS, Chief Justice and GONZALEZ, HIGHTOWER, HECHT, GAMMAGE, ENOCH and SPECTOR, Justices.

Petitioner's motion for rehearing is overruled. We withdraw our opinion of January 5, 1994, and substitute the following opinion.

This is an appeal from a decision of the State Bar of Texas Board of Disciplinary Appeals ("BODA") dismissing a Disciplinary Action by the State Bar Office of Chief Disciplinary Counsel ("OCDC") seeking to disbar Lloyd Humphreys. Humphreys has been convicted of tax evasion in federal court, and the principal question we decide is whether this is an Intentional Crime involving moral turpitude. We hold that tax evasion is such a crime, and that the Texas Rules of Disciplinary Procedure compel Humphreys's disbarment.

I

Following a jury trial in the United States District Court for the Northern District of Iowa, Lloyd Humphreys was convicted of the felony offense of willful attempt to evade or defeat a tax, 26 U.S.C. § 7201, for the tax years of 1983, 1984, 1988, and 1989. The jury also found Humphreys guilty of the misdemeanor offense of willful filing of a false tax return. On November 22, 1991, the district court sentenced him to prison for three concurrent terms of six, twelve, and eighteen months, respectively, and to a subsequent three-year term of probation. The United States Court of Appeals for the Eighth Circuit has affirmed the conviction and the sentence.

TEXAS R. DISCIPLINARY P. 8.01 (1992), reprinted in TEX.GOV'T CODE ANN., tit. 2, subtit. G, app. A-1 (Vernon Supp.1994) provides:

When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation ... with or without an adjudication of guilt, the Chief Disciplinary Counsel shall initiate a Disciplinary Action seeking compulsory discipline pursuant to this part.

(Emphasis added). Following this mandate, the OCDC commenced a Disciplinary Action against Humphreys. TEXAS R. DISCIPLINARY P. 8.02 (1992) states:

In any Disciplinary Action brought under this part, the record of conviction or order of deferred adjudication is conclusive evidence of the attorney's guilt.

(Emphasis added). TEXAS R. DISCIPLINARY P. 8.05 (1992) requires that attorneys convicted of Intentional Crimes be disbarred:

When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney has accepted probation with or without an adjudication of guilt for an Intentional Crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, under section 8.06, ¹ suspends his or her license to practice law.

(Emphasis added). Nevertheless, BODA dismissed the State Bar's petition against Humphreys on April 22, 1993, following a February 27 hearing. The OCDC requested that BODA provide written findings of fact and conclusions of law, but BODA declined. Pursuant to TEX.R.DISCIPLINARY P. 7.11 (1992), the OCDC appealed BODA's decision directly to this court.

The State Bar argues that BODA had no power to dismiss the Disciplinary Action, and that BODA is required to disbar Humphreys. Humphreys responds with several arguments: (1) that this court is without jurisdiction to hear the State Bar's appeal, (2) that BODA is not required to recognize the record of conviction because the procedures applied in the federal trial would have been defective had they been subject to review under the Texas Code of Criminal Procedure, and (3) that tax evasion is not an "Intentional Crime involving moral turpitude," and therefore he should not be disbarred.

II

A

In his jurisdictional challenge, Humphreys first argues that the State Bar Commission for Lawyer Discipline is without authority under TEX.R.DISCIPLINARY P. 4.06 (1992) to direct the OCDC to pursue an appeal from a BODA decision. To the contrary, the Commission has authority to exercise "all rights characteristically reposed in a client by the common law of this state," including the right to appeal, TEX.R.DISCIPLINARY P. 4.06(A) (1992), and therefore the State Bar has authority to appeal adverse BODA rulings to this court. TEX.R.DISCIPLINARY P. 7.11 (1992). On the same ground, we reject Humphreys's contention that the State Bar is not a "real party in interest."

Humphreys argues that TEX.R.DISCIPLINARY P. 7.08 (1992) gives BODA "final" authority over proceedings before it. We disagree. BODA has authority to "hear and determine" Disciplinary Actions, TEX.R.DISCIPLINARY P. 7.08(D) (1992), subject to review by this court. TEX.R.DISCIPLINARY P. 7.11 (1992).

Nor is this action time-barred by the TEX.R.DISCIPLINARY P. 15.08 (1992) limitations period. Rule 15.08 applies to "allegation[s] of Professional Misconduct ... except in cases in which disbarment or suspension is compulsory." (emphasis added) We also hold on the basis of the record before us that the State Bar timely filed its notice of appeal.

We also decline to dismiss this appeal for want of a statement of jurisdiction. See TEX.R.APP.P. 131(d). Because this appeal "resembles that taken from a trial court to the court of appeals," similar procedures apply, and Rule 131(d) is not applicable. See State Bar v. Humphreys, 882 S.W.2d 824, (Tex.1993) (per curiam order).

Finally, Humphreys argues that this court may not review the legal conclusions of BODA because an appeal under TEX.R.DISCIPLINARY P. 7.11 (1992) is subject to "substantial evidence" review. This argument fails because questions of law are always subject to de novo review. Although the Administrative Procedure Act ("APA"), 73rd Leg., R.S., ch. 268, § 1, 1993 Tex.Sess.Law Serv. 587 (Vernon) (to be codified as TEX.GOV'T CODE ANN. §§ 2001.001--2001.902) (formerly Administrative Procedure and Texas Register Act), technically, does not govern BODA procedures, see Minnick v. State Bar, 790 S.W.2d 87 (Tex.App.--Austin 1990, writ denied), the APA sections governing appeals from administrative proceedings are analogous and therefore instructive. Board of Law Exam. v. Stevens, 868 S.W.2d 773, 777 (1994). APA § 2001.174(2) provides:

If the law authorizes review of a decision ... under the substantial evidence rule ... a court ... shall reverse or remand the case for further proceedings if ... the administrative findings, inferences, conclusions, or decisions are: ... (D) affected by other error of law....

Thus, even under the substantial evidence test, we review the legal conclusions of BODA de novo. We also disagree with Humphreys's assertion that the State Bar has waived this point by failing to raise a special "point of error, or appeal point that is directed at that limited standard of review." No party need raise a point of error directing this court to the appropriate standard of review under Rule 7.11.

We reject Humphreys's constitutional Ex Post Facto and jury trial arguments. The Ex Post Facto Clause, U.S. CONST. art. I, § 9, prohibits laws that criminalize behavior retroactively. Collins v. Youngblood, 497 U.S. 37, 41-43, 110 S.Ct. 2715, 2718-20, 111 L.Ed.2d 30 (1990); see also Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 846-56, 104 S.Ct. 3348, 3351-57, 82 L.Ed.2d 632 (1984) (explaining the term "Bill of Attainder"). Humphreys's only complaint concerns retroactive application of the disciplinary procedure rules. He does not suggest that BODA has subjected him to criminal punishment or even that the substantive standards for compulsory discipline have changed. BODA's application of different procedural rules did not violate Humphreys's constitutional rights. The right to trial by jury, see U.S. CONST. art. III, § 2, amend. VI, amend. VII (none of which apply to Texas attorney discipline actions); TEX. CONST., art. I, § 15 (granting legislature power to "pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency"), is maintained by statute for original disbarment actions "in the accused attorney's county of residence." TEX.GOV'T CODE § 81.077(a) (Vernon Supp.1994). However, a jury trial is not statutorily required in mandatory disbarment proceedings, TEX.GOV'T CODE §§ 81.078(b), (c), (d) (Vernon 1988), and the constitutional right to a jury is satisfied so long as the disbarred attorney's conviction was obtained in a court of competent jurisdiction by constitutionally adequate procedures.

B

Humphreys claims that he should not be disbarred because his federal criminal conviction was tainted by legal error. Specifically, he alleges that one of the jurors serving on the federal panel that convicted Humphreys was not qualified to serve as a juror because of a criminal conviction. Humphreys is correct that a conviction by a Texas criminal court under the circumstances he alleges would be void. TEX.CODE CRIM.PROC.ANN. art. 35.19 (Vernon 1989); Tweedle v. State, 153 Tex.Crim. 200, 218 S.W.2d 846 (1949). But Humphreys was not convicted in a Texas court, and we think it sufficient answer to point out the obvious: Texas criminal procedure does not govern federal criminal trials in Iowa.

BODA was required, under TEX.R.DISCIPLINARY P. 8.02 (1992), to treat the record of conviction as "conclusive evidence" of Humphreys's guilt. Moreover, U.S. CONST. art. 4, § 1, and 28 U.S.C. § 1738, require Texas to extend "full faith and credit" to the judgments of federal trial courts in other states just as Texas must to the decisions of other state courts. Hancock Nat'l Bank v. Farnum, 176 U.S. 640, 645, 20 S.Ct. 506, 508, 44 L.Ed. 619 (1900); see generally Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex.1992) (holding that Texas is required to extend full faith and credit to...