In re Caballero

• Decision Date: 19 December 2008
• Docket Number: No. 07-0484.,07-0484.
• Parties: In the Matter of Rolando CABALLERO.
• Court: Texas Supreme Court

272 S.W.3d 595

In the Matter of Rolando CABALLERO.

No. 07-0484.

Supreme Court of Texas.

Argued April 2, 2008.

Decided December 19, 2008.

Royal K. Griffin, Christine Chemell, San Antonio TX, for Appellant.

Gayle Riley Vickers, Christine E. McKeeman, Board of Disciplinary Appeals, Linda A. Acevedo, Asst. Disciplinary Counsel, Austin, Cynthia W. Hamilton, Assistant Disciplinary Counsel, San Antonio TX, for Appellee.

Justice GREEN delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice O'NEILL, Justice WAINWRIGHT, Justice BRISTER, and Justice JOHNSON joined.

The issue in this case is straightforward: under the compulsory discipline process set forth in the Texas Rules of Disciplinary Procedure, when an attorney's sentence has been fully probated, does the Board of Disciplinary Appeals (BODA) have discretion to disbar that attorney, or may it only suspend him for the length of the probation term? We hold that the rules give BODA discretion to disbar the attorney, and, therefore, affirm BODA's judgment of disbarment.

I

In 2004, Rolando Caballero was indicted in federal district court for wire fraud and mail fraud. After a plea agreement, he pled guilty to the mail fraud charge. The trial court placed him on supervised probation for five years and ordered him to pay restitution of $57,937.50 plus a mandatory special assessment of $100.00. The prosecutor did not pursue the wire fraud charges further. The Chief Disciplinary Counsel of the Commission for Lawyer Discipline brought a compulsory disciplinary action against Caballero. Following a hearing on March 23, 2007, BODA entered a judgment disbarring Caballero. Caballero moved for a new trial but his motion was denied. Caballero then appealed to this Court. See TEX.R. DISCIPLINARY P. 7.11 (providing for direct appeal to the Supreme Court).¹

II

The attorney disciplinary process is divided into two types of proceedings: the standard grievance procedure and the compulsory discipline procedure. See In re Lock, 54 S.W.3d 305, 306 (Tex.2001). The standard grievance procedure applies in all instances of alleged attorney misconduct, except where an attorney is alleged to have committed an "intentional crime." Id. Under the standard grievance procedure, a grievance committee or district court determines violations and sanctions. See TEX.R. DISCIPLINARY P. 2.13-.18, 3.09-.10; In re Mercier, 242 S.W.3d 46, 47 (Tex.2007) (per curiam). The reviewing body may disbar the attorney under the standard grievance process, but also has the ability to assess "a range of lesser sanctions, including various types of suspension and reprimand." Lock, 54 S.W.3d at 307.

The compulsory discipline procedure applies "[w]hen an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime." TEX.R. DISCIPLINARY P. 8.01. An intentional crime is "(1) any Serious Crime[²] that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary." Id. at 1.06(T). The Chief Disciplinary Counsel commences a suit under the compulsory process by filing a petition with BODA. Id. at 8.01, .03. "The petition must allege the adjudication of guilt (or probation without an adjudication of guilt) of an Intentional Crime; allege that the Respondent is the same person as the party adjudicated guilty or who received probation ...; and seek the appropriate discipline." Id. at 8.03. In this regard, BODA's function is rather limited. BODA merely determines whether there has been an adjudication of guilt of an intentional crime and ensures that the subject attorney was actually adjudicated guilty. Id. at 8.03-.04. BODA then determines the appropriate discipline. See id. at 8.05-.06.

In this case, the compulsory discipline procedure applies because it is undisputed that Caballero's crime is an intentional crime. The issue, then, is to what extent Texas Rules of Disciplinary Procedure 8.05 and 8.06 give BODA discretion to determine Caballero's discipline, given that his sentence was fully probated.³ Rule 8.05, entitled "Disbarment," states in relevant part:

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 Rule 8.06, suspends his or her license to practice law.

Id. at 8.05.⁴ Rule 8.06, entitled "Suspension," states in relevant part:

If an attorney's sentence upon conviction of a Serious Crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a Serious Crime, the attorney's license to practice law shall be suspended during the term of probation. If an attorney is suspended during the term of probation, the suspension shall be conditioned upon the attorney's satisfactorily completing the terms of probation. If the probation is revoked, the attorney shall be disbarred.

Id. at 8.06.⁵ Caballero argues that Rule 8.06 mandates suspension of the attorney's license in the case of a fully-probated sentence. The Commission for Lawyer Discipline, however, argues that Rule 8.05 grants BODA discretion to either disbar an attorney, as provided by Rule 8.05, or to suspend the attorney's license for the term of probation as provided under Rule 8.06.

III

In resolving the meaning of these rules, we apply statutory construction principles. See O'Quinn v. State Bar of Tex., 763 S.W.2d 397, 399 (Tex. 1988) (instructing that "our disciplinary rules should be treated like statutes"). Statutory construction is a legal question, which we review de novo. State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). In doing this, we "give effect to all [a statute's] words and, if possible, do not treat any statutory language as mere surplusage." State v. Shumake, 199 S.W.3d 279, 287 (Tex.2006).

Rule 8.05 states that an attorney convicted of an intentional crime, or an attorney put on probation for an intentional crime, "shall be disbarred unless [BODA], under Rule 8.06, suspends his or her license to practice law." TEX.R. DISCIPLINARY P. 8.05 (emphasis added). Thus, the starting point is disbarment because BODA is instructed that it "shall" disbar. Id.; see also TEX. GOV'T CODE § 311.016(2) ("`Shall' imposes a duty."). But the "unless" clause referencing the Rule 8.06 suspension procedure gives BODA some discretion to suspend the attorney's license. TEX.R. DISCIPLINARY P. 8.05. Rule 8.06 then establishes the guidelines for that suspension. First, Rule 8.06 states a condition to its use: "If an attorney's sentence upon conviction of a Serious Crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a Serious Crime...." Id. at 8.06. Second, Rule 8.06 dictates the length of the suspension: "[T]he attorney's license to practice law shall be suspended during the term of probation." Id.; see also In re Ament, 890 S.W.2d 39, 40 (Tex. 1994) (per curiam). Thus, BODA has discretion under Rule 8.05 to disbar the attorney or to suspend the attorney's license under Rule 8.06. But if BODA uses Rule 8.06, it must comply with Rule 8.06's conditions. See Ament, 890 S.W.2d at 40 (holding that the probationary period is "the ceiling, above which suspension may not climb"). We do not accept Caballero's argument that Rules 8.05 and 8.06 mandate suspension in the case of a fully-probated sentence because construing the rules in this manner would not give effect to the second half of Rule 8.05's language, which gives BODA discretion to use Rule 8.06. Rather, Caballero's proposed construction would render it "mere surplusage." Shumake, 199 S.W.3d at 287. The rules must be read together.⁶

The prior disciplinary rules also gave BODA this discretion, albeit in a different manner.⁷ The prior disbarment rule mandated that BODA use the suspension rule if it applied to the case-that is, if the attorney received a fully-probated sentence. See State Bar Rules art. 10, § 26(F) (repealed 1992) ("When an attorney has been convicted of a serious crime ... the attorney shall be disbarred, except as provided in [the suspension rule].") (emphasis added). In the prior disbarment rule, there was no discretionary language allowing BODA to decide whether to utilize the suspension rule in the first place. See id. The discretion came under the suspension rule, which provided that BODA did have the discretion to disbar the attorney even if the suspension rule applied. See State Bar Rules art. 10, § 26(G) (repealed 1992) (providing that an attorney "shall be suspended during the term of the probation ... [but BODA] may impose ... such further disciplinary sanction as may be warranted, including disbarment"). Under these prior rules, BODA could exercise discretion to disbar an attorney with a fully-probated sentence under the suspension rule, but not the disbarment rule. The revised rules flipped this discretion, and now the 8.05 disbarment rule gives BODA discretion to decide whether to utilize the 8.06 suspension rule in the first place. See TEX.R. DISCIPLINARY P. 8.05 (providing that an attorney "shall be disbarred unless the Board of Disciplinary Appeals, under Rule 8.06, suspends his or her license to practice law") (emphasis added). But, under the current rules, once BODA decides to utilize the suspension rule, its discretion to disbar an attorney with a fully-probated sentence is removed. See TEX.R. DISCIPLINARY P. 8.06; Ament, 890 S.W.2d at 41 (holding that, under Rule 8.06, the suspension period must equal the probation term and that the discretion to impose additional punishment under Rule 8.06 has been removed).

Our construction here is also consistent with other portions of the rules. See ...